author: IlsijEY, J.

text:
      Mrs. Eliza W. Huntington v. James D. Brown.
    Tlie exclusion of warranty in a sale cannot avail the vendor, when it is fraudulently made, as he is bound to disclose redhibitory vices and defects, not apparent in the things sold, when he ltnows of their existence; and the vendee is not precluded, by such exclusion, from showing that at, and previous to the time and date, the vendor was aware of the existence of redhibitory defects, and fraudulently concealed them.
    Although it be agreed that the seller is not subject to any warranty, he is, however, accountable for whatever results from his personal acts, and any contrary stipulation is void. His silence will not avail him, when he does not disclose infirmities.
    -O. PPEAL from the Sixth District Court of New Orleans, Howell, J.

      E. W. Huntington for plaintiff.

    1. The right of action arose prior to the adoption of the present Constitution. It was a legal right under the Constitution and laws of the State then existing; and no subsequent change in the organic or statutory law could modify or destroy it. ‘/No State shall pass any ex post fació law, or law impairing the obligation of contracts.” Constitution of the United States, Art. 1, § 10.
    2. The Constitution of 1,864, however, is inapplicable to this case. ' The object of the sqit is not to assert the right of property in man, but to recover a sum of money received by defendant under fraudulent sale of a slave. «
    3. The evidence is conclusive that the slave died of an incurable disease. See Testimony of Dr. Wederstrandt and others.
    4. It is proved that, for one month previous to the sale, the slave had been in the Touro Infirmary, under treatment for the malady which destroyed his life, and that he was taken out of the infirmary by defendant, on the day following the day of sale. ,
    6. No proof was adduced to show that plaintiff was aware of the existence of the disease when he purchased the slave.
    - 6. The express exclusion of warranty is. not, as a general rule, equivalent to a declaration of unsoundness. Vendor is bound to disclose vices and maladies within his knowledge, not apparent on simple inspection. Hivest v. Lacaze, 3 It. 357. Qalpin v. Jessup, 3 B. 90. Civil Code, 2526. Delansen v. Robichaux, 17 L. 101. Turner & Renshaw v. Wheaton, 18 L, 37. Robert v. St. Romes, 2 A. 135. Eranclc v. Hough, 14 A. 659.
    7. What constitutes fraud ? C. C. Art. 1841, Nos. 5, 12, 2526..
    8.As to reservation of action for expenses, etc. 3 B. 90; 3 B. 359; 13 D. 39; 2 A; 135 ; 14 A. 659.

      Durant & Hornorfor defendant and appellant.

    I. This action is contra bonos mores, and prohibited by the letter and the spirit of the Constitution of this State. Constitution Art. 1 and 2.
    II. Even conceding, for argument, that it is proved (which it is not) that the disease of the slave was incurable, there are three sufficient reasons why the sale should not be rescinded:
    1. Because there is no proof that the defendant knows this fact. Belk-nap v. Kerediz, 15 A. 203.
    2. Because plaintiff was fully informed of the disease and duration of the sale. '
    3. Because the plaintiff bought without warranty, and under the information that the slave was a runaway, as well as sickly; and she took the risk of both vices.

    IH. Plaintiff did not wait for Brown to return before purchasing. She did not pay half the price of a sound negro. She knew what she was buying, and reposed confidently on her own judgment and experience. She must, therefore, sustain the loss. Digest 50, 17, 203; 3 Savigney, g 115. St. Bornes v. Pore, 10 Mar. 215. Thompson v. Milburn, 1 N. S. 472. Nelson v. Linard, 16 La. 340. Qalpin v. Jessup, 3 Bob. 91. Philpps v. Berger, 15 A. 111.
   IlsijEY, J.

This suit was instituted in the Sixth District Court, to rescind the sale of a slave and ‘recover his price, with costs incurred, in consequence of a redhibitory defect, with which the said slave was alleged to have been affected previously to and at the time of the sale, and that, too, to the knowledge of the vendor, the defendant, who fraudulently concealed it from the vendee, the plaintiff.

She avers that, had she known the existence of the defect, she would not have bought the slave.

The general issue was pleaded and a special denial of the fraud alleged.

It is a textual provision of the law, and not an open question in the jurisprudence of this State, that “The exclusion of warranty in an act of sale cannot avail the vendor when it is fraudulently made, as he is bound to disclose redhibitory vices and defects not apparent in the things sold, when he knows of their existence, and the vendee is not precluded by such exclusion from showing that, at and previous to the time of sale, the vendor was aware of the existence of redhibitory defects and fraudulently concealed them. See C. C. 2449 and 2526. 2480 C. C. Hannibal v. Faulk, 14 659. Ogden v. Michel and husband, 37 ; 4 R. 156.

In the act of sale, from Brown to Mrs. Huntington, is the following clause: “ Said slave is hereby guaranteed by said vendor in title only, and not against the vices, maladies or ‘defects, prescribed by law, of which refusal to guarantee said slave against said vices, maladies and defects, said purchaser hereby takes cognizance and renounces all recourse therefor hereafter.”

In the absence of fraudulent concealment by Brown, of the redhibitory malady in the slave, at the time of the sale, this clause would have protected him; but he cannot, if the fraud be shown, escape from the provision of the 2480 Article of the Civil Code, which reads thus: “Although it be agreed that the seller is not subject to any warrantry, he is, however, accountable for- whatever results from his personal act, and any contrary stipulation is void.” The reticence by tlio vendor of a redhi-bitory malady in the slave, which good faith binds him to disclose to his vendee, would be as fraudulent in the eye of the law as a false statement in regard to liis physical condition. 1

The ease of Faulk v. Hough, 14 La. Rep. 660, enunciates the true principle by which this and all kindred cases must be governed.

That the slave, at and previous to the time of sale, had a serious if not an incurable disease, is incontestably provotl by the physicians who testified on the trial of the case; and that the vendor knew of its existence, and that the condition of the slave would soon render him almost worthless, is not less manifest from the testimony of Dr. Bensadon, who says he was taken by Brown, to be sold, out of the Touro Infirmary, wherein he had been from August, 1859, till the fith or 8th of February, under medical treatment for a progressive disease. Seo 2490 ó. C.

The fact that Dr. Bensadon offered only .$309 for tho slave, for hospital purposes, shows that defendant was aware that lie was physically unsound; and, indeed, it is to be presumed that, as the slave was under medical treatment in an infirmary during six months, the defendant must have known what was the matter with him.

There is no error in the judgment of the lower Court, and it is therefore ordered, adjudged and decreed that it be. affirmed, with costs.

Howell, «T., recused.


source: Caselaw Access Project

author: Htjiam, C. J.

license: Public Domain

text:
    J. B. Olivier v. William Randolph.
    The verdict.'of a jury, and conao.iuent judgment thereupon, will not be disturbed, except for solid reasons.
    PiJBAL from the Fifth District Court of Hew Orleans, Eggleston, J.

      Duront & Hornor for defendant and appellant.

      Lavergne for plaintiff.

    It is a well settled principle that the occupancy of property, without the consent of the owner, entitles the latter to the estimated rents of the property, as damages for the tresspass or illegal detention. 11 Bob. 280, Fish v. Moores.

    Defendant has urged as one of his grounds of defense that he has the right to use the plaintiff’s battupe, which is dedicated by law for public Use.
    The defendant, singularly enough, confounds his own private use with public use. The dedication is to the public, and not to Mr. Randolph. The court is referred to the ease of Heirs of Duvergt v. Sailer and Mdrcy, where the proprietors of a dry dock, in the same locality, attempted to enforce the same pretentions as the defendant has raised in this case. The court held; “Our laws secure the public use of the banks of navigable rivers, and within the incorporated limits of towns, the municipal government is authorized to regulate that use; but their regulations must be in furtherance of the public use to -which the banks are subjected, and cannot be taken advantage of for the purpose of forever enjoying the property of the riparian proprietor, which is not necessary for public use. The public have the right to use the banks of navigable rivers, but this right does not authorize the permanent location of a dry dock in front of a land owned by another person. 6 A. 450. Art. 489, C. C.
   Htjiam, C. J.

Plaintiff sued defendant for the lease of a lot of ground in Algiers, fronting on the Mississippi Biver. He alleged that, on the 3d November, 1860, defendant owed him @524 98 for the lease of this lot; that, by agreement, the lease was to terminate on 1st January, 1859; that the rent was @41 66 a month, he reserving to himself and family the right of crossing the river in the ferry boat, of which defendant was proprietor, as long as the lease lasted; and that by defendant’s continued use of the lot from the 1st January, 1859, the date of the termination of the lease under the contract, defendant owed him the sum claimed.

He prayed for judgment not only for the sum alleged to be due, but also judgment of @50 a month for every succeeding month defendant retained the lot. ■

Defendant, in answer, denied all the allegations of plaintiff; alleged that he was proprietor of a ferry from the Third District of New Orleans to the foot of Olivier street, on the opposite side of the river (the street below and adjoining plaintiff’s lot); that the Police Jury, on the right bank of the river, had assigned that part of the street fronting on the river as a ferry landing, and that the ferry landing was public property. He asked judgment against the plaintiff for @450 on his claim in recon-vention, for ferriage of plaintiff and his family from the 1st January, 1859.

The Judge of the lower Court, on 21st May, 1860, rendered judgment in conformity with the verdict of the jury, decreeing defendant to pay plaintiff five hundred dollars per annum, as rent, from 1st January, 1859, to the date of the judgment, with legal interest from that date; also decreeing the rejection of the reeonventional demand of defendant.

Defendant has appealed.

The real questions in this case (however much defendant may have attempted to change them by averments) arc, whether there was a contract of lease, and whether, after its termination, it was prolonged by defendant’s continuing in possession.

After a careful examination of the evidence, we see no reason to reverse the judgment.

The judgment is affirmed, -with costs.

Jomes, J., absent.


author: Labauve, J.

text:
    Charles A. Miltenberger v. Sarah A. Hill, et als.
    At a sale a to folie encherc -when the thing is adjudged for a smaller* price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to his vendor for the deficiency, and for expenses incurred subsequent to the first sale. Bub if a higher price is offered for the thing than that for which it was first adjudicated, the first purchaser has no claim for the excess. The vendor can prosocuto the vendee for a specific compliance with the terms of the sale, as for damages, by an ordinary»action, or proceed to are-sale at the risk of the vendee. This last remedy is a severe ono, and must come clearly within the provisions of the law.
    from the Sixth District Court of New Orleans, Howell, J.

      George 8. Lacey for plaintiff and appellant.

    —On the 16th day of September, 1857, the Sixth District Court of New Orleans, in the succession of Elkaniah Reed, ordered a sale of certain property, falling to the widow and to the heir of- deceased, situated in the Eourth District of the city of New Orleans.
    On the 19th of October, 1857, this property was exposed at public sale and adjudicated to plaintiff for ®8,000, §1,500 of which was payable in cash, and the balance on. a credit until the first day of June, 1864, with eight per cent, interest thereon, payable annually.
    Plaintiff paid on account of his purchase §650: §600 on the 20th of October, 1857, and §50 on the 29th of the same month.
    Sarah A. Hill, as surviving partner of the community which had existed between herself and her deceased husband, Elkaniah Rood, and as dative tutrix of Charles Henry Reed, son of deceased, on the 13th of April, 1859, obtained a pretended order directing a re-sale of the property adjudicated, as above set forth, to plaintiff, and under and by virtue of this unauthorized proceeding, the property aforesaid, on the 11th of June, 1859, was sold to William J. Maynard for the sura of §8,550, §1,500 payable in cash, and the balance on the first day of June, 1865, with eight per cent, interest on said balance from the 19fch day of October,, 1857, until paid. Record, pp. 18 and 19.
    December 9, 1859, Maynard transferred to plaintiff, Miltenberger. Record, p. 29.
    The present action was commenced for the recovery of the §650, with eight per cent, interest from October 20th, 1857, to date of payment.
    In their answer, defendants admit the receipt of §650, as alleged in the petition. They, however, substantially aver that the plaintiff impro-p.erly and illegally refused to comply with the terms of the sale made to him on the 19th of October, 1857; that a sale a la folie encMre was therefore made; and that plaintiff is bound for the loss and expenses occurring ¿subsequent to the first sale, which exceeds the sum advanced by him tq the extent of §98 93.
    Wherefpre, they pray that defendants recover judgment against plaintiffs for the stun of §98 93, with interest at eight per cent, from June 19th, 1959, with costs and general relief.
    Your Honors will at once perceive, that defendants in their pleadings .admit the receipt of the amount? in the petition alleged to have been paid, -while in their argument they will not, as an abstract question, deny their liability to return the sums advanced by plaintiffs, with interest from the dates of payment.
    The defense is really an offset to the demand for @650; an alleged legal liability on the part of plaintiff to defray the expenses accruing subsequent to the first sale; the second having been made, as is averred, for account and at the risk of plaintiff, Miltenberger.
    The characteristics and consequences of this second sale, will, therefore, form the leading subject of our argument.
    We contend:
    I. That the sale to Maynard was not, in fact, a sale á la folie enchive.

    II. That it cannot, in law, be regarded as having that character.
    III. That if such sale, in fact and at law, was for account and at the risk of Miltenberger, that plaintiff is not liable for the expenses of said sale, and the same cannot be deducted from the claim for @650 with interest.
    IV. That if liable to deduction, the amount of such expenses must be fixed at a figure even less than that adopted by the District Judge.
    First. The sale to Maynard, June 11, 1859, was not in fact a sale a la folie enchive.

    Upon referring to (he petition, your Honors will perceive that the plaintiff has averred that the title given to him at the time of his purchase, rvas not good and valid. In the judgment of the District Court, the invalidity of such litio is expressly referred to and decided in the following-language of his Honor, Judge Howell: “In this case he is liable only for the expenses legally incurred, since defendants were in a condition to gire plaintiff a good title to the property.” Language, which, when taken by itself, and more clearly when viewed through the surrounding facts of the case, show exclusively that plaintiffs were not, at the time of the adjudication, in a condition to bestow upon Miltenberger a valid title; or, in other words, that the title conveyed was not good and sufficient.
    Moreover, on the pretended failure of Miltenberger to comply with the terms of the adjudication, the property was not re-offered, as provided for in Art. 2589, Civil Code. New proceedings were had, a second family meeting was called, and the entire groundwork of the second adjudication, which took place two years cflar the first, evidently had for its object, not simply a sale á la folie enchive, but a second adjudication, made on account of defects of title, which existed at the time of the sa¡le to plaintiff.
    With those facts patent upon the record, how can your Honors conclude, as a mere question of fact, that the adjudication to Maynard was one á la folie enchiva? Will not plaintiff’s averment of want of title, the recognition of such invalidity by the court a quo} and the course pursued by defendants, in calling a second family meeting and offering the property for ro-salo, two years after the first adjudication, instead of putting it irp at once for sale, under Art. 2589 of Civil Code, justify this honorable court in concluding that a good title was not given to Miltenberger at the time of the adjudication to him; and that, on account of such defect of title, and not alone with the view of selling for account and at the risk of Miltenberger, the sale to Maynard was had ?

      Second. The second sale cannot in law be considered as one á la folie enchere. Should, the court, as a mere question of fact, regard the adjudication to Maynard as a sale a la folie enchere, still, when looked at through the law, that character ought not to be given to it by your Honors.
    The second sale cannot be treated as one made on account and at the risk of Miltenberger, or, in- other words, as a sale á la folie enchere, because :
    1. A good title was not given to plaintiff at the time of the adjudication to him. Porter v. Liddle, 7 M. B. 23; Ponaharirain Company v. Burel, 6 La. B. 484 ; Lernes v. Laubert, 8 Bob. 224; French v. Meux, 9 Bob. 414.
    2. The second sale does not appear to have been made under a judgment of court regularly rendered and signed. GaUia v. Garcia, Sheriff, el al., 2' Bob. 319.
    3. The terms of the second sale were not identical with those of the first:
    Terms of first sale, $1,600 cash, and balance on credit until 1864.
    Terms of second sale, $1,500 cash, and balance on credit until 1865. Guillotte v. Jennings, 4 An. 242.
    4. Plaintiffs waived the right to a sale á la folie enchere.

    After the adjudication to Miltenberger, he paid on account of his purchase $650, upon the cash instalment, and this amount was received by defendants without protestation or reservation of right to a sale a la folie enchere. This amounts to a waiver of right to sell on account and at the risk of plaintiff. Miltenberger, after paying .the $650, was undoubtedly bound otherwise to comply with the terms of the sale, and, on failure so to do, he was liable to action for the enforcement of a specific performance of the contract or its dissolution; but the harsh remedy, a .la folie enchere, was gone the moment a partial payment was made without objection, protestation or reservation on part of plaintiff.
    “ The remedy by a sale á la folie enchere is a severe one and must be confined to cases coming clearly within the provisions of the law.” Guillolie v. Jennings, 4 An. 242. »
    5. Plaintiff was not properly "put in default in order to render the second sale good á la folie-enchbre. Stewart v. Paulding, 6 La. 155 ; Hodge v. ploore, 3 Bob. 400; Petit v. Lcwille, 5 Bob. 117.
    Third. Admitting, for the sake of argument, that the adjudication to Maynard was in fact and at law a sale d la folie enchere, the defendants even then have not the legal right to subject Miltenberger to the payment of the expenses incurred subsequent to the first adjudication.
    If at the #seeond crying the thing is adjudged for a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor for the deficiency, and for all the expenses incurred subsequent to the first sale. C. C. 2589.
    The liability of the first purchaser, by this article of the Code, is made conditional, and entirely depends upon the fact of the property being adjudicated, at the second sale, for a smaller price than that which had been offered by the person to whom the first adjudication was made. If the second bid is smaller than that offered at the first sale, the first purchaser must pay all the expenses incurred subsequent to the adjudication to him, but not otherwise. Such is the express provision of Art. 2589, and this honorable court has said, in tíuillotíe v. Jennings, already quoted, that the remedy, a la folie endúre, is a severe one, and must be confined to oases coming clearly within the provisions of law.
    Applying these rules to the case at bar, how can plaintiff be made liable, directly or indirectly, for the expenses incurred subsequent to the first sale ?
    Fourth. The amount of expenses, if chargeable to plaintiff, must be fixed at figures less even than those adopted by the Court a quo in the judgment appealed from. Vide charges set forth in defendant’s account annexed to their answer, on pages 10 and 11 of transcript of appeal.
    1. Interest. — So far as interest is concerned, the second sale was made upon the same terms as the first; and defendants having realized, in that respect, from Maynard, all that they were entitled to receive from Mil-tenberger, can have no legal reclamation upon the latter for interest. If the terms of the second adjudication did not provide for the payment of the interest, defendants are at fault and are entitled to no relief on that account. Moreover, the District Judge has rejected defendant’s demand for interest, and they have neither appealed from the judgment of the Court a quo, nor ashed for an amendment of that judgment.
    2. City and State taxes. — The District Judge says : “Plaintiff caused the estate to pay taxes for the year 1858, which should be paid by him, a imrtion of the taxes claimed by defendants having accrued while they or the estate were in default as io title.”

    If the estate was in default, at the time of adjudication to plaintiff, in giving him a valid title, how can he be condemned tp pay any part of the taxes V The subsequent curing of a title, acknowledged to have been defective originally, can have no such legal effect.
    3. Clerk’s costs. — There is but one item in the clerk’s bill of costs properly chargeable as expenses incurred subsequently to the first sale. (Record, pp. 47 and48.) We have reference to the item of $2, for order of sale. The other items of the clerk’s bill, although necessary to cure a defect of title, were unnecessary to a sale á la folie endúre, which presupposes no defect of title at the time of the first sale. The Judge a quo reduced the charge for clerk’s costs to $2; and in this judgment defendants and appellees have virtually acquiesced.
    4. Sheriff’s costs. — Costs -of sheriff, incidental to resale, fl 50, not disputed.
    5. Auctioneer’s bill. — This item, $84 25, seems to have grown out entirely of the second sale, and is therefore admitted. It was allowed by the Court a quo.

    6. Attorney’s fees — $342 and expenses of family meetings, etc.
    If the first adjudication to Miltenberger conveyed a good and sufficient title, and he refused to comply with the terms of his purchase, the remedy was simple, requiring no professional skill and labor, and the intervention of no family meeting. Services of counsel were rendered, it is true, but these services were occasioned by the fact that the estate was not in a condition to give a good title at the time of plaintiff’s purchase, and professional skill and labor were required to remedy that defect. The Court a quo erred in allowing $50 on account of the services of counsel, particularly as no evidence in tlie record authorized the estimate adopted by the judge.

      Whitaker, Fellows & Mills for defendants.

    There are decisions, for instance, 1 L. R. 401, and 7 Xi. 506, which apply to a case where the property brings less at the second sale. The first purchaser pays the “deficiency in the price, and all the expenses incurred subsequent to the first sale.” The same article of the Code provides, “ if a higher price is offered for the thing than that for which it was first adjudged, the first purchaser has no claim, for the excess.”
    Now, by the first clause of Article 2589, C. 0., the purchaser at the first sale is to make completely whole the vendor; this includes all the expenses incurred. If the first purchaser has no claim for the excess at the second sale, how can it be claimed that he is to benefit by using tho excess towards the payment of the expenses incurred, and for which he is absolutely responsible ? There is no decision on the subject in our books, and the letter of the Code is so clear that it would seem one was hardly necessary. Suppose the excess of price is $100, and the expenses $200, who is responsible for the difference ? Or again, suppose the price bid at the second sale is the same as at the first, who pays the expenses ? Undoubtedly, the first purchaser ; and yet the reasoning of the plaintiff would lead to exactly the contrary conclusion, in both of the supposed cases.
    The only reasonable interpretation of Article 2589, O. C., appears to be that the purchaser at the first sale is, in all events, to pay all the expenses incurred subsequent to that sale ; he is also to make up the deficiency of the price, if the property sells for less ; but, if -it sells for more, “ ho has no claim for the excess.”
    The next question is in regard to the items claimed in reconvention.
    The plaintiff has been in possession of the property for years. 'He should, most undoubtedly, reimburse the taxes paid by defendants, which accrued after a clear title was ready for him. This was 19th April, 1858. The court allowed $90, being the taxes for one year. The time was one year and two months : say from April, 1858, to June, 1859. The additional proportion, one-eighth, would be $15.
    . The attorney’s fees, for perfecting tho'Utlo and procuring a re-sale, were admitted to be reasonable at $342. It was proved that, for perfecting the title, $250 was a large fee. (Labatt’s testimony.) This would leave for the re-sale $92; the judgment allows but $50.
    The notary’s fees were paid, and-shown to be reasonable at $79; the judgment allowed but $29, rejecting that portion of his bill for holding the family meeting, etc., on the ground that it was not absolutely necessary for the re-sale. Now, this was a re-sale where a minor was interested, and there was a suit for the prico, a suit for damages, or a re-sale, as the different means of redress which might be pursued.
    And it is submitted that a title by resale would have been of doubtful validity, unless a family meeting had determined for the minor which course was the best to pursue. It was then a necessary expense incurred in behalf of the minor, occasioned by the failure of the plaintiff to comply with his bid, and take title of his property.
   Labauve, J.

The plaintiff claims against the defendants the sum of $650, with interest, on the ground that a short time previous to the 20th October, 1857, said Mrs. Hill did sell to him certain property, in consideration of which he advanced, in part payment to said Mrs. Hill, the sum of $650; that said defendants were unable to make title of said property to said plaintiff, and that the said property was resold to other parties at the risk of petitioner; that the property, at the re*sale, brought more than at the first sale.

The defendants answered by a general denial; and, for further answer, they say: that on the 19th'October, 1857, by virtue of an order of Court in the succession of Reed, the property was exposed at public sale and adjudicated to said Charles A. Miltenberger, for the price of $8,000, of which $1,500 wore payable cash, and the balance on the 1st June, 1864, with interest at 8 per cent, per annum, payable annually; that after the said purchase, on the 20th October, 1857, the said Miltenberger paid on said price the sum of $650, but refused to pay any further portion of said cash, nor to give his notes as required by the adjudication; that pursuant to the deliberation of another family meeting and an order of the Judge, the said property was re-sold, at the risk of said Miltenberger, for $8,500, upon the same terms as before; and they say that the difference between the first and the second sales is $835 49, which the cash proceeds of the second sale failed to supply.

The second sale took place on the 11th June, 1859, and the property was adjudicated to one Maynard, who transferred his title to the plaintiff on the 9th December, 1859. The plaintiff contends that he was not properly put in default, in order to render the second sale good á la folie enchére.

There is no evidence showing that said plaintiff was ever put in default; but he pleads and admits in his petition that the property was resold at Ms risk, and it is in evidence that he bought, on the 9th December, 1859, from the second purchaser, Maynard, at the sale made á la folie enchére; thereby approving and ratifying the said sale á la folie enchére, under which he now holds, and admitting that the said second sale was legal, and that he had been put legally in default.

The next question is one purely of law, and that is in regard to the proper application and interpretation of the second paragraph of Article 2589 of the Civil Code, reading thus:

“And if, at the second crying, the thing is adjudged fora smaller price n than that which had been offered by the person to whom the first adjudication was made, the latter remains a debtor to the vendor, for the deficiency, and for all expenses incurred subsequent to the first sale. But if a higher price is offered for the thing than that for which it was first adjudicated, the first purchaser has no claim for the excess.” /

There are two clauses in this paragraph, each with a penalty imposed on the first purchaser. By the first clause, the first purchaser is bound to make up the deficiency between the first and the second sales, and to pay all expenses incurred subsequent to the first sale; by the second clause, the purchaser has no claim to the excess above the price of the first adjudication. This excess goes to the vendor, although the purchaser be the legal owner of the thing, which is at the risk of the latter after the adjudication, Civil Code, Arts. 2442, 2443, 2580. The price of the second sale exceeded that offered at the first adjudication, and we have to apply the second clause of the second paragraph of the Art. 2589 of the Civil Code. But it is contended that the first purchaser is liable for all cost even under the said second clause. We think not. We cannot add another penalty to the law; it was for the legislator to do so. The remedy by sale á la folie enchére is a severe one, and must be confined to cases coming clearly within the provisions of the law. 4 A. 242. The vendors here could have prosecuted the plainiiff for a specific compliance with the terms of the sale, or for dam&gos, by ordinary action, or proceeded to a re-sale at the risk of the plaintiff. 2 L. 403; 7 L. 508; 14 L. 559. They have selected the last remedy; they must stand by the law governing the case, and which it is our duty to apply strictly, as it is a penal one. 1

We are of the opinion that plaintiff in this case is not bound for the cost incurred subsequent to the first adjudication.

It is therefore adjudged and decreed that the judgment of the District Court be reversed; that the defendants’ demand in reconvention be rejected, and that plaintiff recovers of the defendants in solido the sum of six hundred and fifty dollars, with legal interest thereon from the 30th March, 1859, and costs of suit in both courts.

Howell, <7., who tried this case below, did not partioipdte in this decision.


author: Howeed, J.

text:
    Jean Louis Pele, Executor, v. Thomas O. Meaux.
    Dlie failure to declare in the act of mortgage the exact.amount of insurance, does not invalidate the
    The order of the court directing the executory process must be strictly in accordance with, the authentic act ; items not embraced therein will be stricken out, and the decree sustained for the express conditions of the mortgage.
    from the Second District Court of blew Orleans, Morgan, J.

      ■I. Ad. Rozier for plaintiffs.

      Edward Ramie for defendant and appellant.

    This is an executory proceeding, and the defendant appeals. The petitioner states that he is holder of a note for $3,000, made by defendant, the payment of which is secured by mortgage. After reciting the act and making the usual allegations, he prays that the property mortgaged may be sold, and that out of the proceeds, he shall be paid the sum of $3,000, and $3 cost of protest, and $30 premium of insurance and the interest, and $150 attorney’s fee.
    The following order was given: “Let executory process issue in this case, as within prayed for, according to law.”
    1. The mortgage. — In the act, the debtor mortgages certain property to secure the payment of two notes, one for $3,000 and one for $500, and also to reimburse t<? £he mortgagee the lawyer’s fee, in the event of the non-payment of the said notes at maturity; also the reimbursement of all premiums of insurance as shall he paid by the mortgagee, and all charges and expenses. It is also stated that, in the event of said notes not being paid, the mortgaged premises may be seized and sold under executory process without appraisement, the mortgagor waiving and renouncing the benefit of appraisement, and all laws and parts of laws relative to appraisement of movables and immovables, etc.
    It is seen that, for the charges and expenses, for the premium of insurance and for the lawyer’s fees, there is no sum mentioned'.
    It is a rule that there cañnot be a valid conventional mortgage unless the exact sum for which it is given be declared in the act.
    “To render a conventional mortgage valid, it is necessary that the exact sum for which it is given shall bo declared in the act.” “ Qne la sommeesi oerlaine ei düerminée.” L. C. 3277.
    There must be nothing left for calculation. It must be stated and determined. Such’is the rule found in the Louisiana Code and in the Napoleon Code.
    La loi a done éte oonséquente avec elle-méme en exigeant que l’aote contint une énonciatiop. exacte des sommes pour la sureté desquelles l’hypothéque a été consentie. 2 Troplong Priv. and Hyp. No. 545. See also, Durant on, vol. 19, No. 385; Guichard Legislation Hyp. vol.' 2, p. 179. *
    In this case, the debtor grants a mortgage for the reimbursement of all premiums of insurance, for lawyers, and for expenses. No sum, no ‘ ‘uer-taine somme,” is named. Union v. Pardon, 9 Eob. 482.
    In the case of Race & Foster v. Bruen, 11 An. 34, there was perhaps a deflection from the rule which is found in our Code, in the French Code and in the Commentaries. But, in that case, the question was not presented. The opinion of the court touched only that of usury.
    Next to he considered is the renunciation of appraisement, which appears in the act. Appraisement of property, seized in execution, is a proceeding established by law and is intended to protect the debtor. As in the ease of usury, this right of protection cannot be given away. Barde of die TJnited Stales v. O wens, 2 Peters 538. In the case of Serric/c v. Walker, it is said that a stipulation that property shall be sold without appraisement ought not to be enforced. 15 An. 243.
    2. The order of court. — It is ordered by the Judge that executory process should issue, as prayed for and according to law.
    It is a common fault to give orders of court, referring to the petition for explanation. But we must take it as it is, and see what is prayed for: The petitioner prays that the property be sold to pay claims, the existence of which there is no evidence in the act of mortgage. The executory process is useful, hut trenchant, and can only be employed according to law. O. P. 732. All the evidence which can be noticed by the judge must he found in the authentic act. Nothing out of it can be received. French v. M. <& T. Barde, 4 An. 153. Commercial Bank v. Poland, 6 An. 477. Bakin v. Ganahl, 13 L. E. 512. Summing v. Archi-nard, 1 An. 279. In the last cited case it was also said that a defect in the certificate of the clerk was of no importance, because, in proceeding by seizure and sale, there could be no other evidence than the copy of the authentic act.
    It would seem to be treading on the patience of the court to cite more authority to show what is a simple and established rule of law and of evidence, and upon which the decisions of the Supreme Court have been uniform.
   Howeed, J.

This is an appeal from an order of seizure and sale, upon a note secured by mortgage and protested for non-payment.

Appellant, the mortgagor, assigns for error, on the face of the record :

1. The mortgage is not good and valid, according to law, because it purports to secure the payment of the premium of insurance and, the reimbursement of lawyers’ fees, and there is no exact, certain and determinate amount stated. C. C. 3277.

Because the waiver of appraisement cannot be legally made by the debtor and mortgagor.

The failure to declare in the act the exact amount of the premium of insurance (whióh is a mere incident to the contract) does not invalidate the mortgage, the object of which is to secure the payment of the note, the evidence of a debt fixed and certain. The clause relating to insurance confers an additional protection, of which the mortgagee may avail himself, in a legal manner, under the stipulation. The amount of the lawyers’ fees is made legally certain in the act.

The question of the evasion of appraisement need not be inquired into here, as the order is to sell according to law, and it is presumed the sheriff will do his duty. See 2 A. 416.

2. The order of the court is not legal, because the judge directs that the property be sold by executory process, to pay the premium of insurance and the cost of the protest of the note ; and there is no evidence, authentic or of any kind, respecting these claims.

This objection seems to be well founded.

Executory process can issue only upon authentic evidence; and we find nothing in the record to establish the amount of these two items. 1 A. 279. 6 A. 466. This being an ex parte proceeding, the seizing creditor must, at his peril, look to the accuracy of his demand and of the decree.

It is therefore ordered that the decree of seizure and sale be amended, so as to exclude therefrom the items of three dollars, costs of protest, and thirty dollars, amount of premium of insurance ,• and that, so amended, said decree be affirmed, with costs of the lower court, the costs of this appeal to be paid by the appellee.


author: Jones, J.

text:
    William J. Taylor v. John M. Bach.
    If a defendant reside alternately iu different parishes, he must he cited in that in which he appears to have his principal establishment or his habitual residence. If his residence in each appear to be nearly of the same nature, in such case, he maybe cited in either, at tho choice of the plaintiff, unless he has declared, pursuant to the provision of the law, in which of those parishes he intended to have his domicil. This intention is proved by an express declaration of it before the judges of tho parishes from which, and to which, ho shall intend to remove. If this declaration is not math's this intention shall depend on circumstances,
    from the Third Judicial District Court of Jefferson, Burthe, J.

      T. Gilmore for defendant and appellant.

      A. G. Semmes for plaintiff.

    The defendant offered in evidence his declaration of change of domicil from the parish of Jefferson to the parish of St. Helena.
    If this was & judicial declaration of the change of domicil, it could not avail the defendant under the evidence in this case; because the declaration must be combined with or followed by an act of residence in the parish of St. Helena. O. C. 43. Now, there is not a scintilla of proof that defendant ever resided in that parish. Even where the proof shows that a person resides alternately in different parishes, the declaration only governs “ where the residence appears to be nearly the same. (Judson'r. Lathrop, 1 An. 79); otherwise, he must be cited in that parish where he appears to have his principal establishment or his habitual residence. C. P. 166; C. C. 43.
    But this is not a judicial declaration. On the 1st of June, 1855, defendant writes a note to the clerk of the court for the parish of St. Helena, declaring his change of domicil; p. 9. In January, 1857, he has a certified copy of this declaration recorded by the clerk of the court for the parish of Jefferson; p. 8.
    The laws require an 11 express declaration to be made before both of the judges of the parishes from and to which, the person intends to remove. ” 12 La. 195; 8 La. 315.
    The defendant also offered as evidence the record in a suit in the Fifth District Court of New Orleans, and two deeds executed by himself, wherein it is stated he was domiciled in the parish of St. Helena. These being mere declarations on the part of the defendant, were overruled by the court, because, I presume, they were res inter alios acta, and therefore not evidence. 4 N. S. 52. I am not satisfied that the ruling of the court in this particular was correct. Admitting the court was wrong, the case should not be sent back for a new trial where the ends of justice have been attained (1 B. 192; 3 A. 163; 9 La. 350); and where the same' judgment must of necessity be rendered. Giving the defendant the full benefit of these ex parte declarations, they could not alter or affect the judgment; for, “ where a party’s declarations in relation to his domicil are inconsistent with his acts, thby go for nothing. ” 10 An. 94.
    “Where evidence improperly excluded is in the record, the case will. not be remanded.” 1 Hen. Dig. (new ed.) p. 99 (37); 13 An. 448; 14 An. 61-64; 6 An. 647.
   Jones, J.

This suit turns upon a plea of domicil, made on the part of John M. Bach, defendant.

The record discloses the following facts : That the defendant had his domicil at the same time in the parishes of Jefferson and St. Helena. R. T. Taylor, on behalf of defendant, says that defendant owns a good deal of property in the parish of St. Helena, and that, for three or four years, he has claimed his domicil in the parish of St. Helena.

But, on cross-examination, the same witness testifies that Mr. Bach resides in the parish of Jefferson; that he is constantly backward and forward, but most of the time in Jefferson; that his residence during the winter is in Jefferson, and that his family is in Jefferson.

P. G. Lecorgne, witness for plaintiff, states he has known Mr. Bach for twenty years; that Bach now resides in Jefferson, and has resided there ever since witness knew him, with.ihe exception of some time when he lived on Washington street, in New Orleans; that defendant, during these twenty years, has lived more in Jefferson parish than any other, and that Mr. Bach’s family has always lived most of the time in Jefferson.

In addition to his evidence, the defendant introduced a declaration of his change of domicil from the parish of Jefferson to the parish of St. Helena ; and further sought to introduce his declarations in the record of a suit, and two deeds executed by him, wherein it is stated that the defendant was ' domiciliated in the parish of St. Helena ; which declarations and evidence, upon objection being made by plaintiff, were rejected by the court. The evidence so rejected, as well as the other evidence, being before us, we proceed to examine the same:

Now, regarding the evidence rejected by the court as admissible (upon which we pass no opinion), it does not materially strengthen the defendant’s plea.

We are satisfied, from the proof, that John M. Bach had, at the same time, two domicils : the one in the parish of 3 efferson, and the other in the parish of St. Helena. The law relative to plea of domicil is clear. Article 166 C. P. declares that, if a defendant reside alternately in different' parishes, he must be cited in that in which ho appears to have his principal establishment or his habitual residence. If his residence in each appear to be nearly the same nature, in such a case he may be cited in either, at the choice of the plaintiff, unless he has declared, pursuant to the provision of the law, in which of those parishes he intended to have his domicil.

To the same effect is Article 42 of the C. C. A change of domicil is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there. C. C. Art. 43. This intention is proved by an express declaration of it before the judges of the parishes from which and to which he shall intend to remove. C. 0. Art. 44. In case this declaration is not made, the proof of this intention shall depend on circumstances. 0. C. 45.

Upon the law and the facts thus presented, we are of the opinion that defendant, John M. Bach, had his principal establishment, at the institution of this suit, in the parish of Jefferson ; and, as he resided alternately in the said parishes of Jefferson and St. Helena, and did not declare his intention, as prescribed by law, to change his domicE from Jefferson to St. Helena parish, he was properly sued in the parish of Jefferson.

Therefore, for these reasons, it is ordered, adjudged and decreed, that the judgment below be affirmed, with costs.


author: Lesley, J.

text:
    Marie U. Paquetel, Wife of F. S. Gavot, v. John Gauche.
    If a new trial be prayed for on account of tbe misconduct of the adverse party, or other causes, the party must accompany his motion by an affidavit of the facts ho relies upon.
    A lessee cannot dispute the title of his lessor.
    "Where there is no special agreement as to the extent of the lease, it is presumed to be monthly.
    from the Second District Court of New Orleans, Morgan, J.

      L. Cctslera for plaintiff. G. Schmidt for defendant and appellant.
   Lesley, J.

This suit was instituted by the plaintiff to recover the possession of, and to eject from the leased premises the defendant, who, it is alleged, illegally detains them. The defendant plead the general issue, and specially averred that he never was the monthly tenant of the-plaintiff, having leased the premises on the 12th January, 1866, from Mr. Pierre Soule, for the period of two years, from the 16th of October of that year, with the privilege of extending it for five years ; of which privilege the defendant has availed himself, and by virtue of which he occupied the premises until the expiration of his aforesaid lease.

Judgment was rendered in favor of the plaintiff, and the defendant, after attempting to obtain a new trial, has appealed.

On the trial of the rule for a new trial, exceptions were filed, on two grounds : . 1. Because the evidence upon which said judgment was rendered is insufficient, and does not authorize such judgment; and, 2. Because this suit was instituted by direction of A. Bobert, Esq,, without any legal and sufficient authority. The defendant offered to prove by A. Pitot, Esq., plaintiff’s attorney, that he had been employed to bring this suit, and had brought it by direction of A. Bobert, as agent of the plaintiff, from whom plaintiff Pitot had received no instructions to bring said suit.

The defendant also offered to introduce the power of attorney, by virtue of which, Mr. Bobert assumed the authority to order the institution of this suit, for the purpose of showing that said Bobert was not authorized to institute the same. This testimony was objected to because there was no affidavit showing that the facts defendant wanted to prove had been discovered since the trial, and that it was too late to offer said testimony; and the objection being sustained by the court, a biE of exceptions was taken by the defendant. We think the judge did not err. C. P. 661.

No evidence whatever has been adduced by the defendant to sustain his defense, whilst the plaintiff proves that the defendant has paid rents for the property to her agent; and as he has been in the undisturbed possession of the premises as her tenant, he cannot dispute the title thereto. Tippett v. Icte, 10 L. 362.

In the absence of any special agreement as to the extent of the lease, it must be presumed to have been a monthly one. O. C. 2655. And due notice having been given him by the lessor to terminate it, in accordance with Article 2656 C. C., by A. Robert, whose testimony on this point it not objected to, the judgment of the lower court must be affirmed.

Wherefore, it is ordered, adjudged and decreed, that the judgment of the lower court be affirmed, and that the appellant pay the costs of appeal.

Hyman, C. J., absent.


author: InsLEy, J.

text:
    John F. Mohrman v. Auguste Ohse.
    Malicious slander will be punished by damages, and the verdict of the jury and judgment of the court below sustained. ■
    from the Third District Court of New Orleans, Duvigneaud, J.

      W. D. Hennen, M. A. Fouie and J. M. Maurian for defendant and appellant.

      Budd & Lambert for plaintiff.

    Respectfully call the attention of the court to the following cases : Kendriek v. Kemp, 6 N. S. p. 501. Carlin v. Stewart, 2L. R. p. 74. Juice v. Harvey, 14 L. R. p. 198. Miller v. IJolstein, 16 L. R. p. 389. Feray v. Foote, 12 An. p. 894. Louisiana Code, 1928, 2294, 2295. 2 Starkie, p. 461, and notes.
   InsLEy, J.

This is an actipn for slander, in which the plaintiff claims of the defendant five thousand dollars damages. The general issue was pleaded, and on a verdict of the jury, judgment was rendered in favor of the plaintiff for the sum of one thousand dollars without interest; and after an ineffectual attempt to obtain a new trial, the defendant appealed.

It was proved conclusively in the trial of the case, that the slanderous words and epithets charged were uttered, to and against the plaintiff', at the office of the justice of the peace, wherein the plaintiff was employee as a deputy constable; and this, too, in the presence of his employer and that of other persons.

Had the slanderous words been uttered in an ebullition of passion, the bystanders would have probably attached to them but little weight, but after denouncing the defendant as “a damned thief;” a “damned scoundrel,” and a damned perjurer:” he concludes, by saying: “I take the whole of you as witness that I say so;” which was very well calculated to produce the .impression that he was serious in his denunciation; and if they were untrue, the malicious motive by which he was actuated in thus slandering the plaintiff, is but too evident, the more particularly as it was in the presence of the employer of the plaintiff, and was calculated, from the nature of the epithets used, to destroy his confidence in him.

The judge and jury of the vicinage, who tried 'the case, have affixed the damages, notwithstanding the attempt of the defendant to impugn the character of the plaintiff on the trial, and we therefore see no reason to diminish them. See 2294. Cook v. Tardos, 6 Al. 779.

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

J ONES, J., absent.


author: Hyman, O. J.

text:
    Thomas G. Mackey v. William E. Thompson.
    tVTiere plaintiff fails to claim a balance of account he cannot have judgment therefor. The prayer of the petition is all that the court can decide upon.
    from the Fourth District Court of New Orleans, Allen, J.

      J. Ad. Bozier for plaintiff. Durant <& Hornor for defendant.
   Hyman, O. J.

The plaintiff in this case claims judgment against defendant, for services alleged to have been rendered as superintendent on the Marshfield plantation, in the parish of Plaquemines, from the 8th December, 1853, to 8th June, 1857, at the rate of $3,000 per annum, as per contract alleged in his petition.

Defendant answered by a general denial, and then averred that plaintiff was not to receive any wages; that, on the 22d November, 1856, there was an agreement to pay plaintiff, from that date, $500 a year. He asked, in reconvention, judgment against plaintiff for $871 20, balance of account.

The court below rendered judgment in favor of plaintiff for $4,910 90, with costs.

Defendant has appealed.

In the year 1853, plaintiff, as an insolvent, sued his creditors, was appointed their syndic, and as such, sold by order of court, in December, 1853, to defendant, said plantation, then the residence of plaintiff.

Plaintiff remained with Ms family on the plantation, and superintended it, until the 8th June, 1857, when he left it, with defendant’s consent. At times he was absent. The plantation did not pay expenses.

On the 22d November, 1856, plaintiff wrote a long letter to defendant, in which he made an offer for wages. In tMs letter he said : “You ask me if I was willing to give up politics, and enter soul and body into business. ” He proposed therein to erect a rice mill on the plantation; which, he stated, would be very profitable; also proposed to attend to the plantation and mill, and wrote as follows: “As I have got notMng at this time, I should be compelled to have about $500 per year; but, if the mill and plantation pay well, I should look to be.paid well also; and, if they do not pay well, I will ask for nothing except the $500.”

This proposition was accepted by defendant.

It is strange that plaintiff should think of reduping his wages from $3,000 a year to $500, when he was proposing to increase his labors, greatly to the profit of defendant.

Defendant presented plaintiff an account, showing the transactions between them from 1853 to J une, 1857.

Plaintiff took this account, examined it, and returned it with his objections.

In the account, no credit is given to plaintiff for wages, and he made no objection whatever to the same, for that cause.

As plaintiff did not object to defendant’s account in regard to omission of credit for wages; and, as he said on the 22d November, 1853, that he gat nothing for superintending the plantation, we are of opinion that he is not entitled to any wages up to that date; but, from that date to the 8th of June, 1857, he is entitled to them, at the rate of $500 per annum, as agreed upon.

Defendant, to sustain his demand in reconvention, produced his account, with the objections of plaintiff thereon.

These objections clearly show a balance due to plaintiff; but, as he has failed to ask judgment for that balance, we cannot grant it.

This suit has been revived in the name of John B. Zehender, administrator of the succession of the deceased plaintiff.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment against defendant on his claim in reconvention, and that John B. Zehender, administrator of the succession of Thomas G. Mackey, deceased, have judgment against defendant for the sum of two hundred and seventy-one dollars and twenty cents, with interest thereon at the rate of 5 per cent, per annum, from the 11th day of January, 1858," till paid.

The plaintiff .is to pay the costs of this appeal.

Jones, J., absent,


author: Howell, J.

text:
    Dominique Verges v. T. G. Noel, et al.
    Where the counsel of the appellee does not file an answer to the appeal, he can be allowed no damages as for a frivolous appeal. His brief is not considered an answer.
    from the Second District Court of the Parish of Jefferson,

      Bwihe, J. 0. Dufour for plaintiff. John B. Smith for defendant and appellant.
   Howell, J.

Appellant was sued as endorser of a note, on which judgment, confirming a default, was rendered against him, upon evidence in the record, consisting of the note, protest and notices of protest.

He has assigned no error nor furnished a brief.

Plaintiff, in his brief, asks for the affirmance of the judgment, with damages for a frivolous appeal.

Having filed no answer to the appeal, as required by Art. 890 C. P., no damages can be awarded. Counsel’s brief is not considered an answer, 4 A. 150; 5 A. 146; 8 A. 73.

Judgment affirmed, with costs.


author: HxarAN, C. J.

text:
    The State v. C. F. Behrens, Clerk, &c.
    The clerk of a court has a right to demand security for the cost of the transcript of appeal. He is not forced to rely upon the uncertain security of an appeal bond.
    from the Third District Com-t of New Orleans, Fettowes, J.

      P. S. Biron for the rule. F. W. Huntington for defendant.
   HxarAN, C. J.

A rule was issued to defendant to show cause why a writ of mandamus should not issue, directing him to make out a transcript of appeal in the case of Elijah Bush v. John Barrett, and deliver the same to the applicant, Bush, the alleged appellant in this case.

The clerk showed, for cause, that the applicant had not given security for the cost of the transcript.

The clerk has a right to demand this security before he is required to furnish transcript. See 9th section of an act entitled “an act to regulate and define costs and fees generally,” approved March 14th, 1855. See also 6 Rob. Rep. p. 308, State v. Philips.

He is not forced to rely on the uncertain security of an appeal bond, as contended for by applicant.

Rule discharged.

Johes, J.. .absent.


text:
    Mrs. Marie B. Surgi v. Thomas Shooter, et al.
    If any one sells or alienates a piece o£ land, from one fixed boundary to another fixed boundary, tlie purchaser takes all the land between such bounds, although It give him a greater quantity of land than is called for in his title, and the surplus exceed the twentieth part of the quantity mentioned in his title.
    There can be neither increase or diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary.
    from the Third District Court of New Orleans, Damgneaud, J.

      J. Magne for plaintiff.. 0. Morel and M Filleul for defendants and appellants.
   Labauve, J.

On the 21st January, 1835, John Arrowsmith sold to Charles Cuvellier a certain islet of ground, situated in the suburb Jackson, designated by No. 24 on a plan of T. N. Depeuilly, and comprised between Solomon, Conti (by correction now Bienville), Napoleon streets, and the boundary line of R. Copeland, or assigns’s property, and containing eight lots. The dimensions are given to each lot. It is further stated in the act of sale, and should there he any surplus in said admeasurement, the scmne is hereby transferred by the seder to the said purchaser. The evidence shows that the plaintiff is now the legal and true owner of said property under a regular chain of titles. It appears from the evidence that when Arrowsmith sold to Cuvellier, the line separating Arrowsmith’s land from that of Copeland, by error of the surveyor Depeuilly, was actually run on said Arrowsmith’s land, having a piece apparently belonging to said Copeland. This error having been discovered, Arrow-smith had the land re-surveyed, and he found, as he thought, a parcel of land between that he had so sold and the line of Copeland, and he sold the same to the defendants in the year 1854.

The defendants are in possession and claim under said Arrowsmith by public act of sale passed in January, 1854. The question now is, did or not said Arrowsmith sell the land in dispute to Charles Cuvilier by act of sale of the 21st January, 1835 ? We are clearly of the opinion that he did, and that when he pretended to sell to the defendants, he had no land there. He had sold to Cuvillier, without reserve, all the land he had between Napoleon, Bienville and Solomon streets, and the boundary line of R. Copeland’s or assigns’ property. This was clearly a sale per aversio-nem. C. C. Arts. 850 and 2471.

For these reasons, and those given more in detail by the learned Judge of ttye District Court, we are of the opinion that plaintiff must recover.

It is therefore adjudged and decreed that the judgment of the District pourt be affirmed, with costs.


author: Hxman, C. J.

text:
    The State v. Freeman, et al.
    A bill of indictment for manslaughter will not lie unless brought within one year after the of-fence shall have been made known to the public officer having the power to direct the investigation.
    And so as regards ail criminal offences, except wilful murder, arson, robbery, forgery and counterfeiting.
    1JL PPEAL from the District Court of tlie Parish of Jefferson, Cazabat, J.

      Hon. B. L. Lynch, Attorney General, for the State. Henderson & Hills for appellant.
   Hxman, C. J.

The defendant, Freeman, was indicted for murder, convicted of manslaughter, and sentenced.

He has appealed.

Defendant moved to avert judgment on the verdict of the jury, because the bill of indictment was not found within one year after the commission of the crime of which he was convicted.

The bill of indictment' was found by the grand jury on 24th April, 1864, and the crime is charged to have been committed in October, 1862. The year had elapsed.

The 10th section of an act entitled “An act relative to criminal proceedings,” approved March 14, 1855, provides that, no person shall be prosecuted, tried or punished, for any offence, wilful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year after the offence shall have been made known to the public officer having power to direct the investigation.

It is contended on behalf of the State, that the right of prosecution under the statute referred to* only commenced when the offence was made known to the prosecuting officer, and that this right was suspended by the inability of the court to hold its session, by reason of the present war.

No averment of the kind is in the bill of indictment.

The jury should decide on every fact, essential under law, relative to the guilt or innocence of the accused.

The important facts relative to preventing or suspending prescription, were not charged in the bill of indictment, nor submitted to the public jury, nor decided by it, yet, on these facts, after the lapse of a year, in connection with the fact that defendant committed homicide, without malice aforethought, and not excusable or justifiable, depended his guilt of the crime of manslaughter by the laws of Louisiana.

These facts should have been charged in the bill of indictment, and proved to the satisfaction of the jury, to support the verdict for manslaughter. See State v. Foster, 7 A. 256.

It is therefore ordered, adjudged and decreed, that the verdict of the jury in the above named case be set aside, and the judgment of the District Court arrested,


author: Howedd, J.

text:
    Succession of Jacob Weigel.—Opposition of Helma Beatty.
    A judge may affix his signature to an order out of liis territorial jurisdiction, where such an order can be granted in chambers, upon an exporte application.
    from the Second District Court of New Orleans, Beauvais, J.

      Hamilton & Myers for opponents, Guüer, Casábai & Wallace for the Succession.
   Howedd, J.

A motion is made to dismiss the appeal in this case, on the ground “ that the order of the inferior court granting the said appeal is null and void on its face, the same being dated New Orleans, instead of the parish of Jefferson, and the judge who signed said order having no sort of judicial authority in said city of New Orleans.”

We know of no provision nor principle of law which renders this order a nullity. It is one which can be granted in chambers, upon an ex parte application by petition, in the course of proceedings pending in a court, and the affixing of the judge’s official signature, out of his territory, is not an exercise of “judicial authority” in the place where he happened to be at the moment of signing. His authority in such case is, in its very nature and essence, operative only in the court where the suit is pending, and can have no vitality, no force, no effect whatever until the order, as its medium, is filed in and becomes a part of the proceedings in which it is asked for.

It does not appear how or why the fact that the judge, who is a State officer, is personally out of the territorial limits of his court, but within the State, can deprive him of his official character or the capacity to control, in some respect, the proceedings legally pending in his court.

Without some special provision of law on the subject, we do not feel ourselves authorized to adopt such a conclusion. We can readily understand that circumstances may exist when the doctrine invoked by appel-lee would work great,'if not irreparable, injury to a party having the right to appeal.

“Jurisdiction,” as defined in Art. 76, C. P. “means the power of him who has the right of judging, or sometimes that word means also the space or extent of country over which the judge is entitled to exercise that power.”

Bouvier defines jurisdiction to be “a power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes according to law, and to carry his sentence into execution.” 6 Pet. 591; 9 John. 239. The tract of land or district, within which a judge or magistrate has jurisdiction, is called his territory, and his power in relation to his territory, is called his territorial jurisdiction.

“Every act of jurisdiction (i. e. the power of taking cognizance of and deciding causes) “ exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null. An inferior court has no jurisdiction beyond what is expressly delegated.”

These definitions clearly relate to the competency, the power of the judge to entertain and pass upon causes in regard to the subject matter, the parties and the place where the action is brought; but do not regulate or restrain his power as to the conduct of proceedings, the jurisdiction of which is legally vested in his court. They do not imply that the judge must always be personally present in his territory, in order to direct incidental matters as they become necessary, in a cause pending in his court, to attain the object of his judicial functions, the administration of justice.

A due consideration of the constitution, nature and powers of our judicial district system, the periods and modes of holding court and conducting business in them, leads to the adoption of the foregoing views. And, while we would not be understood as encouraging even apparent irregularity in the performance of the sacred and responsible duties of a judge, we must maintain what we deem to be the exercise of legitimate authority to secure the rights of parties.

Believing that the order of appeal in this case is not a nullity, because dated in New Orleans, we must hold it to be sufficient to maintain the appeal.

It is therefore ordered, that the motion to dismiss the appeal be dismissed.


author: Labatjve, J.

text:
    State v. Matthew Jurche.
    The only verdict, in a criminal case, that the jury can render, under the law, is a general one: a ver-diet of guilty or not guilty, whicli is a decision both on the law and the facts.

      By the Court. — It, doubtless, would be a safe rule for the jury to take the law from the judge as their guide ; but they are not bound to do so. They have the right to judge of both the law and the facts in forming their verdict.
    from the First District Court of New Orleans, Hiestand, J.

      Hon. B. L. Lynch, Attorney General, for State. Milk, Fislc & Henderson, for defendant.
   Labatjve, J.

Defendant was indicted for murder, convicted and sentenced.

He appealed.

On the trial of this case in the lower court, defendant asked the judge to charge the jury “that, in finding á verdict, they were the judges of the law and facts.”

This the judge refused; but charged “that they were the sole judges of the facts proved. It was their duty to apply the law as laid down by the court. That the jury had the power, but not the right, to disregard the charge of the judge. ”

The only verdict, in a criminal case, that the jury can render, under the law, is a general one : a verdict of guilty or not guilty, which is a decision both on the law and the facts.

The jury are not presumed to be able, unaided, to ascertain the law ap" piicable to the case, among conflicting authorities cited by counsel; and therefore, the judge is required to charge the jury as to the law.

It, doubtless, would be a safe rule, for the jury to take the law from the judge as their guide; but they are not bound to do so.

They have the right to judge both of the law and the facts in forming their verdict. See 11 An. 429, 206 and 81. 10 It. R. 81.

Judgment of the lower court is reversed, and the case remanded for a new trial according to law.

Himan, C. J., and Jones, J., absent.


author: HoweiiL, J.

text:
    C. Tibben v. S. D. Gratia & Co., et al.
    Where a party is guilty of laches by not urging his claim in due time and place, he cannot complain, in this court.

      IX. PPEAL from the Second District Court of New Orleans, Morgan, J.

      G. Dufour for plaintiff and apjaellant. L. Costera G. Legardeur for defendants.
   HoweiiL, J.

Plaintiff alleges that he is a mortgage creditor of the succession of Francois Gras, deceased, which was settled as an insolvent estate; that the property subject to his mortgage was sold, in due course of administration, and the mortgage cancelled by order of the court, and the proceeds applied to mortgages inferior to his, in favor of defendants. He therefore claims from them the amount which he alleges is secured by his mortgage.

Defendants set up the general issue and the plea of res judicata!

It appears that plaintiff was a party to the rule taken by the executor to cancel the mortgages on the property of the succession; that a tableau of distribution was duly advertised and homologated, after disposing of numerous oppositions, that this tableau was brought to the special attention of plaintiff by the attorney of the executor, who -says that he requested plaintiff to examine it, in order to ascertain whether he (plaintiff) had any other claims besides those which he held as agent, and for which he was placed thereon; and that he replied, “It was all right. ”

We think that under this state of facts, the plaintiff has not -brought himself within the application of Article 1176 C. 0., and that he is precluded from any recourse upon the fund distributed in said tableau, and that defendants cannot be compelled to return to him any funds received by them by virtue of said judgment of homologation. He was evidently guilty of laches in not urging his claim in due time. See 5 A. 38.

Judgment affirmed, with costs.


author: Insi/EY. J.

text:
    James Syme v James Stewart.
    Foreign laws must be provod a3 facts; and, in the absence of such proof, the rights of parties who claim, and the effect and validity of instruments executed under the laws of another State, must be determined by our own, which will be presumed the same.
    from the Third District Court of Now Orleans, Dmigneaud, J.

      L. M. Day and J. Q. Bradford for plaintiff. A. N. Ogden for defendant and appellant.
   Insi/EY. J.

This suit was instituted in the Third District Court of New Orleans against the defendant, a partner in the commercial firm of Stewart & Pintard, lately established at Rodney, in the State of Mississippi, to recover from him the amount of a bill of exchange drawn by said firm, to the order of John A. Galbraith, on Messrs. Hughes, Hyllested & Co., at New Orleans.

This bill was transferred by the endorsement of the payee; and, for a valuable consideration, came into the hands of the plaintiff before its maturity.

The defendant pleaded a general denial, and set up an equitable de-' fence against the plaintiff, as if this suit had been instituted by the payee of the note; and he relies on a statute of the State of Mississippi, where the bill was drawn, to bring his case out of the commercial law, by which it would otherwise be governed here.

Proof having been adduced of protest, and notice of protest, on the defendant, judgment was rendered against him and in favor of the plaintiff, for the whole sum claimed, with legal interest, and the costs of protest and of suit, and ten per cent, damages; and from this judgment the defendant has appealed.

The statute of Mississipjfi, on which the defendant relies, is not spread upon the record; and it has been repeatedly held that foreign laws must be proved as facts; and that, in the absence of such proof, the rights of parties who claim, and the effect and validity of instruments executed under the laws of another State, must be determined by our own, which will be presumed the same. Campbell v. Newport, 8 A. 124; Kuenzi & Co. v. Elvers, Boje & Co., 14 A. 391; Harris v. Watson et al., 9 Rob. 151.

Tested by the law in force here, the decision of the Court a qua is correct, except so far as it condemns the defendant to pay ten per cent, damages on the protested bill sued on.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that plaintiff recover from the defendant the sum claimed, twelve hundred dollars, with seven dollars and a half, costs of protest, with legal interest from the 25th February, 1860; the costs of the District Court to be paid by the appellant, those of the appeal to be paid by the plaintiff and appellee,

Jones, J., absent.


author: Ilsley, 3.

text:
    Charles E. Schmidt v. Victor Benit.
    Where there is no prayer for a citation of the appellee, and he is not cited, it is a good ground for a dismissal of the appeal.
    from the Sixth District Court of New Orleans, Howell, 3.

    Plaintiff in propria persona.

   Ilsley, 3.

The appellee moves to dismiss the appeal in this case on several grounds : one of which is that he has not been cited to answer the appeal.

In the petition for an order of appeal there is no prayer for citation on the appellee, and he was not cited. This is good ground for dismissal. 10 Al. 650. 13 La. 50. 5 A. 115.

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

Howell, 3., recused.


author: Ilsley, J.

text:
    Charles E. Schmidt v. Jules Benit.
    from the Sixth District Court of New Orleans, Howell, 3.

    Plain tiff pro. se.

   Ilsley, J.

The appellee moves to dismiss the appeal in this case on. several grounds : one of which is that he has not been cited to answer the appeal.

In the petition for an order of appeal there is no prayer to cite the ap-pellee, nor was he cited ; and this is good ground for dismissal. Bolling v. Anderson, 10 A. 650. Walker v. Martolo, 13 La. 50. Pratt v. Enom, 5 A. 115.

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

JJp'SVjmi'; J., recused.


text:
    B. Saloy, Syndic, v. Joseph Albrecht.
    A sals of partnership property by one of the commercial partners, on the eve of bis insolvency, iá null and void, and will be set aside. The partnership property is the common pledge of the partnership creditors, who must be paid out of it before the individual creditors of the members; and, if not fully paid, they may pursue each member, although without privilege.
    The partnership is dissolved by the cessio lonoruni made by one of its members; and the solvent partner, being bound in soliio, has a right, but not an exclusive one, to liquidate its affairs. If there is a surplus over the insolvent estate, it goes to his individual creditors.
    from the Third District Court of New Orleans, Duvigneaud, J.

      E. Filhuel for plaintiff. J. L. Tissot and G. Dufour for defendant and appellant.
   Howell, J.

Plaintiff, as syndic of the creditors of P. Marcelin, seeks to set aside two acts of sale to defendant, his partner, by the insolvent, on the eve of his declared insolvency, of certain real estate and the movables on the premises owned by said partners.

There can be no question that the sale of the real estate should be revoked, as it was the individual property of the vendor and commercial partner of the vendee, who, by it, obtained an unjust advantage. Such a sale, at such a time, and on such terms, to an alleged creditor, is prohibited by law. 3 L. 497. 6 A. 774. C. C. 1964, 1979. Acts 1866, p. 432.

The revocation of the sale of the property belonging to the commercial partnership must rest upon somewhat different principles, or the same general principle differently applied.

Can a commercial partner, on the eve of failing, transfer to his co-partner, with knowledge, all his interest in the partnership, so as to exclude the same from his surrender ?

We think not. The partnership property is the common pledge of the partnership creditors, who must be paid out of it before the individual creditors of the members ; and, if not fully paid,-they may pursue either •partner, but with no higher rights upon his individual property than his individual creditors have. And neither partner, in failing circumstances, can, by law, do any act which will change the rights or relations of the two classes of creditors, or the appropriation which the law would make of the property. . .

The partnership is dissolved by the cessio bonorum made by one of its members, and the solvent partner, being bound in solido, has a right, but not an exclusive one, to liquidate its affairs. The partnership debts may not be greater than the partnership assets, and if there be a surplus it goes, in proper proportion, to the individual creditors of the insolvenmember, whose syndic has a concurrent right to the administration and settlement of the affairs. See 9 R. 372, Tyler v. His Creditors.

The sale, then, by the failing to the solvent partner, may cut off his individual creditors from any possible residuary interest, and from an opportunity of making such interest as large as possible, and may result greatly to their injury.

The evidence in the record does not show that the partnership assets were less than the debts ; but shows conclusively that the defendant was, at the dates of the two sales, aware of his partner’s situation, and that he, by said sales, obtained an advantage and preference over the other creditors of the insolvent.

These two sales must therefore be annulled, and the property conveyed be restored to its original stains, to be disposed of according to law. C., 1972. 6L. 83.

We find no error in the judgment in regard to the alleged claim for rent, prayed for in this court. We do not consider that such a claim was presented, either in the pleadings or by the evidence, in the lower court, so as to settle definitely the reciprocal rights of the parties.

There is error, however, in condemning defendant to pay, in cash, the purchase price on the act of sale, on 23d January, 1858, of the partnership property. According to the principles above recognized, the plaintiff, as syndic, is entitled only to a concurrent administration and a residuary interest. The defendant may be made to render an account of his liquidation or settlement of the partnership affairs, or admit plaintiff to a participation therein, or otherwise bo made responsible for the partnership assets. The record does not enable us to determine these matters. Art. 1972 C. 0. must be construed with other laws applicable to the questions involved.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and proceeding to render such judgment as should have been given: It is ordered, adjudged and decreed, that the two acts of sale, by Paul Marcelin to Joseph Albrecht, before A. Abat, notary public, on 20th and 23d January, 1858, respectively, be set aside and annulled ; that Bertrand Saloy, as syndic of the creditors of Paul Marcelin, recover of Joseph Albrecht, defendant, all the property described in the said act of sale of the 20th January, 1858, to be applied in due course of law to the payment of the claims of the creditors of said Marcelin, reserving to the syndic the right of action, if any exist, for the rent of said property ; and that all the property described in the said act of sale of 23d January, 1858, be restored to the joint control of plaintiff, as syndic, and the defendant, to be appropriated or accounted for according to law, reserving to defendant any rights which he may have individually, or as a commercial partner, against the insolvency of said Marcelin.

It is further ordered, that the defendant and appellant pay the costs of the lower court, and the plaintiff and appellee pay the costs of this court.


text:
    Jean Lamothe v. Caroline Lamarque.
    Where a judgment bears eight per cent, interest only five per cont. damages will be allowed for a frivolous appeal.
    from the Second District Court of New Orleans, Morgan, J.

      G. Bitfour for defendant and appellant. P. E. Laresche for plaintiff.
   Ilsley, J.

A suspensive appeal was taken in this case by the defendant, from an order of seizure and side taken out of the Second District Court of New Orleans.

The answer of the appellee in this court prays for an affirmance of the judgment, with ten per cent, damages for a frivolous appeal.

The appellant has not furnished us with any argument, and, after examining the record, we can see no error to her prejudice. It is very evident that delay was her sole object in appealing, and she must, therefore, pay damages.

As, however, the judgment bears interest at eight per cent., five per cent, only as damages will be allowed.

It is therefore ordered, adjudged and decreed, that the judgment or order of seizure and sale appealed from be affirmed, with costs in this court, with five per cent, damages on the principal sum claimed.

Jones, J., absent.


text:
    Paul Lafrance v. Jourdain Martin.
    Where the appolleo moved to dismiss the appeal, that the case having been tried by a jury, no motion was made for a new trial. Held: íhat it is a good reason to affixm the judgment, but cannot be to dismiss the appeal.
    It is not necessary that more than one of the principals and the surety shall sign an appeal bond.
    from the District Court of the Parish of Placqueminea,

      Cctzabat, J. H. B. Qrandmont for defendant and appellant.

      H. Train for plaintiff.

    Upon the motion to dismiss the appeal: 9 M. 285; 1 N. S. 713; 2 N. S. 388; 5 L. 446; 3 R. 429; 5 R. 127; 6R. 362; 16 L. 466; 17 L. 336. The above decisions of the Supreme Court, affirming the principle that judgments of inferior tribunals, founded on verdicts of juries, should never be brought before the Supreme Court without showing that an attempt had been made to obtain a new trial.
    2. Parties not giving an appeal bond cannot be heard as appellants. 7 A. 589; 9 A. 158. Appeal dismissed when all parties are not mentioned in the appeal bond. 13 A. 441, 296. 11 A. 409, 675. 15 A; 496, 523, 12 A. 72. 15 A. 629.
    3. It is not part of the duty of a clerk to prepare an appeal bond, so a® to bring any irregularity in its execution within the 19th section of the statute bf 20th March, 1839, authorizing the Supreme Court, in certairl cases, to grant time for the correction of errors or irregularities. 2 A. 902, 452.
    4. When the appeal bond, at the time of filing the appeal, does not contain the name of the obligees, or the style of the suit and judgment appealed from, it is insufficient, and the appeal -will be dismissed. 6 L. R. 586.
   Labatjve, J.

The plaintiff’s demand is for $725 with interest, on a note of defendant, dated 12th April, payable in November, 1862. Pending the suit below the defendant died, and the plaintiff had his heirs, four in number, made parties; they appeared, and pleaded as an exception, that plaintiff, on his own showing, could not maintain his action upon the note which had been given in part payment of a negro ; and further, that they were not indebted to the plaintiff as alleged in the petition. On motion of plaintiff, the case was ordered to be tried by a jury. The court ordered that the exception be made a part of the merits. The plaintiff offered in evidence the note sued upon, and the endorsements of the payees were admitted. The jury gave a verdict for plaintiff, and no attempt was made to set aside the verdict. The judge gave judgment accordingly.

From this judgment the four defendants moved for an appeal, and it was granted. The appellee has moved to dismiss the appeal on the grounds: 1. That the case having been tried by a jury and no motion made for a new trial, this court cannot entertain jurisdiction in the premises. 2. That the appeal bond is not made in conformity with the law, and is not binding on all the appellants. 3. All the parties are not before this court.

The first ground might-be a good reason to affirm the judgment, but cannot be a good one to dismiss the appeal. As to the second and third grounds, our attention has not been called to the particular defects contemplated by the appellee. The bond seems to be substantially in form; it is signed by one of tfie principals and the surety; it was not necessary that all the principals should have signed it.

Motion to dismiss overruled.

On the merits, we are of the opinion that the verdict of the jury and and the judgment of the court are correct; besides, the defendant did not move for a new trial, and the judge was bound to render judgment according to the verdict. 15 L. 466; 17 L. 336.

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

Joses, J., absent.


author: HowELn, J.

text:
    W. H. Letchford & Co. v. Jacobs; Harrison et als., Intervenors.
    Where parties are not shown to have been in actual or constructive possession, as owners, of the property at the time it was attached, they have not the right to bond it.
    The intervention may stand, although the motion to bond by the intervenore be dismissed.
    XS. STEAL irom the Second District Court oí New Orleans, Morgan, J.

      Benjamin, Bradford & Finney for plaintiffs. Garleton Hunt, curator ad hoc, for defendant.

      Durant & Honor for Jniervenors and appellants.

    The plaintiffs, a commercial firm in New Orleans, brought suit by attachment against H. Jacobs, a resident of Mississippi, on a promissory note of @1,078 98.
    A quantity of merchandise was attached in the hands of Thomas McKenna, a warehouseman.
    George E. Harrison intervened, claiming the goods attached, in consequence of a deed of trust executed in his favor, in New Orleans, on the 17th August, 1860, by the defendant Jacobs, to secure certain commercial firms in New York, for certain amounts due them by the said Jacobs, and to protect them against the seizure of goods they had sold Mm by Ms old creditors; that, subsequently, the intervonor took actual possession of said goods before the attachment.
    After this, certain creditors residing in New York intervened, alleging' themselves to be the vendors of a portion of the goods attached, and claiming the same under the legal right of stoppage in transitu.

    The intervenor Harrison, and the creditors aforesaid, then took a rule upon all parties, calling on them to show cause why they should not be allowed to bond.
    This rule was tried on the face of the papers, and judgment given that they showed no cause of action in favor of the petitioners in intervention, on three grounds :
    1. As to the creditors: “That, to authorize the stoppage in transitu, th.6 insolvency of the purchaser must have occurred subsequent to the sale of the goods, and that this defendant was insolvent before the purchase.”
    2. “That the delivery to the defendant’s agent is delivery to Ms principal. ”
    3. With regard to Harrison, the trustee : ‘ ‘ That the trusteeship, by which the agent seeks to take possession of the property, is a title not recognized by our law.”
    The contract of sale having been made, and the goods sold to Jacobs on a credit, in New York (a State where the common law prevails), the right of stoppage in transitu existed in favor of the vendors. “It is a privilege allowed to tho seller for the particular purpose of protecting him against the insolvency of the consignee.” The Constantia, 6, C, Bob. p. 326. '
    “To enable the vendor to exercise this right, the goods must be unpaid for, the vendee must be insolvent, and the goods must be in transit. ” Story on Sales, g 326. Abbott on Shipping (Boston, 1846,) p. 614.

      That the goods were sold and shipped on credit is apparent from the face of the papers, and is nowhere denied.
    It is in the same way apparent, and also not denied, that Jacobs was insolvent. But, it is pretended that, in this case, Jacobs was insolvent at the'time of his purchases in New York,'and that it is only in cases where • the insolvency occurs after the purchase that the right of stoppage exists.
    This illegal doctrine would leave without remedy a creditor who had, at the time of sale, been deceived as to his debtor’s real condition : there is no foundation whatever for it in law. It has, indeed, been said that “it seems that the vendor is not entitled to the right of stoppage in tran-situ, if at the time of the sale he knew the debtor to be insolvent. See-Buclcley v. Furness (erroneously quoted in the above edition of Abbott, in note on p. 614, as 17 Wendell, 504) in 15th Wendell, p. 143, where the 'court said : “ Still, it may be, and probably is, true that, if the plaintiff sold the iron with a full knowledge of the situation of the vendee, he could not afterwards exercise the right of stoppage in trausitu; but the argument is not borne out by the facts of the case. The truth is, no doubt, -that the plaintiff was deceived by the false representations of Titus, and the credit was fraudulently obtained. There is, then, nothing in this branch of the argument which militates against the right of the plaintiff to re-take the goods.
    So in the case at bar, it is expressly alleged, and the allegations are to be taken as true, by the intervenors, that the creditors were ignorant of Jacobs’s insolvency, and that he purposely concealed from them the circumstance of his indebtedness on prior claims, to other creditors.
    The only other point to be considered is whether the goods were in transitu. The vendors lived in New York, the vendee in Brookhaven, Mississippi, and the goods were to be sent from the former point to the latter; they came by the way of New Orleans, and were seized in the warehouse of McKenna, who was merely a middleman and not such an agent for the receipt of the goods as would make his receipt such a delivery as to terminate the transitus. All the authorities are clear on this point. See the case of Buckley v. Furness, 15 Wendell, 143, 17; do. 504.
    If it be contended that there was a delivery at New Orleans, to Harrison, the trustee, the reply is, ho was the agent of the vendors and not of the vendee.
    The only question left is as to the validity of the deed of trust. Nothing in our law prohibits a Mississippi debtor from transferring to the agent of his creditors goods bought by Mm, unpaid for and then in transitu-, for, as the creditors had a right to stop them,,so the debtor had a right to deliver them; after this delivery the debtor, Jacobs, had no control of the goods, and therefore the plaintiff, an old creditor, could not attach them.
   HowELn, J.

Plaintiffs, residents of New Orleans, brought suit against defendant, residing in Brookhaven, Mississippi, and attached property in the hands of a garnishee, who answered that he had in his warehouse several packages of merchandise belonging to 'defendant, which was taken into the possession of the sheriff.

Subsequently, one George P. Harrison intervened, claiming said goods ]by virtue of a deed of trust, executed in this city, and alleged to be duly Recorded in Mississippi, by which defendant sold to intervenor, in trust, to secure debts due certain named creditors in New York and New Orleans, all the goods and fixtures in his store in Brookhaven, and all goods then in transit between New York, New Orleans and Brookhaven.

Several of said creditors in New York also intervened as vendors, setting up said deed of trust, and asked judgment for their resioeetive claims, to be paid out of the proceeds of the properly attached.

The intervenors, claiming the goods as trustee and as vendors, with the right of stoppage in transitu, then took a rule on the plaintiffs, the defendant and the sheriff, to show cause why they should not be allowed' to bond said property in conformity to law.

On this rule jugdment was rendered, dismissing the interventions and the rule, from which defendants have taken a devolutive appeal.

In the case of Hughes v. Klingender, 14 A. 52, it is said: “The law con-' fers upon the defendant only the right to set aside the attachment by giving bond. C. P. 259 ; Acts 1852, p. 165. It is not conferred on the creditors.

“It is true the courts have allowed, under an equitable construction of the Article, an intervenor, having possession and claiming to be owner to bond, in order to avoid the great injury which third persons might suffer by the unjust seizure of their property. ”

The intervenors in this case have not brought themselves within the application of this equitable construction of this. Article 'of the’ Code of-Practice.

They are not shown to have been in actual or constructive possession,. as owners of the property, at the time it was attached. The one claimed simply as trustee, for the purpose of paying the creditors, and not as real-owner. The others claimed as vendors, with the right of stoppage in transitu, which, when exercised, does not operate to rescind the contract of sale, but only enables him to enforce his lien.

They are, then, without the right to bond; but there is error in the judgment in dismissing the interventions on a motion to bond. The intervenors may be able to establish their rights, if any they have.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, so far as it dismisses the interventions herein, and that this cause be remanded to be proceeded in according to law, the appellees paying the costs of appeal, and appellants the costs of the proceedings in the lower court, on the rule to bond the property attached.