author:
Eustis, C. J.
     SniDEim, J.,

text:
    The State v. Grailhe.
    One who pleads his own canse, though an attorney at law, must be regarded as any other citizen, and may he punished for a contempt of court under art. 131 of the Code of Practice.
    A PRINTED petition for a re-hearing in the case of Grailhe v. .Hown, reported at p. 140 of this volume, having been presented by the plaintiff, an attorney at law, on the 8th of June, the court, per Smbeli., J., caused the following order to be entered on the minutes :
    “ A brief for re-hearing, signed by the plaintiff, an attorney and counsellor at law, 1ms been this day laid before ns in this case, in which the opinion was read last Monday by the Chief Justice, as the organ of the court. The language of this brief is extremely disrespectful, and the court cannot consistently with its duty receive a brief expressed in such language. By art. 486 of the Code of Practice it is declared that, “ advocates must plead their causes with propriety and decency. They must not indulge in personal remarks against the parties, nor lose sight of the respect due to the court,” &c.
    “ It is therefore ordered that, the clerk do take the said brief off the files of the court, and return it to the plaintiff.”
    On the 9th of June, the; court ordered an attachment to be issued against Alexander Grailhe, returnable the next day, directing him to be brought before the court “ to answer for a contempt of court committed by a petition for a re-hearing, presented by him to the court on the 8th inst., in the case of the said Grailhe v. John Hown, No. 5859.”
    The petition was in French. The following extracts will show the grounds for considering it a contempt:
    “ Lapétition en revision de 1’appelant expose trés respectueusement:
    “ Que le décret rendu par cette cour, dans ce procés, est une violation flagrante du texte formel de la loi, de l’esprit, du motif, et du but evident dulégislateur; que l’exposition des motifs qui sont la base de la décision, renferme contre 1’ap-pelant une imputation grave etblessante, qu’il est de son devoir et de son hon-neur de repousser, eomme essentiellement gratuito de la part de la cour.
    “Le raisonnement par lequel la cour est arrivée á l’adoption des-motifs et du jugement du premier juge, est sans force en principe et en droit. L’appelant ne fera point ü ce raisonnement l’honneur d’une refutation serí-ense ; parce qu’il ne contient pas une seule idée, une seule proposition, un seul argument qui n’ait été á l’avance prévu, examiné, réfuté et anéanti d’une maniére victorieuse, dans le mémoire imprimé, sounds ii la cour avant les jolaí-doiries. Tout esprit libre de préjugé reconnaítra, aprés un examen grave, qu'il est de la nature de la question soumise á Ja haute considération de la cour, de ne pouvoir étre traitée, que par l’un des procédés de logique et de raisonnement exposés dans ce mémoire. La cour olle-méme a sanctionné la vérité de cette assertion, puisqu’aím d’arriver ü son étrange conclusion, elle a été forcee de se créer une Iogique nouvelle, et d’admettre comme vrai, par une pétition de prin-cipe, le point le plus rebelle et le plus antipathique ála loi sur la matiére.
    “ La cour repousse d’abord ma demande, comme étant contraire á l’équité. J’ai done réclamé une chose injustement; j’ai done voulu m’approprier le bien demonvoisin! J’ai done commis une tentative immorale, que réprouvent et flétrissent également les lois de Phonneur et de la morale ? J’ai done tenté de rendre les tribunaux de mon pays, ettoute cette magistrature, d qui je désire conserver la premiére place dans l’ordre de mon estime et de mes respects, com-plice d’un cupide projet? S’il en était ainsi, oui je serais bien coupable ! Mais, si ce reproche, aussi grave qu’inexplicable, qui descend du haut d’une cour supréme sur un simple justiciable, n’était en réalité qu’une imputation ambitieuse, inveutée tout exprés par l’organe de la cour, pour la nécessité d’un raisonnement, n’aurai-je point le droit de dire á cette cour : Vous avez voulu, par un artífice déplorable, faire tomber sur moi votre injustice, que je puis subir, et un grave reproche qui ne peut point m’atteindro ! Vous avez done, par un seul jugeinent, prétendu troubler et méconnaítre tout ensemble, des principes certains de nos lois, et les bases étornelles des rapports du juste et de l’injuste ! Depuis quand, la simple invocation de la máxime qu’il faut rendre á chacun ce qui lui est dú, sera-t-elle qualifiée de demande contraire á l’équité ? Rendre á César ce qui appartient <\ César, et á Dieu ce qui est Dieu, ne s’est-il point toujours entendu de ce que la conscience exige, et de ce que la loi positive present? No s’agit-il point ici des préceptes de Dieu, et de la puissance qu’ici-bas il a investí de son autorité ? Depuis quand des juges auront-ils l’avougle témérité de qualifier de contraire á l’équité, une demande en rem-•boursement d’une avance, faite par 1’autorité, et sous la sanction de la loi ? Est-ce une avance dont je rédame le remboursement ? Voici le texte de la loi, que chacun decide, sans commentaires :
    “ ‘ Code civil, art. 672. Le voisin qui a méme refusé de contribuer á l’élévation de ce mur, conserve toujours le droit de le rendre mitoyen, en payant á colui qui en a fait Vavance, la moitié de ce qu’il en a coúté pour le faire bátir, suivant les régles ci-aprés établies.’ ”
    “ Ce reproche aussi téméraire qu’injuste, retombera done sur le législateur, auteur de cette loi que la cour a voulu méconnaítre, par je ne sais quelle fatale préoccupation d’esprit! Hé bien, décriez l’oauvre du législateur, contestez á ses vceux la prééminenco qui leur est due; substituez' vos vues étroites et re-streintes, comme celles de tout individu, auxsiennes, qui ont la portée etl’éten-due de celles de tout un peuple. Mettez á la place de sa sagesse et de ses lumiéres, grandes comme celles de tous les siécles et de tous les temps, votre propre sagesse, faible et fragüe comme votre nature. Remplacez l’équité du législateur, eonsacrée en earactéres ineffaqables dans le livre de ces lois, et qui ne peut étre que l’interpréte fidele des relations éternelles du juste et de l’injus-te entre toute chose, par vos notions d’óquité, incertaines, varillantes, mobües, comme toutes les opinions individuelles, et dites, oú' vous conduira ce fatal sys-téme, si ce n’est auplus déplorable désordre, á l’anarchie judiciaire la plus complete ?
    “La cour, disposée ¡i ne ne point appliquer auprocés l’art. 672 du Code Civil, quoiqu’il n’ait été fait que pour los cas de cette espéce, a dú reeourir dans son égarement, afin de trouver un point d’nppui quelconque á l’art. 680, qui n’a ni similitude ni analogie avec la question á juger; tandis que I’article 679 aurait forcé la cour d revenir sur ses pas, et ü reprendre la seule voie légale á suivre dans l’examen de ce procés. L’art. 679 est ainsi concu: ‘Le voisin qui n’a pas contribué sLl’exliaussement, peut en acquérir la mitoyenneté, en pay ant la moitié de la dépense qu’il en a coúté, et la valeur de la moitié du sol fourni pour l’excédent d’épaisseur, s’il y en a.”
    “D’aprés cet article, que la cour ignore probablement,quedevient l’insoutenable nécessité, de donner avis au voisin qu’on va construiré, afin de pouvoir exiger de lui la moitié du coút primitif du mur 7 Y a-t-il dans l’article 679 un seul mot qui vienne á l’appui du systéme de la cour 1 Ne résnlte-t-il pas forcément de la sainé interprétation de ses dispositions, que l’article 671 a été mal interprété, mal entendu 7 J’-ignore si, sur un examen plus approfondi, la cour se fera honneur de revenir de sa premiére erreur; mais je ne crains point d’avancer, qu’aucun article de notre Code n’a jamais été plus mal compris, ni plus maladroitement appliqué, quoique le motif et le but du législateur, soient d’une grande évidence pour tous les yeux.
    «fc íj? #
    “II est vrainment déplorable d’étre forcé de relever de pareilles erreurs, dans les motifs d’un jugement en dernier ressort.
    *• * ■* * *
    “ La cour dans une phrase lacédémonienne, dont on pourraitretrancher encore le premier mot, pour la rendre plus nette et plus digne du langage judiciaire, reconnait que le jugement dont est appel a violé la loi, en refusant d’accorder é. l’appelant les intéréts dus de plein droit, et formellement réclamés. Quel était done l’impérieux devoir de la cour! On croira peut-étre que c’était d’iníirmer le jugement. Non. C’est la marche trop simple de la justice vulgaire! II faut é la cour avec des-allures autocratiques, des distinctions et des subtilités dignes des meilleurs temps de la scolastique ! D’ailleurs le jugement du premier juge est si irréprochable, qu’il faut bien se garder d’y toucher, méme au risque de commettre un déni de justice, qui aprés tout n’est point le plus grand tort d’un juge ; car, miéux vaut encore le juge qui se tait et s’abstient, que le juge qui se trompe ; le jugement de celui-ci peut léser beaueoup d’intéréts, l’autre les laisse m statu quo. Le décret de la cour inférieure, quoique violant la loi, restera done confirmé. Voilá un spectacle bien édifiant, bien eneourageant pour les justiciables de la Louisiane! La Cour Suprime reconnait, proclame l’erreur du premier juge, et refuse de la réparer, en se fondant sur deux motifs, dont je vais examiner lá force et la validité, &c.
    *• * $ $ $ $
    “ Si done il est hors de doute que la demande en révision soit purement facul-tative, comment la cour aura-t-elle le courage de se refuser á l’infirmation d’un jugement qu’elle reconnait contenir une violation de la loi, parce que je n’ai point fait une chose qui n’est point obligatoire, et que la loi a abandonné á-mon jugement, et.á malibre faculte!
    “ La seconde conclusion est tout aussi insoutenable; le droit d’appel d’un jugement, sans l’intervention d’un juri, ne peut dépendre de la vaine et tres sou-vent oiseuse formalité d’une demande en revision. Rien dans nos lois ne peutautoriser unpareil sentiment. Dans l’affaire de Lambeth v. Burney, vap-portée dans le 3me volume du Recueil de Robinson, l’ancienne cour a décidé un point qui n’a aucune espéce d’analogie avec celui-ci; cependant il est évi-dent que, sans avoir pris le soin de l’examiner, la cour apris cette décision pour base de la sienne.
    * * ¡* » * *
    “ Quelrappoít, q'uelle analogie, je le demande, la cour a-t-elle pu trouver en-tre ce cas, et celui qu’elle était appelée á décider ? Et voilá pourtant h quelles regrettables erreurs, conduit cette vaine et fausse science des compilateurs de décisions judiciaires.
    “ Ma t&che est remplie avec conviction, avec indépendance; que la cour remplisse la sienne, dominée par les mémes sentiments. Quoi qu’il advienne, ma conscience et m'a raison me disent que, mieux vaut encore étre le perdant que le juge qui a prononcé.
    “ Par ces motifs, l’appelant concluí á ce qu’il plaise á la cour lui accorder une nouvelle audition de cause; et, á défaut d’icelle, óter et effacer du jugement rendu les termes ou expressions d’ou il résulte contre l’appelant, le reproche d’avoir porté devant les tribunaux une action, dont le but est contraire á l’équité.”
    On the next day Grailhe was brought into court, when he presented the following paper:
    “ The appearer coming into court, begs leave to file this his peremptory exception, in perpetual bar of the proceedings commenced against him :
    “1. The proceedings in this case are contrary to law, repugnant to the nature of the offence imputed to this appearer, and contrary to the uniform usages of the courts of justice of this State, in similar cases. '
    “2. He further says that, the charge brought against this appearer, by the Supreme Court, was an act of absolute impossibility at the moment the writ of attachment was issued against this defendant’s person; that at that time the petition alluded to was not legally before the court, in consequence of any act of this defendant.
    “ 3. That by virtue of an order and judgment enteredon the minutes of this court, on the 8th instant, at 10 o’clock, a. m., which judgment is in the following-words and figures : ‘ It is therefore ordered that the clerk do take the said brief off the files of the court, and return it to the plaintiff,’ the minutes and records of this court were instanter expunged of the exceptionable document; that no trace thereof could remain before the court, and that this appearer was sentenced to take back said petition.
    “4. That by such a proceeding and final judgment, this eourthas absolutely and forever divested itself of any further jurisdiction or consideration touching the nature and character of said document; that this appearer, has not, since the rendition of the decree above recited, by any means whatsoever, attempted to press upon the court the further consideration of said petition.
    “ 5. That the decree of the 8th. instant shows conclusively that the aforesaid petition was read, examined, construed, deliberated upon, and finally decreed by the Supreme Court.
    “ 6. That the summary proceedings in matters of prosecution for contempts of court, partake of a criminal action ; that their object and end is to inflict a corporeal and pecuniary punishment; that no one can be tided and sentenced twice for the same act, either real or imaginary; that the contempt, if any exist, complained of by the Supreme Court, has been tried once, and this appearer sentenced.
    “ 7. That a seconddecree or sentence of this court against this appearer, for the same act, would constitute an act of violence, and a monstrous abuse of the powers entrusted to this court.
    “ Therefore, this appearer prays that, the present peremptory exception be maintained as a perpetual bar against the present proceedings; that the writ of attachment issued in this case be dissolved, and that he be dismissed with costs.”
    Another paper .was also presented by the defendant on the same day, in the following words:
    “ In case the peremptory exceptions presented as a perpetual bar to the present prosecution should not be maintained by the Supreme Court, then this ap-pearer, for answer to the charge brought against him, says: 1. That he is tíre author of the petition in question.' 2. That he delivered the same to the clerk of this court, to be filed. 3. That said petition contains no insult against the Supreme Court; that in vain will be sought therein a single word or expression of abuse, vituperation, or contempt against the Supreme Court, or any of its members. 4. That the language reprobated by law is not to be found in the document in question; that said petition does not contain a single word which cannot properly be used before any of the highest courts of judicature of any country. 5. That this appearer has not exceeded the limits of his rights and privileges, and as for his feelings and thoughts, he is answerable to no earthly tribunal. Therefore he prays, that the writ of attachment be dissolved, and that he be hence dismissed with costs,” &c.
    The Attorney General appeared for the State.
   The judgment of a majority of the court was pronounced by

Eustis, C. J.

Although it will be difficult to find in the opinion of the court in the case of A. Grailhe, appellant, v. John Hown, the least pretext for the act which is the subject of this prosecution, yet, in order that the wantonness of the attack upon the court may be properly appreciated, we will proceed to read it. [The chief justice here read the opinion referred to, which will be found in the report of the case of Grailhe v. Hown, ante p. 140.]

It will be perceived, that the difference between the price of the wall in 1838 and 1844 was the prominent subject matter in dispute between the parties, the defendant being willing to pay for the value of the wall at the time he first used it in 1844, and the plaintiff insisting on recovering its cost in 1838. There was also a dispute about a trifling sum of interest, which, if the court below had allowed it, would have been less than eight dollars at the date when the appeal was taken. In the petition was also a demand for the additional sum of three hundred dollars damages, which the plaintiff alleged he had sustained by the illegal taking possession, and unlawful enjoyment, of his property by the defendant.

The day before yesterday a printed pamphlet was filed, and a copy was directed to each of the judges, containing a tissue of invective against the court, and particularly against the judge who had been its organ in delivering the opinion. The principal ground of complaint, we should conclude to be, that this court had determined that the .plaintiff’s claim for the price of the wall in 1838 was contrary to equity. A reference to one or two facts in the course of the trial of the cause in the court below, affords some light with regard to the plaintiff’s idea of equity.

This plaintiff forced his adversary to trial in the absence of his material witness, strictly on technical grounds, as will be seen from the following extracts from the record:

Answer of E. A. Canon, counsel for John Hown, filed 28th October, 1844.

“ To the honorable the first Judicial District Court of the State of Louisiana, tlie answer of John Sown of New Orleans, to the petition filed against him in this honorable court by A. Grailhe, Esq. of New Orleans: This respondent denies being indebted unto said plaintiff in the sum by him claimed in the petition; but that he thinks the value of that part of the wall by him used lately is eleven dollars for a thousand bricks, according to a previous agreement he had made with petitioner, which is also the value the said wall had at the time petitioner used the same, making two hundred and four dollars and twenty-one cents. That he owes nothing further to said petitioner; that he has made to said petitioner a tender of said price; and prays, on the payment of said sum, to be discharged from any further liability in this case, and as in duty bound, &c.

(Signed) E. A. Canon, of counsel.”

Affidavit for continuance, filed 26th March, 1845, in the District Court.

“When the case was called before the court, John Hown, the defendant, moved for a continuance, and in order to obtain it made the following affidavit :

uJohn Hown, the defendant in this case, and of New Orleans, being duly sworn, declares and says, that Auguste Otto, a resident for many years of New Orleans, is a witness material in this case. Affiant was informed the day before yesterday that Auguste Otto had left this city to go to Cincinnati. Affiant did not know that said Auguste Otto intended to depart, and could not prevent his departure. He further states that the testimony of said Otto is material to his defence, and that this affidavit and demand for continuance are not made for delay, but to obtain justice; he further swears that by the testimony of said Auguste Otto he expects to prove that, on the 22d day of January, 1844, he went with said Otto to pay Mr. Grailhe for the wall he had used, and that Mr. Grailhe told him he would not charge more for the other parts of the wall to be used by affiant than eleven dollars for a thousand bricks, he said affiant having expressed an intention to build on the same lot.

(Signed) John Hown.

“Sworn and subscribed to. in open court, 26th March, 1845.

(Signed) F. Gilmore, Deputy Clerk.”

“ Defendant’s bill of exceptions, filed 26th March, 1845. District Court. When this case came to be tried before the court, on the 26th day of March, 1845, defendant having presented to the court the affidavit annexed to this bill of exceptions and filed, moved for a continuance on the grounds detailed in said affidavit; but the plaintiff opposed said continuance on the grounds that said Auguste Otto was never legally summoned, because of the direction of defendant’s counsel to leave the subpoenas at defendant’s domicil. The court supported the objection and ordered the case to proceed. To this decision of the court defendant respectfully prays to have leave to except, and have this his bill of exceptions signed.

“ By the court: This case appears from the records in this court to have been fixed for trial three times previously, to wit: on the 18th December, 15th January. and 5th of February last. On each of these occasions, as well as on the present fixing for trial, the defendant’s counsel handed to the clerk a list of his witnesses (including the witness above named), with written directions that the summonses should be served by leaving them at the house of defendant.

(Signed) A. M. Buchanan, Judge.”

Testimony of James Kathman, taken in open court, 26th March, 1845:

James Kathman, witness for defendant, sworn: Has known Auguste Otto, the person cited as a witness in this case, for the last eight years. A few days ago witness was informed that he had left the city with his family: his (Otto’s) friends, who'told witness this, said that it was Otto’s intention, after leaving his family up the river, either at Cincinnati or St. Louis, to return to this city. Some of his friends said he had gone to Cincinnati, others to St. Louis. Witness has been at court every time this case was for trial, and saw1 Mr. Otto in court as a witness in the case. Otto was disposed to be a witness in the case. At the time Hown built the house and took possession of the wall in question, witness was building himself, and the price of bricks at the time was eleven dollars per thousand placed on the wall, and this is the price he paid.

“ Cross examined : It was not witness who informed defendant that Otto was gone; does not know where Otto is at the present time.”

Thomas Norris, witness for defendant, sworn: Was present when a person from Mr. Grailhe presented a bill for $15 the thousand to defendant. Defendant said he had agreed with plaintiff, in presence of Otto, for less, to wit, $11, and that he was willing to pay what was reasonable; this person again brought another bill for $18 the thousand, and again another for $19; and, at the time he presented the last, said that if defendant did not pay it he would sue him next day for the wall, at the rate of $20 the thousand of bricks.”

“ Captain Shepherd, witness for defendant, sworn: That on behalf of defendant he called on Mr. Grailhe to pay him at the same rate for the wall in question, that defendant had paid him for the other wall, to wit, the wall on New Levée street. Mr. Grailhe refused to accept it; this was in September last. Mr. Grailhe said he 'was entitled to the half of the costs, and showed him an article of the Code. Mr. Grailhe said that it would be taking money out of defendant’s pocket to defend the suit, and that no honorable lawyer would defend it. Witness said he thought the article read by Mr. Grailhe vague; Mr. Grailhe said it was positive.

“ Cross examined: Witness did not tender the money; he had not the money in his pocket; but he was authorized by defendant to- pay it.”

Let it be borne in mind that this testimony of the witness is uncontradicted.

The illegality of the tender made by the defendant of the sum which he thought due and was willing to pay, and which was decreed to be due by this court and the court below, was also properly maintained, but on grounds also technical, and the defendant was thereby amerced in costs.

Thus we see this cause was conducted by the plaintiff according to the strict rules of law. Without reference to any of those matters, we came to the conclusion that the articles of the Civil Code only entitled the party plaintiff to recover the value of the wall at the time the defendant first made use of it, and not its original cost. The opinion of the court was prepared with care and deliberation, and on a re-examination of it there is not a word in it which any member of the court would change.

It was for protecting this humble defendant from the equity of the plaintiff, that this outrage has .been directed against us.

If we find a claim authorized by no positive law, but repugnant to equity, are we not bound by the supreme law of the land to say so, and to give it as a reason for our decision 1 The 79th art. of the 4th title of the constitution of 1845, declares, “that judges of all courts within this State shall, as often as it may be possible so to do, in every definitive judgment, refer to the particular law in virtue of which such judgment may be rendered, and in all cases adduce the reasons on which their judgment is founded.”

The praise, or censure of a litigant, under circumstances in which this party has placed himself, is equally a matter of indifference to us; but in order to place him before the court in his proper light, let us refer to his printed argument before the decision of the cause. In this argument he says:

This state of things, very prejudicial to public interest, increases the already very high duties and responsibilities of this honorable court. But the friends of justice and of good principles, rely with unbounded confidence on the honor, the zeal, and the eminent abilities of its distinguished members.

“A word on the equity of the appellant’s case. The right of the plaintiff is based upon two articles of our Code, whose spirit and object are as transparent as sun-light. During the last thirty years (1808) the largest portion of our city has been raised under this system, and no difficulty ever sprang among so many persons interested in that grand work. The plaintiff has suffered his property to be taken from him, about two years ago, by the defendant, who has had the enjoyment of it ever since, without right, without paying the just indemnity fixed by the law. Is this equity? A prompt decision is most respectfully prayed for.”

To what a situation would the administration of justice be reduced, were its officers in the last resort to be thus exposed to the indecorous animadversions of disappointed litigants, whose interests, in the furtherance of justice, have been crossed, and whose purposes have been defeated by the judgment of courts ?

Could we attribute this petition to the mere excitement resulting from disappointment, so far as we are personally concerned, we should be disposed to pass it over, without any other notice than striking it from the records of the court, and returning it to the source whence it originated. But the party well knows that an act of this kind, premeditated and deliberate, can only be met in one way by this court, and that is by the punishment of its author. We are bound to administer the law, without fear, favor or affection. Those who come before us are equal in the eye of the law, and our concern is not with persons, but with things. That in deciding various cases, often involving new and difficult subjects, we should fall into errors, is not at all surprising; but an opportunity is always afforded to correct them on a revision of the case. We know the privileges of the bar, and on all occasions respect them. We rely upon its assistance in the investigation of the difficult questions that come before us, and we place no restriction on, but invite the severest scrutiny of all our decisions, for the correction of the errors we may fall into is as much our duty as it is theirs. We desire the examination to be free, and we know how to make allowance for the zeal with which an independent advocate may maintain the cause which he believes to bo just. But when a party chooses to plead his own cause, and makes use of his position to attempt to bring the administration of justice into contempt, by a gross breach of decorum in calumniating and misrepresenting our motives, we have but one course to pursue, and that is to punish the offender.

In the case of The State v. Richard Raynal Keen, 11 La. 600, the late Supreme Court held that, attorneys and counsellors, in the management of them own cases, stand on the same footing as other citizens, and cannot claim the indulgence which the law grants to those, who, in defending the rights of others, are carried away by an intemperate zeal beyond the bounds of moderation.

The offence in this case was committed, on an application for a rehearing in his own case. Keen was an attorney, but was punished for the contempt under article 131 of the Code of Practice, which provides that, “the judges of the Supreme, District, and Parish courts have the power to punish all contempts of their authority, by fine not exceeding fifty dollars, and imprisonment not ex ceeding ten days, for each offence of that kind.”

In the judgment we are about to pronounce a majority of the judges concur. It is therefore ordered that the defendant, Alexander GrailJie, pay a fine of fifty dollars, and the costs of the prosecution; and that he be imprisoned during forty-eight hours, and until said fine and costs be paid.

SniDEim, J.,

dissenting.

The defendant pleads the peremptory exception . of res judicata. He refers to the opinion of the court rendered on monday, in which a brief consideration of the disrespectful tone of the application for a rehearing, is followed by a decree ordering the brief to be taken from the files of the court.

The defendant, in my opinion, incorrectly maintains that this order was the imposition of a penalty upon him, by refusing him a rehearing. I do not so consider the order. The order was rendered in the morning of monday, at 10 o’clock. It was known to the defendant before midday ; he had still the residue of the day in which to file an application for a rehearing, framed in language which might fully explain his legal propositions, without expressions unworthy of himself as a citizen and of the dignity and character of the court. There was, in my opinion, then, no deprivation of the right of still filing a petition for a rehearing, abundantly sufficient to set forth the party’s arguments for the required relief.

In addition to the above consideration, the respondent alleges that this opinion and order involve a consideration of the objectionable petition, and an action upon it; that the opinion condemns the petition as disrespectful, and expels it from the records of the court as unworthy to remain there.

Upon strictly technical grounds, this decree does not perhaps form res judi-cata as to the contempt which the defendant is here called to answer. But I cannot reject the suggestion of my own mind that, in preparing that opinion and decree, as a member of this court, I did consider that the opinion and order involved, though not a corporeal, yet a moral punishment, inflicted upon the defendant. I presume it was so considered by those who heard the opinion and decision read; arid that, as a permanent memorial in the records and printed reports of this court, it will be read in that sense hereafter.

The whole tone and temper of the defendant’s brief is disrespectful even to insult; and the opinion and order hitherto given were a light.punishment of so gross a departure from his duty as a citizen, and especially as a counsellor at law. But it is to my mind a punishment, and sustains, to some extent, the exception which has been filed. The proceeding against the defendant now before us, partakes of the nature off a criminal proceeding; and though the question be not clear in his favor, yet, if there be any doubt, he is entitled to the benefit of it.

I think, after what has thus occurred, the defendant should be left to the moral punishment whichhas been already inflicted upon him, and to the reflection that he has violated his duty as a citizen, by not only writing, but by printing and distributing, a document, so grossly indecorous, and so evidently intended, whatever may be its effect, to attack the respectability of this tribunal, impugn the motives of its members, and impair the public confidence in. the administration of justice.

The punishment was, I think, on reflection, too slight; but it was a punishment in my opinion. I therefore think the prisoner should be discharged.

As to what is now said by the court respecting the circumstances of the litigation, and as to the correctness of the original decision, I fully concur. But I dissent from the present decree inflicting what I consider equivalent to further punishment. This opinion is very hastily prepared at the hearing this day, and is, therefore, given with diffidence, and with regret that I should find myself, in an important matter, dissenting from my brethren.

       Rost, J. recused himself, and did not sit on the trial of this rale.


source: Caselaw Access Project

author: Etjstis, C. J.

license: Public Domain

text:
    Mouton, Governor, for the use of Halsted, v. Noble et al.
    Where goods have been sold by an auctioneer for cash, and the owner accepts from the latter his notes for the proceeds payable at certain periods after date, without the consent of the sureties in the auctioneer's bond, they will be discharged, though there was no proof of any consideration for accepting the notes, or allowing the time granted to the principal. C. C. 3032. The acceptance of the notes is an agreement to wait till their maturity, binding on the creditor. A sufficient consideration will be presumed from the conduct of the parties.
    The requiring a small pecuniary consideration to support an agreement, is a mere fiction, unknown to the civil law and to the laws of this State.
    In contracts of mutual interest, the cause of the engagement is the thing given or done, or stipulated to be given or done, or the risk incurred hy one of the parties; and in contracts of benifieence, the liberality which one of the parties wishes to extend to the other, is a sufficient consideration.
    Whore an engagement is without cause or consideration, or, what is the same tiling, where the cause is false, the engagement and the contract based on it, are null. C. C. 1S87. Money paid under such an agreement may be recovered hack, by the action condictio sine causé.

    Civilians use the term cause in relation to obligations, in the same sense that the word consideration is used iu the jurisprudence of England and the united States. It means the motive, or inducement, to the agreement.
    Under the laws of this State, no consideration need be expressed in an agreeraet. C. 0.1888.
    APPEAL from the Commercial Court of New Orleans, Watts, J. XL The sureties of Nolle, an auctioneer, appealed from a judgment against them, in an action to recover a balance due to Halsted, for goods sold by their principal.
   The judgment of the court was pronounced by

Etjstis, C. J.

This was an action brought against the defendant, Noble, an auctioneer, and the other defendants as his sureties on his official bond, for an amount of goods sold by him at auction, the proceeds of which had not been paid over to the plaintiff, Halsted, for whom they were sold. The sureties plead that they have been discharged, by time having been given by the plaintiff to the principal, Noble. *

It appears that goods were sold at auction by Noble, an auctioneer, for the plaintiff, and that, when they made a settlement, on the 7th of February, 1845, Noble fell in debt to him in the sum of $840 60, for which he took Noble’s six notes, payable at different times, to his order, for $790 60 cents, and received $50 in cash.

The judge of the Commercial Court held that, as no consideration was proved for receiving the notes, or for the time allowed, the agreement to give time was not binding on the creditor, and did not discharge the sureties, and decided that the sureties were still liable, on the authority of McLemore v. Powell, 12 Wheaton, 557, and of Chitly on Bills, p. 441, and cases there cited.

The case of McLemore settles no principle, except that the holder of a bill of exchange is not bound by a promise to the drawee for delay, made without any consideration; and Mr. Chitty, in stating that an adequate consideration is necessary to support an agreement on the part of the holder of the bill to give time to the drawee, adds: “ But it is submitted that the-mere receiving further security, payable at a future day, would in general imply a.n engagement to wait till it becomes due.” The judge gave this decision under the authorities, and in opposition to his own convictions as to the law. We believe it would have been safer for the judge to have been guided by his own judgment, than to have followed these authorities, in deciding this case ; they are evidently not applicable to the state of facts which it jiresents.

This is a case in which, on the settlement of an open acco unt, a division is made of the debt, part is paid cash, and for the rest six notes, payable to order, are given for the different portions into which the debt is divided. The position of the plaintiff is, that diere is, in those facts, no valid engagement to wait for the falling due of any of the notes, but that the whole debt may be sued for inslanier,. by reason of their being no legal consideration to support the agreement to give time. In the case oí. Gould v. Robson, 8 East. 576, Lord Ellenborough says: “ As to the taking part payment, no person can object to it, because it is in aid of all the others who are liable on the bill; but here the holder did something morehe took a wot bill from the acceptor, and was to keep the original bill till the other was paid. This is an agreement that, in the meantime, the original bill should not be enforced; such is at least the effect of the agreement, and, therefore, I think time was given.” Fonblanque’s Equity 345, and notes. 2 Blackstono’s Com. 445, and notes.

1‘n this case the debt was divided, and the several portions of it thrown into the form of a negotiable instrument. From these facts, what but an agreement to wait until their maturity can be implied ? There is some subtlety in the law concerning the consideration necessary to support an agreement, which has escaped us, if, in a case like this, a sufficient consideration is not necessarily to be presumed from the conduct of the parties. To set at naught an engagement of this kind would certainly be a breach of faith; and a rule which puts it thus in the power of a party to trifle with his engagement, which he has induced his debtor, and perhaps his creditors, to act upon, we cannot recognize as forming a part of our jurisprudence, as we consider it equally repugnant to reason, to good faith, and to those principles upon which our system of law is founded. The requiring a small pecuniary consideration to support an agreement, is a moro fiction, which the civil law has never adopted.

An obligation without a cause, or witii a false, or unlawful cause, can have no effect. Civil Code, art. 1887. Pothier explains the sense of this principle, and describes what is meant by a want of consideration necessary for the validity of an obligation.

In contracts of mutual interest, the cause of the engagement is the thing given, or done, or engaged to be given or done, or the risk incurred by one of the parties; and in contracts of benificence, the liberality which one of the parties wishes to extend to the other, is a sufficient consideration. But when an engagement has no cause, or consideration, or, what is the same thing, where the cause for which it is contracted is false, the engagement is null, and the contract based on it is also null, and cannotbe enforced by an action. Money paid under such an agreement can be recovered back by the action condictio sine causa.

T. A. Clarke, for the plaintiff. Conklin, for the appellants.

The civilians use tho term cause in relation to obligations, in tho same sense as tho word consideration is used in the jurisprudence of England and the United States. It means the motive, the inducement to the agreement — id quod inducet ad contrahendum. 6 Toullier, 166.

By our Code no consideration is required to be expressed in agreements. Civil Code, art. 1888. The gratuitous remission of a debt is as valid as a release for a valuable consideration, and may be expressed or implied. Civil Code, art. 2195.

The pactum remissorium — pactum de non petendo — was binding under the Roman law, and all that was required to give it validity was a simple convention or agreement. Maclteldey, § 499. Vide Institutes of the Civil Law of Spain, lib. 2, tit. 8, p. 159; and lib. 10, tit. 1, law 1 of the N°vissima Recopilación. It would always avail the debtor as an exception to the action instituted by the creditor.’ Pothier on Obligations, § 381.

Tho rule prevailing in the English and American courts, that certain contracts imply a consideration from the mere form, and that certain others carry with them no such implication, there is no propriety in our adopting, because it is exclusively arbitrary in its character.

The maxim taken from tho Roman law — ex nudo pacto non oritur actio, has been strangely misapplied in tho very general use that is made of it. The action by the Roman law was not originally given on the pact, but on the stipulation only, which reduced the undertaking to something positive and certain; but no consideration, in the sense in which the word is generally used, was necessary to support a stipulation undfcr that system. Afterwards, in the progress of jurisprudence, actions were allowed to be brought on pacts; those on which an action could be brought wore styled pacta vestila, but the pacta nuda were available by way of exception.

Article 3032 of our Code provides that the prolongation of the term, "without the consent of tho surety, operates a disehai’ge of the latter. This article is not found in the Napoleon Code. The authors of that Code adhered to the rule of the Roman law, and the opinions of Pothier, Yinnius and Voet, that tho extension of the term to tho principal debtor did not discharge the sureties. Vide Pothier on Obligations, 381. 18 Duranton, No. 384. Article 2039 of the Napoleon Code gives to the surety his action against the principal debtor, notwithstanding the prolongation of the term granted him by the creditor; by our. Code, that fact discharges the surely.

Wo are bound to say that, from the division of the debt and the receiving of notes payable at determinate periods, resulted a valid obligation on the part of the creditor, not to sue on his original claim before a default in the payment of one of the notes on the part of the debtor; and that, by thus giving time to the principal debtor, without the consent of the sureties, the latter are discharged.

Judgment reversed; and judgment for the defendants, with costs in both courts.


author: Rost, J.

text:
    Spalding v. Taylor et al.
    The stat. of 13tli February, 1816, imposing a penalty on the owners of any steamer or otliciwcs-sel for carrying any slave out of the State, without the consent of the master of such slave, does not require that his consent shall bo in writing. Such consent may be inferred from circumstances.
    jti. PPEAL from the Parish Court of New Orleans, Maurian, J.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, a resident of the city óf St. Louis, in the State of Missouri, sued out a writ of attachment against the steamer Missouri, for damages sustained by the loss of his slave Felix, alleged to havo been carried by the said steamer from New Orleans to St. Louis, without his consent or knowledge. The steamer was attached, and the defendants came into court, by their counsel, and joined issue, alleging that a man did work his passage on board of the Missouri, from New Orleans to St. Louis, bearing the name .of Felix, but that he was a white man, or at least passed for such, and was considered as such by the respondents; that if he belonged to tho plaintiff, he had beon allowed by his master to go out of this State frequently, and to work for himself, and to travel about the country as a free man; and that if he was a slave, ho was received'on board wholly by the fault and negligence of the plaintiff. They further denied, gbnerally, all facts not specially admitted.

Upon this issue the cause was tried by a jury, who gave a verdict in favor of tlie plaintiff for SI,000. Judgment having been rendered in conformity therewith, the defendants appealed. .

The allegations of the defendants that, the man Felix was to all appearance a white man, and would have been considered as such by any person who did not know him, is fully made out by the evidence. Felix, from his complexion, says one of the witnesses, might have some Indian blood or be of Spanish descent, but no one could suppose he had any African blood; he would pass any where for a white man, and a great many white creoles have a darker complexion than he has. He was dressed like a gentleman, nor was there any thing in his manner or appearance, that indicated him to be a slave. There was no attempt to conceal himself. Witness would as soon have thought of asking any of the passengers for a slave’s pass, as Felix; and, if he had'taken passage in the cabin, witness would have allowed him to sit at table as any other passenger. Witness has seen a great many slaves, but has never seen one whose appearance was any thing like that of Felix.

Gabriel S. Chouteau, in whose family Felix was bom, and who owned him after the death of his father, says Felix is a very white person for a slave ; that he has blue eyes and straight hair; is well made and of good size, and likely to pass for a white person wherever he is not known.

Many other witnesses testified to the same facts, so that we are called upon to hold the defendants liable in damages for an act which no care or prudence on their part could have avoided ; and if it be true, as alleged by them, that the slave was received on board by the fault and negligence of the plaintiff, we would find it difficult to resist the equity of their case, and not to consider it as one of those which, according to Plmvden, are exempted, and fore.prized out of the provisions of every statute, by the law of reason, though not expressly mentioned, in order to prevent a failure of justice. Plow. Comm. 13 b. 2 Inst. 118.

The facts that Felix was carried from New Orleans to St. Louis, by the steamer Missouri, and that the plaintiff held at that time a valid title to him as a slave, are sufficiently proved, and the first question presented to us is, whether Felix was thus carried out of the State, without the consent of the plaintiff. The statute on which he relies does not require that consent to be in writing, nor would we require written proof of assent in any case, if we thought that, by doing so, the party who denies giving it would be enabled to commit a fraud.

The facts applicable to this part of the case are as follows: In the winter of 1842-3, Felix, being then at St. Louis, where his master resided, hired himself for several months on board of the steamer Chippewa, trading between St. Louis and Galena.’ Galena is in the State of Illinois, where involuntary servitude is prohibited. Subsequently the boat was laid up at the landing of a town in the territory of Iowa, where involuntary servitude is also prohibited. Felix, after remaining there sometime, left the place without the knowledge of the officers of the boat, and returned to St. Louis, where he subsequently received his wages from the clerk of the Chippewa, at a public tavern, where he wab often seen, dressed like a gentleman, and to all appearance free and at leisure. This was in the beginning of 1843. From about that time, till his departure on board of the Missouri, between the 7th and 10th of May of that year, we find him in New Orleans, living with one of the plaintiff’s witnesses, who paid no wages for him, and had not, as he informs us, the authority of a master over him. The plaintiff was then in St. Louis. Felix remained in that unexplained situation till he engaged his services on board of the Missouri, as he had done before on board of the Chippewa, and went up in her to St. Louis, the place of residence of the plaintiff. He was not carried away from his master, but carried up to him, and must have arrived at St. Louis about the middle of May. There he appears to have remained sometime. Gabriel Chouteau says that he saw him several times, in June, 1843 ; ho saw him almost daily in the streets ; ho appeared to be his own master-, controlled by no person, the same as a free person of color; he was always well dressed, and seemed to do as he pleased. Felix was bom and raised in St. Louis, well known there, and particularly so, no doubt, to the police of the place. His former master, Chouteau, saw him almost daily in the streets; but the plaintiff was determined not to see him. While the plaintiff was in St. Louis, he was informed by one of the witnesses that Felix had gone up in the Missouri, and, at tire very time he was looking out for testimony, as that witness tells us, for the purpose of attaching the boat here on account of the loss of his slave, Felix was there enjoying his freedom openly and publicly, until he saw fit to hue himself on board of the Steamer-Brazil, to go to Galena, where he remained. When subsequently the plaintiff was informed by the officers of the Brazil, that he could get Felix by sending for him to Galena, his answer was that ho cared nothing about him, and prefer-ed looking for him to the steamer Missouri. If he had then attached the Brazil for carrying his slave out of the State of Missouri, it is very clear from the evidence that assent on his part would have been presumed, and that he- must have failed in his action. He was in error whdn he supposed that he could obtain in the courts of Louisiana the relief which those of his own State would have-refused.

Felix was authorized to hire himself on board of the steamer Chippewa, and to receive Ms wages; he was then in every respect his own master. Not many woeks after leaving that boat, in the territory of Iowa, he came to New Orj leans; and the person with whom he lived here, has testified that he did not exercise the power of a master over Mm, in the plaintiff’s absence. J'fiK.rmust, in that case, have been Ms own master, as he was before, and the implied assent of the plaintiff to Ms hiring himself on board of steamboats, must be considered as having continued. Should there be no other motive, we would be bound to presume, in favor of liberly, that the possession of his freedom, which Felix had in St. Louis, continued in New Orleans, till the contrary is shown by dire.ct and positive evidence. This enjoyment of his liberty was a status under which ho could prescribe against the plaintiff’s title. Civil Code, art. 3510.

Fan JDalson, Ooolcl and Winihrop, for the plaintiff. Peyton, and I. W. Smith, for the appellants.

We give full faith to the testimony of Chouteau and Labaume, and are satisfied that, on account of his color and of his vices, the slave was of very little value at any time. After he had been suffered by the plaintiff to live and act like a freeman, and to go and remain as long as he pleased in States where slavery is prohibited, he must have been utterly worthless, and the jury erred in coming to a different conclusion. >

The opinion we have formed on the plaintiff’s right of action, makes it unnecessary to remand the cause. We have great doubts whether, after Felix had been suffered to hire himself on board of boats trading to placeswhere slavery is prohibited, and to remain in those places till he chose to leave them, the plaintiff can exercise any longer his right of ownership over him; but we have none whatever that, if there were no other reasons operating against his claim, it would be contrary to public policy to entertain it.

The legislature of this State have repeatedly passed laws to prevent free persons of color from coming to Louisiana, and all such as are found here, in contravention to those laws, are subjected to severe punishment. This man Felix was in the State of Illinois at the close of 1842, and, after a short stay in St Louis, came to New Orleans. How he came, or why he came, does not appear. If he was still a slave, he was here without a master, and the reasons of public order wMch induced the legislature to enact those laws, are clearly applicable to him.

For the reasons assigned, it is ordered that the judgment of the Parish Court be reversed, the attachment sot aside, and that there be judgment in favor of the defendants for costs in both courts.


author: Slidell, J.

text:
    Camfrancq v. Pilie et al., Executors.
    Services, proved to have been useful and laborious, rendered to a sick person, by a nurse, who visited him at his request, defraying herself the expenses of conveyance to his residence, will nothe presumed to have been gratuitous. Nemoprasv/mitm donare.

    THE plaintiff appealed from a judgment of the Court of Probates of St. Bernard, Rousseau, J.
   The judgment of the court was pronounced by

Slidell, J.

In tMs case .the plaintiff, who is a free woman of color, claims of the succession of Hiligsberg, wages for services as a nurse, and the reimbursement of monies expended for the benefit of the deceased, in purchases for him, for household use. The claim is resisted on the plea that the services were gratuitous, that receipts, found among the papers of the deceased, show that he repaid her disbursements, and that a portion of the claim for wages is barred by the prescription of one year. Thei-e is also a general denial.

As regards the disbursements for purchases, they are for the most part exhibited in a manner too loose to enable us to found a judgment upon them. .

As to the wages for services, it appears that during a long time preceding Ililigsberg’s death, the plaintiff was in the habit of frequently going to see him. As these earlier visits are not shown to have been upon his requisition, as there seems to have been a relation of friendship and kindness originating from the plaintiff’s parentage, and as it is not shown that the plaintiff had been in the habit of making charges, or receiving payment, for her earlier and less onerous services, we do not feel authorized to allow the claim for them. But it is shown by the testimony of two physicians that, for a period covering several months antecedent to Hiligsberg's death, the nurse was sent for, at his request, when ho was suffering, in the same manner as the physician; that her services wore very useful and veiy laborious; and that she was obliged to furnish the means of conveyance, at her own expense, from the city to his country residence. These expenditures are proved to have been at the rate of from two to five dollars a visit, according to the condition of the roads. During the last throe months of his illness, it appears that the plaintiff neglectod almost entirely her own household and avocations, to attend upon the deceased. ,

If this plaintiff had been in a similar condition of life with the deceased, there would be some -reason to suppose that her visits were testimonials of gratitude and friendship. But she is a colored woman, and the deceased was a white man, possessed of a large estate. ¥e may certainly apply with justice, in such a case, the maxim, nemo preesumitur donare; and, without some satisfactory evidence that she intended them to be gratuitous, we would do wrong to suppose that these long and patient services were gratuitously rendered to a rich man by this humble woman, atan evident sacrifice of her money and time, when she might have employed herself elsewhere profitably, in earning her daily bread.

It is true, as urged by the defendants, that gratitude for benefits received, or the hope of future favor, is a sufficient foundation for a contractand that gratuitous contracts are expressly recognized in bur law. But it must be remembered, on the other, hand, that, according to the elevated morality of the civil law, no one ought to enrich himself at the expense of another; and that, where a party calls upon another to do a thing, the law, in the absence of contrary proof, supposes an obligation to pay for what is done. For actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. See Civil Code, art. 1810,1960.

jThe principle “nemo prEesumitur donare” was carried,so far in the Roman law that, in the case of a negoliorum gestor, the greatest proximity of relation, even that of mother and child, was not sufficient to found a presumption that, the expense which one has laid out for another was intended as a mere bounty.

We think the amount of $200, allowed by the court below, too small; and give judgment for the services of plaintiff during the last year, for the sum of four hundred dollars.

/. Seghers, for the appellant. A. Filié, Bodin and Bernard, for the defendants.

It is therefore decreed that the judgment of the Court of Probates be reversed, and that there be judgment for the plaintiff against the succession of ililigsberg., for the sum of $400, with costs in both coruts.


author: Lost, J.

text:
    Tardos v. Bozant, Inspector.
    An inspector of pork is responsible personally, for want of ordinary diligence ill the discharge of his official duties.
    Where an inspector certifies that a quantity of pork is of a certain quality, he is personally responsible not only for its being; so at the date of his certificate, but for its remaining so for the length of timo during which the article is usually expected to continue in that condition, if properly taken care of; and the purchaser may recover from him the amount of any loss sustained, on a re-salc of the article, in consequence of its being of an inferior quality.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      L.Janin, for the plaintiff. Roselius, for the appellant.
   The judgment of the court was pronounced by

Lost, J.

The plaintiff purchased seven hundred barrels of pork, certified to be prime inspected pork, and branded as such by the defendant, in his official capacity of inspector. The pork was shipped with the usual care and sent to New York, where it was landed in good order, after a voyage of twehty-one days, performed in fair weather and without accidents of any kind. Before its arrival it was sold by the plaintiff’s correspondent at a certain price, to bo paid on delivery, provided the quality corresponded with the certificate given by the defendant, and sent on with the bill of lading. On inspection, in New York, it proved to bo ail sour, and so inferior in quality that the purchaser refused to receive it. It remained on hand sometime, and was finally sold to other persons at a reduced price.

This action has been instituted to recover from the defendant the difference between the two prices, on the grounds of negligence in the inspection or repacking of the pork, and misrepresentation in the certificate. The case was submitted to a special jury of merchants, who gave a verdict in favor of the plaintiff for the sum claimed. The defendant, moved for a new trial, which was refused, and, judgment having been entered in conformity with the verdict, he appealed. The record contains an exception taken by him to the charge of the judge, which is in these words: “The court in this caso charges the jury that, the defendant was only liable for neglect, or fraud, or contravention of the the law. That, whether the neglect arose from unskil-fulness, ignorance, inattention, or want of cafe, the defendant was equally liable. That the court considered that an inspector of beef or pork, when ho gave a certificate that beef or pork was in a good and sound condition, was bound by such certificate to warrant, not only that the beef or pork was in a good and sound condition at the time the qertificate was given, but that it should remain so for a reasonable and usual length of time, if the article was handled with proper’care, and not improperly exposed. That our law did not fix any length of time during which the responsibility, was to last, or terminate. That, in the absence of any fixed rule, a responsibility would attach for such length of time as the nature of the article was usually expected to remain good. That, if the plaintiff has proved that the pork has been properly handled, and taken care of, and it was found that the article was spoiled before the lapse of a reasonable and usual .period, the defendant would be liable for any damage which might arise from the unsound condition of the article. That it was for the jury to say whether:

“1st. The article was unsound, on its arrival in New York.

“2d. Whether any circumstances had occurred which relieved the defendant from his liability from the certificate which he had given, and from tho liability which he was under by law.”

We consider this charge to the jury as containing a lucid and sound exposition of the law applicable to the caso. One of the main advantages of the inspection of such commodities is, to give security to commerce, and to increase the confidence of purchasers abroad in tho soundness of the provisions found in our market. If those objects are not attained, tho heavy expense attending tho inspection is incurred without adequate motive, and the only mode of securing them, is to hold the inspectors responsible for want-of ordinary diligence in the disehargo of their duties. In doing this, care must, of course, be taken that the security thus given to commerce, be not abused to the injury of inspectors. In this latitude, and especially for shipments made during the summer months, their responsibility should be limited to a shorter period than that established by the laws of New York.

In this case the jury have substantially found that, pork shipped with care and well stowed in New Orleans, between the 29th and the 31st of July, forming part of an assorted cargo of provisions, cotton and tobacco, and landed in good order in New York; after a prosperous voyage, on the '28th and 29th of August next following, could not have become sour during that voyage ; and that it must therefore either have been unsound when it was shipped, or, what is moro probable, have been repacked too fast, and without proper care, after the inspection here.' A careful perusal of the evidence has brought us to the same conclusions.

The amount of damages awarded by the verdict is authorized by the facts of the case, and there is nothing in the judgment which requires our interference.

Judgment affirmed.

       The pork was examined by an inspector, in New York, on the 3d of September. It had been examined by the defendant, in New Orleans, at the time of plaintiff's purchase.


author: Slidem,, J.

text:
    Jones, Administrator, v. Read et ux.
    Though it bo slated in the advertisement of a judicial sale of the property of a succession, that an act of sale will be executed before the parish judge, the mere omission to execute such an act, there being no proof that its execution was demanded or refused, will not release a purchaser Who has been in possession oí the property since the date of the sale. The adjudication made and recorded by the judge, or clerk, gave a complete title to the purchaser. G. C. 2601.

      Where a purchaser takes possession of property, without mailing any objection to the title on account of a mortgage existing on it, or requiring that it should he raised, the existence of the mortgage will not authorize him to refuse to pay the price. He can demand nothing more than a bond of indemnity against future disturbance. C. C. 2535.
    Where a record has been offered in evidence to prove a particular fact, it cannot be used by the opposite party to establish another fact not alleged in the pleadings. To allow it, would be to expose the party by whom the record was Erst offered to surprize.
    A husband cannot be made liable personally for the price of property purchased by him in the name, and on account of his wife, where she is separated in property.
    Real estate belonging to a succession was adjudicated, at a judicial sale, to a person, for account of his wife, who was separated in property, for a price, payable partly in cash, and partly in notes secured by mortgage on the property. Subsequently, at the instance of the husband, the mortgagee took out an order of seizure and sale, and the property was adjudicated to him for a price much less than that for which it was sold on the first exposure. In an action by the administrator against the husband and wife, to recover a balance of the price due under the first sale: Held, that the husband, being cognizant of the first sale, of the vendor’s privilege, of the reservation of a mortgage by the terms of the adjudication, of his wife’s default, and having instigated the eviction by which tho title was transferred to him at a price greatly below the original cost, and all the circumstances of the case showing a want of good faith on the part of tho defendants, that the second sale, under a prior and superior incumbrance, which, if to an innocent third person, would have divested the plaintiff of all right, cannot shield tho property in the hands of tho husband; and that judgment should he rendered against the wife, with a privilege on the property.
    APPEAL from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

Slidem,, J.

The succession of Milling being proprietor of certain real estate in the parish of Jefferson and certain shares of Citizens’ Bank stock secured thereby, a sale thereof was made under order of the Court of Probates, and the land and stock adjudicated “ to Read, for account of his wife, at the total price of $5,500, to wit, $4,750 for the landed property, and $750 for the premium on the shares of the Citizens’ Bank. The terms of sale were $294 37¿ cash, and the balance of the adjudication to be paid by the purchaser’s assuming the payment of $3,375 due on stock to the Citizens’ Bank, the purchaser having the privilege of paying off said amount with interest, by instal-ments of one-fiftieth, according to the charter of the bank, and the balance, if any there be, on a credit of one year from the day of the sale, in notes endorsed to the satisfaction of the curator, and secured by mortgage until final payment. Tlie shares of the Citizens’ Bank payable in cash.”

It appears that, at the foot of the judicial advertisement which preceded this sale, it was said that acts of sale should be passed, at the expense of the purchaser, before the parish judge.

Immediately after the adjudication, but whether with or without the assent or intervention of the administrator, does not appear, the defendant and his wife took possession of the landed property, eiljoyed its fruits, andhired it outto sundry persons, from whom the husband collected the rents. The leases, which seem to have been verbal, were made by the husband, and the receipts for rent which have been produced are signed by the husband/ It would seem that the $294 37¿ the cash, payment for the land, was made.

The adjudication was made on the 12th March, 1842. In 1843, a rule in the matter of Milling's succession was taken upon the defendants, to show cause why the real estate and bank stock should not be resold at the purchaser’s risk and expense, on the ground that she had failed and refused to comply with the terms of sale. This order to shew cause seems not to have been acted upon, nor does it appear when it was served upon the defendants. But its existence evidently came to the knowledge of the defendants, as will hereafter appear. It is not shown that, at any time, the defendants called upon the administrator for the execution of a notarial act of sale before the parish judge.

In the year 1843, Lewis A. Read called upon the cashier of the Citizens’ Bank, and seems, instead of paying the debt to the bank, to have instigated the bank to seize and sell the properly, alleging that he had purchased, and that the seller had not been able to make him a title. Accordingly the bank, in the fall of'1843, obtained executory process upon their mortgage debt, seized the land and stock, and they were adjudicated to the defendant, Read, for $3,750. Only a small portion however was paid in cash, the bank allowing Read to give a new note as stockholder, on the usual terms, on paying up the arrears, pursuant to the charter. Soon after, to wit, in December, 1843, the administrator brought the present suit against Read and wife, to recover the sum of $1,830 62, the portion of price unpaid.

The defendants first pleaded, by way of exception, the pendency of the rule in the Court of'Probates above referred to. The administrator then discontinued the rule. The exception was then tided and overruled, and the defendants answered separately. The husband filed a general denial. The wife joined to her plea of general denial a special plea, that the jn-operty had been adjudicated to her through the agency of her husband ; that, at the time of the sale and for months afterwards, she had been willing and ready to comply with the terms of the adjudication and had frequently demanded a title from the plaintiff, but that he had neglected and failed to convey a valid and unincumbered title; that she had thus lost the opportunity of selling the stock at a profit, and the other advantages of her purchase. She also pleadod the seizure and sale by tho Citizens’ Bank. At the trial, the facts above stated appeared. It also appeared that, since the first sale, the property had depreciated in value, and that, by their marriage contract, the wife was separated in property from the husband. Tho jury found a verdict for the plaintiff, and the defendants have appealed.

It is arguod that this action cannot be maintained, because the plaintiff never fulfilled his contract, by tendering an act of sale before tho parish judge.

Our Code declares that, “ the adjudication made and recorded by the judgo, or clerk of the court, is a complete title to the purchaser, and needs not bo followed by an act passed before a notary.” Art. 2601.

But it is said that, in the case of Berthoud v. Unrich, 9 La. 180, it was held that, if in a probate sale it be advertised that a notarial deed will be given, and such a deed be refused, the court will not entertain a rule to show cause why the property should not be resold at the purchaser’s expense. The circumstances of that case were very different from those now presented. There the purchaser had not entered into possession, and it would seem that the deed had been refused. Here no demand, nor denial of an act of sale, has been proved. The purchaser has received the possession, and thus the essential obligation of the seller has been fulfilled.

In Berthoud’s case, Judge Martin referred to the article of the Code, and said that, “ the notarial act was not necessary, nor essential to the perfection of the purchaser’s title.” It is clear that the failure ef the administrator is not in a matter of substance. The notarial act might be a convenient document, but it could have given no additional legal force to the title. As a matter formal, and not substantial, it may well be considered as waived by the entering into possession. Equity forbids that a purchaser should be permitted to take advantage of such a circumstance, when the certificate of adjudication, and the possession and enjoyment of the property, gave her the full benefit of the contract.

That the defendant, Eleanor Read, has been evicted by the seizure and sale at the suit of the Citizens’ Bank, is no defence, because that eviction was the consequence of her own default. By the terms of the adjudication, and by her entry into possession, she expressly assumed and became bound to pay the Citizens’ Bank. Not having done so, she cannot take advantage of her own wrong. See Civil Code, art. 2478.

The defendants next contend that, at the date of this sale, the property was incumbered by mortgages created by an antecedent .proprietor, which the Probate Court was incompetent to discharge. The certificate of the recorder shows two'incumbrances created by antecedent proprietors, the mortgage to the Citizens’ Bank, and an incumbrance for the price created by an antecedent proprietor and purchaser. The former was expressly assumed by Eleanor Read, and cannot therefore be the subject of objection. As to the latter it was for two notes: as to one of these notes, the mortgage appears to be still outstanding ; the .other is to be considered as extinguished by presumption of law, a period of more than five years from its maturity having expired before the seizure of the Citizens’ Bank.

. Here again it is to be observed that the purchaser entered into possession, without any discussion about the title, or any demand that this incumbrance should be raised. When such a course is pursued, the purchaser, upon being sued for the price, can certainly demand no greater relief than a bond of indemnity against future disturbance. Civil Code, art. 2535.

If then the defendant, Eleanor Read, still remained the owner of this property, the plaintiff would be entitled to a judgment, conditioned that no execution should issue till he had given her a bond of indemnity, to hold her harmless against the outstanding incumbrances in favor of this antecedent vendor, or those who have become subrogated to his rights. But as Eleanor Read is no longer the owner, having been evicted by the Citizens’ Bank in consequence of her own default, a bond of indemnity would be of no possible benefit to her. Lex neminem cogit ad vana.

It is next urged that a suit for this same property is pending in the Circuit Court of the United States, in which the heirs of Poullney are plaintiffs, and Philip Harty, an antecedent proprietor and Milling's vendor, is defendant. The existence of this suit was not pleaded in the answer of the defendants, and the objection is foundod upon what appears in the record of the suit of Wallace Sf Co. v. Harty, brought on a mortgage note, which record the plaintiff had offered to establish the extinguishment of an antecedent incumbrance by payment, after the defendant had offered a mortgage certificate shewing that this incum-brance still existed of record. This record thns offered by the plaintiff cannot be thus invoked by the defendant. To permit this evidence offered by the plaintiff for a particular purpose, to be used against him to establish another fact, not set forth in the pleadings, would manifestly lead to surprise and hardship. If the defendants had reoffered this record, or had even given the plaintiff notice that they should rely upon it in argument to show a disturbance of the title, the plaintiff would then have had an opportunity of excepting to its admissibility, and, if his exceptions were overruled, of offering further evidence, if any existed, relevant to the question of disturbance. Moreover it does not appear by ¡this record, nor has it been proved aliunde, that the Poultney suit was still pending when the present case was tried. See also what is said above as to giving security.

Michel, for the plaintiff. Bartlette, for the appellants.

It is next urged that the defendant, Lewis A. Read, is not personally liable •for this debt, his wife being separated in property, and the purchase having been expressly made for her account. The marriage contract and the adjudication are referred to in support of this position. We consider the objection well tallen, and the judgment of the court below must be corrected accordingly.

It is next urged that the judgment for the purchase money, was improperly rendered with privilege on the property. The defendant, Lewis A. Read, who became the pui-chaser at the judicial sale of the Citizens’ Bank, was not a co-purchaser with his wife at the original sale; but he was fully cognizant of that purchase, of the vendor’s privilege, and of the express reservation of the mortgage by the terms of the adjudication, tie was fully cognizant of his wife’s default, and he appears to have instigated the eviction by which the title has been transferred from her name to his own, at a price greatly below the original price. Under all the circumstances of this case, which it is unnecessary again to particularize, we think there has been a want of good faith on the part of these defendants ; and this second sale, under a superior and antecedent incum-brance, which if made to an innocent third person, would have been a complete divestiture of the rights of the plaintiff, is unavailing to shield the property in the hands of the husband.

Lastly, interest has been incorrectly allowed on the whole amount, from the 12th March, 1842. “It should be allowed on $700, the unpaid balance of the cash price, from the date of the judicial demand, December 23, 1843 ; and on $1130 62£, the portion of the price for which the credit of one year was stipulated, from the 15th day of March, 1843, at which date, if the purchaser had given her note, it would have fallen due.

It is therefore decreed that, the judgment of the District Court be reversed ; and it is further decreed that there be judgment in favor of the plaintiff, William Jones, administrator of the succession of Robert L. Milling, deceased, against the defendant, Eleanor Phillips, wife of Lewis A. Read, for the sum of $1830 62,. with interest on $700, part thereof, from December 23, 1843, until paid, andón $1130 62¿, the other part thereof, from the 15th March, 1843, till paid, with special mortgage and vendor’s privilege respectively upon the real estate and stock described in the prods verbal of the parish judge to the petition annexed, and with costs in the court below, those of this appeal to be borne by the plaintiff.


author: King, J.

text:
    Boguille, Administrator, v. Faille.
    A sheriff, made aparty to proceedings commenced by injunction, only for the purpose of notifying him that the execution of the writ in his hands has been suspended, having no interest in the result of the proceedings, need not be made a party to any appeal taken from the judgment below.
    A creditor having a special mortgage importing a confession of judgment, may obtain an order from a court of ordinary jurisdiction for the seizure and sale of the hypothecated property, though the mortgagor has since died, and his succession been accepted by the heirs with benefit of inventory. The hypothecary action is a real action, following the property into whosesoever hands it may be found. C. P. 61 to 67, 734, 744. C. C. 1370,1382,1387, 1395, 1396. Being a real action, it may be instituted before a court of ordinary jurisdiction. C. P. 9S3.
    APPEAL from tlie District Court of the First District, Buchanan, J.

      Morel, for the appellant.

      J. F. Pepin, for the defendant.
    The hypothecary action is a real action, ■ and should be brought before the ordinary tribunals. O’Donogan v. Knox-, 11 La.'384. Code of Pract. arts. 41, 42, 61 to 74, 163, 733, 734, 744, 983. Civil Code, arts. 1370, 1382 to 1387, 3360, 3361. Whether the mortgaged property belong to a succession which has been accepted with benefit of inventory, or not, can malte no difference. The benefit of inventory only exempts the heir from responsibility beyond the amount of the succession. It does not change his obligations in any other respect. Chabot, Comm, sur les Successions. Arts. 803, 873 Code Nap. Merlin, verbo Bénéfice d’Inventaire. Du-ranton, (Paris ed.) vol. 7, nos. 39 to 50. 4 Toullier, no. 355.
   The judgment of the court was pronounced by

King, J.

The plaintiff is appellant from a judgment dissolving an injunction issued at his instance, staying the execution of an order of seizure and sale.

A motion has been made to dismiss the appeal, on the ground that the sheriff, who was a parly to the judgment below, has not been brought before this court. That officer was a mere nominal party to the proceedings, without interest of any kind in the result of the litigation, on whom citation was served only for the purpose of notifying him that the further execution of the writ in his hands had been suspended by an order of the court. He had no such connection with the cause, as rendered it necessary that he should be cited to answer the appeal.

E. Faille, the defendant in this suit, was the creditor of Francois Boguille, by a special mortgage importing a confession of judgment. Boguille died, leaving several heirs, who accepted his succession with the benefit of inventory. The hypothecated properly remained unsold in the possession of the administrator and heirs of the deceased. E. Faille obtained an order for the seizure and sale of the immovable affected by her mortgage, and was proceeding with the preliminary steps to a sale, when the plaintiff caused the further execution of the writ to be suspended by an injunction, contending that the claim of Faille Was a moneyed demand, the payment of which could only be enforced in the Probate Court, and that the succession, being in a course of administration, the property composing it could only be disposed of under the authorify of that court.

It is true that, as a general rule, Probate courts have exclusive jurisdiction of money demands against successions, but the rule is not without exceptions. Code of Practice, arts. 996, 983. The right of the hypothecary creditor to proceed against the mortgaged property in the possession of the debtor’s heirs, appears to be beyond controversy. The Code of Practice, after declaring that the hypothecary action is a real action, which follows the properly to which it is attached in whaleoer hands it may be found, provides that, if the debtor has died, leaving a single heir who has accepted the succession, or if he leave several heirs who have accepted the succession, and there has been no partition among theni, the creditor shallbe entitled to seize and sell the hypothecated property in the same manner as if the original debtor were still alive. After the partition, the creditor may proceed by the same actio» against the heirs to whose shares the mortgaged property may have fallen. Code of Praet. arts. 61 to 67, 734, 744. Civil Code, arts. 1370, 1382, 1387, 1395, 1396. Being a real action, it may be exercised in the courts of ordinary jurisdiction. Code of Pract. art. 983. It is urged that the rules established in relation to the hypothecary action, when exercised against property in the hands of heirs, apply only to successions accepted purely and simply, and not to beneficiary successions. We find no such limitation, and have heard no satisfactory reason assigned for adopting such an interpretation. The Code of Practice speaks of heirs who have accepted, without qualifying the acceptance, as being unconditional, or with the benefit of inventory.

It is objected that, the mortgaged property is subject to privileges, which are preferred to the creditor’s mortgage, and that, if the order of seizure and sale be maintained, the effect will be to deprive the privileged creditors of their liens. No such result can occur. The law has provided ample means for the protection of privileged claims, under whatever authority the property subject to them may be sold.

It has also been contended that, at the time the order of seizure and sale was obtained, there was a litigation pending between the same parties, upon the same subject, in the Probate Court. It appears that the administrator filed in that court a tableau of the distribution of the funds in his hands, arising from a sale of moveables. The present defendant opposed the tableau as having been irregularly filed, and the allowance of several claims figuring upon it, on the ground that they were excessive, reserving expressly her right to proceed upon her mortgage. The object of that litigation is wholly different from that of the proceedings enjoined in the present action.

Judgment affirmed.


author: Súdelo, J.

text:
    Succession of Asbridge.
    A judgment lias no force or effect until signed by the judge. Consequently where a judgment, homologating an account presented by the curator of a succession and allowing certain sums to attorneys and appraiser's, was rendered before the adoption of the constitution of 1845, which prohibits such allowances (art. 71), but was signed afterwards, it must be reversed. The constitution of 1845 having gone into effect before the judgment was signed, tho judge had ceased to have any authority to make such allowances.
    Since the adoption of the constitution of 1845, no court or judge can make any allowance to an attorney employed by a curator, or to an attorney of absent heirs, or for the compensation of persons employed to appraise the property left by the deceased. Const, art. 71.
    from the Court of Probates of New Orleans, Bermudez, J.
   The judgment of the court was pronounced by

Súdelo, J.

This case presents two appeals, the one by a creditor, Bartlelle, the other by the heirs of the deceased. Both appeals are from portions of a judgment rendered on a tableau.

Bartlette claimed for professional services rendered to the deceased himself, in judicial proceedings to which the deceased was a party. The judge of the court below reduced his charge. The question of quantum mereuit was presented to the court below on conflicting evidence. It was a question of fact, and we see no error in the judgment of the court below.

As to three of these items, to wit, $250 to Fan Dalson, attorney at law, for alleged professional services rendered to the curator, $125 to R. H. Grandment, as attorney of absent heirs, and $16 to the appraisers, the heirs contend that so much of the judgment as made these allowances was contrary to the 71st article of the constitution, and should be avoided. The judgment was rendered in September, 1845, before the constitution went into effect, and was signed the 20th December, being after the constitution went into effect.

A novel question is here presented. It has,been asubject of careful and prolonged deliberation, and it has not been without difficulty that we have formed a conclusion.

Under our practice the signature of the judge is necessary, to make a judgment which he has rendered final and conclusive. At any time, till it is signed, either party may, by motion for a new trial, ask its revision, and the court, if it considers the judgment contrary to law or the evidence, may set. it aside and grant a new trial. Even if the judgment be, in the opinion of the judge conformable to the law and the evidence, yet, in case of newly discovered evidence, under proper affidavit, the party dissatisfied may obtain the same relief. Nor does the law confine the authority of the judge over the judgment rendered, to cases where a party litigant asks its revision. The judge may even, ex officio, order a new trial, if he be himself dissatisfied with his decree. Hence it has been the uniform and settled jurisprudence of the Supremo Court, from its foundation down to the present time, that, until it be signed, the judgment is without efficacy; it is inchoate and imperfect.

In Sprigg v. Wells, 5 Mart. N. S. 105, the inquiry arose upon the interpretation of the then existing law relative to the recording of judgments. To give such recording the effect of a mortgage, from the dato of the judgment, it was required that it should be made within ten days from the time at which such judgment was rendered. It there appeared that the judgment was recorded on the same day that it was signed, but more than ten days had elapsed since its rendition. Judge Matthews said: “ The law requires the judges of the inferior courts of this State, to sign their judgments within three days after they have been pronounced or rendered. The signature of the judge, according to this regulation, is essential to the perfection of a judgment; and, although it should not receive such signature until after three days, it does not acquire the force of a judgment until completed and perfected by the name of the judge thereto subscribed.”

In Williams v. Holloway, 11 La. 515, the court, through Judge Martin, declared that a judgment under which title by judicial sale was claimed, but which did not appear to have been signed by the judge, was inadmissible as evidence.

In the case of The State v. McDonald, 17 La. 485, an injunction was sustained against an execution, because the judgment upon which it issued had not been signed, although the minutes of the court, at the close of the term, seem to have been signed. See also, Mart. N. S. 241.

So an appeal was dismissed, when the judgment appealed from had not received the judges signature. 7 La. 513.

In 12 Martin, 252, the signing of the judgment is also spoken of as giving effect to the judgment; but it was held that it may be signed, even many days after the expiration of the three days from rendition. The law then was that the judge shall sign three days after rendition, being in terms more stringent than our Code, which only says that “he shall not do so, until three judicial days have expired.”

We incline to the opinion that, the signing of a judgment, as prescribed by our Code of Practice, is not a mere ministerial act. We believe that the delay prescribed between the rendition and the signing of ajudgment, was prescribed in order to give the mind of the judge time and leisure for reflection; that, if erroneous, he might order its revision by a new trial on the application of the litigants, or even proprio molu; and that the signing of the judgment is the solemn exercise and memorial of his judicial will and conviction, that the judgment requires and shall undergo no change.

There is a case reported in 8 Peters 302, coming up from the eastern district of Louisiana, in which the Supreme Court of the United States held that, the signing of a judgment is a ministerial and not a judicial act. But it will be observed that there the court seomed to recognize the authority of the district judge to grant a new trial, after the lapse of a longer time than three days, and they observe : “The district judge, in not'"granting a new trial, has decided against it. It is immaterial what reasons may have influenced this decision, as it was a matter which rested in his discretion. But the important inquiry is whether, after refusing io grant a new trial, either on a full consideration of the merits, or because he had not a sufficient knowledge of them, he was not bound to sign the judgment.”

The question, however, whether the signing of the judgment, under the circumstances of the present case, was a judicial or a ministerial act, is not one which it is indispensable to solve. It was, at any rate, an act of the judge, which was indispensable to give force and effect to the judgment rendered. It was an exercise of his official power.

This ascertained, the solution of the present question naturally follows:

“ No court or judge, shall make any allowance, by way of fee or compensation, in any suit or proceeding, except for the payment of such fees to ministerial officers as may be established by law.” Constitution, art. 71.

This unequivocal provision of the supreme law of the State, having gone info effect before the day when the judgment was signed, had swept from every, court of this State all authority over the subject matter of such allowances, except as therein excepted. The judicial officer was rendered powerless for such purpose; and that which had not, when the constitution went into effect, the force and effect of a judgment, became a mere abortion, by the complete withdrawal of official authority, and the positive inhibition of the judge’s action.

We apply here, in another form, the same principle which we enforced in the case of Pandelly v. His Creditors, ante p. 21. The judgment there had been rendered, and signed by the district judge, before the constitution wentin-to effect. We said we were without authority either to reverse or affirm the decree, and therefore dismissed the appeal.

Here the probate judge has performed an act as judge unconstitutionally. The appellant invokes the constitution, and it is our imperative duty to cancel what the judge has done. This duty extends to the appraisers’ fees, as well as the two other allowances, because it is the allowance of a fee to a ministerial officer not established by law.

Whether the attornies have a right to sue the hems, who have been recently decreed to be put into possession, is a question not before us on this appeal.

Some other items of the account have been discussed in argument by the counsel for the heirs, but they are not regularly before us. The order of appeal was upon five items only, which are specially enumerated. They are the items already considered.

Bcp-tlette, one of the appellants, pro se. Greiner, for the heirs, also appellants. Van Balsón, Carteo-, and Bmigneaud, contrfi.

It is therefore decreed that, so much of the judgment of the court below as was appealed from by the said T. A. Bartlette, be affirmed, the said Bartlette paying one half the costs of appeal. And it is further decreed that, as to so much of the judgment as was appealed from by the said heirs of Asbridge, the same be affirmed, as to the items of $50 to McPherson, and $87 95 to Hennen ; and that as to the items of $250 to Van Balsón, $125 to Qrandmont, and $16 to Allard & Charbonnet, the said judgment be reversed, and said claims stricken from the tableau. One half of the costs of appeal to be paid out of the funds ofthe said estate. And itis further decreed thatthe said tableau as now amended, be finally approved.


author: Seidell, J.

text:
    Parker v. Raynal.
    Tinder a plea, in an action against the maker of a note, that the holders of the note prior to the plaintiff were aware of the failure of the consideration for which it was given, unaccompanied with any allegation that plaintiff received the note with notice, or under suspicious circumstances, evidence of notice to a former holder is inadmissible, as irrelevant; nor would proof of notice to the plaintiff be admissible, under the pleadings.
    APPEAL from the District Court of the First District, Buchanan, J.

      L-Janin and 5. L. Johnson, for the plaintiff. Michel, for the appellant.
   The judgment of the court was pronounced by

Seidell, J.

The.plaintiff sues the defendant as maker of a promissory note, payable to the order of, and endorsed in blank by, one Howell. The petition contains the usual allegations, exhibiting the plaintiff as holder, in the ordinary course of business, before maturity.

The defendant’s answer exhibits no general denial, but a special plea to the effect that, holders of this note prior to plaintiff were well aware of a failure of the consideration for which the note was given, and of the existence of certain equities in favor of the maker against the payee. But the plea does not state that the plaintiff received the note with notice, or under suspicious circumstances.

At the trial the defendant offered evidence to show that a previous holder took the note, with knowledge of the failure of consideration. This evidence the court rejected. There was evidently no error in this rejection. If admitted it would not have affected the plaintiff, unless followed up by evidence of notice to the plaintiff of like matters, before he took the note. But such further evidence would not have been admissible under the pleadings. Judgment affirmed.