text:
    No. 1250.
    J. McKinbrough v. E. G. Castle, W. S. Pike et als. Garnishees.
    ■Whore a case has been dropped from the dockot, and afterwards restored to the docket, and put at issue by the defendant filing an answer, the garnishee is not entitled to notice of the restoration of the cause.
    evidence is necessary to authorize the taking of interrogatories for confessed against a garnishes, other than his failure to answer. O P. 263.
    Judgments must be interpreted by the pleadingsand the nature of the obligation sued upon. Garnishees sued as ordinary parties, cannot be condemned in solido; solidarity is never presumed.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      A. M. Dunn, for plaintiff and appellee.

      J. O. Fuqua, fpr defendant and appellant.
   Howell, J.

This suit was commenced by attachment in January, 1861, upon a promissory note, and several parties were made garnishees, among them Wm. S. Pike and Henry A. Castle, composing the firm of Pike & Castle, partners in the cultivation of a plantation, to whom, as partners and separately, interrogatories were propounded, touching their indebtedness to defendant for the purchase of mules and the giving of a note for $4,000 by said firm for the price thereof, which note plaintiff alleged was fraudulently assigned to H. A. Castle.

Pike was also interrogated as cashier of the Branch of the Louisiana State Bank at Baton Rouge, as to the deposit of said note in said bank.

H. A. Castle answered on 4th March, 1861, the interrogatories served upon him, admitting the execution of the note by the firm and the deposit thereof in the bank, but averred that it belonged to him, having bought it from E. G. Castle for a valuable consideration.

A motion was made by the defendant to set aside the attachment, which does not appear to have been disposed of, and no proceedings had in the case until 18th July, 1865, when the defendant moved to have the case placed on the trial docket. On the next day plaintiff applied tor a jury, and the transfer of the case to the jury docket. The motion to dissolve was assigned for trial on the 20th July, 1865, on which day the plaintiff obtained a continuance, upon several grounds set out in his motion therefor, one of which was that “under the rules of the Court all cases dropped from the docket, as all eases are when no action has been taken for two terms, cannot be reinstated on the docket without leave, and cannot be tried without notice to the parties, so that they may be prepared.”

On 21st November following, a reassignment was made for the 27th same month. On 5th March, 1866, the ease was assigned for 9th, and on that day reassigned for the 12th. On the 19th same month (March) defendant E. G. Castle filed an answer, confessing judgment as prayed for, and judgment by default was entered against the garnishees, including W. S. Pike, who had failed to answer. On the 23d, the third day thereafter, the interrogatories propounded to Pike were taken for confessed, and the case being assigned for trial, judgment was rendered against the defendant for the amount claimed, and “against Wm. S. Pike and H. A. Castle, comprising the firm of Pike & Castle, for the sum of four thousand dollars,” from which Pike alone has appealed.

Edward G. Castle, the defendant, and Henry A. Castle, Pike’s partner, ask that the judgment be affirmed.

Pike, the appellant, assigns as error apparent on the record :

1. This case, in the lower Court, was for a long time dropped from the /locket, and appellant was not notified of its revival as required by the rules of said court.

No real or tacit issue having been made as to the appellant, the rule does not apply to him.

The cause could not have been on the trial docket and dropped, as complained of, so as to entitle him to notice of its being restored to the docket. It was at issue, during the delay alluded to, only upon the motion to dissolve the attachment, to which he was not a party.

2. There was no evidence exhibited to the Court a quo, to authorize the taking of the interrogatories addressed to the appellant, for confessed, nor any evidence that these interrogatories were served on him.

No evidence was necessary to authorize the taking of the interrogatories l'or confessed, other than his failure to answer. C. P. 263. 2 A. 565. 11 A. 691.

A default was entered against him. The interrogatories were embodied in and formed a part of the petition, which, by the sheriff’s return, was imrsonally served on the appellant.

3. The answers of H. A. Castle, to interrogatories propounded by plaintiff, show that appellant was not indebted to defendant, and had no ■property belonging to him in his possession or under his control.

The interrogatories referred to were j>ropounded to and served upon the appellant and H. A. Castle, separately, and had reference to a purchase by them from defendant of a lot of mules for the sum of $4,000. An additional interrogatory was propounded to appellant, asking if a certain note made by Pike & Castle in favor of E. G. Castle for $4,000, is not on deposit in the bank of which he is the cashier, and if said note was not given for tlie purchase of mules by Pike & Castle from defendant.

H. A. Castle answered that he did purchase, mules from defendant for the firm of Pike & Castle, and in part payment thereof gave their note for $4,000, which is not paid, because before maturity it was purchased by him for a valuable consideration from defendant, and placed in bank by himself, where it has been attached by plaintiff.

This shows that Pike Castle gave a note to defendant; that one of the firm became the owner thereof; that it is deposited in bank, and is not paid. It is clearly a joint note, .and the interrogatories propounded to Pike, being taken as confessed, fix his liability thereon for one-half in favor of some one, and as no question is raised in this suit, as to the mutual rights of the makers, and H. A. Castle, the partner, does not complain of the judgment in favor of plaintiff, but asks its affirmance, we must conclude that Pike’s liability is in favor of defendant, the payee. Upon the face of the record it is immaterial to Pike to whom he pays his portion of the note in controversy, which is still unpaid.

5. The note attempted to be attached, being drawn by a planting partnership, appellant is not liable insólido, and the judgment is erroneous in condemning each of the makers for the full amount.

It is in these words : “It is decreed that there be judgment against Win. S. Pike and Henry A. Castle, composing the firm of Pike & Castle, for the sum of four thousand dollars.”

Judgments are interpreted by the pleadings and tho nature of the obligations sued on, and as these .garnishees are sued as ordinary partners and the judgment does not condemn them in solido, they are held only as joint obligors. Solidarity is never presumed. 4 N. S. 317. C. C. 2088. 12 O. S. 316. 8 O. S. 635. 13 L. 449.

Plaintiff has prayed that the judgment be amended so as to allow 'interest from February, 1861, instead of from the date of the judgment, 31sfMáreh, 1866. The debt of the garnishees was due on 13 th February, 1861, and by the confession, on 15th February, 1861; but the amendment, can be made only as to the appellant.

It is therefore ordered that the judgment appealed from be so ainended as to allow five per cent, interest on the amount, for which appellant Win. S.-Pike is condemned, to wit: two thousand dollars from 15th February. 1861, and as thus amended the judgment be affirmed, with costs.


source: Caselaw Access Project

author: Ilsley, J.

license: Public Domain

text:
    No. 1261.
    William Pratt v. Thomas R. Craft.
    Whero plaintiff bought cotton of dofendaut, to bo delivered at a certain place, but no time mentioned, he could refuse its immediate delivery. But no claim for damages will be sustained against defendant on account of the non-delivory of the cotton, without proof of his being putin default.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.

      Wilson <& Ellis, for plaintiff and appellee.

      E. F. Russell and T. G. Davidson,, for defendant and appellant.
   Ilsley, J.

The plaintiff claims from the defendant, as damages, the. sum of four thousand dollars, for the non-performanco of a contract of sale, which contract is evidenced by the following receipt, signed by the defendant :

“ Received William Pratt, this the 31st day of December, 1863, one thousand dollars, part payment on thirteen bales of cotton, at the rate of forty-seven cents per pound; cotton to be delivered at Pratt’s plantation in good order, payment in full on delivery of cotton.”

The defense was a general denial and a special averment that the plaintiff had no right to prosecute his action without a previous tender of the unpaid price of the cotton specified in the contract of sale, accompanied . with an amicable demand for its delivery previous to the institution of his action; which demand and tender the defendant expressly denies ever having been made previous to the institution of the suit.

The case was submitted to a jury, which rendered a verdict in favor of the plaintiff, and from the judgment of the Court, affirming the same, the present appeal is taken.

On the trial of the case, the Judge charged the jury that where a particular act is to be performed, at a designated time and place, and the party to perform is not at the placo when the time arrives, ready to perform, he is in delay by the expiration of the time, and no other putting-in default is necessary; and that, for the plaintiff to go to the plantation of defendant to demand a performance would be simply ridiculous, as the party could only be put in default by such demand at the time and place designated in the contract; and to this charge the defendant excepted, and tendered his bill of exceptions, which was signed by the Judge.

Wo can perceive no difference in principle between the present ease and that of Erwin v. Fenwick, 6 N. S. 229, in which it was held that damages cannot be claimed in a contract to deliver slaves at a designated place till the party is put in delay, although the day of delivery be fixed by the contract, and that the putting in delay is a condition precedent to recovery. By reference to the contract, the breach of which is the alleged basis of the present action, no time is fixed for the delivery of the cotton.

The plaintiff might, therefore, have claimed an immediate performance, 1907 Civil Code. 6 Toullier, 609. But the breach alleged being- a negative or passive one, no damages therefor could be recovered without proof of putting in default. See Hennen’s Digest, vol. 2, p. 1019, 2. 1906, 1907 C. C. Govet v. Municipality No.1 , 11 An. 300. 7 La. 193. 17 An p. 32.

As the plaintiff had not alleged or proved that the defendant had been put in default, in any one of the three different ways pointed out by law, the Judge erred in charging the jury in the manner stated in the bill of exceptions, and also in rendering judgment in accordance with the verdict.

It is therefore ordered, adjudged and decreed, that the verdict of the jury be set aside, and that the judgment thereupon rendered by the Court below be annulled, avoided and reversed ; and it is further ordered, that judgment be and it is hereby rendered in favor of the defendant and against the plaintiff, as in ease of nonsuit, at the costs of th© appellee.


author: Hownim, J.

text:
    No. 1232.
    W. B. Robinson and G. Cruzat v. John Haynes and Sheriff.
    The Court will nob declare a mortgage null for want of reinscripiion within ten years. The partis?* in interest have their remedy by causing the mortgage to be canceled.
    A PPEAL from the District Court, Parish of Carroll, Farrar, J.

      •Sparroto & Montgomery, for plaintiffs and appellees.

      W. fí. Wyley for defendants and ajjpellants.
   Hownim, J.

On the 22d October, 1855, the defendant Haynes sold to A. M. Waddill a tract of land in the parish of Carroll, taking the notes of the purchaser, secured by mortgage and vendor’s privilege, for the price; the two last of said notes maturing respectively on 1st January, 1864, and 1st January, 1866.

On 20th October, 1859, Waddill sold the property to H. B., J. S. & M. S. Troutman, receiving the purchasers’ notes, secured also by mortgage and vendor’s privilege ; two of which notes having passed into the hands of plaintiffs, they instituted suit, via ordinaria, on them, in the District Court of Carroll, on 29th March, 1866, for the purpose of enforcing theii; mortgage and privilege on the property against the Troutmans.

On 22d January, 1866, more than two months prior thereto, the defendant, John Haynes, obtained an order of seizure and sale upon the two last notes hold by him, against the same property, in a proceeding against Waddill, upon whom notice was served on 7th February following.

On the 7th day of the next April, plaintiffs instituted this proceeding to enjoin the sale and to have the mortgage and privilege in favor of Haynes and the order of seizure and sale thereon declared null and void, for the reason that said mortgage and privilege are “ dead for want of reinscription within ten years. ”

Defendant excepted to plaintiffs’ right to enjoin the executory proceedings against his mortgage debtor, or change the executory into ordinary proceedings. This exception was referred to the merits, and defendant answered by a general denial, and specially denying that plaintiffs’ action is one of nullity, but an interpleading by third persons to arrest executory process on grounds of alleged irregularities and illegalities.

Plaintiffs contend that defendant is attempting to enforce, to their prejudice, an incumbrance which has no legal existence whatever, and that they are permitted to show it in this form of action, and to have the alleged mortgage declared null, as to them, and the sale prohibited.

If the mortgage sought to be enforced by Haynes has no legal existence, the attempted sale under it can in no manner prejudice or injure the plaintiffs’ rights of mortgage upon the same property; and, consequently, they have no grounds, in this regard, for an injunction ; and if Haynes’s mortgage has validity, they cannot enjoin the sale under it.

Article 739 O. P. enumerates the only causes for which the debtor may enjoin the executory process ; and, supposing the plaintiffs might exercise the debtor’s rights in this respect, none of the causes specified in said article are set forth in the petition. Plaintiffs admit, and we think, very properly, that the question of the prescription of defendant’s mortgage is not involved nor raised. See 2 A. 113.

Articles 395 el seq. point out the means by which third persons may protect their rights. If they claim to be oxeners of the thing seized, they may, by petition, oppose and enjoin the sale. Plaintiffs do not claim as owners; they have set up a right upon the property, which, we have seen, will not be effective if defendant’s mortgage does not exist, and which will not authorize the writ of injunction, if said mortgage has legal validity.

We are unable to perceive upon what principle plaintiffs can maintain this proceeding. They do not ask the mortgage to be erased. This they could have effected, under the Act of 1843 (Session Acts, p. 61), by simple application in writing to the recorder of the parish, and, perhaps, in a suit with proper parties and upon proper allegations. They do not allege fraud or error as the ground of nullity of the act of mortgage. They ask that the mortgage be declared null for want of reinscription within ten years. This is not declared by law to be a cause of nullity.. Indeed, Art. 3333 C. C. recognizes the right of reinscription after the lapse of ten years, which is inconsistent with the quality of nullity. Inscription ceases to be evidence of the mortgage after the lapse of ten years, and is not subject to the rules of prescription; but it can be removed by the act of the creditor. 2 A. 109.

As plaintiffs have the means of protecting their rights, if imperiled, we áre not inclined to sanction the engrafting of a new proceeding upon our practice. The case of Kloin v. Coon and Husband, 10 A. 522, cited by them as authority for their action, is not in point. It was a suit to annul a judgment on the grounds of fraud, collusion, insolvency, etc., and the right to an injunction was sustained under Art. 303 C. P., which authorizes the writ whenever “ necessary to prevent one of the parties to the suit from doing an act injurious to the other, and fox• which an aciioxi will He.” In this case we can see no injury, resulting from the act of defendant Haynes, which will give rise to an action against him by plaintiffs.

We think the exception to plaintiffs’ right of action should have been maintained, as there is no legal cause for the injunction or.the demand of nullity; but we do not consider the case one in which damages should be allowed.

It is therefore ordered, that the judgment appealed from be reversed, and that the injunction be dissolved and plaintiffs’ petition dismissed, with costs in both courts.


author: InsiiBY, J.

text:
    No. 1179.
    John C. Ragan, Administrator v. Catherine P. Gwinn.
    Where the vendor, in the sale of real estate, sells all the land lying between designated boundaries, there can be no increase or diminution of price on account of a disagreement of measure. O. C. 2471.
    A . PPEAL from the District Court, Parish of Terrebonne, Gales, J.

      Bush & Goode, for plaintiff and appellee.

      Aycock c& Merciei', for defendant and appellant.
   InsiiBY, J.

This suit was brought to recover the amount of the last of the notes given as the price of a certain tract of land situated in the parish of Terrebonne, on the right descending bank of the Bayou Little Caillon, measuring one arpent and a half front, with the depth of survey, bounded above by the land of H. Cage, and below by the land of Paulin T'epandier.

Payment was resisted by the defendant in consequence of a deficiency of measure in the front line of the tract, which was sold as having one and a half arpents between the described lateral boundaries, whilst in reality there was only one-half arpent and twelve feet. She claims a diminution of the price for eighty-four feet, amounting to four hundred and fifty-two dollars and eight cents.

Another defense set up was that since the purchase made by the defendant, Henry Cage had brought- an action of boundary against her, in which if he succeeded, there would remain to her only about seventy-nine', feet front. She therefore prays that proceedings in this.case be suspended against her until the decision of Cage’s suit, and she asks for such reduction of the price as she should be entitled to when the amount of deficiency should be determined.

The Court below deemed it unnecessary to examine the second ground of defense, as the plaintiff in the Cage suit had himself dismissed it in open court, and we shall therefore merely examine the first ground:

The sale to the defendant is evidently one per aversionem, and in such sales there can be no claim for a disagreement in measure. Civil Code 2471,850. Curry v. Achinard, 5 N. S. 243. 8 N. S. 160. 14 La. 497. 2 La. 502. 19 La. 423. 2 Rob. 357, and other authorities; besides this, it is contended by the seller that there is no warranty as to quantity.

Fraudulent concealment by the vendor, as to the real quantity, was not charged against him in the pleadings; but, it is urged in this Court, and a diminution of the price in consequence thereof, is claimed. Apart from the fact that the previous mesne conveyances represent a smaller front than that sold, there is nothing in the record to sustain the charge of fraudulent concealment or misstatement, oh the part of the ádministrator. The whole chain of titles had been duly recorded, so that the variance complained of knight have been readily ascertained.

The sale took place on the premises, and if the purchaser erred as to the exact measurement of the front line, and the superficial quantity contained in the tract, she could not have been deceived as to-the boundaries to which her attention would have been naturally directed. See the case of Curry v. Achinard, 5 N. S. 212, 213.

This case bears no analogy to that relied on of Lessassier v. Dashiel, 13 La. 155, which was remanded to the lower Court to permit the purchaser to prove what was expressly charged, that the vendor knew before and at the time of the sale that the tract of land, known as the double concession, did not contain four hundred arpents, but less than ninety-three arpents and a fraction—but before and at the lime of the sale, he assured the defendant that it contained four hundred arpents, or upwards.

That was a sale .per aversionem, but the Court very properly held that good faith is required in sales of that description as much as in any other contract, and if the false representation attributed to the vendor could lie sustained, that he could uot shelter himself behind the principle that the sale was one pur aversionem. and that he was not. liable to make up the deficiency.

The Court below considered the danse in the conveyance now before us as one of non-warranty as to quantity; but as we deem the sale to be one coming unqualifiedly within Article 2471 of the Civil Code, it is unnecessary for us to determine what effect should be given to that term of the sale.

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


text:
    No. 1231.
    Hiram Turnage v. William Wells and B. B. Lockhart.
    A verbal contract, amounting to over live hundred dollars», must be proved by at least one credible witness and corroborating circumstances. O. C. 2257.
    When two parties enter into a contract with a third, and neither a connnetcial partnership nor a solidary obligation is shown, judgment cannot lie renderod in .soii<h>.

    ■A PPEAL from the District Court, Parish of Livingston, Filis, J.

      Duncan <D Davidson, for plaintiff and appellee.

      Marr & Fouie, for defendants and appellants.
   Ilsley, J.

The plaintiff claims from the defendants, in. solido, the sum of nine hundred and eighty-six dollars and twenty-five cents, as the prico of four bales of cotton, alleged to have heen .sold and delivered to them by the plaintiff’s agent, in the. year 1864.

Tho defendants answered separately—both pleaded the general issue, and Lockhart denied any partnership with Wells in the purchase of the eotton.

The case was submitted twice to a jury, who found a verdict each time in favor of the plaintiff, and, after an ineffectual effort to obtain a new trial from the last verdict, the defendants appealed from the judgment rendered upon it.

It is admitted by the plaintiff and appellee that the contract is a verbal one, and that the action is brought under Article 2257 of the Civil Code, which provides “that contracts or agreements relative to personal pro- . perty, above five hundred dollars in value, must be proved at least by one credible witness and other corroborating- circumstances.”

The only witness produced by the plaintiff to prove the sale of tho cotton. was the plaintiff’s agent, who says that he made it. His testimony was sustained by corroborating- circumstances, which the jury thought, and which we think, sufficed to establish it, and wc should not have disturbed their verdict had they' not condemned the defendants in solido to pay the price, when neither a commercial partnership nor any solidary obligations, on their part, was shown, and which cannot he presumed. ¿088 C. C.

It is therefore ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment’of the Court below bo annulled, avoided and reversed.

It is further ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of Hiram Turnage, and against the defendants, William Wells and Benjamin B. Lockhart, jointly, for the sum of nine, hundred and eighty-seven dollars and seventy-five cents, with five per cent interest for one year, the costs of the lower Court to be paid by the defendants and appellants, and those of the appeal by the plaintiff and appellee.


author: Howell, J.

text:
    No. 1319.
    John McKowen v. L. G. Atkinson et als.
    Where judgment) was signed iu the b ebruary term, and an appeal was taken at the May term follow ing, and the appellee not cited, the appeal will be dismissed. Citation is essential.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.
    . Cross & Hardee, for plaintiff and appellee.

      McYea & Hunter, for defendants and appellants.
   Howell, J.

The judgment in this case was rendered in the February term of the District Court for the parish of East Feliciana, and at the May term following, two of the defendants presented a petition for and obtained an order of appeal, without praying for a citation, and no citation was issued or served.

Only one of the defendants gave bond, which is in favor of plaintiff' alone, who has filed a motion in this Court, after the three judicial days following the return day, to dismiss the appeal on the ground of want of citation.

We cannot refuse the motion, under the circumstances. The appellee, not having been cited, was not notified of the day on which he should appear to answer the appeal. Citation is essential. 16 L. 50. 5 A. 115. 10 A. 650. 9 R. 2.

It is therefore ordered that the appeal be dismissed, with costs.


author: Hyman, C. J.

text:
    No. 1259.
    Margaret A. Lurty v. Julius A. Skilton.
    A residence in this State of one year is not required m order to protect defendant’s property from attachment.
    A PPEAL from the District Court, Parish of East Feliciana, Cooley, J,

      Collins & Leake, for plaintiff and appellant.

      Wiclcliffe & Miller, for defendant and appellee.
   Hyman, C. J.

In this case the plaintiff sued out a writ of attachment, and procured the attachment of some of defendant’s property.

The grounds alleged to obtain the writ was that defendant was indebted to plaintiff, and was a resident of the State of Mississippi.

The defendant moved to have dissolved the writ of attachment, and asked judgment against plaintiff for the damages caused to him by the illegal attachment of his property.

The District Judge set aside the attachment, but refused judgment in favor of defendant for damages.

From the judgment of the District Judge, the plaintiff lias appealed.

One of the grounds of defendant’s motion to have dissolved the attachment was, that he resided in the State of Louisiana.

The evidence proves that defendant was living in New Orleans at the time this suit was instituted, and had been living in said city for.more than two years previous thereto; but plaintiff contends that as he was a surgeon in the United States army, the mere fact of his residing in the State did not show his intention to change his former residence, which was in another State. This may be true, but there is evidence that his connection with the army had ceased ten months previous to the bringing of this suit.

We consider that defendant’s residing in the State for ten months destroyed the right of his creditor to attach his property, as that of a debtor residing out of the State.

A residence of a year in this State is not required to protect a defendant’s property from attachment, under the second paragraph of the 210th Article of the Code of Practice.

The defendant has neglected to answer the appeal, and therefore it is needless to examine whether the judgment of the lower Court be correct on the claim for damages. C. P. 888 and 890.

Judgment of the District Court is affirmed.


author: Labauye, J.

text:
    No. 1296.
    Robinson G. Cotton v. Mary C. Stirling et al.
    Where a judgment has beon. rendered by the lower Court against two defendants tVi solólo, and only one of the defendants is mentioned in the appeal bond, the appeal will be dismissed.
    A PPEAL from the District Court, Parish of West'Feliciana, Cooley, J.

      Collins S LeaJce, for plaintiff and appellee.

      Wm. B. Winter, for defendants and appellants.
   Labauye, J.

This case is before us, first, on a motion to dismiss the appeal, on the following ground :

That all the parties interested in maintaining or reversing said judgment are not parties to the appeal; judgment, was rendered against Mary

C. Stirling and William D. Winter, in solido, and both of them appealed. This suit is brought by plaintiff against M$ry C. Stirling and William

D. Winter, upon their four notes, in solido, dated January 24th, 1863. amounting in all to §16,000.

The District Court, after hearing the evidence, gave judgment for plaintiff against both defendants in solido, for the sum claimed.

Both • defendants appealed by motion, from that judgment, t.o this (hurt.

Mrs. Mary C. Stirling alone, one of the appellants, filed a bond of appeal, as principal, and W. D. 'Winter and Chas. J. Johnson as sureties, in favor of Robinson G. Cotton, the plaintiff. It is then evident that William D. Winter, one of the judgment debtors in solido, is not before this Court, either as appellant or appellee, as his name does not figure in the bond in either capacity. Those only are parties to the appeal whose names are inserted in the' bond. 12 R. 203. 10 A. 232. 11 A. 109. 12 A. 71. 13 A. 392, 111. 11 A. 315, 688.

It is settled that all parties interested that the j udgment should remain undisturbed, must be made parties to the appeal or it will be dismissed. 16 L. 109. 3 R. 136.. 5 R. 221. 9 R. 256. 12 R. 180, 203. 8 A. 367. 11 A. 674. 11 A. 315.

The question arises now, has W. D. Winter, who is decreed to pay in solido the whole amount, an interest in the maintaining of this judgment'! As to him, we cannot touch that judgment, he not being a party .before us.

This judgment, although rendered in solido in favor of the plaintiff, is of right divided betweén the two defendants, who, between themselves, are liable each only for his half. Civil Code, Art. 2099. 12 R. 183. So, in this case, if Winter pay the whole judgment, he can claim from his co-defendant one-half thereof (C. C. Art. 2100), and would be subrogated as surety to all the rights of the judgment creditor, for the recovery of that half against the appellant. Civil Code, Art. 2157, No. 3. 11 L. 52. 3 A. 66. 3R.299. 2 A. 127. If that judgment has been recorded, thereby creating a judicial mortgage on the real property of the appellant, Winter, on paying that judgment, would have the same mortgage securing the half due by said appellant.

We are of opinion that Winter has an interest in having the judgment appealed from affirmed; for, if it be reversed, the appellant is released from it, and Winter remains bound alone under it, without recourse on his co-obligor for his half. In Gibson v. Selby, 3 A. 317, the plaintiff in an injunction suit and his surety had been decreed to pay, in solido, interest and damages ; the plaintiff alone appealed, without bringing before this Court his surety; the appeal was dismissed, In Saux v. Lefivre et al., 12 A. 757, a judgment was rendered in solido against two defendants, one of whom alone appealed, without making his co-defendant a party to the appeal, which was dismissed, for the reason that the defendant left out had an interest in maintaining the judgment appealed from.

We are of opinion that the motion to dismiss must prevail..

Appeal dismissed, at the costs of the appellant.


author: Insi/BY, J.

text:
    No. 1313.
    Timothy H. Corcoran v. The Sheriff et al.
    Plaintiff enjoins a seizure under a writ of JirH facias on. the ground that he is the owner and possessor of the property seized, and the judgment creditor, in answer to the injunction, avers that the act of sale on which plaintiff claims the property seized, is fraudulent and simulated: Held—'Thai the party claiming the property is bound to malee his title clear and certain by legal evidence.
    An act sousseiiujwiue has no date against third parties, except the one at which it is produced, unless the real date is shown by evidence ü¿hor* the instrument
    A PPEAL from the District Court, Parish of East Feliciana, Poseí/, J.-

      Fuqua <& Kilbovrne and J. II. Muse, for plaintiff and appellee.

      Mc-Vea <& Hunter, and Gross cC; Hardee, for defendants and appellants.
   Insi/BY, J.

The defendants, in this injunction suit, W. B. Lacy and ti. Reinberg, two of the judgment creditors of A. W. Ballard, had, by separate writs of fieri facias, caused to bo seized on the plantation of their common debtor, and as his property, a lot of unginned cotton, when proceedings under the said writs were arrested by injunction at the instance of the plaintiff, Timothy II. Corcoran, who claimed to bo the owner of the cotton seized by virtue of a purchase thereof from A. W. Ballard, made by him on the 28th June, .1865, and that his possession of it as well as his ownership thereof, were complete when the seizures were made.

These defendants, for answer to the plaintiff's petition, pleaded the general issue, and averred specially that the cotton seized under thoi r writs was not at the time of the seizure in the possession of the plaintiff, no delivery thereof having been made, to Mm by Ballard. That at the time of the pretended sale to the plaintiff and anterior thereto, Ballard was notoriously insolvent, of which the plaintiff was well aware; that he was absconding from his residence at the time, and that, besides the cotton seized, the plaintiff pretended to have riurchased all the property of Ballard—and, finally, they say that the sale under which the plaintiff' pretends to claim is a fraudulent simulation, and cannot have effect to defeat their executions.

The mandate of the injunction was granted on the 11th September, 1865, and the affidavit of the truth of the facts which rendered it necessary, was not made and filed until the Mth of that month. The Court erred in not maintaining the defendants’ motion to dissolve the injunction on that ground, as the oath of the party applying for it was the essential basis of the mandate. Art. 30é, O. P.

The case was submitted on its merits to a jury, who rendered a verdict in favor of the plaintiff, and from the judgment of the Court thereupon, the defendants, after an ineffectual effort to obtain a new trial, appealed.

On the trial of the case in the Court below the plaintiff, as proof of his title to the cotton, offered a paper of the following tenor, viz:

“For and in consideration of the sum of four thousand dollars, cash in hand paid, the receipt acknowledged, I have bargained, sold and delivered to Timothy H. Corcoran, all the cotton I have on my plantation in the parish of East Feliciana, estimated at sixty bales, being in the seed.

The purchaser to superintend the ginning and hauling. In witness whereof, I have this day and date signed this writing and act of sale.

Baton Rouge, June 28th, 1865. A. W, Bappabd,”

This paper was objected to as having no date against the' defendants, but the Court received it, allowing the plaintiff the privilege of fixing a date certain to it. This paper, and the evidence of a witness, (x. W. Smith, is the proof mainly relied upon to establish the sale of the cotton from Ballard to Corcoran. The paper is the title upon which he founds his claim to it, and all that Smith says in this connection, is in answer to the second interrogatory propounded to him by the plaintiff. He says : " I was employed by J. H. Corcoran to gin, bale and haul off a lot of cotton bought, as I understood, by him from Mr. A. W. Ballard. Thp cotton was in East Feliciana. ”

Not the slightest allusion is made anywhere else .in the record, either to the sale or to the paper purporting to bear the dato of the 11th June, 1865, unless it be in the testimony of a witness named Bauchamp, who was the neighbor of Ballard, and had been the agent of himself and wife during their absence, and he says that he knew nothing of any sale of cotton to plaintiff until about the time .the cotton was seized, which was sometime in September following, 1865.”

Applying, then, to this case, the well known rule of evidence, that an act sous seing privé has no date against third persons, except that at which it is purchased, mil ess the real date be proved by evidence dehors the instrument. See 1 Hen. Dig. 600, 6,8. In the absence in this ease of any other evidence aliunde, the act sous saint/ privé cannot be deemed proof of title to the cotton in Corcoran, to affect the defendants’ seizures.

It was incumbent on the plaintiff to make his claim to the cotton certain, and this ho failed to do, unless the vague statement of the witness, Smith, that the sale had been made, as he understood of Corcoran, establishes the fact which, particularly, under the circumstances of this case, we do not think it docs—-as it might, if real, have been shown beyond a doubt.

When the sheriff seized the cotton, there was no apparent adverse possession of it in Corcoran or his agent, but, assuming that Smith had had the possession of it for Corcoran, it was an unjustifiable and illegal possession, and either Ballard or his creditors, under their writs of fiei i facias might have taken the possession of it, to which they had the legal right, out of his hands, provided no violence was used. (See Wells v. Wells, 8 N. S. 311.

No objection to or protestation against the seizure made by the sheriff, seems to have been made at the time thereof, either by Corcoran or Smith.

The plaintiff’s success in the present case, where so manycircumstauces concur to render such a transaction suspicious, depended on his showing at least satisfactorily a transfer and delivery of the cotton, but this he failed to do.

It is therefore ordered, adjudged and decreed, that the verdict of the jury-be set aside, and the judgment of the Court below annulled, avoided and reversed.

It is further ordered that the injunction sued out by Timothy H. Corcoran be dismissed, and his suit dismissed, with costs in both courts.


text:
    No. 1302.
    John J. Hutchinson v. A. J. Johnson.
    Ail the parties interested that a judgment shall remain undisturbed, must be made parties to any appeal taken from it, or the appeal will bo dismissed; and this rule applies to warrantors interested in the suit.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.
    .7. E. Wilson, for plaintiff and appellee.

      T. G. W. Ellis, for defendant and appellant.
   Hyman, C. J.

Plaintiff' brought a petitory action against defendant to recover a certain tract of land in the parish of St. Helena, in defendant’s possession.

Defendant called in warranty Caroline Gt. Ridgely, his vendor, who, in turn, called in warranty her vendor, B. E. Taylor.

Judgment was rendered decreeing that plaintiff recover from defendant the land; that defendant recover of his vendor, Mrs. Ridgely, the price he paid her for the land, and that her right of action for warranty against her vendor, B. E. Taylor, be reserved.

Erorn this judgment defendant appealed, and gave his appeal bond in favor of plaintiff alone.

B. E. Taylor is interested that the judgment should remain undisturbed—without the appeal bond being in his favor, he is not a party to the appeal, and all parties interested that the judgment appealed from should remain undisturbed, must be made parties to the appeal. 12 Bob. 203.

'Let the appeal be dismissed.


author: Iusley, J.

text:
    No. 1306.
    Edward Ricks v. Auguste Bernstein.
    Iq proceedings i in e.wutim the creditor must bring himself within the letter of the law.
    Where a discrepancy exists between the note and the act of mortgage by which it is cecuied, the holder cannot proceed by executory process.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.

      D. Ar. Hennen, for plaintiff and appellant.

      Ernest- Wench and J. J. Ellis, for defendant and appellee.
   Iusley, J.

The plaintiff in injunction stayed proceedings under the executory process, sued out against him by the defendant.

The ground urged for the injunction was, that there was a discrepancy between the note sued on and the one described in the authentic act of mortgage, upon which the order of seizure and sale was granted, in this, that the first bore interest at eight per cent, from its dale, whilst the one described only bore that rate of interest from its maturity, and that there was no idéntity between the note and the act. This is evident. But the Court below, although satisfied that the note did not correspond with the act, and upon the admission of the plaintiff, remitted one year’s interest, yet dissolved the injunction, with ten per cent, damages on the amount enjoined.

It is probable there was an error in the drawing of the note ; but in a proceeding via executivei, nothing can be left to conjecture. 1 Hen. Dig. p. 646, jl.

Every fact must be patent upon the face of the papers, and if there is any matter in pais, some other proceeding than one via executiva must be resorted to, to prove it. In the present case there is a want of identity between the note annexed to the petition and that described in the authentic act; and the Judge erred in granting the order.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the injunction sued out be perpetuated, at the costs of the appellee.


author: Idsdey, J.

text:
    No. 1273.
    The State of Louisiana v. Ferdinand Whitaker.
    A justice of the peace, before whom a party is brought for examination, cannot admit him to bail if the crime of which he is accusocl be punishable with death, 01* with seven years’ or more imprisonment at hard labor. Revised Statutes, 148-9, sec. 82.
    A bail bond taken by a justice of the peace, in a case in which lie is prohibited from admitting the party to bail, is void ; and the securities theroon will incur no liability.
    A PPEAL from the District Court, Parish of East Eeliciana, Posey, J.

      R. W Knickerbocker, District Attorney, for the State.

      W F. Kernan, for defendant.
   Idsdey, J.

The appellant was the security on a bond taken and approved by a justice of the peace, conditioned for the appearance of the principal obligor, Ferdinand Whitaker, at the District Court, Parish of East Eeliciana, for embezzlement—a crime punishable with seven years’ imprisonment at hard labor. (See Revised Statutes, 148-9, § 82.)

In the cases of the State v. Hebert, 10 Rob. 41, and the State v. Harper, 3 An. 598, and the State v. Hays, 4 An. 59, it was held that justices of the peace are incompetent to grant bail when the offense is punishable with death, or imprisonment at hard labor for seven years or more, and that bonds taken by them, in such cases, for the appearance of parties, are void, being in contravention of a prohibitory law. (See Act of 3d May, 1805; Bull. & Cur. Dig. 529; Act 31st March, 1807; Bull. & Curr. Dig. 530; Session Acts, p. 448, sec. 43.) The party who signed the bond incurred thereby no legal liability.

The judgment of the District Court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the Distriet'Court be annulled, avoided and reversed, and that judgment be and it'is hereby rendered in favor of the appellant, without costs.


author: 1'lsley, J.

text:
    No. 1282.
    Gleason & McManus v. The Sheriff et als.
    Where property of a juclgmont debtor lias been seized by virtue of executions in several cases, and a third party enjoins the proceeds of tho sale in the hands of tho sheriff on the ground that he has a superior privilege on the property seized: U>ld~Thai on third opponent showing a superior privilege, the seizing creditors can only claim the residue after paying opponent’s claim.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.
    TF. F. TCernan, for plaintiff.

      Jl/cVea cC Jlunler, and Fuqua (6. Kilboume, for defendants.
   1'lsley, J.

Several of the creditors of John F. McGinn had issued executions in the judgments which they had respectively obtained.against their debtor, and, in virtue thereof, the sheriff, on the 4th December, 1860, levied on a stock of goods.

Subsequently, on the 20th March, 1861, the plaintiffs, third opponents, caused to be stayed in the sheriff’s hands the jiroceeds of John F.. Mc-Ginn’s stock of goods, out of which they claimed to be paid the amount due them, say six hundred and ninety-seven dollars, for which they held the lessor’s pledge, and claimed to be paid therefrom the amount due them by privilege and preference.

After trial in the Court below, the claim of the third opponents was sustained according to the prayer of the petition, and the balance, if any, of the proceeds of sale was ordered to be paid to the seizing creditors in the order and rank of tlieir seizures.

From this judgment the defendants have appealed. .....

A very careful examination of the record satisfies us that there is no error in the judgment of the District Court.

No objection seems to have been made to the introduction, as evidence in the trial, of the opponents’ judgment against the common debtor, John F. McGinn, by which their privilege was recognized on the .goods seized by virtue of the several fieri facias sued out by the defendants. This judgment not having been attacked for fraud and collusion, is prima facie evidence against third parties. Judson v. Connolly, 5 An., 401. Fox v. Fox, 4 An. 135. 17 La. 205. 15 La. 59. Adams v. His Creditors, 14 La. 459; and there is no evidence in the record to disprove the validity of the opponents’ claim and privilege, which is suiierior to those of the seizing creditors.

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


author: Labauve, J.

text:
    No. 1235.
    The State of Louisiana v. Thomas J. Frisby.
    After the jury have received the charge oí the Judge, in u capital case, and. have retired, the Judge is not authorized to give separate and private instructions to any of the jurors.
    If they desire further instruction, he should order all to be brought into Court, and there instruct them in presence of the counsel.
    A PPEAL from the District Court, Parish oí Tensas, Farrar, J.

      A. J. Herron, Attorney General, for State.

      Farrar & Reeves, for defendant and appellant.
   Labauve, J.

Tlio accused was convicted of manslaughter, and sentenced to ton years’ penitentiary and hard labor at Baton Rouge.

He took this appeal.

After the verdict oi the jury, the accused, by his counsel, moved for a new trial, upon the following grounds, among others :

“2. Because, after the jury had retired—after the closing of the evidence, argument of counsel and charge oi the Court, to consider their verdict—one of the jurors impanneled in said ease, viz : Isaac E. Harrison, separated from said jury, returned alone to the court-room and had a private conversation -with the Judge on the bench, relative to said cause, apart from and out of the presence of the jury, and out of the hearing of the defendant or his counsel, and without their consent and against their will. All of which defendant contends, respectfully, vitiates said verdict and entitles him to a new trial.”

The record shows, beyond a doubt, by the testimony and statement of the then presiding Judge Farrar, and Isaac E. Harrison, the juror, that, after the trial, closing of the evidence, argument of counsel and charge of the Court, and the jury having retired to their room to deliberate, the said Isaac E. Harrison, one of the said jury, left the room in company of the sheriff and returned, without the rest of the jury, to the court-room, and had a conversation with the Judge, and asked for instructions, whether the jury could attach to their verdict a recommendation for mercy. That this conversation was not loud, in order not to interrupt the proceedings of the Court, and it was believed by said juror that the members of the bar or the prisoner could not hear it; the Court was in session; that the Judge’s instructions or reply to this juror, was that it was perfectly competent for them to attach to their verdict a recommendation to the Court for mercy in behalf of the prisoner.

The question of law which arises here, is : After the jury have received the charge of the Judge and retired for deliberation, is he authorized, by law and universal practice in conducting criminal proceedings in trials of capital cases, to give to jurors separate and private instructions or charges', oufcof the hearing and without the knowledge of counsel on both sides ? We think not. Because the instructions might be improper and illegal, and neither party could have an opportunity to except to such instructions. • When the arguments are closed, the Judge gives his charge to the jury in presence of counsel on both sides; either party then has the right to except to any part of the charge; and after the jury have retired, if they desire any further instructions, at their request, the Judge orders them ah to be brought into Court, and there, in presence of counsel, the Judge may give them the instructions desired, counsel, of course, having the right to except.

In the present case, the Judge’s instruction was not improper in itself, and no exception could have been taken if given to the whole jury in the usual way, in presence of counsel. The objection here is not to the illegality of the instruction per se, hut to the manner, time and place of giving the same. Had the Judge legal authority to give instructions, as was done in the case at bar, great mischief and injustice njight he done, without leaving to the accused or the State the remedy, by bill of exception, to have the errors of the Judge brought up and corrected before this Court.

The statement of the Judge, found in the record and not excepted to, establishes clearly that ‘ ‘Col. I. F. Harrison, one of the jurors' in this case, came to him during the sessions of the Court, stating that he had come under the charge of the sheriff, at the request of the jury, who had found their verdict, to inquire of the Court whether it was competent for the jury to attach to that verdict a' recommendation to the Court for mercy in behalf of the prisoner; that he had replied to him, it was perfectly competent for them so to do. ” * *' * * * *

The fact, then, was admitted and placed on record, without objection, and it is now before us, and there can be no contest as to its existence, leaving for our decision the question of law alone : Was the Judge authorized, by law governing criminal proceedings in trials of capital cases, to give instructions in the manner, time and place as stated ?

We are clearly of opinion that the criminal law does not sanction such proceedings,' and that the District Court erred, and should have granted a new trial. ■ ■ •

It is therefore ordered and decreed, that the verdict of the jury, and the judgment of the Court rendered thereupon, be annulled and avoided; and that the case be remanded for a new trial and proceeded in according to law.


text:
    No. 1264.
    State of Louisiana v. Newton Taylor et als.
    Where an appearance bond is not signed by the accused, he is not bound thereon; and a judgment ' against the surety is not valid.
    A PPEAL from the District Court, Parish of Livingston, Jones, J.

      Attorney General, for the State.

      Wilson & Amacker, for defendants.
   Hyman, C. J.

In this case there was a judgment rendered in favor o'f the State against Herod Allen, as security on a bond for the appearance of Newton Taylor, at the Sixth Judicial District Court, - parish of Livingston. " ■ •

The bond was not signed by Taylor, nor is he bound thereon. Allen has appealed from the judgment.

There cannot be an accessory obligation without a principal one.

Let the judgment against Herod Allen, in favor of the State of Louisiana be annulled, avoided and reversed, and let there be judgment in his favor.


author: Taíiaeeero, J.

text:
    No. 1251.
    State of Louisiana v. Ferdinand Collins.
    Where a party lias beou arrested in one parish, charged with an offense committed in another, it is tile duty of the magistrate to commit him to prison until he can be transferred to tho parish where the offense is alleged to have been committed, and a bond taken by the magistrate whereby the party is released from prison, is unauthorized and void, and the sureties cannot be held. Revised Statutes, page 167, 8 49.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.
    ,/. J. Stafford, District Attorney, for State.

      James Q. Fuqua t for def<p}dant apd appellant,
   Taíiaeeero, J.

In September, 1866, the defendant was arrested in the parish of East Baton Rouge on the charge of having stolen at Clinton, in the parish of East Feliciana, a horse, the property of H. L. Latil. The magistrate, before whom the accused was examined, required him to furnish a bond in the sum of five hundred dollars, with a sufficient surety or sureties, or in default thereof to be imprisoned. Clark Shelvin, the appellant in this case, became surety for the accused, and executed with him the required bond, which was conditioned that the defendant should appear in the District Court of the Fifth Judicial District, at its next sitting, in and for the parish of East Baton Rouge, on the first Monday of November, 1866, to answer the charge preferred against him. The defendant failed to appear according to the tenor of the bond, and the District Attorney moved for an order of the Court declaring a forfeiture of the bond. Shelvin, the surety, filed an answer to the motion, alleging the following objections to the rendition of tho order:

1. That there was no order rendered by the committing magistrate, or any other competent officer, admitting the accused to bail or fixing the amount of the bond.

2. That the magistrate was without authority to. admit the party to bail, as it appears from the bond that the offense charged was committed in the parish of East Eeliciana. - ;

Although, in the matter charged against him, the accused may, in the general acceptation of what constitutes the crime of larceny, have been guilty of that offense in the parish of East Baton Rouge as well as in the parish of East Eeliciana, and therefore indictable in the former parish, yet, a statute of the State founded in motives of public interest and convenience, directs that in cases of this kind “the offender shall be committed to prison until he can be transferred to the parish where. the offense is alleged to have been committed.” Revised Statutes, page 167, section ”45.

The committing magistrate erred in not following the statute, and the bond taken was therefore unauthorized.

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 defendant and appellant have judgment in • his favor, relieving him from all obligation on the bond sued, upon.


author: Howeed, J.

text:
    No. 1300.
    L. P. Washington v. Oran Hackett.
    To make a judgment rendered against the husband, and wife valid, the wife must be authorized by tho husband or the judge to appear and defend the suit.
    "Wbon no judgment by default has been taken, prior to rendering a final judgment, it is a nullity, and will be so declared when attacked by a third party.
    A PPEAL from the District Court, Parish of Livingston, Mils, J.

      Wilson. & Pipián, for plaintiff and appellant.

      T. G. Davidson and T. G. W. Ellis, for defendant and appellee.
   Howeed, J.

This is an action to annul a judgment rendered in the District Court for the parish of Livingston, against the plaintiff and her husband in the suit of O. Hackett v. J. G. Washington et al. The grounds of nullity are that, plaintiff was not authorized by her husband or the Court to defend said suit; that the law prohibits her being held liable in solido with her husband for the debt on which said suit was based, and that she is not liable therefor indirectly or otherwise, nor is her separate property responsible for the same.

The defense is a general denial, and the averment that the judgment is legal, the plaintiff having been joined with her husband, and both having made default. Judgment was rendered in favor of defendant, and plaintiff appealed.

In the suit of Hackett v. Washington and Wife, both defendants were cited, but failing to appear, the interrogatories on facts and articles, propounded to them to prove the correctness of the account sued on and the liability of the wife, were taken as confessed, and at the same time judgment was rendered against them in solido. We are unable to find in the record any evidence of a judgment by default having been rendered prior to the final judgment; nor is there any authorization of the wife by her husband or the Court to defend the suit. No valid judgment could be rendered against her under such circumstances, not being qualified to appear in the suit. O. C. 123, 126. C. P. 118, 606.

It is therefore ordered, that the judgment appealed from be reversed; and it is now ordered that there be judgment in favor of plaintiff and against, the defendant, annulling the judgment against the plaintiff herein, Mrs. L. P. Washington, in the suit of O. Hackett v. J. G. Washington et al., No. 604, on the docket of the District Court for the parish of Livingston, and that defendants pay costs in both suits.


author: Taeiaeerro, J.

text:
    No. 1268.
    James Syme v. Brown et als.
    Where several parties endorse a promissory note, they ave noti'oint sureties to the holder, but each one is severally liable to him for the whole amount.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J,

      McVea & Hunter, for plaintiff and appellee.

      J. McVea, for defendant.
   Taeiaeerro, J.

This is an action against A. Porter Brown, the maker, and Madison Marsh and B. M. G-. Brown, the endorsers of two promissory notes—the one for §500, the other for §1,000, with interest. The plaintiff is holder under the endorsement of Marsh, the payee.

The defense first set up by B. M. G. Brown was, that as the note was not protested at maturity, he has lost his recourse upon Marsh, and is therefore discharged. He then, by exception, put in the plea of division, alleging that he is merely a surety endorser.

Judgment was rendered against the maker and B. M. G. Brown, in solido, for the amount of both notes,

B, M. G, Brown appealed.

The defense is clearly untenable. The obligation of the defendant is not that of a joint surety. “If several persons endorse a note, they are not joint sureties to the holder, but each one is severally liable to him.” Bailey, on Bills, .p. 151.

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


author: Labatjve, J.

text:
    No. 1322.
    T. W. Champlin v. Mrs. Elizabeth Lee and her Husband.
    Plaintiff brings suit agftinsfc a married woman, on a promissory note, alleged to be given for her own benefit, and joins her husband in the suit. A judgment by default having been set aside, the wife ■ alone filed an answer. Ho steps were talcen to have her authorized to appear in Court :
    .fleM—That her appearance being unauthorized, the judgment must be reversed. C. C. 123.
    A . PPEAL from the District Court, Parish of St. Helena, Martin, J.

      W G. Pipián, for plaintiff and appellee.

      T. (7. W. Ellis and Bradley, for defendant and appellant.
   Labatjve, J.

This suit.is brought against Mrs. Elizabeth Lee, upon a note alleged to have been executed by her for her own benefit and in her own affairs, and under the authority of her husband, Renny Lee, -who is made a defendant in order to authorize and assist his wife herein, and on his failing to do so, plaintiff prays that she be authorized by the Court.

The record shows that the defendants failing to answer, a judgment by default was rendered against them.

Immediately following, we find this entry :

“ Ordered, that the default herein be set aside, and Benny Lee et als,, defendants, have leave to file their answer. ”

The entries and setting aside of default are not dated.,

On the 13th of November, 1866, Mrs. Elizabeth Lee, the wife, appeared alone and filed an answer ; nothing in the record shows that she was authorized by her husband or by the Court. The question arises whether she was . authorized to appear after the default, under the authority in 9 An. 197, where the suit was brought against the. wife, and her husband was cited with her, and a judgment by default was entered and made final, without appearance; there, this Court said, that the tacit issue was binding upon the wife, and dispensed with authorization of the Judge. In the case at bar, the judgment by default being set aside, carried with it the tacit issue and authority ; there was, then, no. default when the wife answered.

But the case in 1 A. 260, Adle v. Auty and Husband, is exactly in j>oint. The suit was brought against the wife joining her husband; a judgment by default, taken against both defendants, having been set aside, the wife alone filed an answer; no steps taken to have her authorized to appear in Court; it was decided that she was not authorized. See also 6 R. 78; 9 R. 193; 3 A. 619; 10 A. 412; 12 A. 146. We are of 02finion that the wife was not authorized to appear, and that the judgment rendered against her must be reversed,

This want of authority has not been brought to our notice by the parties, but as such proceedings are absolutely null, we feel bound, ex officio, to notice such radical omissions and give parties a chance to correct them. Robinson v. Buller, 6 R. 78.

It is therefore ordered and decreed, that the judgment appealed from be reversed and annulled, and that the case be remanded for further proceedings according to law, and that the plaintiff and appellee pay costs of appeal.


author: Ieseey, J.

text:
    No. 1193.
    H. Viala et als. v. Eugene D. Burguieres.
    The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the day of his majority. O. O. Art. 356.
    The omission of the tutor to render an account of his tutorship, does not prevent prescription from running, and judgment creditors may avail themselves of it.
    Prescription, in regard to claims which the heir may have against the succession, runs against himself, so long as he has not accepted the succession with the benefit of an inventory, and his acceptance as beneficiary heir cannot destroy prescription thus acquired against him during the interval of the opening of the succession. O. O. 3192, 3193.
    A. PPEAL from the District Court, Parish of Terrebonne, Gales, J.

      Bush & Goode, for plaintiffs.

      Johnson, Berctull, Denis and Legendre, for defendants.
   Ieseey, J.

The plaintiffs, Louise Irma Thibodaux, Laura Thibodaux, wife of Eugene N. Dutreil, and the three minor children of Julie Thibodaux, represented by their father and natural tutor, Hypolite Viala, claim to be creditors of the succession of their father, H. M. Thibodaux, in the sum of fifteen thousand nine hundred and sixty-five dollars and twentyeents, their inheritance from their mother, Louise Buhé, who died May 21st, 1847, while her said children were minors and which amount having been, as they aver, received for them by their father and natural and confirmed tutor, they now claim from his succession, with legal interest from their respective majorities, with a legal mortgage on the property of their father’s estate, to the extent of the principal and interest of the sum demanded. In order, however, to sustain their present demand, the plaintiffs must first succeed in setting aside and annulling certain acts in the shape of acquittances and releases of mortgage, given by themselves to their father and tutor in his lifetime, and this is mainly the object of this suit. The petition accordingly sets forth as follows: The valuation of the property depending in the community of the father and mother, as shown by the inventory made soon after her death, and the adjudication of the minors’ share of it to the father; also, the sums brought in marriage by the spouses, respectively.

That on the 2d October, 1850, the father had presented to the‘Court an account liquidating the community, which was ajoparently much indebted, but showing, nevertheless, a balance accruing to the minors of $10,793.

That this account was homologated on the 13th November, 1850, after the rejection of a single item, by which the aforesaid balance was increased to $10,965 50,

That on the 31st of March, 1857, by notarial act, the three daughters, Irma and Julie, as well as Laura, already wife of Dutreil, and by him authorized and assisted in the act, declared themselves of lawful age; acknowledged that an account of their maternal inheritance had been rendered by their father and homologated more than ten days previously in the suit No. 699 of the docket of the District Court of Terrebonne, and that they have examined the said account and vouchers, and found the same correct; that they approved and satisfied the homologation of it; that according to it the sum coming to them was §10,793 or $3,597 60 to each.

They further say that, whereas they have for the security of it a special mortgage on certain property of their father, which they describe, they desire to release that mortgage; and their father, also' appearing in the act, declares that in consideration of that release, ho gives his children another mortgage on other property described in the act, to secure the aforesaid balance still due them. Before doing this act, the parties also declare that by the judgment of homologation of the account above mentioned, the sum due the minors had been erroneously fixed at §10,965 50, and authorize its reduction to the true amount of §10,793.

That by another act of the 10th April, 1857, the same parties again appeared, and reciting once again that pursuant to the account rendered by their father and tutor in suit No. 699 of the District Court of Terrebonne, the balance in their favor was §10,793, but that it had been by the decree of homologation of said account increased to §10,965 50; they covenant and agree that the former is the true amount, and they then declare that they have each that day received from their father the sum of §3,597.60, accruing to each, and in consideration of that payment they grant full acquittance of all dues and release of mortgage.

The petition then avers the amount above mentioned to be erroneous, and the judgment of homologation to be only provisional, and not conclusive upon the minors; and, particularly, that the account .was not properly supported by vouchers; also, that the acts of 31st March and 10th April are null, for this:

1. Non-compliance with formalities prescribed by C. C. Art. 355, by reason whereof the minors had no knowledge of the true state of their accounts with their tutor.

2. That no money was ever paid as stated in the said acts.

3. That JvMe was still a minor when these acts were executed; and that Mrs. Dutreil, though emancipated by marriage, was still under age at the time, and could only bind herself to the extent of one year’s income.

It is by a proposed rejection of certain items of the tutor’s account, rendered in the suit No. 699, and homologated by the decree of 2d November, 1850, that the petition assumes to raise the balance due to §15,965 25 instead of §10,793, and it concludes by asking that the amount be thus established anew; the acts of 31st March and 10th April, 1857, be annulled, and the plaintiffs recognized as creditors for that sum, with interest, and the tacit legal mortgage on all the property of the estate,

• The administrator, by his answer, resists all the plaintiffs’ pretensions, and insists on the correctness and validity of the amounts and costs attacked, it opposes to the claims of the plaintiffs the prescription of four and five years, and, finally, sets up in reduction of any amount they might recover, certain sums of money advanced them by himself out of the estate now' largely insolvent, at a time when it was not suspected of being so.

The intervenors, Perry, in his own right and as syndic of the creditors of Lobit k Charpentier, and Lobit k Charpentier show' themselves to be creditors of the estate of H. M. Thibodattx, for large amounts to secure which the deceased had given mortgages on the property left at his death and composing his estate.

They allege the insolvency of the estate, the appraised value of the property in its present condition being less than the amount claimed by the present plaintiffs. On these grounds the intervenors rest their right to come in and resist the claim of the plaintiffs, which they do by averring the binding force of the account and of the acts of the 31st March and 10th April, 1857, which the plaintiffs seek to annul and avoid.

They further plead, as does the representative of the estate, the' prescription of four and five years as a complete bar to any such claims as those set up by the plaintiffs. After a trial contradictorily in the District Court, there was a judgment against the plaintiffs, rejecting their claim in toto. The judge d quo did not pass upon the question of prescription, but went into an examination of the merits, and saw in the evidence no ground to impugn the fairness of the settlement made by the plaintiffs with their father.

He was satisfied with the proofs of the satisfaction and payment of the plaintiffs’claims—proofs furnished by their own acts, viz: those of 31st March and 10th April, 1857, and an act of October, 1858.

The plea of prescription is earnestly relied upon in this Court, and as it is the first question in order, one which, if maintainable, will tend to put an end to the plaintiffs’ action, it will be first examined.

The action of the minor against his tutor, respecting the acts of the tutorship is prescribed by four years, to begin from the day of his majority. Civil Code, Art. 356. Gilbert v. Merriam, 2 An. 162; Bonnafanne v. Wells, 10 An. 658; Odile Gourdam v. Davenport, 10 Rob. 174.

During that delay, the minor arrived at the age of majority may sue his tutor for an account of tutorship (Cominargere v. Golly, 6 La. 161); or he may sue to annul settlements made with his tutor not in strict accordance with the requisitions of law. C. C. 355. Tutorship of Francis Haclcet and another, minors, 4 Rob. 297.

This prescription runs whether the tutor has rendered any account or not, and his entire omission to do so does not prevent the prescription from running. Succession of MeGill, 6 An. 345. And judgment creditors can avail themselves of it. Civil Code, 3429. Pothier on Obligations-, 700. Troplong on Prescription, 100, et seq. 6 An. 345.

Are the facts of this case such as to bring the plaintiffs within the scope of these authorities, and do they support the plea of the prescription of four years ?

The family record of births and deaths, which the plaintiffs have themselves offered in evidence, explained by a wdtness, gives the ages respectively of Louise Irma, of Laura, and of Julie Brigelte.

Louise Irma was born on the 11th February, 1836. She, consequently, attained her majority on the 11th February, 1857, and she was of full age when the acts of 31st March and 10th April were passed.

Prescription was therefore acquired against her on the 11th February, 1861.

Laura, the wife of Dutreil, was emancipated by marriage when the acts attacked were executed, but prescription only commenced runningagainst her from the day of her majority, or from the day on which she was dispensed by law with the time necessary to attain her majority, and this last event occurred on the 15th February, 1858. The time of prescription as to her would, therefore, if not suspended, expire on the 15th February, 1862. Her action was instituted on the 16th January, 1866.

One of the grounds assigned for a suspension of prescription against Mrs. Dutreil is, that on the 11th April, 1857, the day after the settlement between the tutors and the minors was made, the tutor executed his four promissory notes in favor of E. N. Dutreil, the husband of Laura, and that these notes were given in part representation of the amount due by the tutor to Mr. Dutreil’s wife ; that if Mrs. Dutreil had instituted this suit, the tutor would doubtless have claimed the cancellation of these notes, and thus the action of the wife would have been prejudicial to the husband ; and such being the case, prescription did not run against her. ” See Civil Code, 3491.

There is no sufficient evidence in the record to connect the notes alluded to with that settlement. The proof furnished with that view is all of a negative and unsatisfactory character, and does not warrant the application of the Article of the Code relied upon.

The other grounds set up for the suspension of prescription will be presently adverted to.

■ ■ Julie or Brigette, wife of Viala and the mother of his minor children, whom he represents in this suit, was bom on the 25th May, 1837. She attained her majority on the 25th May, 1858, and she died on the 16th April, 1863. Prescription, unless suspended, w'as acquired against her on the 25th May, 1862. ' •’

No legal reason is shown in the record why Laura and Julie could not have prosecuted their present action within and up to the periods when prescription against each of them was completed.

' It is, however, contended that, in any contingency, all prescription wag suspended, and did not run against the plaintiffs, in consequence of the' death of H. M. Thibodaux, their tutor, on the 5th March, 1861, less than four years after the settlement, and that they, having accepted his succession, with benefit of inventory, became his beneficiary heirs, against whom prescription does not run. See Art. 3492, ?¿ 1, Civil Code.

■ The succession of H. M. Thibodaux was so accepted by his children, the plaintiffs, in March, 1864; and it becomes necessary to interpret, for the first time, the paragraph of the Article of the Code referred to above, which provides that “prescription does not run against a beneficiary heir with respect to the debt duo him by the estate.”

Reading this Article in connection with Article 3493 C. C., which corresponds textually with Articles 2258 and 2259 of the Code Napoleon, and aided by the lights furnished by the Courts in France and the commentators of the latter Code, we are not embarrassed in reaching the conclusion that there is only a suspension of prescription, under Article 3429, in favor of beneficiary heirs, from the time of the express acceptance of a succession under the benefit of an inventory.

In the case of Brulon v. Follett, Journal du Palais for 1833, page 688, a decision was rendered, on a state of facts and of law, precisely analogous to that presented here, to the. effect that ‘‘ prescription in regard to claims which the heir may have against the succession, runs against himself so long as he has not accepted the succession with the benefit of an inventory, and his acceptance as beneficiary heir cannot destroy prescription thus acquired against him during the interval of the opening of the succession.” See also Moussard v. Velette et Bonnefond, Journal du Palais 1849, vol. 2, 659. Troplong on Prescription, commenting on Articles 2258 and 2259 O. N., and Duranton on the same Articles, Nos. 316 and 322.

The plaintiffs are not included in any of the exceptions established by law to suspend the course of prescription against them.

Considering the plaintiffs’ action prescribed, we have not examined any of the other questions presented by the pleadings.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court bo and the same is hereby affirmed, at the costs of the plaintiffs and appellants.


author: Howedd, J.

text:
    Nos. 880 and 885.
    George S. Lacey v. Widow Davis Lanaux, Tutrix—A. Lavisson v. Same.
    The under-tubor is nob personally liable for expenses of hbigabion in a suib brouglib by him for the removal of the butor, and in proceedings on opposition to the tutor’s account of administration, unless, he acted in bad faith.
    Failure does not of itself prove bad faith.
    The fees of counsel in such cases do nob depend on success, and are to be paid by the estate of the
    A PPEAL from the Third District Court of New Orleans, Fella wen, J.

      E. W. Huntington, for plaintiff and appellant.

      C. Dufonr and E. Bermudez, for defendant and appellee.
   Howedd, J.

These two suits are instituted to recover of defendant, as tutrix, the fees of counsel employed by the under-tutor, in an action to deprive the defendant of the tutorship and to oppose an account of her administration, filed by her under an order of Court, in both of which proceedings the under-tutor failed, except in an unimportant item of interest in the account.

The defense is, that the proceeding on the part of the under-tutor was indiscreet, unnecessary, and injurious to the minor’s interests, and not being authorized to employ counsel, and their services not inuring to tlv> advantage of the minor,' he alone is personally responsible for such services.

It is not denied that, if the proceedings instituted by the under-tutor had been successful, the estate of the minor would have been liable for fees of counsel therein; and the question is presented, who is responsible for the fees, as the litigation has terminated in favor of the tutrix ?

The law provides that the under-tutor may prosecute the removal of the tutor when the Judge shall think there is probable causo for removal, and permits the accounts of tutors to be homologated contradictorily with the under-tutor (see C. P. 1016; Acts 1855, p. 40), which necessitate the employment of counsel. 5 A. 165. Wo do not understand that the compensation of counsel in such cases depends on success ; and, ns the under-tutor receives no compensation and has no direct pecuniary interest in the result, we think he cannot be held liable in cast', of failure, unless, indeed, it appear that he acted in bad faith. His being unable to make the cause, which the Judge considered probable, a positive and successful one, does not of itself prove bad faith. And so in his inability to establish his opposition to an account. The proceedings in each case are under the eye of the Judge, who can easily detect any improper practice, and protect the interests of the minor and tutor by dismissal or otherwise. Great watchfulness, discretion and delicacy are to be exercised by Courts in such matters ; and although the proceedings in question may have been unduly protracted and complicated, -we do not. consider them unwarranted or unauthorized on the part of the under-tutor, and we are of opinion that his counsel should be reasonably compensated,

Upon an examination of the questions properly involved in the pleadings, under the law applicable to such proceedings, the amount of legal skill and labor required, and the opinions of the two District Judges, before whom tire-proceedings were conducted, we have come to the conclusion that a fee of one thousand dollars each will be a fair and just reward to the plaintiffs, to be paid by the minor, now emancipated and made a party defendant.

It is therefore ordered, that the judgment of the lower Court bo reversed, the verdict of the jury set aside, and it is now ordered that plaintiff recover of Amelia Rixner, a minor emancipated, the sum of §1,000, with costs in both Courts.

[Same judgment in each case.]


author: Taliaeeebo, J.

text:
    No. 271.
    M. Simon v. F. Leopold.
    The goods of a debtor being seized, by his judgment» creditor, upon premises leased by then' owner to another party, and the landlord having intervened by third opposition, and had the goods provisionally seized for rent and the proceeds of sale being adjudged to him, the original judgment • creditor lias his remedy against the principal lessee for the amount of his judgment to the extent that the proceeds of the sale were applied to the extinguishment of the landlord’s claim.
    The defendant, having confessed judgment on the landlord’s opposition, cannot afterwards maintain that he was not the real lessee.
    A PPEAL from the Sixth District Court of New Orleans, Howell, J.

      V. F. & X. B. Cotton, for-plaintiff and appellant.

      T. L. Leml>/, for defendant and appellee.
   Taliaeeebo, J.

In 1860, Simon & Prank, (whose assignee the present plaintiff is) having obtained a judgment against Charles Goldenberg. issued execution, and seized a stock of merchandise belonging to Golden-berg. The goods seized were in a house leased to the defendant in this case by O. M. Conrad. After the seizure, Conrad filed his third opposition, and obtained a provisional seizure of the same goods claiming to be paid by preference out of the proceeds of the sale ($355) due him as lessor of the. house in which the goods wore found and seized. The entire proceeds of the sale. ($353 40) wore appropriated to the lessor’s claim, leaving nothing for the plaintiff's execution. The litigation arising from these matters, was before tills Court in April, I860, in the case of Simon & Frank v. Charles Goldenberg; C. M. Conrad, Intervenor, and is found reported in 15th Annual, p. 229.

In that case the Court said: “ There is no doubt in our mind that the defendant Goldenberg, occupied at the time, the whole house leased as aforesaid by the third opponent to Leopold, and that the goods seized belonged to him; in fact a portion of said goods had by him been purchased from plaintiffs. The defendant, no doubt, for the purpose of defeating the claim of (lie plaintiffs, did not see fit to disclose the title under which he occupied the premises; for had it been as sub-lessee, the property seized would only have been subject- to the privilege of the lessor to the extent of his indebtedness to the principal lessee. Civil Code, 2676. Whereas, under the interpretation given to the Articles 267.5 and 2677 of the Code, the privilege covers all the movables seized to (he full amount of the. rent. 11 L. 499. C B. 293. The principal lessee is not before us in a more favorable light; for, having failed to show ownership in himself, he, nevertheless, suffered the proceeds of the sale to go to the extinguishment of his own debt. The peculiar circumstances of this case are such that we. will make a reservation in favor of the plaintiffs in our decree.”

The Court, accordingly, in its judgment decreed “that the rights of action of the .plaintiffs, Simon & Frank, if any they have, to recover back the amount of the above judgment from Frederick Leopold, be reserved.”

Soon after the decree was rendered the present suit was instituted by Simon, the. assign»' of the plaintiffs in the former suit against.Leopold, the present defendant. .The potitiou charges the defendant and Golden-berg with having formed a fraudulent combination to defeat the plain tiffs’ claim against Goldenberg. The answer is a general denial. Judgment was rendered against the plaintiffs, and they have appealed.

Goldenberg, the defendant in the original suit we have referred to, and Leopold, the original lessee of the building in which Goldenberg’s goods were found, were all, well as the original plaintiffs, made parties by the third opponent claiming the proceeds of the'sale of the goods. Leopold and Goldenberg accepted service. The former admitted his indebtedness as alleged, and confessed judgment; the latter admitted the allegations to be true. Here then is the judicial confession of the defendant: that he owed the lessor the sum he claimed as due him on the lease ; and we have seen that the stock of merchandise belonging to Goldenberg found on th&leased premises, went to discharge pro tanto the rent due. Golden-berg y^ems easily to have acquiesced in the matter of having the proceeds pf Ms merchandise seized by his creditors, appropriated to the payment of the lessor’s privilege instead of being applied towards the payment of his own creditors.

The judge a quo was inclined to think Goldenberg the real lessee, as the -leased, premises seems to have been occupied by him during, the whole period of the lease. Goldenberg', it is true, held from Conrad a written lease which expired in 1857, but prior to its expiration it was transferred to Leopold, and at its expiration it was verbally renewed to him until November, 1858. The amount claimed by the lessor, Leopold was obligated to him to pay, and having confessed judgment for it, he ought to be'considered the real debtor. The evidence in the record before us tends still further to mystify the character of the. relations that existed between the present defendant and Goldenberg, rather than to explain them; and we are left no.t free from doubt as to the fairness of their course towards the plaintiffs. We think, therefore, that the plain1 tiff should have judgment against the defendant for whatever portion of the proooeds of the merchandise seized under the plaintiff’s execution, that was applied towards the payment of the superior claim of the lessor. Garcia, the agent of Conrad, the lessor, testifies that the claim for rent was fully satisfied; that he received of the whole amount ($387 90) the sum of $143 35 from Leopold, and the remainder being $244 55, from the sheriff, under the decree of the Supreme Court rendered in April, 1860, in the case of Simon & Frank v. Charles Goldenberg, C. M. Conrad, Intervenor. 15th An. p. 229.

An exhibit of this settlement is appended to the evidence given by the agent. It bears date 25th January, 1861. The agent states that he received the money paid by the sheriff about a month previous to the payment by Leopold.

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 plaintiff, M. Simon, in his representative capacity of assignee» of Simon & Frank, recover from the defendant Frederick Leopold, the sum of two hundred and forty-four dollars and fifty-five cents, with five per cent, interest thereon from the 8th day of May, 1858; the defendant and appellee paying costs in both Courts.

Howexx, J. recused.


author: Hyman, O. J.

text:
    No. 873.
    Mrs. C. Shaw v. J. S. & R. E. Neal.
    Notice of protest deposited in the post-office at New Orleans, La., during the time it was in the possession of rebels in arms against the Government of the United States, addrossed to an endorser residing in tho town of Madison, Indiana, is no notice to the endorser, the mail service between the two places being interrupted by the war.
    To bind the endorser, the holder should have sent the notice tis soon as communication was opened between the two points.
    In the absence of any proof, the Court will presume that the endorsement was made before hostilities commenced between the United «States and a portion of her citizens ongaged inarmed rebellion against their government.
    A EPEAL from the Fourth District Court of New Orleans, Tliéard, J.

      Harrison & Hunlon, for plaintiff and appellee.

      Eggleston & Hart, foi defendants and appellants.
   Hyman, O. J.

Defendants are appellants from a judgment rendered against them as endorsers of a promissory note.

The note was dated at New Orleans, April 6th, 1861, and was made payable to the order of defendants at the counting-house of Messrs. Hillard, Summers & Co., in said city, on the 1st March, 1862.

It was endorsed by defendants. On its maturity it was presented for payment at the place where it was made payable, and was protested for non-payment.

The notary who protested the note put, on the day of its protest, a written notice of protest in the post-office at New Orleans, addressed to defendants at Madison, in the State of Indiana, their residence.

At the time of protest New Orleans was in the possession of rebels, and the post-office was under their control.

It •was then impossible for mail communication to exist between New Orleans and Madison in Indiana, and the putting the notice of protest in the New Orleans isost-office was a vain act.

No notice could reach defendants by thus depositing the notice.

To hold the endorsers bound, the plaintiff should have (as soon as communication was opened by the capture of New Orleans) sent notice of the dishonor of the note to them. There is no evidence that she has sent such notice. <

Plaintiff assumed in argument, as if proved, that when defendants endorsed the note they were in territory occupied by rebels in war against the Government of the United States, and that they, before its maturity, removed from the territory so occupied to their residence, a part of the United States not in the possession of rebels ; and she contends that, as defendants endorsed the note in a territory occupied by rebels, they should have remained therein to receive notice of its dishonor; and that they, not having done so, but having removed to a part of the United States where, by reason of the war, notice of the protest of the note at its maturity could not then be sent to them, are bound as if notice had been transmitted to them.

The note was made before there were hostilities between the government and its citizens, and it cannot be said that there was a war between rebels and government before hostilities commenced.

It is not proved when defendants endorsed the note—whether before or after hostilities commenced—and, without proof, we cannot presume that they endorsed it after the commencement of hostilities.

It will be proper to decide on the position assumed by plaintiff when facts are proved in a case that require an examination of the position.

It is decreed that the judgment rendered in this case by the District Court be annulled, avoided and reversed.

It is further decreed, that the suit be dismissed.

The plaintiff to pay all costs.


text:
    No. 1104.
    J. B. & W. K. Humphreys v. S. Browne and Thos. J. Burke, Sheriff.
    The order rendered on executory process is nob such a judgment ns will have the effect of the thing adjudged. Jíw jwiimUt is nob thereby established.
    The military order, staying proceedings against the property advertised for sale, on the hist January, 1866, when notified to the sheriff, put an end to that sale. It was an injunction issued by paramount authority, and the subsequent revocation of the order did not authorize the sale to be made witnout a new advertisement.
    The fact that a person, whose property was being sold at judicial sale, was present at the sale anxl did nob object thereto, is nob a waiver of legal formalities.
    A lease signed by an agent can have no effect as proof until the agency is shown by evidence of equal dignity.
    A PPEAL from District Court, Parish of St. John the Baptist, Beauvais, J.

      F. Filleul, for plaintiffs and appellants.

      Johnson, Denis, Beranll cB . Legendre, and Buchanan cB Gilmore, for defendants.
   Howell, J.

Plaintiffs sue to annul an order of seizure aud sale issued against them and the sale, on the 4th November, 1865, of their property in pursuance thereof, to defendant Browne, on the grounds : 1. That the act of mortgage, having been passed before a notary who derived liis authority from a rebel governor, cannot sustain the executory process. 2. That the consideration of the contract was Confederate treasury notes. 3. That the notice required by Article 735, C. P., is insufficient in not stating to whom and whore the debt should be paid. 4. That one of the plaintiffs did not receive three days’notice as required by said article. .5. That no list or enumeration of the property seized was made by the sheriff and served on plaintiffs, or embraced in his return according to Arts. 654 and 702, C. P. 6. That the advertisements did not contain a full and correct description or enumeration of the different articles seized with the plantation. 7. That the return of the sheriff is false aud fraudulent in not mentioning the suspension on the 27tli October, 1865, of the sale advertised for the 4th November, 1865, by’the order of Maj. Gen. Canby, by which all proceedings in any of the civil courts of the State, looking to the sale of said property, were stayed until 2lst January, 1866, by reason of which unlawful acts, the defendant Browne, assisted by Burke, the sheriff, was enabled to buy for §11,000 property worth over §40,000, and got possession of articles on the plantation not seized and advertised, such as corn, wood, mules, carts, plows and sugar cano, worth in all §17,000.

The right of action for fruits and revenues, and all damages, is reserved.

The defendant Browne filed a general denial, with an affirmation of all the executory proceedings and the averments; that said proceedings were instituted at the solicitation of x>laintiffs, who never communicated to him or the sheriff the said military order of suspension; but having learned it accidentally he procured its revocation prior to the day of sale; that if any irregularities exist, they have been waived and cured by the acts and declarations of the plaintiffs, who were present at and ratified the sale; that J. B. Humphreys, one of the plaintiffs, through an agent, leased jointly with T. J. Burke, one of the defendants, the plantation in controversy from the purchaser, Browne; that to deprive the latter of the testimony of said Bourke, sheriff, plaintiffs illegaly made him a co-defendant, and that respondent is entitled to a severance and separate trial.

The sheriff made substantially the same defense. In a supplemental answer, Brown averred that the consideration of the contract inured to the benefit of plaintiffs, in extinguishing an equal amount of debts due by them, and on the trial ho filed the plea of res judicata as to the demand for the nullity or rescission of the order of seizure and sale.

A separate trial was granted to each defendant, judgment rendered in their favor, and plaintiffs appealod.

By consenting to submit the case as to each defendant on the same evidence, plaintiffs have waived the necessity of passing upon the right of severance in the defense.

The plea of res judicata cannot be sustained, as no issue was joined in the executory proceeding's, which can have the effect of the thing adjudged; the order is granted ex parte on authentic evidence, and the only question which the judge examines is whether the .evidence is sufficient to authorize the fiat. O. P. 734. We do not think, however, there is any legal causo shown for annulling the order. There is no evidence that the notary derived his authority from a rebel governor, and it is shown that the funds, upon which the defendant Browne drew his check in favor of plaintiffs, were deposited in a bank in legal currency before suspension, and that plaintiffs used the said check in the extinguishment, to its amount, of their indebtedness to their factors and others.

But, in our opinion, the military order staying all proceedings against the property until the 21st January following, when notified to the sheriff, as it was about a week prior to the day fixed, effectually put an end to the sale on the day advertised, and necessitated a new advertisement according to law, before the sale could be properly made. It was an injunction issued by competent and paramount authority, and tho subsequent order of revocation did no't dispenso with the legal formalities, and authorize the sale to be made on the day which had been fixed, but forbidden. Whether the cause -was sufficient or insufficient, the order had the effect of staying all proceedings, and tho subsequent order was not communicated to the sheriff until the night before the sale. In the forced alienations of property, all the formalities must be strictly observed.

The defense to this, that the plaintiffs have cured this and other defects, and ratified the sale, is not sustained by tbo evidence. It is shown that-one of them, on the day of sale, requested one or two parties not to bid on the property, as tho defendant Browne intended to buy it in for him. But this, at most, was an effort to secure himself and his creditor through the form of a public sale, and its effect, in this regard, depended on the execution of the whole agreement between himself and Browne, who cannot claim the benefit of it as a ratification, which he fails to show a compliance, or a readiness to comply on his part. The proof does not show that the same plaintiff afterwards joined in a lease of the property from the purchaser. The authority of tho alleged agent to make such lease is not established by legal evidence. As a party cannot be controlled in the order of introducing his evidence, the written agreement signed by Burke, the real lessee, and D. E. Kenner, for said J. B. Humphreys, was admissible, but could liave no effect as proof, until the agency was shown by evidence of equal dignity, which was not adduced.

There is nothing to show acquiescence on the part of W. K. Humphreys. His presence at, and failure to object to the sale cannot be construed as a waiver of legal formalities, and his rights are unimpaired by the acts of his co-partner.

The property sold for $11,000, and the assessor states that ho assessed the plantation that year at $25,000. Under all the circumstances, we think tho judgment should bo reversed, and the sale set aside. As to tho articles claimed by plaintiffs as not seized and advertised, we find nothing, except probably cord-wood, which -was not included and described in the act of mortgage, and which by distinction is considered immovable, and of course comprised in the sale.

Tho wood being represented to be at the sugar-house, is presumed to have been used in converting the crop into sugar for the market, and will be included in an account of the fruits and revenues.

It is therefore ordered that the judgments appealed from be reversed, and that the sheriff sale, on 4th November, 1865, ot plaintiffs’ property in the parish of St. John the Baptist, and known as the Cornland Plantation, ” with tho improvements and appurtenances, described in an act of mortgage passed before A. I). Doriocourt, notary public, in New Orleans, on 22d October, 1861, by plaintiffs, in favor of defendant tí. Browne, be. set aside and annulled, and said property be restored to plaintiffs. It is further ordered that plaintiffs’ right of action, if any they have, against the defendants, for fruits and revenues, be reserved, and that defendants pay costs in both courts.