text:
    No. 6774.
    Marie M. Costa, Administratrix, Appellee, v. Wm. B. Whitehead and J. M. Carroll—John Corlis, Warrantor, Appellant.
    Where a party, owning a lot of ground, erects a building or wall thereon at his own expense, the title thereto is absolute in him; but the adjoining owner may make it a wall in common by paying one-half of the cost of construction.
    Where the adjoining proprietor makes use of the wall erected by the other, as a support foi a’1 wall orbuilding afterwards erected by him, the party first building may recover one-half of the cost of constructing the wall thus used in common.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Carleton Hunt and B. II. Browne, for appellees.

      W. B. Hennen, for appellant.
   Taliaferro, J.

Marie M. Costa, as administratrix of the succession of her deceased husband, brings this suit against defendants, Whitehead and Carroll, for the sum of $379 12, with interest, from 30th of September, 1857.

She alleges this indebtedness to have arisen in this manner: That said succession owns a lot of ground situated on the west side of Fulton street, between Lafayette and Poydras streets, running through to Nev Levee street, on which lot of ground there is a brick building, alsc belonging to her. That defendants, being proprietors of a lot of ground adjoining the one referred to as belonging to the said succession, have erected on their premises a certain building, in the structure and support whereof they have appropriated and made use of the wall of plaintiff’i building.

She, claims the aforesaid sum as the valué of one-half the cost to hei of the erection of the wall, the benefit of which the defendants- haive availed themselves of in the structure of their edifice.

The defendants called in warranty their vendor, John Corlis. Tin answers of defendants and their warrantor are general denials. The answer of Corlis admits the erection of a building by him as charged bj plaintiff, but specially denies, that in the structure thereof, he appropriated the wall or derived any benefit from it whatever. •

The plaintiff had judgment for the amount claimed, ánd the warranto: appealed.

The Art. 672 of the Civil Code provides, that “ the neighbor who has refused to contribute to the raising of a wall in common, preserves stil a right of'making it a wall in common, by paying to the person who ha¡ made the advance, the half of what he has laid out for its construction,’ according to certain rules laid down in subsequent articles. ■

This Court has maintained the perfect ownership of a party in a wal built solely by himself, and at his individual expense. • See 11 A. 468. :

The testimony is somewhat contradictory. A number of witnesses the majority of them artificers, testify in the case. Some of them sa; .that the building erected by Corlis derives no support from the wall that it rests upon up-rights standing upon the ground; and that it woulc stand erect and firm if the wall were removed. . Others are of the belie that the newly erected fabric derives much support by lateral pressur , against the wall, and would scarcely stand of itself independent of th wall. It seems, from the general tenor of the evidence, that the wall i) question,serves for a side to the upper portion of the building construct® by Corlis, that without the wall it would not be habitable; and as on of the witnesses expressed it: “ without the wall Corlis would have n house at all. ”

The preponderance of the evidence is clearly in favor of plaintiff. 1 satisfies us that the wall is and always has been of great benefit to th defendant. To all intents and purposes he seems to have made it wall in common, and appears now to refuse to pay for the benefit he hs derived from it. ' '

- ¡The very manner and character of the fabric he erected adjacent to tb .¡wall would seem to raise a suspicion that' he aimed to evade the law i t relation to walls in common.

We believe the decree of the ■ District Court to have been proper .¡rendered. -

It is therefore ordered, adjudged and decreed that the judgment of tl District Court be affirmed, with costs in both courts.


source: Caselaw Access Project

author: Taliaeerro, J.

license: Public Domain

text:
    No. 1666.
    Heirs of Egbert Morgan v. G. K. McCoy, Administrator.
    The evidence in this case shows that the consideration of the notes sued on, was the price of the sale of slaves. The Court held that, under the doctrine settled in the case of "Wainwright v. Bridges, <19 An. 234,) payment of the notes could nob be judicially enforced.
    '* £x PPEAL from the District Court, Parish of St Helena, Ellis, J.

      E. F. Bussell, for plaintiff.

      J. E. Wilson, for defendant.
   Taliaeerro, J.

This suit is founded upon three promissory notes, sxeeufced in the year 1861, for the payment of the price of a slave purchased by Hezekiah Harrell, at a succession sale of property of Egbert Morgan, deceased, in 1861. J udgment was rendered in 1866, in favor of the plaintiff, and the defendant appealed.

The defendant is entitled to judgment in his favor under the decision of this Court, rendered in the ease of Wainwright, administrator v. Bridges, in May, 1867.

It is therefore ordered, adjudged and decreed that the judgment of the Lower court be annulled, avoided and reversed; that j udgment be rendered in favor of defendant releasing him from the obligation to pay the notes sued upon, and that the plaintiff and appellee pay costs in both courts.


author: Howell, J.

text:
    No. 1243.
    Mrs. Marie Bisso v. Jerome Calvo.
    Where á survey, by the parish surveyor, has been made, and ft boundary line established thereby, and 1 one party is suffered to occupy up to the line for more than ten years, the action by the other , party to have the line corrected is prescribed. C. O. 849. ‘ ‘ •
    A .¿A PPEAL from the District Court, Parish of Jefferson, Gazabat, J.- 1

      2T. Commandeur, for plaintiff and appellee.

      H. B. Grandmoht,-lot defendant and appellant.
   Howell, J.

This is an action of looundary to which the prescription of ten years is opposed.

•The'record shows that on the 20th March, 1852, J, E. Loreilhe sold lot number one in square number one, Greenville, to the defendant, Calvo, according to a plan drawn by C. Giroux and A. Castaing, dated 15th January, 1852, and on the same day, and by the same plan, sold the adjoining lots, numbers 2 and 3, in said square, to Joseph Damonte, who, on the 5th July, 1866, sold them to plaintiff according to the same plah, each act of sale specifying the dimensions of the lots. On the 5th November, 1852, at the request and in the presence of both proprietors, B. Buisson, who made the original plan of Greenville in 1836, made a survey of their respective properties, to which no objection was made, and according to which W. H. Williams, parish surveyor and witness for plaintiff, says the line complained of is correctly located, and i t is shown that defendant and plaintiff’s vendor have occupied in accordance therewith ever since. Whether there was error or not in Buisson’s survey, the uninterrupted possession of defendant for moré than ten years, adversely topláiñfciff’s pretension, prescribes the action of the latter for correcting the boundary. C. C. 849.

The Qourt did not err in admitting the report of Buisson in connection with his testimony.

; It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of defendant, with costs in both courts.


author: Taliaferro, J.

text:
    No. 1717.
    Block Brothers v. L. J. Barthe.
    An appeal will not lie from an interlocutory order permitting a party to bond property under seques* tration.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J,

      E. Bermudez, for appellant.

      Buchanan & Gilmore, for appellees.
   Taliaferro, J.

This case is before the Court on a motion to dismiss the appeal on the two grounds, viz:

1.That this court is without jurisdiction; the value of the cotton in dispute not exceeding three hundred dollars.

2.The order appealed from, being' an interlocutory judgment, not working an irreparable injury to the appellant, he had no right to appeal. We shall examine only the latter ground for dismissal.

Block Brothers sequestered four bales of cotton in possession of Phren & Co., alleging that they have a lien and privilege upon it for supplies furnished Barthe, a resident of St. Landry, to enable him to make a crop.

It seems that Barthe, who is styled defendant in this case, shipped these four bales of cotton to some one in New Orleans, who sold them to Phren & Co. The last-named party was allowed to release the sequestration by entering into bond for the forthcoming of the cotton. From the order authorizing the release of the cotton, the plaintiffs have appealed.

The court having no jurisdiction in personam, the defendant, Barthe, being a resident of the parish of St. Landry, the matter is merely a proceeding in rem. The sole matter being in regard to the right to the cotton. We regard Phren & Co. as properly the defendant, and as such he had the right to bond the cotton. We do not comprehend how the order allowing this party to bond the cotton can work them an irreparable injury. We should rather consider it an advantage, as it saves the expense of keeping, risk of fire, etc. It is but the substituting a bond for the return of the cotton, or the payment of the debt. 14 L. 591; 2 Rob. 395.

It is therefore ordered that the appeal be dismissed, at the costs of the appellants.


text:
    No. 833.
    Guillaume Mollere v. Michael Lion.
    Whore the consideration, of a promissory note is sho .vh to be the price of the sale of a person (slave) • payment thereof cannot be judicially, enforced. WaimorigJit v. Bridges, 19 An. 234.
    APPEAL from the Fourth District Court of New Orleans, Théard, J.

      3.F. Behlieux, for plaintiff.

      3. 3. Bighior, for defendant.
   Taliaferro, J.

This action is based upon a promissory note given as part of the consideration stipulated for the price of a slave purchased in .the year 1860 by defendant from plaintiff. Judgment was rendered in ' January, 1.866, in favor of the plaintiff, and defendant appealed.

For tne reasons assigned by this Court in the case of WainwrighlY. Bridges, decided in May, 1867, the defendant is entitled to a reversal of the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the "'District Court be annulled, avoided and reversed; that defendant have ■ judgment in his favor releasing him from the obligation sued upon, and that the plaintiff pay costs in both courts.

Ilsley, J. recused!


author: Hyman, C. J.

text:
    No. 1020.
    C. Durand, Administrator, v. John Hienn.
    A promissory note is prescribed in five years from its maturity. O. O. 3505.
    To avoid the effect of the plea of prescription of a promissory note, the holder must show that the law has been suspended.
    APPEAL from the Second District Court of New Orlearis, Thomas, J.

      A. & M. Voorhies, for plaintiff and appellant.

      M. Grivot, for defendant and appellee.
   Hyman, C. J.

Plaintiff, as the administrator of the succession of Jean Baptiste Geraud, deceased, instituted suit against defendant in October, 1865, on three notes given by him, payable to the order of the deceased.

All the notes had matured, and were due in August, 1858.

In the lower court defendant pleaded the prescription of five years.

Plaintiff .contends that he was unable to bring suit for several years; ’ that during the time of inability to bring suit prescription did not run, but was suspended, and that the inability continued a sufficient time to prevent the acquisition of prescription before suit was brought.

The evidence does not establish such inability.

The silence of the creditor for five years, from the time the notes were payable, has extinguished them and released the debtor. C. C. 3505.

The judgment of the District Court is in favor of the defendant.

It is decreed that it be affirmed.

The plaintiff, who is appellant, is to pay costs of appeal.


author: Hyman, C. J. Hyman, C. J.

text:
    No. 348.
    Stanislas Plassan v. Auguste Titus.
    The attaching creditor has no privilege or preference over the property attached, until he has obtained judgment.
    In this case a number of the creditors proceeded by attachment against Auguste Titus, an absconding debtor; other creditors proceeded by sequestration, and procured the appointment of a syndic to take charge of the estate of the absconding debtor, and administer it for the benefit of all the creditors. The syndic filed a provisional tableau, giving the attaching creditors a preference i over other creditors. The other creditors opposed the distribution: Held — 'That, inasmuch as the ' attaching creditors had not obtained judgments on their claims at the date of the sequestration, they had acquired no preference over other creditors on the .property in the hands of the syndic, and the opposition filed by them to the tableau filed by the syndic must be sustained.
    APPEAL from Second District Court of New Orleans, Howell, acting J.

      J. L. Tíssot, G. Hufour and Hunton & Miller, for appellants.

      G. Le Qa.rd.eur, for appellee.
   Hyman, C. J.

J. Saliba, C. Cavaroe & Co. and Poursine & Bell, creditors of Auguste Titus, the first for the sum of $1,000, with five per cent, interest, from the 5th of August, 1859; the second for the sum of $8,110, with like interest, from the 12th March, 1859; and the third for the sum of $2,726 84, with like interest, from the 9th of July, 1859, obtained attachment on certain property of their debtor; but before they got judgments on their attachments, other creditors of Titus, alleging .that he had absconded from the State to avoid the payment of his debts, procured an order for sequestering his property, and for a meeting of his creditors.

C. Cavaroe, the appointed syndic for the creditors, filed a provisional tableau of the assets of the estate of Titus, and asked that they be distributed among the creditors in accordance therewith.

This tableau represents, that these attaching creditors are to be paid in preference to other creditors, out of the proceeds of the property attached, which, after deducting certain privileges not contested, net the sum of eleven thousand six hundred and nine dollars and forty cents.

Queyrouse & Langsdorff and S. Plassan, creditors, the former for $3,518 26, the latter for $1,267 75, made opposition to the payment by preference of these attaching creditors, alleging that the attaching creditors had not obtained judgment against Titus, the debtor, and therefore were not entitled to preference. They made other opposition not urged in this court.

Judgment was rendered on 23d July, 1861, dismissing their opposition, amending the tableau in other respects, and homologating the tableau so amended.

The opposing creditors have appealed from this judgment. A prior judgment, signed on the 11th of January, 1861, was rendered on the tableau, decreeing its homologation, wherein it was not opposed; and this judgment must have effect, until its reversal be asked for in some manner provided by law. No appeal has been taken therefrom, and until appealed the Court can neither revise nor change it.

There is no provision of law expressly giving a privilege to an attaching creditor.

Article 265 of the Code of Practice provides that the plaintiff, when attaching the property of his debtor, must proceed in the ordinary form to obtain judgment against him, and, on execution, have the property, attached sold to , satisfy the judgment; and this Court has, from this article, and oh the principle that diligence should be favored, decided that the attaching creditor should be paid by preference out of the proceeds of the property attached; on condition, however, that he obtain judgment against his debtor before a cession of property by the debtor to his creditors; that should he fail to get judgment against his debtor before surrender, attachment gave neither privilege nor preference:

Such have been the invariable decisions of this court, from 1811 until the case of Tufts & Hobart v. Casey was decided in 1860.

This is the only judgment conflicting with former decisions, and the reason given therein is insufficient for the subversion of well-settled principles of law.

The proceedings adopted by the creditors against Titus, were authorized by the 6th section of an act entitled “an act supplementary to an act entitled an act relative to the voluntary surrender of property, and to the mode of proceeding as well as for the direction, as for the disposal of debtor’s estate, and for other purposes.” Approved March 29, 1826.

This section provides, that three creditors of an absconding debtor (he being a merchant or trader) might have his property sequestered on their taking a certain oath, that a syndic should be appointed who should be put in possession of the debtor’s property as by way of forced surrender, ■and that in such case all other formalities and rules prescribed by law in matter of voluntary surrender of property should be complied with. •One of these rules is, that all proceedings against the debtor shall be staid, and continued against the syndic. Another is, that no change shall take place after the surrender so as to favor any creditor; but that all the rights of the creditors shall remain in the state they were at in insolvency, and that the property of the debtor shall be divided between the creditors, according to their rank at the time of surrender. See the statute cited, and the act of which it is amendatory. 2 Martin’s Rep. 98; 12 Martin, 32; 5 Rob. Rep. 101; 7 Rob. 61; 3 An. Rep. 582; 6 A. 680; 7 A. 39.

No judgment can, therefore, be rendered in favor of these attaching creditors, so as to give them a preference on the property attached, but subseqently sequestered, without violating statutory provisions, and reversing many decisions of this court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, dismissing- the opposition of these opposing creditors, be' reversed; that their opposition be sustained; that the preference accorded to the attaching creditors be disallowed; that in that respect the tableau be amended; that after deducting from the amount of the claims of the opposing creditors six-and-a-half per cent., and also six-and-a-half per cent, from $1,239 28 of the claim of Poursine & Bell, (which was allowed by the decree of homologation of the 16th of January, 1861) there be a pro rata dividend of the said sum of $11,609 40 among the creditors named herein; that the syndic pay these creditors as here decided, and that in all other respects the judgment of the District Court be affirmed, the cost of opposition and appeal to be borne by appellees.

Howedd, J., recused.

On Rehearing.

Hyman, C. J.

Re-examination of this case on a rehearing has not caused us to change our opinion as expressed in our first decision.

It is therefore decreed that the judgment first rendered by us, be and remain the judgment of this court.


text:
    No. 1676.
    Nancy Stephens v. H. J. Lanier and W. Akers.
    The burden of proof is on the party who seeks to avoid the payment of a promissory note, on the ground that the consideration has failed.
    PPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Alfred Hennen, for plaintiff and appellee.

      G. II. Penn, for defendants and appellants.
   Hyman, C. J.

Two suits, numbered 657 and 779, bearing the above title, were consolidated and tried together, and from a judgment rendered in same in favor of plaintiffs, defendants have appealed.

It is suggested by plaintiff, that all the parties interested in maintaining the judgment have not been made parties to the appeal, and that therefore it should be dismissed.

There are no other parties to the suits than those the title indicates.

The suits are brought on two promissory notes.

The defence is, that the plaintiff, with others, sold a slave having redhibitory defects to one of the defendants, and that the notes sued on Were given for a part of the price of the slave.

The notes do not state their consideration; there is no evidence adduced that indicates their consideration.

It is not shown that plaintiff sold or authorized the sale of the slave,- or that she received any part of the price, or that she ratified the sale.

The judgment condemned defendants to pay plaintiff the amount of the notes, with interest and costs.

It is decreed that it be affirmed, at the cost of defendants.


author: Hoivell, J.

text:
    No. 1771.
    Rice Brothers & Co. v. Albert Levy et al.
    The appeal bond musfc be given in favor of all the parties (appellees) to the judgment appealed from, otherwise the appeal will be dismissed on motion.
    APPEAL from the Third District Court of New Orleans, Emerson, J.

      Roselius & Philips and W. E. Rogers, for plaintiffs and appellees.

      G. Schmidt and Colton <& Levy, for defendants and appellants.
   Hoivell, J.

A motion is made to dismiss this appeal, on the ground that the appeal bond is not given in favor of all the parties interested in the judgment, being in favor of Rice Brothers, and not in favor of Rice Brothers & Co., in whose favor the judgment was rendered.

The suit is brought by Rice Brothers & Co., a firm alleged to be composed of Augustus Rice, Henry Rice, Herman Rice, Philip Rice and Jacob Bores, and the judgment is in favor of Rice Brothers & Co. The bond of appeal is in favor of Rice Brothers, and in the conditions of the bond it is stated that the party bound has appealed from the fin il judgment rendered against him in the suit of Rice Brothers v. G. Contrownisky and himself, etc. The bond is clearly not in favor of all the plaintiffs, parties to the judgment, and the motion must prevail. Parties should be careful to have their proceedings properly conducted.

It is therefore ordered that the appeal be dismissed, at the costs of the appellant.

Rehearing refused.


author: Taliaeekbo, J.

text:
    No. 941.
    Charles Collins et al v. N. B. Trist et al.
    Where a person, not a party to a bill or note, puts his name upon it, he is presumed to have done so as surety, and he is bound thereon as such.
    A Ijl PPEAL from the Fourth District Court of New Orleans, Thíard, J,

      Ed. Phillips, for plaintiffs and appellants.

      V. Olivier, Jr., and N. B. Frist, for defendants and appellees.

      Brief of plaintiffs and appellants.

    This suit was instituted upon certain promissory notes given by defendants to plaintiffs for the purchase of a' plantation and slaves, in the parish of Pointe Coupée.
    All the notes sued on, except the one for $1,087 50, were endorsed by Martin Gordon, Jr., but were not protested for non-payment at maturity, and the only matter now in controversy is, whether Mr. Gordon is liable for their payment, either as endorser or surety.
    The District Court decided that he was not liable in either capacity, and rendered judgment in his favor, from which judgment plaintiffs have taken this appeal.

      The ruling of the District Court, we respectfully urge, is erroneous, and Mr. Gordon is liable, whether he be viewed as surety or endorser.
    We contend first, that Mr. Gordon is liable as surety on the notes.
    Mr. Trist, one of the defendants who was called on the stand by the plaintiff as a witness, says: “ The endorsements of Martin Gordon on these six notes were placed (on them) before they were delivered to Mr. Collins, and before the act of sale was passed from Collins to Trist.”1 See Rec. p. 73.
    Mr. Gordon was not a party to the notes at all. Mr. Collins requested his name to be upon them as well as the names of the purchasers, before he'would accept them in payment of the property. The name of Mr. Gordon was placed on them in this city several days before the sale was made, the act of sale having been passed in Pointe Coupée, and when the notes were delivered to the payees, the name of Mr. Gordon was on them.
    These are the facts as disclosed by the testimony, and under the well-settled jurisprudence of this State, we think, show very clearly that the contract entered into by Gordon, was as surety and not that of endorser.
    Had the notes been made payable to Mr. Gordon, or had the name of. the payee been left blank, his obligation would have been that of endorser only.
    rlhe decisions of the courts of this State are entirely uniform upon this subject, and are also in accordance with commercial law. .
    In the case of Gooley v. Lawrence, 4 M. 639, after the notes were executed, but before maturity, the holder requested security for their payment, and the defendant endorsed them at the request of the debtor; held that he was liable as surety without protest.
    In 3 N. S. 659, the plaintiff, on selling his property to the maker of the note, required the defendant should give his signature, which was done. The Court held that he signed to secure the payment of the note, and was bound as surety.
    In 10 La. 376, the Court say: “We consider it now well settled, that •when a person, not a party to a bill or note, puts his name upon it, he is presumed to have done so as surety.”
    In 14 La. 389, the Court say: “By putting their names to a bill not made to their order, they must have known that they were making themselves not endorsers but guarantors; that their endorsement must be considered as a direct and positive undertaking on their part to pay the bill, and not as a conditional one; that an absolute guarantee could have been written over their name.” The same rule is recognized in this case as in 10 La. quoted above.
    In 4 R. 162, the same rule is again laid down. The endorsement of the defendants being proved to have been made before that of the payees, they were held to be bound as sureties.
    The same principle was reaffirmed by Chief Justice Eustis, in 1 A. 248, and again in same volume, page 274, in the case of Penny v. Parham, which was a case almost exactly parallel to the one before1 the court, and to which the particular attention of the Court is respectfully asked.
    The same principle is again reaffirmed in 2 A. 592, 3 A. 590, in 4 A. 273, and in 9 A. 533.
    The case of Brand v. LeBlanc, 10 A. 97, appears to conflict with these decisions, but the case is not fully star.. .1 in the decree. An examination of the record in that case, No. 3820, will show that the judgment is strictly in conformity with the previous decisions upon the subject.
    The defendant signed the proces-verbal of the sale as surety for the purchaser, but when the notes were given by the purchaser they were drawn to the order of and endorsed by the surety, M. A. LeBlanc, and in that form they were delivered to the administrator, which indicated clearly the manner in which Mr. LeBlanc intended to bind himself, to-wit: as endorser only.
    In 12 A. 517, the name of the payee was left blank, which the Court held was sufficient to enable any person whose name was on the back to fill' up the blank in such a manner as to make him an endorser.
    These decisions are all uniform, and we think are decisive of the question now presented. Any other construction of the contract would lead, a,s was remarked by Chief Justice Eustis, in 1 A. 274, to a palpable absurdity. It is evident, from the testimony, that Mr. Collins required Mr.' Gordon’s name on the notes to secure, in some form, the payment of the notes to himself, (Mr. Collins;) that Mr. Gordon was to be bound in some manner for the payment of the debt to him, in case the purchasers failed to do so.
    Whereas, if Mr. Gordon be viewed as endorser only, instead of his being bound to plaintiffs for the debt, they, the plaintiffs, being payees, and necessarily first endorsers, would be bound to refund to him the money in case he should have to take up the notes.
    The following authorities from other States also sustain the position alone contended for by us. Many others could be quoted, but we append only those which can be found in our law library; 36 Maine (1 Heath) 147-265; 9 Cushing Mass. 104; 9 Texas, 615; 20 Missouri, (5 Bennet) 571; 2 Cal. 605; 18 Missouri, (3 Bennet) 74-140; 6 Indiana, 478. * * *
   Taliaeekbo, J.

In this case judgment was obtained by plaintiffs against N. B. Trist and the administrator of J. B. Trist, each for one-half the amount sued for, viz: $52,494 11, the aggregate sum of six several promissory notes of different amounts, falling due at different periods, and bearing interest from their respective maturities. These notes were given in payment of land and slaves sold to the defendants, N. B. Trist and J. B. Trist, the latter having died since. In the same suit Martin Gordon, Jr., was included as a party defendant. His sole defence is, that as endorser of the notes, he was entitled to notice of non-payment,' and in default of protest and notice he is discharged. Judgment was rendered in his favor, and the plaintiffs appealed.

. The sole question presented for our consideration is, what is the character of the obligation entered into by the defendant, Gordon, in placing his signature to the notes in question. It appears from the evidence that these notes were drawn several days before the execution of the deed in Pointe Coupée; blank spaces being left for the insertion afterwards of the several amounts, which could not be accurately fixed at the time the notes were presented to Mr. Gordon, in New Orleans, for his endorsement; after which, and at the time of executing the deed in the parish of Pointe Coupée, the blanks were filled. It appears also, that the endorsement of the notes by the defendant, Gordon, was a condition in the contract between the plaintiffs and the' purchasers. Gordon had no interest in, and was not a party to that contract. The notes have never been negotiated, and have not been endorsed by the payees.

,: According to the well-settled jurisprudence of this State, we conclude, from the facts of the case, that the contract entered into by Gordon is that of a surety and not that of an endorser. The decisions of this Court are numerous to the effect, that when a person not a party to a bill or note puts his name upon it, he is presumed to have done so as surety. 10 L. 376; 14 L. 389; 4 Eob. 162; 1 A. 248; 2 A. 592; 3 A. 590; 4 A. 273; 9 A- 533; 12 A. 517.

.. It is therefore ordered, adjudged and decreed that the judgment of the District Court, so far as it relates to the defendant, Gordon, be annulled, avoided and reversed. It is further ordered, adjudged and decreed that Charles Collins and his wife, Louisa Flower, have judgment against the defendant, Martin Gordon, Jr., for the sum of $52,494 11, say fifty-two thousand four hundred and ninety-four dollars and eleven cents, with interest, as follows, viz: On $4,500, six per cent, per annum, from 12th of May, 1860, to the 12th of May, 1862, and eight per cent, thereafter until paid. On the like sum, $4,500, at six per cent, per annum, from 12th May, 1860, to the 12th May, 1863, and eight per cent, per annum thereafter until paid. On the like sum, $4,500, from 12th May, 1860, to' the 12th of May, 1864, at six per cent, per annum, and thereafter at fhe rate of eight per cent, per annum, until paid. On $11,863, eight per cent, per annum, from 12th of May, 1862, until paid. On $12,484 at eight per cent, per annum, from 12th of May, 1863, until paid; and on $14,647 50, at eight per cent, per annum, from 12th of May, 1864, until paid; the defendant to pay costs in both courts.


author: HoweiiIi, J. HowEim, o.

text:
    No. 1553.
    L. J. Frigerio v. Martial Crottes.
    The correct rule to govern in the settlement of a partnership account is to ascertain what each partner has contributed, and make them equal in this respect, and divide the balance of the proceeds,
    APPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Alfred Herman, G. Roselius and A. Philips, for plaintiff and appellee.

      L. Cctslera and G. Hunt, for defendant and appellant.
   HoweiiIi, J.

This is an action for the settlement of a partnership formed for the purpose of buying and selling cotton on speculation, and the only matters of dispute are the purchase and sale of two lots of cotton — one of thirty-four and the other olfifty-two bales.

Both parties admit that they were equal partners; that on 31st January, 1865, they made a mutual settlement, which showed that the defendant owed plaintiff $590, on their joint transactions, $500, cash advanced that day and a bill of merchandise amounting to $1,145 16, making an aggregate of $2,435 16, irrespective of the said two lots of cotton; and after trial, a jury gave plaintiff a verdict for $2,642 32, from a judgment on which the defendant has appealed.

The net proceeds of the two lots of cotton in question, according to the accounts of sale rendered by the factors, and to the correctness of which we see no well founded objection, amount to $10,846 58; from one half of which, ($5,423 29) if we deduct the above sum of $2,435 16, due by defendant, we have $2,988 13 in the hands of plaintiff as due to the defendant. But it is contended that the defendant did not pay his proportion of the purchase price of said cotton, or the half of $908 68, expenses paid by plaintiff in securing the cotton sold; while, on the other hand, the defendant contends that he advanced more than his share, and that the charges in the accounts of sales and the sum paid for securing the cotton are exorbitant, and some of them unauthorized.

For one lot, sold by E. A. York, we find that plaintiff paid $2,264 29 more than the defendant paid. For the other lot, bought of A. H. Gardner and sold by J. F. Caruthers, according to plaintiff’s recept marked “B,” each party paid his proportion.

Hence we must deduct from defendant’s share in the hands of plaintiff, to-wit: $2,988 13, as above stated, the sum of $2,718 63, consisting of $2,264 29, overpaid by plaintiff, and $454 34, one-half of the amount paid for securing and hauling the cotton, which willleave $269 50 due the defendant on the' two lots of cotton.

The error of plaintiff’s calculation consists in making defendant account to him for one-half of the loss on the adventures, out of the proceeds before the division, while the true rule is to ascertain what each has contributed, make them equal in this respect, and divide the balance of the proceeds. Under this rule we have obtained the above result, using plaintiff’s figures.

It is therefore ordered that the judgment of the lower court and the verdict of the jury be set aside, and that plaintiff’s demand be dismissed, and defendant recover of plaintiff, on his reconventional demand, the sum of $269 50, with legal interest from judicial demand, and costs in both courts.

Petition for Rehearing, by defendant and appellant. — The defendant respectfully prays the court to grant him a rehearing, and to assign this cause again for oral argument.

In its opinion heretofore rendered, the court through Mr. Justice Howell, said:

“The error of plaintiff’s calculation consists in making defendant account to him for one-half of the loss on the adventures, out of the proceeds before division, while the true rule is to ascertain what each had contributed, and make them equal in this respect, and divide the balance of the proceeds. Under this rule we have obtained the above result, using plaintiff’s figures. ”

. The result here referred to by the learned Judge is.$269 50. The basis of the calculation made by the court, is the accounts current render'd by the factors, which were given in evidence in behalf of Frigerio, and to the correctness of which the court deemed there weie no well founded objections. -The case was viewed from this stand-point, and the net proceeds of these accounts stated to amount to $10,846 58. (See opinion of the court.)

But the defendant believes that a review of the figures, furnished by .the factors, under the rule laid down, will show beyond possibility of doubt that the court has fallen into an error to his disadvantage, and that the balance in his favor amounts in reality to the sum of $1,401 65.

* * -* * * * * * * * * * *- ' *

It must be borne in mind that the calculation which has how been so fully explained, and which makes out the balance due to Crottes arising out of the partnership transaction in cotton of the firm of Frigerio ,& Orottes, to be $1401 65, presupposes the correctness of the accounts of York and Caruthers, and leaves out the view 'entirely, the objections Which have been urged to 'the admissibility of those accounts as well as to their correctness, which the defendant, with deference to the superior judgment of the court, still deems well taken. •

. On the trial below a bill of exceptions was taken to the introduction of these accounts in evidence. (R. p. 83.) It would appear that those of York were only certified to be true copies from his books, and that no legal proof was made of the items of which they were composed. These contain many heavy charges, but it is not shown that such charges have actually been paid, or that they were necessary, or even usual and proper. Can it be decided that such accounts prove themselves; and is not Orottes justly entitled to the advantage resulting to him, from the failue Of Frigerio to make oirt this essential part of his case?

Besides, according to account No. 1, 'the gross receipts for the sale, January 20th, of twenty-three bales of cotton were $6089 20, and the charges $2789 17, leaving a net balance of $3300 03, but then this small balance is further reduced by a charge for freight paid by L. J. Frigerio (the plaintiff) of $25 per bale for transportation from Madisonville to New Orleans, making an aggregate charge against proceeds of the cotton of the partnership for re-paying him, of $575.

Account 2 shows a result reached in a similar manner. According to this account, the eleven bales (making up with those on Account 1, .thirty four in all) sold for $1887 13, gross, and the charges being $1441 64, a balance of $455 49 is made to appear.

Again, however, according to this statement, Frigerio having paid $25 per bale freight, the net proceeds, $170 49, are once more reduced in order to reimburse him $275 for that outlay.

It appears, thus, that Frigerio has received from York in addition to the proceeds realized from the sales made by the latter of the thirty-tom: bales of cotton which belonged to the partnership, the round sum of eight hundred and fifty dollars, freight stated in these accounts to have been paid by him on the cotton;'but these statements of York, which pretend the payment of freight by Frigerio as charged, must be compared with the testimony of Jose Colamer, captain of the schooner Lucy, who brought the thirty-four bales ón his vessel for Frigerio from Madisonville to New Orleans. He testified on the trial had before the jury in St. Tammany, May 29th, 1867 — more than two years after receiving the cotton and transporting it on the Lucy — to the following effect;

“ That cotton was consigned to Mr. York and delivered to him; was at the time, the sole owner of the Lucy. Some freight on it (the cotton) never has been fully paid for. Mr. Frigerio shipped the cotton, received on account of the freight of the cotton somewhere in the neighborhood of about $150.” *■ * * * R..p. 51..

In conclusion, the ■ court is requested to reconsider the defendant’s bill of exceptions to the introduction in evidence in behalf of plaintiff of pages 74 and 76 in book marked “Ledger ” — page 74 containing a statement of thirty-four bales of cotton, purchased for joint account of Frigerio & Orottes, worth fifty five cents per pound — and page 76 purporting to be an account in columns headed Debtor and Creditor, styled Martial Orottes, and having on the credit side, in the handwriting of Orottes, the entry, January 31st. Samise de fond $2037 13. See R. p. 39; R. p. 29. Opinion Dist. Judge, R. p. 127.

The “Ledger” so offered ¡was a private book, (R. p. 30) the property of Frigerio alone, and under his individual control. Notwithstanding this however, two isolated pages thereof — numbers 74 and 76, were admitted against the defendant, in a suit relating to the special business of the partnership of Frigerio & Orottes, where the settlement of that partnership and acts done in connection with its business only wero before the court.

The manifest error of considering such evidence as binding upon the defendant will be here explained by recalling to the court the declarations of Frigerio himself, which are contained in the record: “I cannot, said he, (speaking of the transactions in business of Frigerio & Orottes as far back as May 24, 1866; R. p. 58,) detail fully or with any accuracy, because when settled and liquidated, the books, accounts, and papers, relative thereto, were, by mutual consent burnt, and destroyed. * *

And again, (when answering as a garnishee in the suit of Deynoodt vs. Crottes, R. pp. 157, 158.) “The said partnership contract of Frigerio & ' Orottes was not reduced to writing, but was oral, and was for the purchase and sale of cotton in co-partnership with equal shares of profit and loss.”

The wise and salutary rule which permits rehearings, will receive a beneficent application if the petition of the defendant be now granted, ílis all is at stake in this contest, and he will await its final decison with no common anxiety. The case has run through a vexed and intricate litigation, and the transcript sent up from the District Court, is so volumiHous that further discussion is needed to develop its contents thoroughly. So much of the judgment already rendered as justly sets aside the verdict of the jury in the parish of St. Tammany, is gratefully received by the defendant; and he does not suffer himself to doubt, that his claims — when again explained — will be recognized and fully sustained by the court.

On Rehearino.

HowEim, o.

A rehearing has been granted in this case because we had erred in the application of the rule recognized by us, in the mode of making the calculation, to-wit: The true rule is to ascertain what each had contributed, and make them equal in this respect, and divide the balance of the proceeds.

The folio wing.is the calculation under this rule: Net proceeds of cotton sold..................... .$10,846 58

Less expenses of transportation................. 908 67

---- $9,937 91

Deduct amount paid by Frigerio in excess of Orottes 2,264 29

Leaves amount to be equally divided.............. $7,673 62

Orottes’ share, one-half of this amount............$3,836 81

From which deduct items received by Orottes as follows:

Amount paid him by Frigerio.............$590 00

Amount paid by Frigerio................. 500 00

Amount of merchandise................. .1345 16 2,435 16

Leaves amount due Orottes................ 1,401 65

Instead of $269 50 as before allowed.

We see no reason for making any other change.

It is therefore ordered, that our former decree herein be amended by increasing the sum allowed defendant on his reconventional demand, from $269 50 to $1,401 65, with legal interest from judicial demand, and costs in both courts, and that in other respects it remain undisturbed.


author: Taiiaeekko, J.

text:
    No. 1430.
    State of Louisiana v. Thomas N. Davis.
    Whore fche petit jury returns a special verdict, they inusfc find all the circumstances which consti tute the offence, otherwise the judgment of the Court rendered thereon will be erroneous.
    APPEAL from the First District Court of New Orleans, Howe, J.

      O. H Luzenberg, District Attorney, for State,

      A. P. Field, fo: defendant and appellant.
   Taiiaeekko, J.

An information was filed in this case against thi defendant for the violation of the law prohibiting the keeping banking-game or banking-house, at which money and bone or ivor; checks representing money, were bet and hazarded contrary to the forn of the statute of Louisiana,” etc.

The accused was found “ guilty for keeping a banking-game or gam bling-house.” He was convicted, and sentenced to paya fine of on thousand dollars, and in default thereof to imprisonment for thre months in the Parish Prison, and to pay the costs of ■ prosecution. Th defendant appealed.

The defence is, that the finding of the jury being in the nature of a special verdict, must, to authorize judgment, find all the facts necessary to constitute the offence charged in the information.

The statute of 3855 Revised Statutes, p. 151, sec. 96) provides that “ whoever shall keep a banking-game or banking-house, at which money or anything representing money, or any article of value shall be bet or hazarded, or shall aid or assist in keeping one, shall, on conviction, for the first offence, be fined not less than one thousand nor more than five thousand dollars; and on conviction of a second offence, not less than' five thousand nor more than ten thousand dollars, and be imprisoned at hard labor for not less than one nor more than five years.”

We think the verdict of the jury defective, as was said by th.s Court in the case of the State v. Ritchie, 3 A. 512: “When special verdicts are returned, the jury must find all the circumstances which constitute the offence in order to enable the Court to render judgment.”

Failing in this essential requisite, the judgment of the court below was erroneous.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; it is further ordered that the case be remanded for a new trial according to law.


author: Labauye, J.

text:
    No. 1654.
    In the Matter of the Succession of Eliza Phelan, deceased, Augustin Leclercq, Tutor, v. T. J. Bird, Sheriff, et al.
    Che law does not contemplate the sale, by the administrator, of more property than is necessary to pay the debts and defray the expenses of administration.
    APPEAL from District Court, Parish of East Baton Rouge, Posey, J.

      Favrot <& Lamon, for plaintiff and appellant.

      R. W. Knickerbocker, or defendants and appellees.
   Labauye, J.

Eliza Phelan died, leaving a second surviving husband1 ,nd two sets of children; two by a first and two by her second marsiage.1 ihe second surviving husband, James J. Dundas, was appointed adminstrator of the succession of his deceased wife, and after having sold the aovable property, obtained an order to sell a certain lot and house to iay debts of the estate and community.

Augustin Leclercq, in his capacity of tutor to the minor children of the rst marriage, obtained an injunction against said sale, on the ground tiat it was unnecessary to sell the real estate to pay the debts of the ommunity; that the price realized from sale of dry goods and groceries, numerated in a former inventory, and not mentioned in the inventory, iken on the 27th April, 1867; $2,000 in gold, silver and United States irrency, belonging to the community and not mentioned in either iventory, the rents of real estate are more than sufficient to pay the sbts, etc.

Yhe injunction was dissolved, and the plaintiff appealed.

This sale was ordered to be made for cash, and we are satisfied from :e evidence that the amount of debts is very small, comparatively to the due of the property ordered to be sold, and we are of opinion that, in ich a ease, a family meeting should have been consulted upon the terms and conditions of sale, as regarded the minors. The record informs us' that Dundas was appointed administrator, applied for the sale, which was ordered for cash by the clerk, all on the same day, the 29th of April/; 1867; the law does not contemplate such summary and ex parte proceedings. C. C. Arts. 1155, 1156, 1157; 3 R. 85.

It is therefore ordered and decreed that the judgment be annulled and reversed, and that the injunction be perpetuated; it is further ordered and decreed, that all other matters set forth in the petition for injunction and not passed upon herein, are reserved to the plaintiff, to be adjusted’ hereafter at proper time; it is further decreed, that the defendant, Dundas, pay costs in both courts.


text:
    No. 1755.
    The State v. J. A. DaRocha et als.
    A party indicted for a crime, has the right to challenge the array of the jury empanelled to try him, and, if the jury has been illegally drawn, the panel will be quashed, notwithstanding every member thereof may possess the personal qualifications requisite for a juror.
    Where the petit jury have not been drawn in the mode prescribed by law, the trial, conviction and sentence are null, and the prisoner stands as though he had not been tried.
    APPEAL from the First District Court of New Orleans, Howe, J.

      B. L.. Lynch, Attorney General, and C.H. Luzenberg, District Attor-’ ney, for State.

      A. M. Atocha, for appellants.
   Howell, J.

The defendant, J. A. DaRocha, having been convicted' and sentenced for “a malicious attempt to set fire to a house,” and “preparing combustible matters to set fire to a house,” has taken this’ appeal, and assigned several errors, one only of which we deem it necessary to examine.

Before empanelling the jury the accused challenged the array, on the ground “that the said panel of jurors was not drawn by the sheriff and' clerk of the court from the qualified voters of the parish and city of New Orleans at the time of said drawing, as required by law; that said list of jurprs, so drawn and returned as aforesaid, was drawn and returned from the list of registered voters of 1865, whereas said panel of jurors should have been drawn from the list of registered voters of 1867, taken and completed under the acts of Congress commonly called the Reconstruction Acts; and that said jurors were not drawn according to the order of the.Court.” To this the district attorney demurred, “ that the said challenge to the said jury panel, and the matters therein contained, in manner and form as the same are pleaded and set forth, are not sufficient to bar or preclude the said State from prosecuting the indictment in this case by a jury selected and empanelled from the said panel of jurors, and that the said State is not bound to quash the jury panel aforesaid.” The demurrer admits that the panel of jurors was drawn as set forth in the, challenge, and according to our ruling in the case of The State v. Morgan & Wilson, recently decided, the drawing was not in conformity to law, and the panel of jurors was not properly constituted. The objection on the part of the State that the challenge could be made only to the poll, and not to the array, is not well taken.

Each man called may have possessed the personal qualifications of a juror, and yet not have been a good and proper juror in this case, because of informality in the drawing and making up the panel of jurors. The law-prescribes the mode and, manner of drawing the array, and that' mode must be pursued, or the array will be quashed; otherwise, the law would be nugatory.

The trial, conviction and sentence were consequently irregular and null, and the prisoner stands as though he had not been tried.

It is therefore ordered that the verdict of the jury be set aside and the judgment of the District Court reversed, without prejudice to the right of the State to proceed according to law. '


author: Labauve, J.

text:
    No. 622.
    Avendano Brothers v. John Ohmstede et al.
    Where the appellant fails to appear in the appellate court, the judgment of the lower court will be affirmed.
    APPEAL from the Third District Court of New Orleans, Hiesiand, J.

      W. IF. Randlin, for plaintiffs and appellees.

      Durant & Hornor, for defendant and appellants.
   Labauve, J.

This suit is brought to recover of the defendants the sum of .$3,726, balance due for the lease of a house, commencing on the 1st November, 1860, and ending on the 31st October, 1862. The defendant, John Ohmstede, is the lessee, and the other defendants, Mrs. C. Maillot and Julius Maillot, commercial partners, under the name of Maillot & Son, went sureties in solido for said lessee.

John Ohmstede went into bankruptcy, and the suit was dismissed as to him. Mrs. C. Maillot pleaded in defence that she was not bound; that her partner was not authorized by her, or in law, to bind her as surety, it being outside of the partnership business. This defence prevailed, and the suit, as to her, was also dismissed. 10 L. 416.

The other defendant made a special defence, which he failed to establish,, and he was condemned to pay, and he took this appeal.

The appellant has not appeared in this court to point out any errors, and we are of opinion that the Court decided the case correctly, under the evidence.

Judgment affirmed, with costs.


author: Howedd, J.

text:
    No. 1241.
    J. W. Burbridge & Co. v. B. S. Harrison.
    Where a third party purchases a promissory note with full knowledge of the consideration, he caif not protect himself under the law-merchant against the plea by the maker of failure of consideration.
    Where the consideration of a promissory note is shown to be the price of a slave, payment thereof cannot he judicially enforced. The doctrine in the case of Wainwright v. Bridges (19 A. page 234) reaffirmed.
    APPEAL from the Third District Court of New Orleans, Peeiowes, J.

      Miller <& Huntington, for plaintiffs and -appellants.

      Hornor <u Benedict, for defendant and appellee,
   Howedd, J.

Defendant is sued as the maker of two promissory notes to the order of J. J. Michel, and endorsed by him and Rachel Sank. ,

The defence is, want and failure of consideration, based on two grounds:

1. That the notes were given for the price of two slaves, who were afflicted with redhibitory vices.

2. That said slaves having been emancipated, the defendant is relieved from the obligation of paying the price, and that the plaintiffs had knowledge of the consideration of the notes, and the existence of the alleged vices.

The case was tried before a jury, who rendered a verdict in favor of the defendant, from a judgment on which the plaintiffs have appealed.

No objection was made to the charge to the jury, and no bill of exceptions taken during the trial; and as it is a question of fact, whether plaintiffs had knowledge of the consideration for which the notes were given, which was found affirmatively by the jury, we are not disposed to disturb their verdict, it not being manifestly erroneous. On the contrary, the agents of the'vendors state that the completion of the sale of the ‘ slaves was delayed some time by the refusal of the plaintiffs, who were to receive the notes to be given for them,, to take them without a commercial endorser, which implied that he knew that the notes were given for thp price of slaves, the sale of which was being completed.

Tliis'fact of knowledge takes the case out of the operation of the law-merchant, and brings it within the rule in the Wainwright case.

Judgment affirmed, with costs.


author: Labatjve, J.

text:
    No. 1586.
    Andrew H. Gay v. A. P. Marionneaux et als.
    AH the parlies having an interest in maintaining the judgment of the lower court must be made parties to the appoal, otherwise the appeal will be dismissed.
    APPEAL from the District Court, Parish of Iberville, Posey, J.

      Barrow <& Pope, for plaintiff and appellee.

      Talbot & Petit and S. Matthews, for defendants and appellants.
   Labatjve, J.

This is a suit in partition of a plantation, owned in common between the parties, two of whom only, A. P. Marionneaux and Lydia Maillan took this appeal, and made the plaintiff, Andrew EC. Gay, alone appellee, in favor of whom they gave the appeal bond.

, The said appellee now moves to dismiss this appeal, on the ground that “ all thé parties interested in the judgment, and who are to be affected thereby, are not parties to the appeal.”

It is clear that the other common owners, who are also parties in this partition, not being included in the bond, are not before us as appellees. tó'R. 203; 10 A. 232; 11 A. 409; 12 A. 71; 13 A. 392; 14 A. 315-688.

But it is contended by the appellants that, as the parties, not cited, a^earéd before the notary and signed the proees-verbal of partition, they have assented to the judgment, from which appellants took this appeal; and that, if they were before this Court, the said parties could not urge anything against the judgment.

It is a well-settled rule of law, that a partition cannot subsist for one and be annulled for another. C. C. Art. 1450. If the position of the appellants be correct, the partition would be set aside as between the plaintiff and appellants, and remain undisturbed as regards those not before this Court; because the appeal, being one of the modes pointed out to reverse a judgment, would have the effect, if successful, to. annul' the partition. C. P., Arts. 556, 564.

Besides the Court is inclined to the opinion that the judgment appealed, from, dated 15th of May, 1867, aud rendered while the partition was progressing before the notary, under Arts. 1270, 1290, C. C., was interlocutory, and not final. According to said article, all orders and rulings,,, of courts rendered on all contestations pending the operation of the partitionbefore the notary are interlocutory, and any party feeling aggrieved^ has his remedy, and may he relieved when the partition is presented for final homologation, and it is from the judgment thus rendered that an1^ appeal would lie, subjecting the whole proceedings and all interlocutory’ orders to the revision of this Court. We think that the following authorities support the doctrine herein announced: C. C., Arts. 1270, 1290,. 1297, 1298, 1299; 1 R. 415; Code of Practice, Arts. 1028, 1029, 1030; C." C., Art. 1304. '

The final judgment rendered on the 12th August, 1867, homologating the partition, not being appealed from, is not before this court, and cannot be revised by us.

Appeal dismissed, at the costs of, the appellants.


text:
    No. 1593.
    W. C. S. Ventress v. His Creditors.
    Where an estate does not sell for an amount sufficient to pay the mortgages resting upon it ilia, privileges must be paid by the mortgage which is least ancient, and so ascending, according to the order of the mortgages, or by pro ¡ata contributions, when two or more mortgages have the same date. G. O. 3236.
    A mortgage creditor, on paying the mortgage which precedes his, becomes subrogated by law to tho mortgage rights of the creditor whose debt he has paid.
    The homologation of a tableau wherein nob opposed is absolute, and no creditor can make opposition' thereafter, nor can he avail himself of oppositions filed by others before homologation.
    Where the holder of a claim, secured by mortgage, assigns a part of it, he cannot be permitted to come in competition with his assignee, if the property mortgaged is insufficient to pay both.
    Where a debtor becomes insolvent, the rights of the creditors are fixed at the moment of the sur» render, and none of them can do any act thereafter that will impair the rights of, the others.
    APPEAL from the District Court, Parish of Ascension, Beauvais, JV ,

      Eggleston & Hart, for plaintiff.

      Johnson & Denis, for Mrs. Shiff and,
    A. Shiff G. E. Schmidt, for B. Saloy. H. F. Deblieux, for Gasquet.

      Barrow & Pope, for Bogart, Foley & Avery.
   Howedd, J.

Wm. A. Gasquet, Arthur Shiff and Bertrand Saloy, mortgage creditors of the insolvent, have appealed from a judgment oh various oppositions to a provisional tableau filed herein by the syndic, distributing the proceeds of three plantations, encumbered, respectively, with mortgages, greater than the amounts which they produced at the sale.

I. — Wm.A. Gasquet, holding a mortgage on the Home or Ascension plantation, complains of being required to pay certain charges bearing a, general privilege on the fund affected by his mortgage, which he contends is- more ancient than the mortgage in favor of Bogart, Foley and Avery, who are holders of a mortgage on the Ross plantation, and were relieved by the judgment from contributing pro rata to said charges as fixed by the tableau. The latter deny, (in which they are sustained by the Judge a^quo) that the former was subrogated to the mortgage rights of the Bank of Louisiana, the holder of the oldest mortgage, by paying the bank debt prior to the insolvency. In this there is error. Gasquet, holding the second mortgage on the property mortgaged to the bank, had an interest in paying the debt which primed his, and in doing so was subrogated by law to the rights of the bank. C. C. 2157. And having thus ■acquired a rank superior to that of Bogart, Foley & Avery, he was not compelled, under Art. 3236, C. C., to pay the aforesaid charges; but as he is satisfied with the apportionment made by the syndic, the tableau in this respect must be approved. ■»

II. — The complaint of the other appellants, is in regard to the distribution of the proceeds of the Garlick plantation, among the various holders of the notes given by the insolvent to Mrs. Garlick for the price ■thereof and secured by mortgage and vendor's privilege.

At the date of the cession, 25th January, 1866, eight of said notes were, outstanding, due, respectively, on the first day of May, annually, from 1860 to 1667, inclusive, and wore represented to be held as follows':

A. and M. Heine, the one due May 1, 1860.

Mrs. Basilice Skiff, the one due May 1, 1861.

B. Saloy, the one due May 1, 1862.

Mrs. Garlick, the three due May 1, 1863, 1864 and 1865.

Arthur Shift', the two due May 1, 1866 and 1867.

The District Judge distributed the fund proportionably between A. and M. Heine, Mrs. B. Skiff and B. Saloy, relieving it of the above general charges, and decreeing Mrs. Garlick and A. Skiff to be ordinary creditors. 'Mrs. Garlick does not appeal.

1. The fund distributable among these parties, affected with the vendor’s privilege, was correctly relieved of its proportion of the charges, bearing a general privilege; about which ruling no complaint is made before us. O. G. 3234; 11 A. 469. We do not understand the appellants .as objecting to any other charges.

. 2. Saloy complains of error in the judgment, in allowing A: and M. Heine a pro rata share of this fund, inasmuch as they had not opposed the tableau, on which they were placed for only $1,977 07, and which was homologated so far as not opposed. He correctly says, that the homologation of a tableau wherein not opposed is absolute, and no creditor, who has-not made opposition, can do so even on the grounds of opposition filed by others before the homologation, (1 L. 371;) and that A. and M. Heine cannot profit by a judgment obtained by others, when they made themselves no party to the litigation, which resulted in such judgment. Not having complained of the tableau, its homologation is conclusive as to the amount allotted to them in this distribution, and the judgment appealed from must be corrected accordingly.

3. Saloy asserts a priority over'the holders of the five notes falling due '■after his (Mrs. Garlick and A. Skiff) by virtue-of an agreement with Mrs. Garlick in February, 1864, by which, in consideration of a. stay of exeeution on a judgment, which he obtained against her as endorser on the note held by him, she consented that his claims should take precedence of the said five notes then held by her. The view which we have taken of the next point, renders it unnecessary to express an opinion on this question, and the decree of the Court a qua in this respect will have no practical effect on the rights of the parties.

4 Arthur Shiff complains that he was improperly excluded with Mrs. ■Garlick, his assignor, from participation in the fund. This exclusion was based on the ground that Mrs. Garlick, being the assignor of the notes held by the other distributees, could not compete with them in the distribution, and A- Shiff, having acquired his notes from her after the surrender of the maker, had no greater rights than his assignor, who was the payee and mortgagee.

We think this ruling is sustained by the principle recognized in the case of Salzman v. His Creditors, 2 R. 243, that when the holder of a claim secured by mortgage assigns a part of it, he cannot be permitted to come in competition with his assignee, if the pledge is insufficient to pay both, and the doctrine that the rights of creditors are fixed at the moment of the cession, when the law vests the property of the insolvent in his creditors, any one of whom can do no act to impair the rights of the others. Shiff admits the correctness of the principle in the Salzman case, as applied to Mrs. Garlick, but denies its application to his claim, and contends that under the authority of Adams & Whitall v. Lear, 3 A. 144, he could share with Mrs. Shiff and Saloy. And he also contends that the doctrine, of the creditors’ rights being fixed at the surrender, means that they cannot be increased or diminished, through the action and diligence of the creditor, against the insolvent estate, and does not affect the rank of the different assignors inter se. In reply to this, it is only necessary to say that, having acquired the notes from Mrs. Garlick after the surrender, he acquired only her rights, which he admits were limited, by the authority of the Salzman case, to payment after her prior assignees had been paid, and that the case of Adams & Whitall v. Lear is not in point, as it was not a case of insolvency. Mrs. Garlick could transfer no greater, rights than she possessed, nor could she do anything,in any disposition of her own claim, which would affect or diminish the shares of her co-creditors in the proceeds of the pledge. The rank of the creditors depends on the nature of their respective claims, and is fixed by the surrender. The proportion or shares received by them depends on the amount of the proceeds, but not the right to share in them.

We conclude that the Judge a quo did not err in excluding Arthur Shiff with Mrs. Garlick from the participation in the fund from the Garlick plantation, as it is shown not to be sufficient to pay the notes held by Mrs. B. Shiff and B. Saloy, who, under the circumstances, are entitled to. the balance, after''paying the charges from which it has not been relieved, and the sum of $1,977 07, allotted to A. and M. Heine on the tableau; that the two items of $1,500, counsel fees, and $1,000, reserved for contingent expenses, be paid ratably out of the Ross and the Ascension funds; that each fund pay the charges to which it is made to contribute, except as specially relieved; and that A. and M. Heine are bound by the tableau, to which they made no opposition. - „

It is therefore ordered that so much of the judgment appealed from as allots a share of the fund, proceeding from the sale of the Garliok plantation, to A. and M. Heine, pro rata, with Mrs. B. Shiff and B. Saloy, be reversed; that the claim of the said A. and M. Heine on said fund, be restricted to the sum of $1,977 07, as allotted to them on the tableau; and that the said fund, after paying the charges to which it is made to contribute, except its proportion of the three items of $1,500, counsel fees, $1,000 reserved for contingent expenses, and $H1 notary’s fees, of which it has been relieved, and the sum of $1,977 07 allotted to A. and M. Heine, be allotted pro rata to Mrs. B. Shiff and B. Saloy. It is further ordered that so much of said judgment as makes the fund, proceeding from the sale of the Ascension plantation, bear th'e said items of $1,500 counsel fees, and $1,000 reserved for contingent expenses, be reversed, and that said items be paid ratably out of the funds proceeding, respectively, from the sale of the Ross and the Ascension plantations; and that as thus amended the judgment appealed from, amending and homologating the provisional tableau, be affirmed. Costs of appeal to be borne jointly by Bogart, Eoley & Avery, A. and M. Heine and Arthur Shiff.

Rehearing refused.


author: Labauve, J. Howehd, J.

text:
    No. 1614.
    Payne & Harrison v. James S. Douglass.
    Where the holder of a promissory note allows more than five years to elapse after the maturity thereof, the plea of prescription will he maintained.
    PPEAL from the District Court, Parish of Tensas, Farrar, J.

      Haynes & Gordon, for plaintiffs and appellees.

      Aroni & Collier, for defendant and appellant.
   Labauve, J.

This suit is brought on six promissory notes, amounting together in principal to $38,998 77, with eight per cent, interest per annum, from their respective maturity; all dated April 16,1860, and payable as follows:

The first on the 16th November, 1860.

The second on the 16th December, 1860.

The other four, April 12th, 1861.

The answer sets up various defences, together with p.ea of prescription.

Judgment was rendered below against the defendant, and he appealed.

The plaintiffs and appellees have not appeared in this court.

The defendant and appellant only relies in this court upon the plea of prescription.

The citation and petition were served upon the defendant, on the 18th April, 1866.

It is evident that five years had elapsed when the defendant was cited and served, and therefore prescription was acquired and the notes extinguished. C. C., Art. 3505.

Judgment rendered below, must be reversed.

It is therefore ordered and decreed that the judgment appealed from be reversed and set aside, and it is further ordered and deoreed that judgment be rendered in favor of the defendant and appellant, and that the plaintiffs and appellees pay costs in both courts.

On Rehearing.

Howehd, J.

In refusing the rehearing applied for in this ease, wo think it due to the counsel of plaintiffs to modify an, expression used in the opinion already rendered on the merits, to the effect that plaintiffs had made no appearance in this court.

It seems that their counsel had duly prepared and filed their briefs; which through inadvertence were placed in another record between the same parties, and in which the same briefs were also applicable, by which a double set of briefs were in one record and none in this. The counsel did not fail in their duty to their clients; but an examination of their arguments has not convinced us of any error in our conclusion.

We do not think this a cáse in which the maxim “ contra non valentem,” etc., should be applied.

Rehearing refused.


author: HowEi/n, J.

text:
    No. 984.
    William Mithoff v. Byrne, Vance & Co.
    Parol evidence is ina dmissible to explain an ambiguity apparent on tbe face of a written instrument. Doubts and uncertainties that exist in a written contract of sale, must be construed against the parties making it.
    APPEAL from the Sixth District Court of New Orleans, Buplaniier, J.

      Roselius & Philips, for plaintiff and appellee.

      M Briggs, for defendants and appellants.

      Reporter. — The original opinion and decree of the Supreme Court in this case — which was in favor of the defendants, is not published.
   HowEi/n, J.

On the rehearing of this cause, the correctness of the ruling of the Judge a quo, in rejecting evidence to prove that defendants acted as agents in the transaction, to the knowledge of plaintiff, is again discussed. The defendants, in their brief, admit that the ambiguity in the written instrument sued on is patent; and “it is a settled rule, that parol evidence is inadmissible to explain an ambiguity apparent on the face of the instrument. ”

The evidence was therefore properly excluded.

The suit is for the delivery of one hundred bales of cotton, or its value at the date of the suit, and is based on the following instrument:

“ We have this day sold to Mr. William Mithoff one hundred bales of Levin & Elliott Marshall’s cotton, at and on a basis of 8% cents for strict Liverpool middling, other qualities in proportion; the cotton to be delivered within six weeks after the blockade is removed, or sooner if called for by the buyer, provided the sellers can then ship. No interest to be allowed; cotton estimated now, and paid for cash, at 425 lbs. per bale; cotton to be weighed when delivered, and final settlement then made; cotton to be delivered here, or on the coast, as the buyer may require. (Signed) Byrne, Vance & Oo.

New Orleans, February 24, 1862.”

The answer is, that defendants acted as agents of L. and E. Marshall, and never had possession of the cotton; of which plaintiff was fully aware.

Judgment was for plaintiff, and defendants appealed,

We are called upon to interpret the above instrument, and determine whether or not defendants acted as agents, or in their own name; that is, whether it contains proof that they acted as agents, to the knowledge of plaintiff.

We do not view it as an agreement or memorandum to sell, as urged by defendants, but the written evidence of a sale made, with a stipulation as to a future delivery; the price at an assumed weight and quality was paid, reserving the right to both parties to adjust any excess or deficiency, when the exact weight and quality were ascertained. The question arises, who were the vendors, Byrne, Yance & Co. or Levin & Elliott Marshall? The former were the actors, and they say, ‘we have this day sold,’ and sign their names without any limitation or explanation. The word ‘ sellers ’ can only refer to the ‘ we ’ who sold, and not to the parties whose names appear in distributing the cotton which was the object of the sale. It is used to refer to themselves, just as the word ‘buyer,’ in the same sentence refers to William Mithoff, to whom the sale was made. And in support of this view, it may be observed that the price was paid to them in a check payable to themselves or order, and by them endorsed. There is no expression in the written instrument, which indicates or intimates that they were acting in a representative capacity, and unless there be something showing such fact, we must presume that plaintiff considered rightly, that he was dealing with the defendants in their individual capacity, and on their individual responsibility. The phrase “of Levin & Elliott Marshall’s cotton,” does not necessarily imply that they were the vendors,” and particularly as the defendants avow that they themselves sold the cotton to plaintiff. He may very well have supposed that it was cotton of a particular crop, or planter’s raising. He would scarcely presume that the defendants were making a void sale; and if they were acting as agents they should have made it appear. Whatever doubt or uncertainty may exist in the instrument, must be construed against them, as it was their own act, and they had it in their power to draw it up free of doubt or ambiguity. C. C. 1952, 1953, 2119; 4 B. 315; 5 B. 75; 10 B. 5; 2 A. 135; 3 A. 192; 4 A. 109.

We conclude that the document sued on is evidence that the defendants sold the cotton, and that they must be held to deliver according to its terms.

No complaint is made as to the amount fixed by the District Judge.

It is therefore ordered that the judgment heretofore rendered, by us be set aside, and that the judgment appealed from be affirmed, with costs.


author: Taliabeebo, J.

text:
    No. 1276.
    Thomas Burdon v. His Creditors.
    A party desiring to avail himself of the benefit of the insolvent laws of the State of Louisiana, must comply strictly with the requirements of the statute.
    The discharge, by a majority of the creditors in number and amount, of the insolvent, will not bind the other creditors, unless it is predicated on a strict compliance with the indi&pensable demands of the insolvent laws.
    'Charges of fraud, in an opposition to the application of an insolvent to be allowed the benefit of the insolvent laws of Louisiana, must be definite and specific.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      John McKee, for plaintiff and appellee.

      1lace, Foster & F. T, Mer ride, for opponents and appellants.
   Taliabeebo, J.

The plaintiff, alleging himself unable to meet his pecuniary obligations, filed his petition and schedule on the 19th June, 1866, and prayed for a meeting of his creditors, and for the benefit of the insolvent laws of this State in relation to insolvent debtors.

An order was rendered accordingly, and after citations to the parties, a meeting of creditors took place on the 2d July following. The surrender of the insolvent was accepted. The property surrendered, consisting of personal effects of no great value, was ordered to be sold, and the insolvent was discharged.

The sale of the property took place on the 21st July, after legal advertisements had been made.

Lucy H. Duval and her husband, averring Mistress Duval to be a judgment creditor for $2,500, with interest from March, 1861, filed an opposition to the proceeding of the insolvent on the 10th of July.

This opposition alleges that the petitioner has not complied with the law in regard to voluntary surrender of property; that he has not shown by his schedule that he has suffered any losses, or that he is entitled to the benefit of the insolvent law. That this surrender is in fraud of the rights of his creditors.

It is contended, on the part of the insolvent, that the opponents had legal notice of the meeting of the creditors, failed to appear, and made no opposition at the time; that all the creditors, except the opponents, voted to accept the surrender, and grant the discharge asked for by the insolvent; and that the creditors who voted to discharge him, constituted a majority in number and amount. It is also objected, that opponent’s allegation of fraud is not specific.

The opposition was overruled and dismissed, and the discharge of the insolvent by the creditors sustained.

From this judgment the opponents have appealed.

It appears to us from the record, that there is error in the judgment. The sixth section of the act of 1855 (Revised Statutes, p. 252) prescribing the requirements of the law governing voluntary surrender of property, directs that “thedebtor shall annex to his petition his schedule, that is to say, a summary statement of his affairs, and the lossess he may .have experienced.” Section eighth of the same act, requires the debtor to swear that his schedule contains a correct and faithful statement of all the property he possesses, of his active and passive debts, and 'of the losses he has experienced in his affairs.

His schedule presented in the record does not show that he has complied with these provisions of the law. The discharge by the creditors, although they may have constituted a majority as to number of persons and amount of claims, can have no legal effect against the creditor making opposition, unless predicated upon a strict compliance with the indispensable demands of the insolvent laws. The creditor, making opposition, has his claim ascertained by judgment. It is for an amount nearly approximating the aggregate claims of the creditors who granted the discharge. This judgment creditor it seems had issued execution, and had the debtor’s property under seizure at the time he filed his petition and schedule praying the benefit of surrender. No lien or privilege is set up by the creditor in virtue of his judgment; bxxt he insists upon his right to require from the-debtor a strict compliance with the provisions of the act we have adverted to.

A waiver of that equal right on their part by the other creditors, has no binding force upon the opposing creditor.

It does not appear that he attended the meeting of the creditors after being duly cited, but his opposition was filed within ten days after the meeting of the creditors. This was clearly in time. C. C. Art. 3057, 3059. The meeting was closed the first day. Under the circumstances, this seems to have been unnecessarily soon; but it did not deprive the opponent of the right which he exercised of filing his opposition within the delay.

The allegation of fraud does not appear to be made with sufficient distinctness. In cases of this kind, this Court has frequently held that charges of fraud must be definite and specific. 14 A. 516. 16 L. 348.

Eor the reasons stated, the opposition ought to be sustained on the other ground taken by the opponent.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; that the proceedings taken in relation to the insolvency in the case be set aside; that the opponent be allowed to proceed to the execution of his judgment according to law, the syndic to pay costs of proceedings in both courts.


text:
    No. 1248.
    Smith Bryan v. J. M. French.
    Where a patty leases a lot of ground in the city of New Orleans for the purpose of erecting a stable thereon to keep horses in, he has the right to remove temporarily the stone pavement therefrom, which is found to be injurious to the horses kept therein.
    If a lessee sublet the premises leased, in violation of a stipulation in the lease, the lessor may have the lease dissolved at his pleasure; and when the lease has been dissolved, the lessee is bound to return the premises to the lessor, and restore the pavement in the condition it was before removal, under penalty of damages.
    A PPEAL from the Fourth District Court of New Orleans, Thíard, J.

      Buchanan & Gilmore, for plaintiff and appellant.

      Field <& Shackelford, for defendant and appellee.
   Hyman, C. J.

Plaintiff leased to defendant for the term of two years, from the 1st November, 1865, two lots and material thereon, at the rent of $120 a year, payable quarterly.

Th'e lots are in the city of New Orleans, numbered 94 Basin street, and are between G-ravier and Perdido streets.

He sued to have the lease annulled, because defendant had violated the contract of lease, by removing the stone pavement which covered a part of the lots, and because defendant, without his consent, had sublet the premises to Isaac Baker, in contravention of the contract of lease, which prohibited defendant from subletting the property without plaintiff’s consent.

He averred that he had in vain notified defendant to restore the pavement, and that the injury and waste caused to the lots by defendant in removing the pavement, exceeded $800. For the sum of $800, with interest from judicial demand, he asked judgment against defendant, as well as judgment annulling the lease.

Defendant, in answer, averred that he had leased the lots for the purpose of erecting on them a stable for horses; that the paving stones were unsuitable for horses to stand upon; that it became necessary, in order to use the lots for the purpose for which they were leased, to remove temporarily the paving stones, and that he claimed the right to restore the pavement at the termination of the lease. He denied that he had sublet the lots, and asked for damages against plaintiff for slandering his title.

The case was tried by a jury, who gave a verdict for defendant, without damages. The Judge rendered judgment pursuant to the verdict, and intiff has appealed.

?he property was leased by defendant, for the purpose of keeping :ses therein, and erecting thereon a stable for horses, which purpose 3 known to plaintiff when he let the property.

Che stones used as a pavement and which defendant removed, were md, and were injurious to horses while standing on them. The pro•ty let could not be used for the purpose intended with advantage to ¡ tenant unless the stones were removed, and wo think that he had a ht to remove them. See C. C. 2680, 11.

Yhen defendant leased the property no stable was on it, but materials building a stable were there belonging to plaintiff. With these matéis, and with some furnished by defendant, he (defendant) built on the >perty let a stable, which by the contract of lease “ was to remain in t for the benefit of plaintiff.” This stable he sold to Isaac Baker for i price of $1,087 35, which Baker paid. Defendant stated in the act sale “ that Baker was acting as his agent, and that Baker was also ping the siim of thirty dollars quarterly.

Baker could not use the stable without using the ground on which it od, and it cannot be perceived why he was to pay 5530 quarterly beside 3 price of the stable, if it was not for the use of the ground on which 3 stable stood.

Che act of sale is artfully drawn to conceal as much as possible the real ention of the parties thereto, but no other conclusion can be arrived from reading it, than that defendant intended by it to sublet to Baker lart of the property he leased from plaintiff.

This subletting, by defendant, was in violation of the contract of lease iween plaintiff and defendant, and gave the right to plaintiff to have s lease dissolved.

Chis right plaintiff claimed, and notified defendant in writing to restore 3 pavement, which he should have done. See O. C. 2690.

Sis neglect to restore the pavement makes him liable to plaintiff for value. See O. C. 2691.

Chere is proof that the pavement was worth 55800.

it is decreed that the judgment of the District Court be annulled, )ided and reversed.

it is further decreed, that the contract between plaintiff and defendant, ting to defendant the property described in plaintiff’s petition b'o lulled; that defendant deliver to plaintiff the premises under the con-ct of lease instanter, and that defendant pay the costs of suit in both irts.

t is further decreed, that within ten days from the day this judgment becomes final, defendant restore tile stone pavement on the lot in the same state that he received it, or in default thereof, he, defendant, pay plaintiff the sum of eight hundred dollars, with five per cent, per annum interest thereon from the day of default.

Rehearing refused.