text:
    James Burbank & Co. v. L. Haas & Co. et al.
    Where one by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time.
    APPEAL from the Fourth District Court of New Orleans, SPrawbridge, J.

      B. B. Band, for plaintiffs and appellants. Thomas L. Bayne, curator ad hoe, for defendants and appellants. M. M. Cohen, for J. Worms, defendant.
   Buchanan, J.

This is a suit upon a promissory note made by L. Haas & Co., at New York, June 21st, 1851, to their own order, endorsed in blank, and held by plaintiffs. The petition averred, that the firm of L. Haas & Co. was composed of L. Haas, J. Hahn, and Isidore Worms, who were all absent from the State. Under a writ of attachment and garnishment process, the Sheriff seized two acceptances held by Godohaux freres, as agents for Isidore Worms; which property was afterwards released on bond given by Worms, with security, according to Article 259 of the Code of Practice.

The suit is defended by Worms alone, who alleges that he is not, and never was, a member of the firm of L. Haas & Co. ; and that his property has been wrongfully attached for the debt of that firm.

On the trial, the plaintiffs offered proof of the signature of the note sued on, by comparison of handwriting. That fact is made out to our satisfaction. Indeed, as against Worms, who has filed an answer and special plea in the cause, the signature is to bo taken for confessed, he must be judged upon the plea which he has filed. That plea, as we have seen, is a denial of the allegation of the petition, that Worms was a partner in the firm of L. Haas & Go. It appeal’s from the evidence that, at the date of the note sued upon, there were three firms simultaneous existing : J. Worms & Go., at Panama; John Hahn dk Go., at San Francisco ; and L. Haas & Go., at New York. The evidence also shows, that this note was given in renewal or novation of a draft drawn by J. Worms & Go. on L. Haas, in favor of John Hahn, and by him endorsed in blank, accepted by L. Haas, through his agent H. Schmidt, and held by plaintiffs, at whose request it was protested at maturity. It is proved, that the consideration of the draft was a purchase of goods from plaintiffs, made by defendant, Worms, in person ; and that Worms stated, at the time he gave the draft in settlement of said purchase, that the partners of the house of Haas & Go. were the same as those of Worms & Go. and Hahn & Go.

On the part of defendant, three witnesses have been offered to prove that Worms was not a partner of the concern of Haas & Go.; but their testimony is very loose and unsatisfactory, amounting- at most to an expression of their belief on the subject. In connection with this evidence, however, the defendant has thought fit to adduce some documentary evidence, to wit, articles of dissolution of the firm of Worms & Go., in Panama, and an account current, or rather memorandum of settlement of account between the firms of Haas & Go. and Worms & Go., which furnish to our minds strong presumption of the identy of the partners in those firms, for which the plaintiffs contend. But had the defendant succeeded in making that certain, which in our view of the evidence is scarcely probable, to wit, that Worms was without interest in the firm of Haas & Go. he would not be relieved of his liability to plaintiffs. It is proved by a witness of plaintiffs, and this evidence is entirely uncontradicted, that when Worms made the purchase of goods of plaintiffs, which was the original cause of the obligation now sued on, he wished to pay in the note of J. Worms & Go. ; but the witness, then book-keeper of plaintiffs, answered, “ that he wished all the parties on the paper, and consequently a draft would be better, Mr. Worms then replied, that if witness preferred a draft, he could give it just as well, and that the parties were all concerned together in business — L. Haas & Go. in New Orleans; John Hahn & Go., in San Francisco; and J. Worms & Go., in Panama; and Mr. Worms brought the draft which is in evidence, and signed the said draft in witness’ presence. After the draft was protested, the witness told Mr. Burbank, that the parties to the draft were all the same, so that Mr. Burbank might take it to either of them for renewal or settlement. The draft was for the amount for which the goods were sold, and the note was also for the same amount. Mr. Worms told witness that the partners of the house of Haas & Go. were the same as those of1 Worms & Go. and Hahn S Go.; that it made no difference who signed the draft or how it was signed ; and witness’ communication to Burbank, on the subject, was derived entirely from the statement of Worms."

From this evidence, it is plain, that the plaintiffs have been induced into a change of an obligation subscribed by Worms himself, and by two other individuals, for another obligation, to which there was only one party subscribing, and in which Worms’ name does not appear, by the representations of Worms himself, who was moreover the party with whom plaintiffs originally contracted. If, then, it be true that Worms was not interested in the firm of Haas & Go., he has deceived the plaintiffs by a false statement, from which he assuredly can derive no advantage. The principle of law is well settled, that where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring against the latter, a different state of things as existing at the same time. Pickard v. Sears, 6th Adolphus & Ellis, 474. Story on Equity, § 383, in notes. McMasters v. Atchafalaya Bank Commissioners, 1st An. 12. Blanchard v. Allain, 5th An. 368.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that plaintiffs recover of John Marks, curator of Isidore Worms, the sum of fifteen hundred and sixty-seven dollars and sixty-two cents, with legal interest from the 27th December, 1851, and costs of both courts, and with privilege upon the property attached in this suit.


source: Caselaw Access Project

author: Spoefoud, J.

license: Public Domain

text:
    State of Louisiana v. Raymond & Jose Martinez.
    In the First District Court of New Orleans, it is customary for jurors to serve from term to term, the terms beginning on the first Monday of each month.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      I. E. Morse, Attorney General, for the State. M. Grivot, for appellants.
   Spoefoud, J.

Ramon Martinez and José Martinez, having been convicted, under an information for selling spirituous liquor to a slave contrary to the statute, were sentenced to pay a fine of three hundred and fifty dollars each. Prom this sentence they have appealed.

The only ground upon which they claim a reversal of the judgment, is presented in a bill of exceptions, by which it appears that when the case was called for trial, on the 3d of June, 1854, their counsel objected to going to trial, because the jury called to try the case was empannelled on the 1st day of May, 1854, and was by law only bound to serve “ during one callendar month,” so that after the 31st of May, the said jury could not legally sit upon the trial of any indictment or information.

The Judge overruled the objection, remarking that it was customary in that court for jurors to serve from term to term, the terms beginning on the first Monday of each month.

The counsel for the appellants has referred us to the 10th and 11th sections of the Act of March 25th, 1831. Bul. & Our. Digest, p. 525. We see nothing in that law which made the jury in question incompetent to sit upon 'the trial of this information. On the contrary, the act itself seems to contemplate the renewal of the petit jury in the then First Judicial District Court, at each successive monthly term, in accordance with the practice which the Judge certifies has uniformly obtained in his court. The May -term of the present year, did not close until the 3d of June, the day on which the defendants were tried. The next monthly jury was not called to sit before Monday, the 6th of June.

The Act of February 10th, 1813, sec. 5, (Bui. & Our. p. 183) provided that the Court of the First District should be opened in the city of New Orleans on the first Monday in every month, to continue until the business of the term be completed, &c. This act gave rise to the custom of monthly terms in that court. See De St. Avid v. Pichot, 3d Ann. 7. The Act of March 25th, 1831, must be construed in connection with the then existing laws touching the organization of the First Judicial District Court.

The unquestioned practice of twenty-three years in a matter of this kind, should not now be disturbed by a refined verbal criticism.

The judgment of the District Court is therefore affirmed with costs.


author: Si>offord, J.

text:
    Hamilton, Mackinder & Co. v. Campbell & Rickarby et al.
    The privilege of a commission merchant or consignee for advances, does not attach, until the property on which the advances are predicated comes into the possession, actual or constructive, of the party claiming the privilege.
    The transfer of cotton on the black book of a cotton press, is a symbolical delivery.
    By the usage of the cotton presses in New Orleans, the destination of a lot of cotton transferred on its black book, cannot be changed without the consent of the transferree.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore & King, for plaintiffs and appellants. Wolfe & Singleton, for defendants.
   Si>offord, J.

This is a controversy between two commission houses, each claiming a privilege to the exclusion of the other, upon seventy-three bales of cotton.

The seventy-three bales are a part of the same lot on which the defendants in this suit were decreed to have a privilege as against Bradley, Wilson & Co., the original vendors, in the case of Campbell v. Penn, reported in 7 Ann. 372, where most of the facts material to the present suit, are detailed.

There was a difference of opinion among the members of the court, which decided the former case, a majority holding that Campbell & Ridlcarby had a privilege as against unpaid vendors, only upon such portion of the cotton transferred to them on the books of the press as had been weighed, and the dissenting Judge being of opinion that they were entitled to a privilege upon the whole list, whether weighed or not.

That question has no necessary bearing upon the decision of the present case. Bradley, Wilson & Co. are no longer parties to the suit, and it is admitted that the seventy-three bales in dispute passed the scales.

Both of the present parties had made large advances to one Simpson, a cotton speculator who failed and absconded on the evening of the 7th June, 1851.

The privilege of a commission merchant or consignee for advances, does not attach until the property on which the advances are predicated, comes into the possession, actual or constructive, of the party claiming the privilege.

But the plaintiffs say, that they alone are entitled to a privilege here, because this cotton was to have been shipped on the Sallie Fearn, one of the vessels which was to carry the cotton on which they advanced, whereas the defendants only advanced on cotton to be shipped by the Epaminondas. The fact is not entirely clear, nor do we deem it material under the circumstances of this case. The last advance made by Campbell & Riclcarby, is established by the following receipt:

“Received, New Orleans, June 7th, 1851, from Messrs. Campbell & Rickar-by, ten thousand dollars on account. (Signed,) Jno. 0. Simpson.”

Here nothing- is said about the contemplated mode of shipment, and the cotton in question was at that moment in the Union Cotton Press, and standing-on the black book in the name of Campbell & Riclcarby. It is true that the words “ ship Saliie Fearn” preceded the shipping mark [Q. S.] of the 100 bales, (which included these 78,) or were placed there on the evening of the 7th of June. But on the same day, the following order was given by the clerk of Keene, the broker and the general agent of Simpson in these transactions:

“ Union Press will please compress and send on board ship Saliie Fearn, the undermentioned cotton, for account of Campbell, Riclcarby & Co., [Q. S.] 1/100, and oblige N. B. Keene, per H. Panipaee,

“ New Orleans, June 7th, 1851.”

Upon this order, appears the following memorandum : “We wish the Union Press to send this cotton on board at once. (Signed,) Campbell & Rickakby.”

They signed this memorandum on the 8th of Juno, but there is no evidence to impeach their good faith or to show that they were aware that any body except Bradley, Wilson & Co. had a claim adverse to theirs on these 100 bales. Under the decision in Campbell v. Penn, they gave up to the vendors, Bradley, Wilson & Co. twenty-seven of these bales, they not having passed the scales at the time Bradley, Wilson & Co. sequestered, which narrows this controversy with Hamilton, Mackinder & Go. down to seventy-three bales.

The plaintiffs do not pretend that they ever had actual possession of this cotton. Wo understand them to admit the possession of the defendants, but they urge that this possession was acquired through the error and mistake of the clerk of the broker Keene, and that it must therefore enure to their benefit; in other words, that the actual possession of the defendants, acquired by mistake, must bo hold in law to be the constructive possession of the plaintiffs.

Supposing the facts to bo as alleged, this conclusion could not be admitted for a moment, as between two innocent parties claiming privileges of the same grade upon the same thing.

But there was as much of design as of mistake in this transaction.

Bradley, Wilson & Co. really sold this cotton, with a large lot besides, to Simpson. But at the suggestion of the broker, Keene, and to protect themselves as the price was not paid, thej' gave their order on the press where it was stored in favor of Keene, not of Simpson, Keene then had the ostensible control of the property, but was really subject to the orders of Simpson. Oiffney, a ship broker, who seems to have been the active friend of Campbell & Riclcarby, and aware that they had made large advances to Simpson, told Keene on the fifth or sixth of June, that they wished all the cotton on which they were advancing, transferred to them. Keene apprised Simpson of their wishes, and was ordered by him to transfer the whole lot to them on the black book of the Union Press. This he did on the 0th of June, under his own hand, entering the whole list, without distinction, as sold directly “from Bradley, Wilson & Co. to Campbell, Riclcarby & Co." This was a symbolical delivery of the cottou to them. Af-tenvards, on tho evening of the samo day, Simpson, aware of his approaching discomfiture, and anxious to lull the suspicions of another creditor, oven at tho expenso of truth and fair dealing, ordered one hundred bales of tho lot which had thus passed from his control, to bo classed out by Keene and sent to the Sallio Eearn for Hamilton, Maokinder & Go. All that Keene did under this order, was to have the one hundred bales classed and marked with the shipping mark [Q. S.], and to tell Hamilton, Mackinder & Go. that he was classing it out for them, all of which was done on the next day, the 7th of June. Ho did not notify Campbell & Riekarby. Ho did not even instruct his clerk of this new intention, as appears from tho facts already mentioned, that the clerk gave an order on the 7th instant, in Keene's name, for tho cotton in this shipping mark to be compressed and sent on board the Sallie Eearn, for account of Campbell & Riekarby. Keene testifies, that he discovered that his clerk had made a mistake in the entry as to this one hundred bales, but did not wish to make any alteration in the entries on account of the difficulties that had already arisen.

By the usage of cotton presses in this city, the destination of a lot of cotton transferred on its black book, cannot be changed without the consent of the transferree.

It is not shown that either Simpson or Keene were laboring under any mistake as to the one hundred bales, when tho former gave the order to transfer the whole lot, and the latter executed it. Tho lien which attached in favor of Campbell & Riekarby, the instant that transfer was made, could not be displaced without their assent, by a subsequent change of mind on tho part of Simpson, as to tho proper destination of this portion of the cotton.

If the rights of the parties were more nearly balanced than they are, still there should bo judgment for the defendants, under the rule “ melior est con-ditio possidentis."

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


author: Ogdex, J.

text:
    S. L. Chorn v. John Merrill and Elizabeth Brackin.
    The obligation contracted by one whose name was subsequently placed on the back of the note wlr ch the payee had not endorsed, is not that of an endorser under the commercial law, but of an ordinary surety, and lie cannot avail himself of the want of notice.
    When the appeal is evidently taken for delay, the appellant is liable in damages.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Bennet, for plaintiff. Purvis & Rugué, for defendants and appellants.
   Ogdex, J.

The defendant, Merrill, who is tho maker of the note sued on, has no other defence except the allegation, unsustained by evidence, that the note is the property of another person. The appeal therefore on his part, must be considered as frivolous.

The other defendant, Mrs. Braekin, is sued as endorser, and pleads want of notice to her of the non-payment of tho note.

This defence cannot avail, because in the form in which her name appears on the note, her obligation was that of a surety. The note is made payable to the order of the plaintiff, and not having been endorsed by him, the obligation contracted by one whose name was subsequently placed on the back of the note, was not that of an endorser, under the commercial law, but of an ordinary surety. Cooley v. Lawrence, 4 Mart. 640. 10 L. R. 376.

The plaintiff has stated in his petition, all the facts necessary to establish the liability of this defendant as, under the circumstances, it is fixed by law, and his right to a judgment is not impaired by having mistaken the nature of the obligation of defendant, and having alleged more than it was necessary to prove.

It is therefore ordered and adjudged, that the judgment of the court below be affirmed, with costs and ten per cent, damages, to wit, $40, against the defendant, J. Merrill, for a frivolous appeal.


author: Slidell, C. J.

text:
    George M. Nichols v. Thomas S. Morgan.
    An accommodation acceptor, to maintain his action against the drawer, must prove his acceptance of the bill and its payment.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      M. M. Cohen, for plaintiff. Finney, for defendant and appellant.
   Slidell, C. J.

This is an action by the drawee of a bill of exchange against the drawer. The petition alleges that the bill was drawn upon a shipment of coffee consigned to plaintiff, which was destroyed by fire, without any fault on plaintiff’s part, and that he was thus left without means to reimburse himself for a sum of $795 63, which he paid the payee. He alleges that he became bound to the payee by an implied acceptance in retaining the bill when presented to him.

The evidence has not satisfied us, that the plaintiff should recover. An accommodation acceptor, to maintain his action against the drawer, must prove his acceptance of the bill and its payment. Plaintiff does not pretend there was an express acceptance ; aad the evidence of an implied acceptance is quite loose, and under the circumstances inconsistent with probability. A single witness, his clerk, says, that on the plaintiff’s arrival at Shreveport, he handed him the bill, which had been sent up (to whom or how he does not say), and there explanation ceases as to the .fate of the bill until some months after-wards, when a settlement, says another witness, was made between Nichols and Lathrop, the payee. But at the time when it was handed by his clerk to Nichols, the unsold portion of the coffee had been already consumed by fire, and the inducement to accept gone. We are inclined to think that Lathrop, the payee, did not intend to look to Nichols, his brother-in-law, as acceptor, but probably regarded him as an agent to receive the shipment, on which Lathrop had advanced, and on which the bill was predicated, and apply its proceeds to the payment of the bill. The circumstance that the bill was specially endorsed to Nichols by Lathrop, strongly supports this hypothesis.

Again: the evidence as to payment is loose and unsatisfactory, and so far as it goes, discloses a state of facts out of the usual course of mercantile dealing. Although about half the amount of the bill is said by the witness to have been paid by Lathrop's carrying to its credit a cash balance he held in deposit belonging to Morgan, yet several weeks after this payment he is said to have taken the drawee’s note for the whole amount of the bill. It is proper also to add, that the plaintiff has not proved the rendition of any account to the defendant of the consignment, a portion of which was saved, nor does it appear that the defendant would have been liable to Lathrop on the bill, no notice of dishonor having been shown.

On the whole, we are by no means satisfied as to the plaintiff’s right to recover, as an accommodation acceptor, in which character he sues.

Judgment reversed, and judgment for defendant, with costs in both courts.


author: Spofford, J.

text:
    C. A. Barriere & Brother v. V. Feste.
    A prospective insolvency affords no ground for proceeding by injunction and sequestration against a debtor.
    The remedy of sequestration being a rigorous one, cannot be extended by implication to cases not contemplated by the law maker.
    C. P. 158, 275, 808.
    APPEAL from the First District Court of New Orleans, Larue, J.

      Louis Janin, for plaintiffs and appellants. Santón & Bradford, for defendant.
   Spofford, J.

Barriere, Lacapere & Oo. on the 23d March, 1852, sold to Victor Feste, their stock of goods in No. 22 Chartres street, with the lease, &c., for the sum of $20,000, for which they took the five notes of Feste, each for $4,000, payable at 12, 18, 24, 30 and 36 months, with six per cent, interest, from the date of the sale, the first two notes being drawn to the order of F. H. Petitpain, and endorsed by him and one Samory, and the other three to the order of Dufour, Durand & Go., by whom they were endorsed.

On the 25th of November, 1852, the plaintiffs, their partnership with Laca-pere having- expired, brought this suit, alleging themselves to be the holders of the two notes, for $4000 each, which were to fall due on the 23d March, 1854, and 23d March, 1855 ; that they had the privilege of vendors upon such of the stock sold to Feste as aforesaid, as still remained in his possession or under his control; that he was fast selling out at auction through Petitpain, to protect the latter for his endorsement on the first two notes; that he was conducting his affairs out of the usual course of business, buying goods on a credit at the North, and selling them out at auction ; that Dufour, Durand & Go., the endorsers of the last mentioned notes, had failed ; and that these circumstances proved the fraudulent intention of Petitpain, and the insolvency of Feste, and that the petitioners privilege would probably be lost if they were compelled to await the maturity of the notes they hold.

Whereupon they prayed a sequestration of all the goods in No. 22 Chartres street, and in Petitpain’s auction store, which could be identified as part of the stock sold on the 23d of March, and that such goods be sold, and their proceeds applied to the payment of the two notes held by plaintiffs, allowing a proper discount for the anticipated payment; no judgment on the notes was asked for. The petition concluded with a prayer for costs and general relief.

Affidavit having been made to the facts alleged in the petition, and a bond having been given, the writ of sequestration was ordered to be issued.

Supplemental petitions accompanied by affidavits being filed, orders of injunction issued to Petit/pain and one Brown, who was made a party defendant also, restraining them from disposing of anjr property put into their hands by Peste, upon the further allegation that they were combining with the said Peste to defraud his creditors; that Brown was really his partner, and that the same judgment should be rendered against him that was sought against Peste.

Writs of injunction were issued according^, and served upon Peste, Petit-pain, and Brown.

The defendants appeared by counsel, and moved to dissolve the sequestration and both injunctions, on the ground that no case had been made by the pleadings and affidavits, to authorize such remedies; they also excepted to the suit on the ground of its prematurity.

On a hearing, the sequestration and injunctions were dissolved, the exception was sustained, and the suit dismissed.

The District Judge took a correct view of all the questions raised by the appellants.

The proceedings are anomalous and not justified by any precedent.

The case of the United States v. Smith, 7 Ann. 189, shows the impropriety of the injunctions. The Article 303 of the Code of Practice, cited by the appellant, does not relate to a case of this description. Here the property is not in dispute, for the plaintiffs have sold and delivered it to Peste, with a direct view of his selling it again. The courts cannot interfere to say, whether he shall sell by wholesale or retail. His alleged insolvency is prospective only, and non constat, that he will not pay all his debts when they shall fall due: an apprehension that he may not do so, affords no pretence for stopping all his business operations, and taking what he has on hand to pay a single creditor two years in advance of the maturity of his claim, especially when there are three other notes outstanding, which, by plaintiff’s own showing, are as much entitled to be paid by privilege as those they hold themselves.

The same reasons, in part, will justify the dissolution of the sequestration. Although, in certain specified cases, this writ may be issued before the maturity of the debt, the present is not one of those cases. The allegations of the petition do not meet the requirements of any clause in the 275th Article of the Code of Practice, or any amendment thereof. The remedy of sequestration being a rigorous one, cannot be extended by implication to cases not contemplated by the law maker.

The suit was properly dismissed, under Article 158 of the Code of Practice.

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


author: VoonniES, J.

text:
    R. F. Nichols & Co. v. C. M. Harvey.
    “When the appeal is evidently taken for delay, the appellee is entitled to damages.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      ffoolcl & Stansbury, for plaintiffs. II. C. Miller, for defendant and appellant.
   VoonniES, J.

The defendant is appellant from a judgment rendered against him on his promissory note executed in favor of the plaintiffs. He alleges, as a defence, that it was given as the price of a certain quantity of brandy, warranted by the plaintiffs to be of first rate quality, and that it proved to be inferior and inadequate to the price, &c. On the trial, he offered no proof in support of his defence.

Wo are satisfied that the appeal is frivolous and was taken for delay. We are therefore of opinion that the appellees are entitled to damages as prayed for bjr them on that ground.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; and that the appellees recover of the appellant, as damages, the sum of thirty-two dollars.


author: Ogden, J.

text:
    E. G. Rogers & Co. v. The Nashville Marine and Fire Insurance Company.
    It follows from the right of the insured to abandon as for a constructive total loss, that he has the legal right to recover the whole amount of insurance, and the safe arrival of the merchandize at the port of destination, does not divest the right when once acquired.
    APPEAL PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Durant & Horner, for plaintiffs and appellants. Cohen, for defendants.
   Ogden, J.

This action is based on a policy of insurance. The facts do not admit of any controversy. The defendants insured the hull and freight of the brig Clarion, on a voyage from New Orleans to San Francisco — a risk of $2000 on the hull, and $5,500 on the freight was taken by the defendants, and the Crosent Mutual Insurance Company took similar risks for the same amount, making the whole insurance on the hull $4000, and on the freight $11,0001 The vessel, while repairing in the harbor of Eio de Janeiro, where she had been driven by stress of weather, was so badly injured in a blow that came on, as to render her unseaworthy. She was condemned and ordered to be sold, and the merchandise was reshipped to San Francisco by the British bark Ivy Green, at a charge of $9000.

On receipt of intelligence of these facts in New Orleans, the plaintiffs, who were the insured, made an abandonment to both companies of the hull and freight, and claimed as for a constructive total loss. A total loss was paid by both companies upon the policies, as regarded the hull, and a payment of four thousand five hundred dollars each, was made on account of the loss on freight, with the stipulation that such partial payment should not prejudice the rights of either the insurer or the insured. The record contains an admission, that the merchandise reached its port of destination in safety.

On this state of facts, the question is, whether the defendants are liable for a constructive total loss of the freight, or only for a partial loss, which it was their design to settle by the payment already made. The defence set up, that there was no formal abandonment and no acceptance of it, is untenable. The intention to abandon and the fact of abandonment is sufficiently shown by the settlement between the parties. The acceptance was not necessary to bind the company, but the settlement also proves their acceptance, with a reservation as to the freight.

The reshipment of the merchandise on another vessel, could not affect the right of the plaintiff’s to claim as for a total loss. As the charge for reshipment was over one-half of the original freight, the insured had a right to make an abandonment of the freight as well as hull.

The abandonment appears to have been seasonably made, and the claim which was then made for a total loss, having been settled with the reservation of the legal rights of both parties as to the balance of the original freight, the only question is, whether at the time of the abandonment, the plaintiffs had a right to claim this balance of original freight. It necessarily follows from the right to abandon for freight as well as for the hull, that the plaintiffs were then legally entitled to claim the whole amount of insurance for freight, and the safe arrival of the merchandise by another vessel at the port of destination, could not divest the right of the insured when once acquired. The voyage for which the insurance was affected was broken up, and the legal effect of the abandonment, as there was a loss of more than one-lialf on both hull and freight, was to render the underwriters liable as for a constructive total loss, and invest them with all the interest of the insured, in both the hull and the freight. See 2 Phillips on Ins. 1853, 271-2, 337 to 340 and 841.

It is therefore ordered, that the judgment of the court below be avoided and reversed, and that there be judgment in favor of the plaintiffs against the defendants, for the sum of one thousand dollars, with legal interest from judicial demand ; and that the defendants pay costs in both courts.


author: Buchanan, J.

text:
    Adam Wagner v. John Hagan.
    Appeal will be dismissed where the transcript has not been filed within three judicial days after the return day, and no extension of time has been obtained.
    APPEAL from the Eifth District Court of New Orleans, Buchanan, J.
    Michel, for plaintiff and appellant. Boselius, for defendant.
   Buchanan, J.

A motion is made to dismiss this appeal as not having been filed more than three judicial days after the return day.

The appeal was returnable the third Monday of March, 1853 ; and the transcript was filed on the 5th of April, 1853. An inspection of the minutes of the court shows that five judicial days intervened between those dates.

Appeal dismissed, at costs of appellant.


text:
    W. B. Partee, Syndic, v. J. Corning & Co.
    ¿Syndic of pledgor alleged, that bills receivable were pledged and delivered to defendants for simultaneous advances. He neither impeached the good faith of the transaction,, nor showed any injury to creditors, but merely objected to an informality in these pledges, by reason of an omission to endorse the bills receivable, as prescribed in the Art. 3123 0. 0. Held: That the syndic cannot, upon a mere formality of this sort, disturb the pledge.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Hunton & Bradford, for plaintiff and appellant. Benjamin & Miaou, for defendants.
   Slidell, C. J.

The question we have to determine is, whether a sufficient cause of action was presented with legal accuracy and certainty on the face of the petition. The District Judge concluded this question in the negative, and in that opinion we concur.

The bills receivable were pledged and delivered to defendants for simultaneous advances, the good faith of the transaction is not impeached, and the objection is merely to an informality in these pledges, by reason of an omission to endorse the bills receivable, as prescribed in Article 3123. It is clear that the pledgors could not have set up this objection, and we are of opinion that the syndic cannot, upon a mere naked informality of this sort, disturb the pledge. Let it be observed, that there is no pretence that the pledges were taken in bad faith, or that an injury was done to creditors in taking them.

Then the inquiry remains, whether the subsequent settlement of the 30th of September, by which Gaming & Go. took the bills receivable in settlement of the indebtedness should be disturbed, upon the showing-made in the petition. Upon a careful perusal of the petitition, we are of opinion with the District Judge, that no sufficient ground for the revo-catory action is distinctly and specifically set forth. It is not alleged that this settlement was injurious to the creditors. The invalidity seems to rest upon the assumption, that the conti acts of pledge were absolute nullities. But this is an error. The syndic canuot impugn them on the mere ground of the informality alleged. If therefore it be conceded that, after their insolvency, Partee & Go. could not voluntarily give the property pledged to the creditor in payment of the debt, yet this being done, a court of justice would not set it aside in the revocatory action, unless upon proof that it was injurious to creditors. 0. 0. 1973. For if the settlement were set aside, the pledge would be reinstated; and if the property was not more than sufficient to satisfy the pledge, the creditors would gain nothing, and the rescission w-ould be fruitless. There is not then in this petition any sufficient allegation of injury or fraud touching the settlement; and the ground upon which it is really attacked, the invalidity of the pledge and acquisition of rights after insolvency to property in which the creditors had no lawful interest before, is untenable. The District Judge has properly said, in substance, that if the plaintiff meant to attack the settlement of 30th September, 1851, on the ground that it unlawfully secured to the defendants advantages beyond their contracts of pledge to the detriment of other creditors, the grounds of attack should have been specifically and distinctly set forth.

On the whole, after a careful analysis of the petition, we think we should not disturb the ruling of the District Judge, who, it will be observed, has in his decree of dismissal, reserved the plaintiff a right of further action.

Judgment affirmed; costs of appeal to be paid by plaintiff.


author: Vooiuiies, J. Slidei.l, C. J.

text:
    Wm. Syer v. L. F Bundy—J. Green, Warrantor.
    The rights of a vendee are not affected by a notification of an adverse claim, after the sale is completed, and he has paid his money and issued his note.
    Under the Act of 1843, the Parish Recorder is fully authorized, to erase from his books a mortgage after its peremption, and in the absence of fraud one is not bound to look beyond the certificate given by the recorder to that effect.
    Where title is set up under a Sheriff’s sale for taxes, it is essential to show an assessment according
    Such a description of property in a Sheriff’s deed, as “ square No. 19, situated in Bloomingdale,” is insufficient.
    A prayer for general relief may be available in certain cases, for instance, it may be aptly called in aid to explain vague and obscure allegations or averments, but for no other purpose.,

      Jp. a petitory action, it is not necessary for the plaintiff to show any act of possession.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      J. Barda/p, for plaintiff and appellant. Durant & Horner, for defendant and warrantor.
   Vooiuiies, J.

The plaintiff and appellant claims the ownership of a square of ground situated in Bloomingdale, parish of Jefferson, and described in Buis-son’s plan as No. 19, He alleges in his petition, that he purchased this property from William Burns, of Baltimore, Md., by notarial .act, which was duly registered in the recorder’s office of the parish of Jefferson, on the 28th of April, 1863 ; and th,at said Barns' vendor owned and possessed said property since the year 1837. He furjther alleges that the defendant, pretending to have title to said property, has illegally taken possession thereof and refused to surrender the same. He therefore prays, that he may be adjudged to bo the lawful owner of said square of ground, and that the defendant may be .condemned to restore him the possession of the same, and further decreed to pay him the value of the rents of said property from the 1st of May, 1863, at the rate of $300 per annum,

The defendant, in his apswer, after pleading the general issue, avers that he holds the square of ground in controversy, by purchase from John Gnen, by notarial act, dated the 27th of April, 1853, and duly recorded ; and that his vendor is bound to warrant and defend his title to said property. He therefore prays that his said vendor, John Green, may be cited and called in warranty.

John Green, in his answer to the call in warranty, denies all the allegations set forth in the plaintiffs’ petition ; and charges, that the title set up by the plaintiff is fraudulent and simulated, and concocted for the purpose of defrauding him, 1-Ie further avers, that on the 9th of January, 1837, being the projector of the town of Bloomingdale, he sold the square of ground in controversy, to Michael Buckley, for the price of $1200, in his notes of $300 each, payable at six months, and at one, two and three years ; that said notes, bearing a special mortgage and the vendor’s privilege, were duly registered in the mortgage office of the parish of Jefferson, and remained patent on the record up to the day of the sale by which the plaintiff acquired his title; and that the plaintiff and his vendor well knew that said notes were still due to him. He further avers, that on the 8d of January, 1845, ho purchased said property at a judicial sale made by the Sheriff of Jefferson, for the payment of the State and parish taxes, due thereon from the 37ear 1839 to the year 1844; and that about one or two years previous to his conveyance oí said property to the defendant, he had actual possession of the same. He therefore prays for judgment in his favor, with costs and all general relief.

The conveyance from Buckley to Burns, is by an act under private signature, dated the 10th of June, 1838, and registered in the Recorder’s office of the parish of Jefferson, on the 25th of April, 1853. By the terms of this act, the vendee assumed the payment of the notes executed by the vendor in favor of John Green, and originally given as the price of said property. The conveyance to the plaintiff was executed by Walter Garswell, of New Orleans, as the agent of William Burns.

On the trial below, the plaintiff excepted to the admission of the testimony of Mr. Arnault and Mr. Lewis, who were examined as witnesses for the war-rantor, on the grounds that “it was inadmissible under the pleadings, was irrelevant and was res inter alios, to which the plaintiff; Syer, was a stranger.” The testimony of Mr. Arnault, the Recorder of the parish of Jefferson, shows that John Green'8 mortgage against Buckley, was canceled and erased by him on the 25th of April, 1853, on the written application of Walter Garswell, on the ground that both the notes and mortgage were prescribed, the registry of which having been made more than ten years prior to the application; and that previous to the registry of the conveyance from Burns to the plaintiff, Garswell, was informed that the notes of Buckley held by Green were still due, and that Green had purchased the property at a Sheriff’s sale for taxes, The testimony of Mr. Lewis, the notary, shows that on the day on which the conveyance was completed and signed, but after the notes and cash were delivered to Garswell by the plaintiff, the latter was informed of John Green's claim. This testimony only proves that the plaintiff was notified of Green's mortgage claim after the consummation of the conveyance from Burns to him, and, consequently, too late to affect his .interest. But even admitting for a moment that such notice had been seasonably given, it is difficult for us to perceive in what manner it could have affected the position of the litigants. The Recorder was fully authorized under the Act of 1843, to erase from his books Green's mortgage after its peremption, and, in the absence of fraud, it is perfectly clear that the plaintiff was not bound to look beyond the certificate given by the Recorder to that effect. Hence there is no necessity to notice the bill of exceptions.

It is urged by the warrantor, that the act sous seing privé from Buckley to Burns, was not recorded until the 25th of April; 1853, and that the act of sale to him from the Sheriff of the 3d of December, 1845, for taxes, was regularly registered. It is not shown that this sale was made by virtue of a legal assessment. It is well settled, that where title is set up under a Sheriff’s sale for taxes, it is essential to show an assessment according to law. 6 N, S, 348. 10 L. 283. 7 L. 50, Besides, the property is described in the Sheriff’s deed as “ square No. 19, situate in Bloomingdale,” Such a description has been held insufficient. See Carmichael v. Akin's heirs, 13 L. R. 205, and Jacques v. Kopman, 6 Ann. 542.

It is also urged by the warrantor, that BucMey having failed to perform his engagements according to the terms of the sale, a commutative contract always implying the resolutory condition, he was entitled to claim either the dissolution of the contract, or a specific performance; and that it may he demanded either by suit or exception. We are of opinion that this point is inadmissible under the pleadings : there is neither averment nor prayer in the warrantor’s answer claiming such relief. It is true, a prayer for general relief may be available in certain cases; for instance, it may be very aptly called in aid to explain vague and obscure allegations or averments ; but for no other purpose, otherwise, even though it were not in violation of the rules of pleading, we think it would be giving our sanction to a very unsafe precedent in practice. But even conceding, for a moment, that the relief sought may be implied from the pleadings, still it is obvious that the warrantor’s position is untenable, because BucMey and Burns are not parties to this suit. Between the original parties, Buahley and Green, it may be safely conceded, that the non-payment of the price may be considered as an exception attached to the action and inseparable from the demand, and to which the maxim of “ Qum temporalia sunt," may be very properly applied ; but in respect to the plaintiff, who must be considered as a third person, holding as a purchaser in good faith under the vendee of BucMey, we apprehend the rule to be totally different in its operations.

It is also urged by the warrantor that neither Buckley, nor Burns, nor Syer, ever had possession under their titles. This is a petitory and not a possessory action; consequently, it is not necessary for the plaintiff to show any act of possession. Besides, it cannot be denied by Green, that his vendee was in possession, for the law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; that the plaintiff, William, Syer, be and he is hereby adjudged to be the lawful owner of the square of ground described in his petition; and that the defendant surrender the same over to him, and in case of his refusal to do so, that a writ of possession issue as the law directs; and that the plaintiff recover of the defendant the costs of both courts, to be taxed. And in relation to the claim of the defendant against his warrantor, as the evidence is considered insufficient to enable the court to do justice between the parties, it is ordered and decreed, that the case be remanded for further proceedings according to law.

Slidei.l, C. J.

1 concur with Mr. Justice Voorhies, in the opinion that the notification of Green's claim to Syer, after the sale was completed, and he had paid his money and issued his note, did not affect Syer’s rights. But upon the question what Syer’s rights would have been, if he had been notified of Green's claims before the purchase, it seems to me unnecessary to express an opinion; and I wish to be considered as expressing none.


author: Slwell, G. J.

text:
    Succession of E. J. Walsh.
    Such a clause, {‘ This certificate is transferable only on the books of the company and with its consent, by the said Walsh or his attorney,” contained in a scrip Sertificate and made under a provision of the charter of the company, in order to secure the company, and if the person named in the certificate should be indebted to the company to enable it to set off any debt due to it by such person against what it may owe on the scrip, and even where the payment of the scrip is not yet exigible, to keep a control oyer its own obligations as a security for the indebtedness of the scrip-holder, is not unlawful, and a court of justice must give it effect according to its just import and in fulfilment of the intention of the parties to the contract; therefore, Held : That as the curator of the succession of Walsh-, which was indebted to the company on a note for $3,1T6 73, had sold two scrip certificates for $2,040, the company who had acquiesced in the conversion of this asset into money in order to facilitate the administration of the estate and the liquidation of its affairs, was by reason of the pecular terms of their contract with Walsh, and the circumstances of the case, entitled to this fund in preference to the other creditors of the succession, and that if the company had chosen to resist the transfer, the court would have been bound to maintain them in such resistance.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Walker & Peirce, for W. E. Leverich, curator. G. L. Bright, for J. South, administrator, Mrs. E. Shoriridge, testamentary executrix, and W. M. Offensandt, opponents and appellants. M. M. Oohen, for Orescent Mutual Insurance Company, opponents and appellants,
   Slwell, G. J.

It may be conceded that the company is not entitled to a privilege upon the fund in dispute, using that term in its technical sense. But we think the equity of the company to receive this fund, by reason of the peculiar terms of their contract with Walsh, and the circumstances of the case, is clear.

The fund in dispute is a sum of $2040, which came into the curator’s hands under the following circumstances : Walsh left at his death two scrip certificates of the Crescent Insurance Company, one for $1440, dated 12th July, 1850, and one for $990, dated 12th July, 1851. These are written obligations or contracts of the company, signed by its president and issued under the charter. They certify that Walsh is at that time entitled to so many dollars in the invested funds of the companjq and to receive on the second Monday in August of each year, interest at six per cent per annum, provided that when the losses and expenses of any year shall exceed the premiums earned during the same year, the deficiency is to be provided for from the aggregate funds of the company ; and the certificate is to be surrendered for reduction at the time the first payment of interest shall be due, subsequent to such deficiency being ascertained. The certificate concludes with the following clause: “This certificate is transferable only on the books of the company, and with its consent by the said Walsh or his attorney.” By the charter of the company, these certificates are redeemable after net profits of a certain amount have been accumulated by the company.

The curator sold these certificates at probate sale for $2040, and took a rule on the company to show cause why the company should not be ordered to permit transfers on its books, which it had refused. After hearing evidence, the court ordered the company to permit the transfers of the scrip, reserving to the company all its rights to the proceeds to be exercised in due course of law. Under that order, we consider the proceeds as representing the scrip.

When a tableau of distribution was filed, the company, to whom Walsh was indebted for a note dated 1st June, 1850, at 12 months, given to cover premiums after 12th July, 1850, claimed the proceeds of sale, which the other creditors resisted, insisting on a pro rata distribution for the general benefit.

Lot us consider how this matter would have stood if Walsh were living, and the judicial sale had not been made.

The obligation of the company was for the payment to Walsh-, of a certain sum of money upon a certain contingency contemplated in the company’s charter, with six per cent, interest meanwhile, subject also to the contingency therein contemplated; and the promise is made with the express reservation that it shall not be assigned, in other words, that no new creditor shall be substituted for Walsh without the company’s consent. There is nothing unlawful in such a stipulation made under a" provision of the charter, and a court of justice must therefore give it effect according to its just Import and in fulfilment of the intention of the parties to the contract. The obvious intention of this clause, as deducible from the instrument and the charter under which it was executed, without the aid of the parol evidence offered at the trial, was to secure the company, if the person named in the certificate should be indebted to the company ; to enable it to set off any debt due to it-by such person against what it might owe on the scrip, and even where the payment of the scrip was not yet exigible, to keep a control over its own obligation as a security for the indebtedness of ths scripholder. If then Walsh, supposing him to have survived, had called upon the company for matured interest, the company could have said, we will credit it on your note which you have failed to pay; or if Walsh had sold the certificates and then required the company to permit a transfer to his vendee, the company would lawfully say, “no — pay your note first — if you do not, we will pass the accrued and accruing interest to the credit of the note, and when the principal of the scrip becomes exigible, will appropriate it in like manner. Our agreement was, that without our consent to a change, you should remain our creditor.”

The equity of giving the company the benefits of this agreement, is eminently apparent, with regard to the scrip certificate issued in July, 1851; for it arose out of the profits of company’s business for the antecedent year (the company being conducted on what is familiarly known as the mutual,system) ; Walsh's note was for premiums of that year, and the certificate was issued to him by reason of those very premiums.

Such would have been Walsh’s position. Is the case changed by his death ? Clearly not. The certificates passed as assets to his succession, with precisely the same limitations and distinctions. The contract was unchanged. The curator would not have been allowed to collect the interest, whilst the note of the deceased, remained unpaid, nor could he substitute a new creditor without the company’s assent.

If the company had chosen to resist the transfer, we should have been bound to maintain them in such resistance. But it has ohosen to acquiesce in the conversion of this asset into money in order to facilitate the administration of the estate and the liquidation of its affairs, and it seems to us it would be a clear violation of the terms and spirit of the contract, and of the reservation made in the Judges order, to take the fund from the company and distribute it pro rata among all the creditors.

This case is the first of the kind presented for the consideration of this court, and our attention has not been directed to decisions of other tribunals upon the precise subject. But we find a very satisfactory analogy in the ruling of the Supreme Court of Pennsylvania, in Morgan v. Bank of North America, 8 Serg. & R. 73.

With respect to the appellants, Offensandt, South and Shortridge, we think there is no error in the judgment below. They were put down on the previous tableau not as privilege creditors, but as claiming privileges, and moreover the funds to be distributed under the present tableau are new funds, not embraced in nor concluded by the previous tableaux.

We think the judgment should be reversed as to the Crescent Insurance Company, and affirmed in other respects.

It is therefore decreed, that the tableau and judgment be amended as to the said Crescent Mutual Insurance Company; that the sum of $2040, proceeds of sale of certain scrip of said company in said tableau mentioned, be paid by the said curator to said company, by said company to be credited to said succession upon the indebtedness of said succession to said company, and that in all other respects the judgment be affirmed. The costs of the appeal to be paid one-half by said succession, and the other half by the said Mouth, administrator, W. H. Offensandt, and Mrs. Shortridge, executrix.


author: Voorhies, J.

text:
    Hannah De Young v. Abraham De Young—B. Yoste, Intervenor.
    A marriage contract must have full force and effect between the parties to it, unless vitiated by
    It is the duty of a husband who administers his wife’s separate property, to render her a faithful account of his stewardship.
    The verdict of the jury was for $4000, “ the value of paraphernal property,” and the decree of the court was: That the plaintiff recover of the defendant $4000, “ being the amount of her parapher-nal property received by him and in his possession.” Held; The judgment is a substantial compliance with the requirements of the law, and is sufficiently responsive to the verdict.
    APPEAL from the District Court of the Parish of Jefferson, Clarice, J.

      Henry C. Miller, for plaintiff. A. Mandes, for defendant and appellant, T. McKay, for intervenor.
   Voorhies, J.

This suit was brought by the plaintiff against the defendant, her husband, for a separation from bed and board, and for the recovery of her separate and dotal property. She alleges in her petition, among other things, that at the time of her marriage, in January, 1842, she owned and possessed jewelry, household furniture, a slave, cash, and other property, which were constituted as her separate and dotal property by a marriage contract with her husband ; that she has paid debts due by her said husband amounting to the sum of $1000 ; that her said husband has assumed the administration of her separate and dotal property, amounting in value to the sum of $9000, which he has appropriated to his own use ; and that since their marriage, he has purchased real estate and erected buildings thereon, with her separate funds.

B. Yoste, alleging himself to be a creditor of the defendant on three promissory notes, intervened in the suit and opposed the plaintiffs’ claim, on the ground of fraud and simulation. To his petition of intervention, the plaintiff pleaded the general issue, and also averred that the alleged promissory notes were simulated and fraudulent, and given by the defendant to the intervenor, for the purpose of defeating her claim.

On this branch of her demand, a judgment was rendered against her by the District Court, from which she appealed. It was reversed in her favor, and remanded for further proceedings, with leave granted to the parties to amend their pleadings. See 6 Ann. 788.

After the cause was remanded, the plaintiff filed a supplemental petition, claiming $1000 as advanced to her husband, and also the sum of $9000 as the value of her separate and dotal effects, which he had appropriated to his own use. To this supplemental petition, the defendant filed a general denial, and a plea in reconvention for the sum of $325, alleged to have been expended by him on the separate property of the plaintiff. The intervenor also filed an answer, in which, after pleading the general issue, he urged the same grounds of objection to the plaintiff’s demand as those set forth in his petition of intervention. Subsequently, the plaintiff filed another supplemental petition, claiming an additional sum of $1180 for the rent of her separate property, which, she alleges, was collected by her husband and converted to his own use. To this supplemental petition, the intervenor filed a general denial, and adopted the averments contained in his former answer.

On these pleadings, the cause was tried by a jury, From the judgment rendered on their verdict in favor of the plaintiff against the defendant, for the sum of $1000, the latter has appealed.

As the intervenor, against whom there was also a verdict and judgment in favor of the plaintiff, is not a party to this appeal, so it is unnecessary for us to express any opinion as to the effect which should be given to the evidence in relation to his interest in the case.

In regard to the plaintiff and defendant, it is clear that the contract of marriage between them must have its full force and effect, unless vitiated by fraud ; and no such allegation has been made by the defendant. By the fifth clause of the marriage contract between the parties, it is shown that the plaintiff brought in marriage her wearing- apparel, jewelry, household furniture, and other property, estimated at $10,000, which the defendant acknowledged to be correct. It is also shown that the defendant had in his possession, shortly after the marriage, a large amount of jewelry belonging to the plaintiff, and that he had also collected rents arising from her separate property. From this it is reasonable to infer, that he had the control and administration of his wife’s separate property. As such administrator, it was his duty to render her a faithful account of his stewardship. We are satisfied from the pleadings and evidence in the cause, that the r,econventional demand of the defendant was duly considered by the jury in making up their verdict. In fine, after a careful examination of all the facts of the case, we are not ready to say that there is any error in their verdict to the prejudice of the defendant.

The objection urged by the defendant, that the judgment is not responsive to the verdict, is, in our opinion, untenable. The verdict is for $4000, “ the value of paraphernal property,” and the decree is, that the plaintiff recover of the defendant $4000, “ being the amount of her paraphernal property received by him and in his possession.” This, in our opinion, amounts to a substantial compliance with the requirements of the law.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs of both courts to be borne by the appellant.


text:
    S. Bell v. P. A. Hardy & Co.
    The inaction of a creditor for many years after his debtor had made a ees&io Tjonoi'wn, and who was placed on the bilan, and notice to him was placed in the post office, directed to his place of residence, afford a strong presumption that the creditor received actual notice of the proceedings.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      H. Gaither, for plaintiff and appellant. Hammer & Hays, for defendants.
   Buchanan, J.

In the month of February, 1854, plaintiff took out a fieri facias, upon a judgment recovered by him in June, 1847, against the defendant, in the Fiftli District Court of New Orleans. The defendant ruled plaintiff to show cause why his fi. fa. should not be quashed, on the ground that defendant had made a cessio bonorum in the Third District Court, in and for the parish of Jefferson, in 184S, to which cession plaintiff was a party.

The only question which we have to decide is, whether plaintiff was in fact a party to the insolvent proceedings of defendant. A transcript of the record of P. A. Hardy v. His Creditors, is in evidence. From this, it appears that plaintiff was put upon defendants’ bilan, as creditor of two promissory notes, for five hundred dollars each (corresponding to the debt for which plaintiff had obtained judgment). The meeting of creditors took place on the 20th of May, 1848, before a notary public, in the parish of Jefferson, who certifies, in his proees verbal, that the creditors mentioned in the schedule were notified by him of the time and place of meeting, by written notices delivered to each of them and put into the post office in the city of Lafayette. The plaintiff being a resident of another parish, the proper mode of notifying him, was by a letter addressed to him by the notary. Act of 1817, sec. 8. Civil Code, Art. 3064.

His inaction, during so many years afterwards, affords a strong presumption, that the notice came into his hands; although the dispatch of the letter, which is proved by the notary’s certificate, seems to satisfy the law. Moore v. Jacobs, 3d La. Rep. 525.

Judgment affirmed, with costs.


text:
    N. Hampton v. J. S. Morgan.
    The object of registry both of sales and mortgages, being to give notice to the public, the object is fulfilled, no matter whether the proof on which the recorder acts, was formal or informal. **
    APPEAL from the District Court of the Parish of East Baton Rouge, Robertson,, J.

      A. M. Dunn, for plaintiff. Cyrus Ratliff, for defendant and appellant. Davidson & HcHatton, for Strickland.

   Slidell, C. J.

We think it a sufficient I'eason for affirming the judgment, that the conveyance to Hampton was recorded in the conveyance office before Morgan acquired any right; and, in our opinion, if the Recorder of Convey-anees does put a sale under private signature on the record, the question whether he does so, on sufficient proof, is immaterial, so far as concerns the question of notice to the public. It has been so hold in case of registry of mortgages, by private writing, and we are aware of no legislation excluding registries of conveyances from the same equitable doctrine. The object of registry, both of sales and mortgages, is notice to the public; and this object is fulfilled, no matter whether the proof on which the Recorder acts was formal or informal.

It will be observed that the statute of 1846, entitled an Act to create the office of Recorder for the several parishes of the State, (the parish of Orleans excepted,) enacts in its second section, “ that the Recorders shall be recorder of mortgages, register of conveyances and marriage contracts, recorder of births and deaths, and keeper of marks and brands, and he shall be entitled to the same perquisites and emoluments as are allowed by the registry laws to officers performing similar duties; and shall be liable to the same responsibilities as are now imposed by law on the officers discharging those duties.” And by the third section of the Act to create a Register of Conveyances for New Orleans, it was enacted, that whenever acts of transfer shall have been passed under private signature, said Register shall register them in toto, with an act ascertaining the signatures, if the contracting parties wish the registry of the act to be accompanied with an act ascertaining their signatures. Statutes of 1827, p. 138. Act of 1828, p. 94, sec. 4. See also Ells v. Sims, 2 Ann. 251. Merchants' Bank v. Bank of the United States, 2 Ann. 661.

Judgment affirmed, with costs.

Voobhies, J., Buchanan, J., and Spofford, J., concurring.

Ogden, J., concurring in the judgment on other grounds.


author: C. J.

text:
    City of New Orleans v. Cordeviolle.
   C. J.

In this cause, the appellant has filed no points hoi- presented any argument It was probably the view of counsel to abide the result of the cases of the City v. Grailhe, and the City v. St. Romes, We find no error in the judgment, and it is the opinion of the majority of the court, that it be affirmed, with costs.

Buchanan, J-., dissenting, so far as relates to the railroad tax.


text:
    Samuel Dowty v. W. C. Templeton et al.
    Plaintiff’s slave went on board of a steamship to sell milk to the steward of the cabin. The planks which constituted the staging slipped, the slave fell into the river and was drowned ; the plaintiff sued the owner and master of the vessel for the value of the slave as damages, on the ground that they neglected to have a proper means of communication between the steamer and the shore. Held: The master and owner were under no legal obligation to provide for the slave the means of ingress and egress to and from the vessel.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Ogden & Leovy, and Ootton, for plaintiff. Glacis, for defendants.
   Buchanan, J.

(Voobhuss, J., and Ogden, J., absent.)

The slave of plain? tiff went on board of a steamship moored alongside of a wharf in the port of New Orleans, to sell milk to the steward for the use of the cabin ; and on his return ashore, fell into the river between the ship and the wharf, by the slipping of the planks which constituted a staging, and was drowned.

The plaintiff claims the value of the slave, as damages, from the owner and master of the ship in solido, on the ground that they neglected to have a proper and sufficient staging, or means of communication, between the vessel and the shore; and also because the vessel was not moored to the wharf in a proper manner.

The slave was not employed on board the vessel as one of the cpew, nor as a laborer in discharging or loading her; neither was he a passenger on board. It is not perceived by us that the master or owner of the ship was under any legal obligation to provide for him the means of ingress and egress to and from the- ship.

The plaintiff has no action against the defendants for the loss of his slave, under the circumstances.

Judgment of the District Cour.t reversed, and judgment for defendants, with costs in both courts.

Rehearing refused.


author: Spoffobd, J.

text:
    Robert Moores v. Heinn, Roberts & Co.
    The furnisher of materials who has contracted with the undertaker, has no action against the owner who has paid the undertaker. The mere fact that the proprietor has accepted and paid orders drawn on him by the undertake.* in favor of the material man, does nothing him beyond his actual acceptances.
    APPEAL from the District Court of the Parish of Jefferson, Olarlce, J.

      Michel, for plaintiff and appellant. Elliott■, Jourdan,, and Beecher, for defendants.
   Spoffobd, J.

We find no plausible ground in the record for disturbing Üjt® judgment of the courf below.

The defendants entered into a particular partnership for the purpose of building some stables, sheds, &c., upon certain premises in Lafayette, which they had leased as a stock yard. They employed one Wirtz as undertaker, to furnish the lumber and put up the buildings, and, as he testifies, paid him in full both for the materials and the work.

The plaintiff, a lumber merchant, proves that he furnished these materials to Wirtz, upon Wirtz's order, and that the receipts'were always given by him.

• The furnisher of materials, who has contracted with the undertaker, has no action against the owner who has paid the undertaker. The mere fact, that the proprietor has accepted and paid orders drawn on him by the undertaker in favor of the material man, does not bind him beyond his actual acceptances.

If the petitioner, as furnisher of materials, wished to secure any rights against these defendants as proprietors, he should have pursued the course prescribed for his benefit, by the Act of March 18th, 1844, (Session Acts, p. 34). Having failed to do so, he must pay the penalty of his negligence.

The judgment dismissing his demand, is therefore affirmed, with costs.


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    William Mithoff v. Daniel S. Dewees and John Slidell.
    A judgment requiring a Sheriff to make a deed in conformity to his adjudication, rendered on a rule taken against the Sheriff for that purpose, and not appealed from within the time allowed by law, is final and irrevocable, and a deed made in obedience to the order, will prevail against a seizure of the property made previous to its execution.
    Where a party shows a judgment of a court of competent jurisdiction, an execution issued thereon, and a Sheriff’s deed to the property made under that execution, the presumption of law is, that the proceedings hare been legally conducted.
    In attachmentproceedings, notice posted either at the door of the courthouse or of the parish church, stands in the place of citation — if this formality is omitted, it is fatal. But where the objection is set up by one who is not a party to the proceedings, in order to avail himself of the objection, he must prove that this essential formality was omitted, although such proof involves a negative.
    Formerly, the First District Court of Louisiana, held its sessions in the parish of Orleans, and its jurisdiction extended over the parish of Jefferson. The Sheriff of the parish of Orleans could not legally serve process out of the limits of his parish — process in the parish of Jefferson was served by the Sheriff of that parish. But where an attachment issued from the First District Court of Louisiana, although it could only have been levied on property in Jefferson by the Sheriff of Jefferson, yet the notices, which the law required, were properly posted on the door of the parish church of the parish of Orleans, or that of the door where the First pistricfc Court of Louisiana was held, and could only have been posted by the Sheriff of the latter parish.
    Under the facts of the case, although the Sheriff’s return could not be found, it was presumed that he had given the proper notice of seizure under an attachment.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.
    Jioselms, and Charles Fitz, for plaintiff and appellant. T. A. Glarhe, and E. A. Bradford, for defendants.
   Ogden, J.

(Slidell, O. J., and Buchanan, J., declined sitting.)

This suit commenced by an injunction sued out by the plaintiff to prevent the defendant, Deioees, as Sheriff of the parish of Jefferson, from selling a tract of land which he had seized to satisfy an execution issued at the instance of the defendant, Slidell, as subrogated to the rights of Dusuau, who had obtained a . judgment in the parish court of New Orleans against Charles F. Zimple.

The plaintiff in his petition, alleges that he was then in the actual possession of the property seized by the Sheriff and had, for many years past, peaceably possessed it as owner ; that he was disturbed in that possession by the defendants, under the seizure made by Dewees to satisfy the claim of Slidell, which the plaintiff further alleges, had been paid and satisfied by certain notes, the property of Zimple,' which had been pledged for security of the debt for which the judgment against Zimple was obtained. The defendants answered by pleading the general denial and alleging that the property belonged to Zimple, and was subject to the execution against him. While this injunction suit was pending, Slidell caused executions to issue on two other judgments rendered in his favor against Zimple, and the Sheriff made seizure under them of the same property, the sale of which the plaintiff also enjoined on the same grounds. The cases were tried together and the injunction sustained, as to two of the executions, on the ground that the plaintiff had a right to require the imputations of certain sums, proceeds of the notes pledged, to be made, to he made to the extinguishment of the judgments in these cases; but in regard to one of the executions for $1650, the judgment of the court below dissolved the injunction, with interest and damages. The defendants have appealed in one case, and the plaintiff in the other, and both appeals are now before us.

The first question we are called on to decide, is the question of title. If the plaintiff was the real owner of the property seized under the several executions in favor of Slidell against Zimple, or if he has a title which the latter is not permitted to attack, the questions in regard to the imputation of payment and extinguishment of the claims of Slidell against Zimple, need not be inquired into.

The plaintiff’s title to the property was acquired in the following manner: He instituted a suit against Zimple in the year 1838, by attachment, alleging that he was his creditor for the sum of $4000, and that Zimple had removed permanently from the State — a judgment was rendered in his favor for the sum of $3870, and under an execution issued on that judgment, the Sheriff .seized the property which had been attached, consisting of the undivided three-fourths of a tract of four acres of land in the parish of Jefferson, fronting on the river Mississippi. On the 1st of July, 1843, the property thus seized was offered for sale, and Mithoff made the last and highest bid for it, but no sale took place, as Mr. Gareia, who was then Sheriff, states in his testimony, “ on account of the mortgages and judgments existing on the property.” Mithoff, by his counsel, took a rule on the Sheriff to show cause, why he should not make a deed to him, in pursuance, as was stated in the rule, of the adjudication. On the 4th of December, 1843, a judgment was rendered on the rule by the Eifth District Court, where the suit was pending, in which the court says: “ Considering- Articles 679 and 684 of the Code of Practice, and that all the mortgages preceding that of plaintiff, are judicial and not special mortgages, and which do not prevent the adjudication, it is ordered, that said rule be made absolute, and that the Sheriff of the parish of Jefferson proceed to make to William Mithoff, a Sheriff’s deed of the property adjudicated to him.”

This order was not complied with by Mr. Garcia, who was the Sheriff. His .successor in office was the defendant, Dewees, and when in 1847, he made the seizures of the property under Slidell's executions, there existed this order, which not having been appealed from, had become final and irrevocable, directing a Sheriff’s deed to be made to the plaintiff. Subsequently, in 1861, and pending this controversy, the successor in office of Dewees, executed the deed to Mithoff, in compliance with an order of the court, directed to him, and this was the completion of plaintiff’s title, w'hich was then put on record.

The defendants, in their answer, have not pleaded that the title of Mithoff’, derived under those proceedings, is null and void, on account of any defects or irregularities in the proceedings, but it is urged in argument, that the whole proceedings were absolutely null and that the property-belonged to Zi/mple, and was liable to seizure for his debts. The grounds are :

1st. That the Sheriff did not comply with Art. 254 of the Code of Practice, which directs, that in case the defendant is absent or resides out of the State, the Sheriff shall serve the attachment and citation, by affixing copies of the same on the door of the parish church of the place, or to that of the room where the court in which the suit is pending, is held.

2d. That there was in reality no adjudication of the property by the Sheriff to Mithoff, and consequently no sale.

The plaintiff having shown a judgment of a court of competent jurisdiction, an execution issued thereon, and .a Sheriff’s deed to the property made under that execution, the presumption of law is, that the proceedings have been legally' conducted — -the plaintiff thereby shows such prima faeie evidence of a valid transfer of the property to him, as to throw the burthen of proof on the defendants, and require that they should destroy that legal presumption by establishing the existence of such nullities in the proceedings, as to render the title void. McDonogh v. Gravier, 9 L. R. This principle is well settled, and were it otherwise, little faith or reliance could be placed on titles derived under judicial proceedings.

The nullity which is alleged to consist in the want of citation is an absolute one, and if it is established as a fact th&t the judgment in favor of Mithoff against Zimple, was rendered without citation, the defendants had a right to disregard the whole proceeding and levy on the property as belonging to the judgment debtor, It is argued that this fact is sufficiently established by the return of the Sheriff of the parish of Jefferson, who levied the attachment, which shows no posting either at the door of the courthouse or of the parish church. The notice of the proceedings thus required to be given, has always been considered as standing in place of citation, and if this formality was omitted, the defect is a fatal one.

The cases referred to, of Arentler v. Bank of the United States, 12 Rob. 467, and Putnam v. Grand Gulf Bank, 3 Rob., were appeals taken in tho attachment suits, and whore the objection was taken by the defendants, that these formalities had been omitted and there was no question as to the fact. In the present case, the objection is .sot up by one who was not a party to the proceedings, and who, in order to .avail himself of the objection, must prove that this essential formality was omitted, although such proof involves a negative. The return .of the Sheriff of the parish of Jefferson is relied on as furnishing this proof. If that return stood alone unconnected with other proceedings in the case, and other proof, it might be considered as sufficient evi-denco to establish, that the formality of posting the attachment and citation had been omitted ; but on examining further, it is found that no such inference can be properly drawn. The suit was instituted in the First District Court of Louisiana, in whose jurisdiction was embraced the parish of Jefferson, where the property attached was situated. This court was held in the parish of Orleans, and all process issued, which was required to be served within the parish of Jefferson, was served by the Sheriff of that parish. The Sheriff of the parish of Orleans could not legally serve process out of the limits of his own parish, and the attachment in this case was according!}' sent to the parish of Jefferson, to be executed by the Sheriff of that parish, whose return states, that on the 4th of November, 1838, he attached the property therein described. The Sheriff' of Jefferson had no other duty to perform but that of seizing and taking into his possession the property to be attached, and he could make no other or further return than that which he did make. The law required that the posting should be made at the door of the parish church of the place, or that of the room where the court, in which the suit was pending, was held — • this was in the parish of Orleans, and therefore could only llave been legally done by the Sheriff of that parish. The presumption of law is, as between these parties, that the Sheriff of Orleans did perform that duty, for it was the basis of the subsequent action of the court in rendering the judgment. This presumption, however, -would yield to contrary proof. The judgment, which had that essential formality as its basis, ivas rendered on the 17th of April, 1839. The seizures of the property creating the disturbance complained of, were made in 1847, and the trial of these cases took place in 1852, up to which time the record affords no proof of a denial having been made, that the Sheriff had omitted his duty in that respect. It is unnecessary to decide whether after the lapse of so long a time, at the suit of one who was not a party to the proceedings, the fact alone that no return could be found among the papers of a suit, showing that the defendant was ever cited, would be sufficient of itself, without other proof, to destroy the presumption that there had been a legal citation. Such a doctrine would certainly create alarm and anxiety among those whose titles repose on the judgments of courts of justice. They are considered as muniments of title, and are preserved in the permanent records of the country, while the acts of ministerial officers who execute the process of the courts, are frequently preserved only on loose sheets of paper, constantly liable to be lost or mislaid.

In this case, evidence has been given which, we think, supports the legal presumption that the Sheriff of Orleans, whose duty it was, did post the attachments and citations as required by law. That evidence consists of extracts from the docket kept by the clerk of the court, and from the books of G. F. Honey, the former Sheriff of the parish of Orleans. By the first, it appears that the clerk, on the 15th January, 1839, issued copies of the petition, attachment and citation. The title of the suit of Mithoff v. Zimple, appears entered on the books of the Sheriff, Honey, with the regular charges for service of the citation and attachment, and an entry in the following words: Received, January 15 ; no property found. Returned 20th of February, 1839. The date of this entry corresponds with the date of the entry on the docket, of the copies having been issued. The testimony of a deputy clerk of the Fifth District Court, which succeeded to the First District Court, in which the suit was brought, shows that he made a search in the papers for the citation, and that it could not be found. We think this evidence is sufficient to rebut any inference to be drawn from the non-production of Sheriff Honey's return, that the attachment and citation were not properly posted. We are satisfied by it, that a return was made which was lost, and under those circumstances, the presumption must still remain, that all things were rightly done; the contrary proof does not and cannot appear, as the return has been lost.

It has been contended, that even conceding the citation was posted by the Sheriff of Orleans, yet the proceedings based upon an attachment previously issued, and after issue had been joined, could not be cured by subsequent citation.

The answer of the attorney appointed to represent the absent defendant, was filed on the 12th of December, and the process issued to the Sheriff of Orleans, on the 15th of January following. We have no doubt, that after the attorney filed the answer, it was discovered that the attachment and citation had not been posted, and that the cause was delayed to have 'that essential formality fulfilled, but as property of the defendant had been attached and was then under seizure, we cannot perceive why the posting might not be subsequently made. The question is, whether at the time the judgment was rendered, the defendant had been cited by the service of the attachment in the manner required by law. The fact, that no default was taken, and no answer was filed, after the service of citation had been properly made, are relative nullities, which the party defendant might have availed himself of by appeal or action of nullity, but which the defendants have no right to plead.

On the second ground of objection to the plaintiffs’ title, that there was no adjudication, we are of opinion that the judgment of the court on the rule taken by the plaintiff, to compel the Sheriff to make him a deed, in pursuance of the adjudication, is conclusive — that matter has been adjudicated, and is a part of the record in the attachment suit, and wo can no more disregard it, than we can the judgment establishing the plaintiff’s claim against Zimple. In the absence of any charge of fraud or collusion between Mithoff and Zimple, there is no reason tvhy the defendants should not be concluded by the judgment of the court affirming, that there was an adjudication, and ordering the Sheriff to complete the title by a deed.

We are therefore of opinion, that the plaintiff has a good and valid title to the property claimed by him, and that the injunctions ought to have been perpetuated in both cases.

It is therefore ordered and adjudged, that the judgment of the court below be reversed, and that there be judgment in favor of the plaintiff, perpetuating the injunction, the defendants to pay costs in both courts.


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    E. M. Thompson et al. v. A. Womack et al.—A. Womack et al. v. E. M. Thompson et al.—Consolidated Cases.
    By the common law, which prevails in Mississippi, slaves are regarded as chattels, and as title to such property may be made by parol,.parol evidence is admissible to establish the gift of a slave made in that State.

      A. Mol)L gave to his daughter Mary, for her separate use and benefit, and that of her children, the slave Letty, with the express understanding that she was in no manner to be subject to the debts of her husband, or to be sold by him. The gift was made in Mississippi, and by parol. The mother died leaving children, and her husband and grandfather agreed that the slave should be left with the former for the benefit of her children. The husband married a second time, and having issue by that marriage also, the question was as to the rights of the two setts of children to the slave Letty. Reid: This agreement by Alexander Thompson,, the husband, with the grandfather who made the gift, must be viewed in the light of a family settlement and arrangement for the benefit of the children, which, according to the principles of equity, the father (Alexander Thompson) himself, if living, would be estopped by his acts and declarations from disputing; and although, as to creditors or other subsequent hona fide purchasers, it may not have been binding, we think, in determining the rights of the two setts of children, a court of equity ought to regard and enforce it.
    At common law, although chattels may be conveyed by parol, yet a remainder over in favor of persons not in esse at the time of the delivery to the first taker, could not be created except by deed, or testament.
    Anciently, at common law, there could be no limitation over of a chattel, but a gift for life carried the absolute interest. But afterwards a distinction was made between the use and the property, and it finally became a settled principle that by deed-or will, chattels might be limited to one person for life with remainder over to another. But this principle never extended farther than that remainders in chattels might be created by a written instrument.
    At common law, neither a remainder over, nor what is technically called a trust estate, could be created by parol in favor of persons not in esse at the time of the gift.
    APPEAL from the District Court of the Parish of St. Helena, Penn, J.

      E. T. Merrick, and Smiley & Perin, for plaintiffs. Alfred Hennen, and John Henderson, for defendants and appellants.
   Ogden, J.

(Vooiuiies, J., and Buchanan, J., absent.)

This action was commenced by Elizabeth Thompson, Mary A. Thompson, and Lydia P. Thompson, as tutrix of the minor children of James A. Thompson, deceased, to recover a slave woman named Letty, and her increase. The plaintiffs are the children and grandchildren of Mary MeMorris, who was the first wife of Alexander Thompson, and the defendants are the children of Alexander Thompson, by a second marriage. The defendants instituted a separate suit, alleging that Letty and her increase belonged to their father, Alexander Thompson, and claiming a partition to be made equally among the children of both marriages, not only of the negroes claimed by the plaintiffs, but of other ne-groes, the increase of Letty, already received by the plaintiffs from their father, Alexander Thompson. The suits were consolidated and tried together, and from a verdict and judgment in favor of the plaintiffs in the first action, the defendants prosecute this appeal.

Under our laws, there would be no doubt that the children of the first marriage would be entitled to the property in controversy, as the title to the negro woman Letty, was derived by gift to their mother from her father, but the rights of the parties are .to be settled by the laws of Mississippi, where the father and mother of plaintiffs resided when the first marriage was contracted and where the gift was made.

It is necessary, first, to determine the question presented by a bill of exceptions taken on the trial, to the inadmissibility of the testimony of two of the plaintiffs’ witnesses, by whom the material facts are established in support of their title. There are numerous objections stated in the bill, but as only two of them have been urged in argument before us, and we see no force in any of them sufficient to reject the testimony, we will only notice those two which are relied on in argument. One is, that the witnesses, Baxter McMorris, and Jane Felder, were interested in the event of the suit, as coparceners with the plaintiffs, their co-heirs, and as warrantors of the act of their father, Alexander McMorris. These witnesses are the brother and the sister of Mary McMorris, and they depose to the fact of the gift of the woman Letty having been made by Alexander McMorris to their sister, in 1822, and of the terms and conditions thereof. It is contended by the appellees, they are interested, because, by the laws of Mississippi, all the property given by the father during his lifetime, to any of his children, must be brought into hotchpot, and that by establishing a title to this property in the plaintiffs, as derived from their grandfather, the witness will be benefited, as the plaintiffs will have to account to them on the settlement of Alexander McMorris' estate, for the value of the slave Letty. We cannot perceive that the witnesses have any such interest— not being parties to this suit, they can in no manner be affected by any judgment which may be rendered. If Alexander McMorris did make an advance to his daughter Mary, by gift of the slave Letty, as these witnesses depose, it will be taken into account on settlement of Alexander McMorris' estate in Mississippi, even if by the judgment of this court, her children should be deprived of the property; and if a settlement of the estate has airead}^ been made, charging Mary McMorris' heirs with the value of Letty, a judgment in this case adverse to the plaintiffs, would establish no right whatever on their part, to seek recourse against the witnesses as warrantors of their title.

The other objection urged to the testimony is, that by the law of the forum, parol evidence of the title to a slave cannot be received. The validity and effect of contracts are determined by the law of the place, where they are made. By the common law which prevails in Mississipi, slaves are regarded as chattels, and a title to such property may be made by parol; it follows that parol evidence may be admitted to establish the gift of a slave made in that State. Thatcher v. Walden, 5 Martin, N. S. 496. Maduy v. Young, 3 L. R. 162. Waters v. Grayson, 3 Ann. 595.

By the testimony of these witnesses, it is established that, that the slave I,etty was given by A lexander McMorris, to his daughter, Mary, for her separate use and benefit, and that of her children, with the express understanding that she was in no manner to be subject to the debts of her husband, or to be sold by him.

' The first question then arises, what was the effect of a gift made on those terms and conditions, according to the laws of Mississippi — did it vest an absolute title, or did it give to the wife only a life estate, and create a limitation of remainders over to her children not then in esse ? The question has been much discussed at bar, whether at common law, a remainder in chattels can be created by parol. The plaintiffs have cited the case of Brummet v. Barber, 2d Hill S. C. R. 543, where it was held, that in a gift of personal property, the donor may verbally create a limitation over either by way of trust, or as a direct gift, and the appellees rely on a decision in the State of Georgia, Kirckpatrick v. Davidson, 2d Kelly’s R. 298, in which the reverse of that doctrine was held.

We are of opinion, that at common law', although chattels may be conveyed by parol, yet a remainder over in favor of persons not in esse at the time of the delivery to the first taker, could not be created except by deed or testament. It seems from the authorities to which we are referred that, at common lawi anciently, there could be no limitation over of a chattel, but that a gift for life carried the absolute interest; that afterwards, a distinction was made between the use and the property, and it finally became a -settled principle, that by deed or will, chattels might be limited to one person for life, with remainder over to another, but we do not find that the principle ever extended further than that remainders on chattels might be created by a written instrument. The reasoning and authorities referred to in the Georgia decision seem to be conclusive on that point.

The next question is, as to the effect to be given to the testimony of the same witnesses, who declare that after the death of Mary Thompson, the mother of plaintiffs, Alexander MoMorrls, the grandfather, left the property with Alexander Thompson, for the benefit of the children, and that Alexander Thompson consented to the arrangement. If the plaintiffs’ title can be supported on legal principles, it can only be by virtue of this arrangement, extended into as those witnesses declare between their father and the grandfather, from whom the gift proceeded, on the death of the mother.

Whether it w'as the intention of the grandfather, when the gift was originally made, to create an estate tail, or to constitute a trust in favor of the children to be born of the marriage, w'e are of opinion, that neither a limitation of remainder over, nor what is technically a trust estate, could have been created by parol in favor of persons not in esse at the time of the gift. But on the death of the mother, the plaintiffs being then in esse, could take by gift directly, either from their father or their grandfather. If we are to consider that the title was vested in the father and that he made the gift to his children on the death of their mother, of property which he considered ought in equity to belong to them, although by law' the title was in him, the gift could not be supported, because there was no delivery, and it could at most be regarded as a voluntary executory trust created by the father himself, and which could not be enforced, any more than an ordinary promise to make a gift which, being without any consideration, confers no title as long as the promise remains un-executed ; but view'ed in the light of a gift from the grandfather, in whom the title either still remained at the death of his daughter, or to whom the husband consented to surrender the title on the death of his wife, there is no difficulty in. sustaining the gift, as no formal acceptance w'as necessary on the part of the children, their father consenting to hold the property for them. The witnesses in favor of the plaintiffs declare, that an arrangement w'as made on the death of the mother, to which arrangement it is sufficiently stated, the father and the grandfather were the parties, and that by that arrangement, the negro woman Lettp was to be left with the father, Alexander Thompson, for the benefit of the children. This arrangement must be regarded either as an acknowledgment by Alexander Thompson, that the title remained in HcMorris, the grandfather, up to the death of Mrs. Thompson, or as a surrender of whatever title or interest Thompson might have had, to the grandfather, who thereupon immediately made a gift of the property to his grandchildren. There was a meritorious consideration for such an agreement, and the testimony of one the witnesses for the defendants, renders it highly probable that the control and disposition of the property on the death of Mrs. Thompson, was considered to be in the grandfather. Hardy Thompson, who married another sister, the daughter of McHorris, and who also, on his marriage, received a negro woman, testifies that he asked the consent of McHorris, to sell the negress given to his wife. This agreement by Alexander Thompson with the grandfather, who made the gift, must be viewed in the light of a family settlement and arrangement for the benefit of the children, which, according to principles of equity, the father himself, if living, would be estopped by his acts and declarations from disputing, and although as to creditors or subsequent bona fide purchasers, it may not have been binding, we think in determining the rights of the two setts of children, a court of equity ought to regard and enforce it.

The verdict of the jury has, we think, done justice between the parties, and we see no sufficient reason to disturb it.

The judgment of the court below is therefore affirmed, with costs.