text:
    No. 2613.
    Jules Levy v. Amaron Ledoux.
    Tho aofc of renunciation by the wife of her rights on property ostensibly belonging to the com* munity, does not preclude her from reclaiming it, free from any mortgages or incumbrances placed upon it by the husband, if she shows that it is actually her paraphernal property.
    The renunciation of the wife, in an act of mortgage given by the husband, on the separate property of the wife, is a nullity. C. 0. 24=12.
    The simple .denial by the wite that she derived benefit from an act of mortgage given by her husband and signed by her, on her separate property, is sufficient to put the creditor upon proof that the debt contracted by the act inured to her advantage, or to the advantage of her separate estate.
    A mortgage {given by the husband on the paraphernal property of the wife, with her renunciation, the paper title to which he has acquired by a series of probate proceedings, resulting in a sale of the property, at which he became the purchaser, can not be enforced after the sale made by the order of the probate court has been declared null. In such a case, the possession of the property is restored to the wife, unincumbered by the mortgages which the husband had placed upon it, even though tho wife had made a renunciation of her rights in the act of mortgage itself.
    APPEAL from the Seventh Judicial District, parish of Pointe Coupée. Miller, J.

      Cooley & Philips, for plaintiff and appellant. Thomas S. Eeiues and Lea, Finney ds Miller, for defendant and appellee.
   Taliaferro, J.

This is an injunction suit. Ledoux, a creditor of Ovide Lejeune, having a mortgage by authentic act, containing the pact de non alienando, obtained an order of seizure and sale of the tract of land and plantation mortgaged by Lejeune, but which, at the time of the seizure, was in the possession of Levy, the plaintiff in injunction, who thereupon enjoined the sale, on several grounds, the principal of which are, that he is the Iona fide and legal owner of the property seized, which never belonged to Lejeune, and consequently that he could not grant a valid mortgage upon it.

The defendant in injunction denies tho allegations in the plaintiff’s petition, asserts title in Ms debtor to the property mortgaged, and prays a dissolution of the injunction, with twenty-ñve per cent, damages, and costs, etc.

The court below dissolved the injunction, at the plaintiff’s cost, but without awarding damages.

From this judgment the plaintiff appealed.

The plaintiff purchased the property from Margaret C. Deeuir, wife of Arthur Levy, on the twenty-sixth of June, 1865. Margaret Deeuir had been the wife of Ovide Lejeune, but was divorced from him, and contracted a second marriage. She derived from the successions of her father and mother a large and valuable property in the parish of Póinte Coupée, consisting of several tracts of land, a sugar plantation and á number of slaves. There was a marriage contract entered into at the time of her marriage, and in that act it was declared that all the present and future property of the wife, should be dotal. The debts of the succession of her parents, compared with the means in hand,were unimportant.

Lejeune set about to divest the property of its dotal character, by the machinery of an administration, inventory and sale, at which he became the purchaser. During this apparent ownership, he executed the mortgage which Ledoux is aiming to enforce.

Sirs. Levy, after her divorce from Lejeune, instituted proceedings to set aside the acts which he had resorted to ior the purpose of changing the character and condition of the property, and in this she was successful. The suit she brought for this purpose was finally decided by this court, in August, I860. See 15 An. 569.

The decree then rendered, and the proceedings subsequently taken under it, in the court of the first instance, such as the putting of Mrs. Lejeune in possession of her property, etc., are in evidence in the case before us. The principal inquiry in the ease is, did the annulling of the sale made under the forms of law, reinstate Mrs. Lejeune’s property free from the mortgage executed by her husband, in favor of Ledoux ? Lejeune’s pretended purchase of the property took place on the twenty-second of May, 1850, and he mortgaged it to Ledoux on the thirty-first of the same month; and on the same day, his wife executed an act renouncing all her rights on the property, in favor of the mortgagee. For ought that appears in the record to the contrary, Ledoux seems not to have been aware of the fatal defects inherent in his mortgagor’s title.

And here it is contended, and with apparent platisibility, that, having made a formal renunciation of her rights on property ostensibly belonging to the community existing at the time between herself and husband, she should not be permitted to perpetrate a wrong upon the mortgagee, by reclaiming the property free from the mortgage, and that her vendee is in no better condition than she is; that on the public records stood the probate, proceedings, by which it appeared that, in due course of law, the property in question was sold, and that Lejeune became the purchaser, and that Ledoux was not required to look beyond that title. Also, that his mortgage was of record, and therefore notice to Levy of the incumbrance under which he purchased.

But the answer to this is, that the wife could not be made the instrument to inflict injury upon herself. It is not pretended that a cent of this large sum of money, borrowed from Ledoux, was to go to the use or benefit of her separate property, or in any manner to benefit her. The property mortgaged was hers. It was dotal property. She could not affect it in any manner, on account of debts contracted by her husband. The law is express that, “the wife, whether separated in property by contract or by judgment, or not separated, can not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.” C. C. article 2412. The renunciation of rights on her own property was utterly null. If the records showed an apparent title in the husband, and the mortgagee was not required to look beyond, that title, he, as a prudent man, should at least lidve seen that that title was a good one. The records equally showed the marriage contract, and that contract constituted the property dotal, which was duly recorded.

The various acts, making up a showing of title in the husband, were a mere tissue of fraud, elaborated by the semblance of judicial proceedings. But the appliances of the law can not be used to inflict wrong, or to render fraud successful.

It has been frequently decided by this court that the simple denial of the wife that she derived benefit to her separate estate from acts oi any kind signed by her with her husband, is sufficient to put the creditor upon proof that the debt contracted by the act inured to her advantage. In this instance, the wife made, in the usual form, a renunciation of her rights of legal mortgage, etc., on the property mortgaged. The act can not be construed as a ratification of the husband’s pretension to ownership of the property mortgaged. She was not estopped thereby; for, if she were, the fraud of her husband would be consummated, and the protection extended to her by law would be rendered nugatory.

This case illustrates the reason upon which the protection of married women’s rights is founded. ■ Here, a large estate is inherited by the wife; a marriage contract it entered into, by which it is declared to be dotal. It is thus made exempt from sale or mortgage during marriage, except in particular cases, specially provided for by the Code. But this prohibition against the sale or mortgage of this property is sought to be evaded by indirection.' The debts of the successions from which the wife derived the estate, were comparatively insignificant. No necessity existed for the sale of property to pay these debts; and yet the husband, with fraudulent intent, takes out letters of administration on the estate, sells the wife’s property, buys it himself, and then executes a mortgage upon it to secure the payment of a large debt of his own contracting, and on account of which the wife has derived no benefit whatever.

In the case of Mary J. Bisland v. Provosty et al., decided in 1859, 14 An. 169, our predecessors entered at considerable length into a review of the laws and jurisprudence of the State in regard to the rights of married women. In that case, the husband mortgaged, as his own, a large property, consisting of land and slaves, when, in fact, more than half the eighty slaves mortgaged were the separate property ■of his wife. Subsequently she declared, by authentic act, that she ratified and confirmed the mortgage in all its parts, without exception or reservation. The mortgagees having to resort to their rights of mortgage to enforce payment of the mortgage debt, issued execution. The husband made a surrender, under the insolvent laws, but did not include the slaves which were the separate property of the wife. All the mortgaged property, however, went into the hands of the syndic. Against him, the wife, having resumed the administration of her paraphernal estate, brought suit to recover that portion of the slaves which were her own property. The creditors objected that the wife, having admitted the slaves in controversy to be the property of her husband, was estopped from denying it; that her conduct had been deceitful and unfair, not to say fraudulent, and that she had thereby deprived herself of the right to ask relief from the court. The court, however, thought differently, and so decided, after commenting upon the different grounds of defense, which were thought unavailing, in view of tho true position occupied in the eye of the law by the plaintiff.

The case now before us for determination, is one, in our opinion, far stronger in favor of the wife than the one just referred to. See 9 L. R. 580; 12 An. 852; 13 An. 2; C. C. 2337, 2320, 2412 ; 5 An. 173; 7 N. S.; 7 An. 294; 12 R. 84. Also, the cases of Provosty v. Demoulin, 14 An., and Paschal v. Sauvenet, 1 An. 429.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the injunction sued out by plaintiff be perpetuated, and that he have judgment in his tavor, the defendant and appellee paying-costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Wyli, J.

license: Public Domain

text:
    No. 2706.
    L. A. Barrow et al. v. Heirs of A. Bird, deceased.
    A. bequest in iavor of slaves is null, and can not be enforced by the legatees against the heirs.
    The Jaw of 1857, which prohibited the emancipation of slaves, applied as well to the heirs as to the testator; and the act of tho heirs, in confirmation of the clause in the will directing the emancipation of tho slaves named as legatees, was without legal effect, on account of its being in contravention of a prohibitory law.
    APPEAL from Fifth District Court, parish of East Baton Rouge. Posey, J.

      While & Robertson, for plaintiffs and appellants. S. P. Ph'eeves, and A. 8. Herron, for defendants and appellees.
   Wyli, J.

The petition alleges that Abram Bird departed this life in I860, leaving a large estate, and three heirs at law; that previous to his death he made and executed his last will and testament in form nuncupative by public act, wherein, after providing for his heirs at law, he donated to each of the two petitioners the sum of eight thousand dollars, which said particular legacies, they claim, were intended for their sustenance.

The petition further represents that said will provided for the emancipation of the petitioners, who were then slaves of said Abram Bird, and enjoined on the executor to cause their enfranchisement, with the right of remaining in the State, as soon as it could be done under the laws thereof.

That immediately after the death of said testator, his heirs renounced all their right to hold the petitioners in slavery, and acquiesced in and confirmed the particular legacies left to them. That they also took immediate possession of all the property of said succession, accepting the same, purely and simply, and made a voluntary extrajudicial partition thereof among themselves; but they left the legacies to the petitioners unpaid. The prayer of the petition is for judgment against the legal heirs jointly for the amount of said special legacies, and for the recognition, and an enforcement, of the legal mortgage which they claim on all the immovable property belonging to Abram Bird at his death.

The defendants pleaded in bar of recovery, that the plaintiffs are the issue of an adulterous concubinage between their father, Abram Bird, and the mother of the petitioners, who was his slave at the time; and, as such, they could not inherit his property; also, that the plaintiffs were the slaves of Abram Bird at the time of his death; and, under a prohibitory law of the State, then in force, could not be emancipated either directly or indirectly; and, occupying that status, they were absolutely incapable of inheriting his property by donation causa mortis, or otherwise.

The court gave judgment, dismissing the demand of the plaintiffs as of nonsuit, and they have appealed.

It is unnecessary to examine the bills of exception taken to the introduction of evidence, showing that the petitioners are the adulterous bastards of Abram Bird, nor is it necessary to consider the proposition that the heirs can confirm and ratify a bequest to the adulterous children of their father. He being prohibited from giving beyond sustenance to his adulterous children could not ratify his own illegal act, while his legal heirs, not being prohibited from giving to the adulterous issue of their father, might bind themselves by ratifying a bequest which he had no right to make. Indeed, from the view we have taken on another point, we consider it unnecessary to pass on the evidence and the authorities bearing on the plea that the plaintiffs being adulterous bastards of the father, can not partake of his estate. The other plea that the plaintiffs wore slaves at the time of Abram Bird’s death, by law prohibited from being emancipated and incapable of inheriting, seems to ns conclusive of the case. There is no doubt that they were his slaves, indeed they allege it in their petition. There is no doubt that the act of 1857, in force and effect at the time of Abram Bird’s death, absolutely prohibited the emancipation of slaves, the prohibition applying to the heirs as well as to the deceased. So far as the act of renunciation or confirmation by the heirs emancipated the plaintiffs from slavery, it was a mere nullity, being made in contravention of a prohibitory law.

Parties can not ratify their own act done in contravention of a prohibitory law.

The plaintiffs occupying the status of slaves under a law forever forbidding their emancipation, were utterly incapable of receiving legacies from Abram Bird or any one else. However unjust and reprehensible the conduct of the heirs of Abram Bird towards the plaintiffs may appear, and however barbarous the statute of 1857 may appear, we can not give the plaintiffs the relief which they seek at our hands. We have no other discretion than to administer the law as we find it.

It is therefore ordered that the judgment of the court a qua be affirmed with costs.

Rehearing refused.


author: Ltjdeling, C. J.

text:
    No. 2581.
    John S. Seely v. O. L. Blanchard et al.
    Defendant purchased slaves at succession sale, for which he gave his promissory notes; at their maturity plaintiff loaned defendant a sufficient amount to pay them, for which defendant gave his note; defendant applied the money, thus obtained, to the payment of the original notes for the purchase of the slaves; plaintiff brings suit on the note, to which the defendant opposes the plea of a slave consideration. The evidence shows that the consideration of the last note was loaned money: Held — That the plaintiff must recover; that the fact that defendant applied the money loaned to the payment of the slave notes, did not entitle him to the benefit of the plea of a void consideration.
    APPEAL from Third District Court, parish of Lafourche. Train, J.

      Bush <& Goode, for plaintiff and appellee. Belcher & Beattie, for defendants and appellants.
   Ltjdeling, C. J.

This suit is instituted on a promissory note. The defense is, that the consideration of the note has failed, being the prico of slaves.

The evidence in the record shows that one of the defendants bought slaves at the sale of the property of the succession of John L. Seely,, and for the price they gave three notes’in favor of John S. Seely,administrator, dated March 3, 1859; that after the notes matured the defendants, not being able to pay them, made an agreement whereby the plaintiff (who was the administrator of the succession of J. L. Seely) paid the said three notes; and the defendants executed the note in suit for the money advanced for their benefit by the plaintiff, and the three notes given to the succession were delivered to the defendants. The plaintiff swears positively that the note sued on was given for money loaned by him to defendants. The evidence sustains the judgment of the district court.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 1495.
    Louis Trost v. Moses Fox and Henry Weber.
    JN'o appeal lies from a judgment not signed by the judge a quo. C. P. 516; 3 An. 62; 12 An. 756.
    APPEAL from Fourth District Court, parish of Orleans. Théard, J.

      W. W. JTcmdlin, for plaintiff and appellee. J. J. P. Planchará, for defendants and appellants.
   Ludeling, C. J.

The record in this case shows that the judgment ■appealed from is not complete — it is not signed by the district judge. Code of Practice, art. 546; 17 La. 485; 4 R. 52 ; 3 An. 62; 12 An. 756.

It is therefore ordered that the appeal be dismissed, at the cost of the defendants and appellants.

Rehearing refused.


text:
    No. 2546.
    Rosette E. Storrs v. Edward Thompson et al.
    An appeal does not lie from a judgment not signed by the judge a quo.

    APPEAL from Fourth District Court, parish of Orleans. Théard, J.

      John A. Groio, for plaintiff and appellant. John McKee, for ■defendant and appellee.
   Ludeling, C. J.

The appeal in this case is premature; the record shows that the judgment appealed from has not been signed.

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


author: Howell, J.

text:
    No. 2603.
    John Chastant v. Leon Strong.—P. Ramirez v. J. Gonzales et al.
    •A twelve months’ bond, given by the purchaser of property at sheriffs sale, being an unconditional obligation to pay money at a specified time, is prescribed in five years from maturity.
    APPEAL from District Court, parish of Assumption. Beauvais, J.

      LeBlanie & Poise, for plaintiff and appellant. Bush & Goode, for defendants and appellees.
   Howell, J.

The question in this case is, whether or not a twelve months’ bond, given by the purchaser of property at sheriff’s sale, is prescribed by five years.

It is a written obligation to pay a person therein named, absolutely -and unconditionally a certain sum of money at a time specified therein. The additional stipulations refer only to the remedy or means of • enforcement in case of its non-payment at maturity.

It is within the class of written instruments declared, in the case of the Bank of Louisiana v. D. P. Williams and wife, 21 An. 121, to be prescribed as promissory notes.

It is therefore ordered that the judgment appealed from be reversed, ■and that the injunction sued out by Pierre Ramirez herein be perpetuated, with costs in both courts.


author: Taliaferro, J.

text:
    No. 2239.
    David Grant v. R. C. Hyatt et al.
    In this case it appears from the evidence, that A & B owned the Pelican mills in partnership; that in operating said mills they were commercial partners; that O, a third party, loaned A, one of the partners, an amount of money for the use and on account of the partnership, and to be paid by the partnership funds. 0 brought suit against the partnership for the amount of money loaned, and A, one of the partners, confessed judgment. Execution issued on the judgment thus confessed, and the mill, the partnership establishment, was seized. B, the other partner, enjoined the sale. Held — That the judgment having been confessed by one of the partners, for a partnership debt, before the dissolution thereof, the sale of the partnership property could not be restrained by injunction taken out by the other partners.
    APPEAL from Fourth District Court, parish of Orleans. Théar'd, J.

      T. A. Barilette, for plaintiff and appellant. Breaicx & Benner, for defendant and appellee.
   Taliaferro, J.

The defendant, Hyatt, having seized under a writ of fieri facias the establishment called the “ Pelican Mills,” the plaintiff restrained the sale of the property by a writ of injunction, which is the basis of this action. He avers that neither he nor the Pelican mills owe Hyatt any thiDg, and that the proceeding had its origin in a conspiracy and fraud between tbe latter and McGibbon, a party Laving an interest in tbe mills, to injure tbe plaintiff.

In the court below the injunction was dissolved, and the plaintiff .appealed.

The case depends mainly on questions of fact. These seem to be:

Birst — Was there a partnership between Grant, the plaintiff, and McGibbon; and, if so, was the partnership a commercial one ?

Second — Was the partnership dissolved at the time McGibbon confessed judgment in the suit of Hyatt against Grant and McGibbon, and upon which judgment the fieri facias issued 1

Third — Was the money furnished by Hyatt to go for McGibbon’s part of the capital to be furnished by him upon entering into the partnership with Grant, or was it simply money advanced to the partnership to enable it to buy lumber 1 •' '

We tbinlr the evidence fully establishes that a partnership existed between Grant and McGibbon. The latter had purchased the undivided interest of Young, a former partner of Grant in the establishment. Grant, although denying a partnership between himself and McGibbon, says, in his own testimony: “in regard to profits tobe made, my arrangements with McGibbon was not particularly mentioned. There was to be a division of tbe profits between us ; they were to be equally divided.” He acknowledges to the witness Lousse, that McGibbon was his partner in the mill. McGibbon in bis testimony, says: “ The profits and losses were to he divided in equal parts between us; the association was verbal.” It is also shown that 'the business carried on was principally that of buying lumber in tbe rough state, planing and dressing it, and selling it in that condition. The partnership was therefore a commercial one. 3 Rob. 130 j 6 An. 709 j 11 An. 615.

It seems that this establishment did not do a thriving business for . want of means to carry on the business advantageously. Young, the former partner of Grant, sold out his undivided interest in the mills for the reason that there was a want of capital to make the business profitable.. Hyatt, the defendant, furnished money at different times, for the establishment, and for the repayment of which he sued Grant and McGibbon; and in this suit, McGibbon confessed judgment against the partnership. Grant labors to establish that the money furnished by Hyatt was furnished to McGibbon, and was McGibbon’s share of capital to be furnished by him. Upon the books of the establishment the several sums of money advanced by Hyatt are placed to McGibbon’s credit, under the head of capital. Hyatt’s name does not appear upon the books either as creditor or debtor. There is an irreconcilable discrepancy between the round assertions of Grant, in his own testimony, and the statements of McGibbon in his. The former asserts that McGibbon told him he liad twenty thousand dollars, for which he was getting no interest; that McGibbon was first to put in $3000, and then $3000 more in a few days. He states that McGibbon put in $2000, and that it was paid in lumber bills to Chandler, Delmas and Griffin. McGibbon says that this statement of Grant in regard to the twenty thousand dollars is false, and that he never told Grant that he would puf in $2000, and in a few days after $3000. He say^s : “ I never promised to furnish any capital; I told him that if the business proved successful and paid well, by May I would let him know what I would do.” McGibbon, it seems, was induced to purchase Young’s interest in the mills at the solicitation of Grant, with whom he was on terms of intimacy, having boarded in his family for a number of years. Previous to the purchase of Young’s interest in the establishment, McGibbon had loaned Grant money to assist him in his operations. He states in his testimony that after purchasing Young’s interest Grant expressed himself grateful to him for releasing him from his embarrassments with Young, and said that he would devote all his time and attention to the mill without making any charge for his services, the profits to be equally divided between us. Both McGibbon and Hyatt state that they were ignorant of the entries on the books being placed to the credit of McGibbon. We think it entirely clear that Hyatt, upon the credit of McGibbon, advanced money for the benefit of the partnership ; he expected to get his money back out of the proceeds of sale of the planed and prepared lumber. That this was the understanding, it seems plain from the fact that for one of the bills of lumber purchased through Hyatt, the latter was reimbursed by partnership funds paid to him by Grant ; and that Grant afterwards, as the active partner of the concern, when called upon to pay the other advances made by Hyatt, made no objection to doing so, but promised to pay them as soon as he was in funds, and afterwards proposed to Hyatt to mortgage his interest in the mill to secure the payment of $1600 of the debt due to Hyatt.

There was no written instrument showing the terms of the partnership. It is not shown that McGibbon was to furnish any amount as capital to be put in by him. Through the credit alone which he gave the partnership it was enabled to procure money to carry, on its operations, and we think the evidence warrants the inference that McGibbon was influenced, in part, in going into the copartnership, by considerations of personal regard to Grant. Though not the business man of the concern, yet he procured the advances so much needed, and it is shown that there were frequent conferences between himself and Grant in relation to the partnership.

It is argued that the partnership was dissolved before the suit was brought against it, and consequently, that McGibbon was without authority to act for it, and that his confession of judgment in the suit of Hyatt against the partnership, was null and without effect.'

We do not find from the evidence that the partnership was terminated before the suit of Hyatt was instituted. Some dissatisfaction on the part of McGibbon in regard to the affairs of the establishment prior to that time, and some intimations of an intention on his part to withdraw from it are shown; but there is nothing showing a dissolution previous to the suit being brought. McGibbon says that the establishment was not closed until October, 1867, and the engineer, Halley, stated as a witness, that the last time he saw Grant purchase lumber was six or eight months previous to the time he testified, which was in the early part of June, 1868.

A careful examination of the evidence does not satisfy us that there is error in the judgment appealed from.

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


author: Wyly, J.

text:
    No. 1976.
    John Thomas v. W. C. Darden.
    In a case like this, where the defendant, the keeper of a public warehouse, received a lot of cotton on storage, and gave a receipt therefor, it is not sufficient excuse for non-delivery, when demanded, for him to show that soldiers were encamped near where the warehouse was situated, and that it was commonly believed that they and the freedmen were stealing cotton; that the back door of the warehouse could easily have been forced open at night, and the cotton taken out, and then closed again, without being discovered in the daytime.
    It seems that a warehouse keeper will be held responsible for the loss of property stored, in all cases where he fails to show that the loss occurred without his fault.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J,

      Rcm&olph, Singleton & Browne, for plaintiff and appellant. Hays & Heio, for defendant and appellee.
   Wyly, J.

The plaintiff has appealed from a judgment rejecting his demand for the value of seventeen bales of cotton, being a part of a lot of eighty-one bales stored by him in the warehouse of the defendant. at West Point, Georgia, in October, 1865, which the defendant failed or refused to deliver to him with the balance of the lot, in January, 1866.

The petition is based upon the receipt of the defendant, who kept a public warehouse at West Point, Georgia, when the cotton was deposited with him. It is as follows:

Received from John Thomas, eighty-one square bales cotton, marks, etc., as per margin, subject to this receipt, or to order, on paying customary charges and all advances (casualties excepted).

[Marks — 1 in a triangle, Nos. 1 to 81; weight, 42,553.]

“ October 10, 1855.

(Signed) “W. C. Darden.”

This suit was begun by attachment, the defendant, a non-resident, having sufficient property in the hands of the garnishee to satisfy the demand of the plaintiff.

The defendant pleaded the general denial, and, further answering, averred that the cotton which he failed to deliver to the plaintiff was stolen from his warehouse, although he used all the care and diligence in the protection thereof that the most prudent administrator could, or that the law requires, and that the loss is in no manner attributable to his fault or neglect.

The plaintiff has fully proved that he deposited the cotton on storage with the defendant; that the latter failed or refused to deliver the seventeen bales of cotton, although demanded so to do, at the time the balance of the lot was delivered, and that the missing cotton was worth the amount claimed by the plaintiff.

A careful examination of the evidence fails to satisfy us that the defendant used proper diligence in preserving the property stored in his warehouse. He can not escape liability upon the vague and general statements of witnesses that soldiers wore encamped near where the warehouse was situated, and that it was commonly believed that they and the freedmen were stealing cotton; that the back door of the warehouse could easily have been forced by the soldiers, who were encamped near by, and cotton could have been taken out at night, and the door replaced so that it could not be discovered in the daytime. It was the duty of the defendant to have examined Ms doors to see that they were safe, and to have examined the cotton stored within, to ascertain whether it was being stolen, especially as reports were rife of the extent of depredations of the character practiced at the time.

It appears in the evidence, that when the delivery was made of the remaining part of the cotton, and when the whole lot was demanded, no statement was made to the owner that the cotton was stolen; indeed, it was months after before any excuse that the cotton was stolen was set up.

That the defendant so long remained in ignorance that the property confided to him had been stolen, satisfies us that he was at least very neglectful; that he did not watch and protect his premises with ordinary prudence; and we think, therefore, that the plaintiff should not suffer by his fault.

We think the defendant has failed to adduce any satisfactory proof that the cotton was actually stolen; at best, it is only probable. He certainly has not exercised the diligence of a faithful custodian, and should be held responsible for the loss he has occasioned to the plaintiff.

In Schwartz, Kauffman & Co. v. Marx Baer, 21 An. 601, it was hold that, in order to avoid liability for the loss of cotton on storage, the warehouse keeper must show that the loss occurred without his fault. He can not be relieved by showing that the loss occurred by an overpowering force. He must also show that he used all proper means to-prevent it.

It is therefore ordered that the judgment herein be annulled, and that plaintiff have judgment against the defendant for $3393 78, with five per cent, per annum interest from the thirteenth day of January, 1866, and all costs to be paid, with attaching creditor’s lien, out of the property attached herein.


author: Wtlt, J.

text:
    No. 2691.
    Joseph Hoy v. E. A. Scott.—Louisa M. Scott, Succession of William Silliman, J. B. McWilliams and Joseph Hoy, third opponents.
    In a suit to settle tlie rank of mortgages, if the claim of ilie third opponent did not originate until after the other judgments were rendered and recorded, he can neither contest the reality of the judgments, nor the validity of their consideration. In a contest of this character, evidence is not admissible on the part of the third opponent to show that the consideration of the judgment, which was recorded before the existence of his own claim, was-for the sale of slaves.
    APPEAL from Fifth District Court, parish of East Feliciana. Posey, J.
    D. 17. Wedge and Muse á Philips, for third opponent, appellant. Me Vea & Hunter, Oross & Hardee, and Pace c£- Poster, for appellees.
   Wtlt, J.

This is a contest between the creditors of E. A. Scott for the proceeds of the sale of his plantation and two mules, which were sold on twelve months’ credit, under the mortgage of Joseph Hoy, with the agreement that all parties would litigate their rights to the funds arising from said sale represented by the twelve months’ bond, on. third oppositions.

Joseph Hoy, the holder of the mortgage under which the property was sold, contends that the claims of Mrs. L. M. Scott and J. B. McWilliams have been extinguished by payment, and the judgment of William Silliman against the defendant, E. A. Scott, is based upon a note given for the purchase price of slaves, and that the same can not be enforced, being against public policy and in violation of article 128-of the constitution.

The executors of Sillimau contend, that, as the judgment in favor of said succession was rendered before the claim of Hoy came into existence, he can not attack or question the reality of the consideration thereof; they also plead the prescription of one, two, three and four years, 'in bar of a revocatory action.

J. B. McWilliams claims a preference on the funds arising from the sale of the mules, on account of his vendor’s privilege thereon. Mrs. L. M. Scott claims a preference on the funds, above all the other creditors, on the ground that her judgment against her husband, E. A. Scott, recognizes her legal mortgage on his property from the first ot January, 1853; that she also owns the Gottinger judgment, which became a judicial mortgage on the property of her husband from the nineteenth of February, 1866, the day of its registry. The court below decreed that the funds in dispute should be distributed:

First — To the payment of the judgment of Mrs. Scott against her husband;

Second — -To the Gottinger judgment owned by her;

Third — To the judgment of William Silliman;

Fourth — To the judgment of Joseph Hoy.

It further ordered that the claim of McWilliams be allowed for two hundred and fifty dollars, to be paid by preference, as vendor, out of the proceeds of the sale of the mules.

Joseph Hoy, the plaintiff and third opponent, has appealed.

Our attention is directed to the bill of exceptions taken by the executors of William Silliman to the introduction of evidence by Joseph Hoy to show that the original consideration of the note forming the basis of the judgment of William Silliman v. E. A. Scott, was for the price of slaves.

The objection to said evidence is:

First — ¡That on the issue formed on the third oppositions, filed for the purpose of regulating the distribution of the funds in the hands of the sheriff, the validity of the judgment of one party can not be questioned collaterally, and that it can only be attacked by a direct action.

Second — That on the issue presented, the evidence is irrelevant, because the plaintiff, Joseph Hoy, became a creditor subsequent to the rendering and recording of the judgment of Silliman v. Scott, and that any revocatory action, even if this be considered one, is prescribed by one year.

We think the evidence should not have been received. That Joseph Hoy can not contest the reality of the judgment or the validity of its consideration, it having been rendered and recorded before the existence of his own claim. 10 An. 564; 6 An. 89 ; 2 An. 174.

The plea of payment as to the judgments of Mrs. Scott and McWilliams is not sustained by the evidence.

We see no error in the judgment.

Judgment affirmed.

liehearing refused.


text:
    No. 2421.
    Juan Garcia y Mora v. G. W. Avery, Sheriff, et al.
    .A party holding: merchandise under a simulated sale, can not defeat the rights of a seizing creditor hy the writ of injunction. In such a case, if the sale is shown to be simulated, tho injunction will be dissolved, with damages, in solido, against the principal and surety on tho injunction bond.
    If tho judgment of the court below, dissolving the injunction, is affirmed on appeal, it will bo so amended, on prayer to that effect, as to embrace the surety on the bond, who will be condemned, in solido with the principal, in damages for enjoining the sale on a simulated title.
    APPEAL from, the Fifth District Court of New Orleans. Beaumont, J.

      Sambola & Hueros, for plaintiff and appellant. Hornor & Benedict, for defendants and appellees.
   Taliaferro, J.

Cohen & Wilson, having obtained judgment against Canales for $941 85 with interest, proceeded, under fieri facias, to seize directly, as property of Canales, a stock of merchandise in the house No. 50 Royal street.

The plaintiff in this action obtained an injunction, inhibiting the sheriff and the seizing creditors from selling the property, alleging himself to bo the bona fide owner and possessor of the stock of goods seized, and claiming damages against the defendants for the annoyance and injury caused by tbeir illegal acts.

The answer is a general denial of all the plaintiff’s allegations, and contains a prayer for twenty per cent, damages, ten per cent, interest, and one hundred dollars attorney’s fees.

The court below dissolved the injunction, and gave the defendants twenty per cent, damages on the amount of the judgment enjoined.

The plaintiff has appealed.

We find no error in the judgment. The evidence establishes, beyond a reasonable doubt, that the pretended sale from Canales to Garcia was a mere simulation, and intended to screen his property from the pursuit of his creditors. It is shown, hy the plaintiff’s own evidence, that Canales, the defendant in execution, was in possession of the store No. 50 Royal street, and carrying on business there, as he usually had, when the seizure was made, except that he held himself out as the plaintiff’s clerk. He had occupied that stand, as a business place, for many years previous. His own declarations, previous to the pretended sale to Garcia, show that it was his intent to do an act of this kind. The presumtion of simulation, in this case, is, from all the testimony, so strong that it must prevail against all the evidence adduced on tho part of the plaintiff. 12 R. 146; 5 An. 1; 10 An. 29; 13 An. 207; 11 L. R. 269.

The plaintiffs move, in this court, that the judgment of the lower court he amended- so as to include tho surety on the injunction bond, and that he be condemned, in solido with the principal, to pay the amount adjudged against the latter.

It is therefore ordered, adjudged and decreed that the judgment of the lower court he amended so as to read as follows: It is ordered

that the injunction herein issued he dissolved, at plaintiff’s costs, and that the defendants, Cohen & Wilson, do have and recover, in solido, from plaintiff, Juan Garcia y Mora, and Jose Garcia Barres, his surety on the injunction bond, twenty per cent, damages on the amount oí the judgment herein enjoined. Itis ordered that plaintiff pay costs in both courts.


author: Ludeling, C. J. Howe, J.,

text:
    No. 2663.
    Stephen Duncan v. John N. Helm.
    In a contract made between parties residing in Mississippi, by which notes and mortgage aro given on property situated in Louisiana, to be entirely executed in this State, the question of usury must be governed by the laws of Louisiana, where the contract is to have effect.
    Tho act of 1860, abolishing the penalties in the act of 1854 (re-enacted in 1855), against usurious contracts, only relieved parties from such penalties for making usurious contracts attar its passage. It is not retrospective, and has no effect on usurious contracts made before its passage.
    Payments made on obligations must be applied to that which is lawfully due, and not to usurious interest; and where an over payment of the debt due has been made, excluding the unlawful interest, it may be reclaimed by the debtor, if demanded within one year.
    APPEAL from Thirteenth District Court, parish of Tensas. Hough, J.

      Farrar <& Beeves, for plaintiff and appellant. Aroni & Collier and Semines & Mott, for Helm, defendant. Mayo <& Spencer, for Mrs. Staunton, defendant, appellees.
   Ludeling, C. J.

This case was before the court in 1869, and it was remanded in order to make the heirs of the plaintiff (who had died before judgment in the district court) partios to the suit.

The plaintiff sues to recover the amount of a note, $9750, less $5000 paid, and the amount of another note for $9000, with eight per cent, interest per annum after their maturity, respectively, to wit: first of January, 1861, and first of January, 1862.

The defenses sot up are, prescription and usury. Citation in this suit was served on the nineteenth of March, 1866. The note due January, 1861, was therefore prescribed (if it had not been paid); the other note was not. In order to determine whether or not the contract is usurious, it is necessary first to ascertain if the contract is governed by the laws of Louisiana, or by those of the State of Mississippi.

Tho evidence shows that both parties to the contract resided in the State of Mississippi. John N. Helm applied to Stephen Duncan, in tho State of Mississippi, for a loan of money, in 1854, and the following letter was the result:

“My Dear Sir — I inclose memorandum of several notes for your signature; when returned to me with the mortgage, I will give you my hill on New Orleans, payable first of January, 1855, for thirty thousand dollars.

I inclose a letter authorizing Col. Shaw to accept the mortgage for me. If this loan will be any accommodation to you, it will give me pleasure to have been the means of procuring it for you. * * * The loan to you absorbs every dollar I have, or expect to have, for investment for others this winter. Please fill trp the blanks for dates of notes. I have made it December, because I thought this would give you full time.

“I am yours, Stephen Duncan.

“Natchez, November 23, 1854.”

The evidence shows that Helm owned property in Louisiana and in Mississippi, and that, when he applied for the loan, he had offered Duncan choice of property as security for the loan.

In pursuance to the suggestions contained in the letter above mentioned, Helm went to Louisiana, executed the mortgage and notes in Louisiana, and delivered them to Col. Shaw, the person delegated by-Duncan to accept the mortgage and take the notes. It appears from the letter of Duncan that the money was paid on the bill of Duncan in New Orleans. The notes bear date in Tensas parish, Louisiana, and are made payable at the Bank of Louisiana, in New Orleans, and they are secured by mortgage on lands situated in Louisiana. It seems clear that the contract was intended to have effect in Louisiana, and the courts of Louisiana are invoked to enforce it.

Article 10 of the Civil Code declares: “ The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.”

The notes and mortgage were executed in Louisiana, and the form and effect of these written instruments are governed by the law of Louisiana. But even if the agreement entered into in Mississippi could be regarded as the contract whereby the money was loaned to Helm, (and this we can not assent to), still it was to have effect in Louisiana; and the second section of article ten of the Civil Code declares that: “The effect of acts passed in one country, to have effect in another country^, is regulated by the laws of the country where they are to have effect.” 11 Martin, 23, Vidal v. Thompson ; 17 La., Beirne & Burnside v. Patton, 589; Hawley v. Sloo, 12 An. 815; Hughes, Hyllested & Co. v. Kleingender Brothers, 14 An. 845.

The contract must be governed by the act of 1844, re-enacted in 1855. That act declares that the amount of conventional interest shall not exceed eight per cent, per annum, under pain of forfeiture of the entire interest. If, then, the contract stipulated for more than eight per cent, per annum interest, that stipulation was an absolute nullity, because it was prohibited by law. C. C. 12; Eevised Statues, 267.

The memorandum accompanying the letter of Duncan, already referred to, is as follows:

“Loan or $30,000.

One note, payable first of January, 1856..................$ 3000 00

One note, payable first of January, 1857.................. 3000 00

One note, payable first of January, 1858.................. 3000 00

One note, payable first of January, 1859.................. 3000 00

One note, payable first of January, 1860.................. 10,500 00

One note, payable first of January, 1861____•.............. 9750 00

One note, payable first of January, 1862 .................. 9000 00

One note, payable first of January, 1863.................. 8250 00

“Notes to be dated in the parish of Tensas, made payable in New Orleans, and secured by mortgage on lands and negroes in the parish; the mortgage to bo executed and recorded at the expense of the borrower.”

It is evident that the sum, $49,500, for which the eight notes wore given, was made up of the thirty thousand dollars loaned, and ten per centum per annum interest on the different installments. This does not seem to be disputed. But it is contended that “ the act of 1844 is a penal statute, enacted to punish usury,” and that the Legislature had the power to abolish, and that it did abolish, the penalty against Usury, by the act of I860; and that this act was retrospective in its operation.

In other words, a contract which was a nullity in 1854, when it was made, is said to have been made valid by the act of 1860. Article 8 Civil Code declares that “ a law can only prescribe for the future; it can not have a retrospective operation,” etc.

Neither the act of 1856 nor the act of 1860 gave vitality or validity to contracts which were void before the passage of said laws. 12 An. 222, Merville v. LeBlanc ; 15 An. 329, Crane v. Beatty ; 15 An. 395, Weaver v. Maillot.

The payments made by the defendant must be applied to the extinguishment of the debt lawfully duo, that is, the principal, and not to the usurious interest. 12 An. 660; 13 An. 233; 18 An. 714; 9 Iowa 383; 32 Miss. 142; Troplong, Prescription vol. 2, p. 405, No. 827.

The last payment of $8250 having been made within one year previous to the reconventional demand in this case, the defendant is entitled to recover what he has paid over the debt due, $30,000. Statute of 1855, p. 352, sec. 3.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.

Howe, J.,

dissenting. I am unable to concur in that portion of this decree which gives judgment on the reconventional demand. It seems to me that the amount paid for usury should be deemed to have been pro rata on each note, and that all that the defendant can now recover is the amount of interest thus paid by him within twelve months prior to the date of the filing of the reconventional demand.

Rehearing refused.


text:
    No. 739.
    Alexander Moncheux v. J. J. Mistrot & Co.
    Tho judge of the court a qua may, in the exercise of a sound, discretion, refuse a continuance, on the application of one of the litigants, to obtain answers to interrogatories, where the interrogatories themselves are manifestly frivolous, and intended for delay only.
    An agent can not relieve himself from responsibility for moneys which he has collected for his principal by showing that he has invested them in the purchase of cotton for his own account, with the sanction of his principal. He must show, in addition, that he has turned over the cotton to the principal, or that the principal has authorized him to retain it.
    APPEAL from the Third Judicial District, parish of Iberia. Train, J.

      PePlane <& Perry, for plaintiff and appellee. Ddivard Simon, for defendants and appellants.
   Taliaferro, J.

The plaintiff brought this suit aginst the firm of J. J. Mistrot & Co., to recover from them $1097 50, which he avers defendants, as his agents, collected for him, and failed to account for.

On trial of the case below, the plaintiff had judgment for $647, with five per cent, interest from the first of July, 1867, the date of judicial demand, and the defendants appeal.

We find a bill of exceptions in the record, which will first be noticed. The defendants filed interrogatories to be propounded to a witness residing in Texas, and moved the court to continue the case to take the answers of the witness. The plaintiff’s counsel objected, on the ground that the interrogatories were trivial, and the second one obscure, and not explanatory of' the evidence which it was pretended was sought after. There were two interrogatories. The first purports only to learn from the witness who composed the commercial firm of J. J. Mistrot & Co. The interrogatories, it seems, were propounded by J. J. Mistrot himself, as it appears, one of the firm.

The court, in our opinion, in the exercise of a sound discretion, very properly refused to continue the case as required by defendants, their object being plainly for delay onjy.

The facts, briefly, are, that the plaintiff, in the year 1860, being about to leave the State, for Prance, appointed the commercial firm of J. J. Mistrot & Co. his agents to collect certain moneys for him during his absence. On his return, it is in evidence, that the acting prominent partner of the firm informed the plaintiff that he had invested the money that ho had collected for him in cotton, and that the plaintiff approved the proceeding.

It is a principal ground of defense that this was a ratification of the agents’ act. But he produced or showed to the plaintiff no cotton that he had purchased for him. Mistrot, it appears, was engaged, with several others, in cotton speculation, but these operations were all conducted in his own name. A portion of the cotton he purchased he had, it seems, to sue for, and the suit was brought in his own name.

The plaintiff, upon requiring a settlement, was informed that he was in debt $54, in consecraence of losses and expenses which resulted from the speculation.

It is clear, to our minds, that the plaintiff, when he answered, very well,” to the information given him that his money had been invested in cotton, expected to receive cotton. There is no evidence that he sanctioned the speculation, or was in any manner a party to it.

It appears from the record, and from the statement of Mistrot himself, that he received, on account of the plaintiff, from several persons, different sums, amounting in all to $1097. At different times he paid over sums, making in the aggregate $450. This amount was deducted by the court below from the sum collected, and it gave judgment in favor of the plaintiff for the remainder,- $647, with legal interest from judicial demand.

The judgment, we think, was properly rendered.

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

Rehearing refused.


text:
    No. 735.
    Jean Abadie v. Aline Frechede, Tutrix.
    An action for a settlement of a partnership can not be maintained, if the evidence fails to establish the existence of such partnership.
    A PPEAL from Eighth District Court, parish of Vermilion. Porter, J.
    il. Joseph A. Breaux, for plaintiff and appellant. Daniel O'Bryan, and Jf. P. Girard, for defendant and appellee.
   Wyly, J.

The plaintiff sues for a settlement of the partnership which he alleges, existed between him and his brother Louis Abadie, deceased, who was the husband of the defendant, and whose succession she represents. He also sues to recover a sum of money, which he alleges the deceased owed him. The defendant pleaded the general issue, and also the prescription of three and five years.

There was judgment for the defendant, and the plaintiff has appealed. An examination of the evidence satisfies us that there is no error in the judgment. The plaintiff has failed to establish the partnership. It was his duty to make his case certain, not probable. As to the indebtedness or the demand claimed, the prescription pleaded is applicable.

Let the judgment appealed from be affirmed, with costs.


author: Howe, J.

text:
    No. 740.
    The State of Louisiana v. Ernest M. Ferray
    Tbe capacity of a sheriff, duly commissioned and acting as such, can not bo tested or inquired into collaterally on a motion to quash a venire of jurors. 21 An. 513.
    In th s case the petit jury was regularly drawn, and a list thereof was served on the accused three days before the trial. On tho day of the trial, when the jurors were called, it appeared •that six or seven of the number had not been iound by the sheriff, alter diligent search, and that those who failed to answer to their names had been legally excused for good and valid cause shown: Held — That a sufficient number, from among the bystanders, to fill out tue panel, were properly summoned as talesmen.
    The statute of 1868, relative to juries in all the parishes of the State, except that of the parish of Orleans, repealed all former statutes on that subject, whether of a general or local character Acts of 1868, Ho. 110, page 143.
    APPEAL from the District Court, parish of St. Landry. King, J.

      George W. Hudspeth, District Attorney, for the State. Henry L. Garland, for defendant and appellant.
   Howe, J.

The accused in this case was indicted for murder, was tried and found “guilty without capital punishment,” and, having been sentenced to imprisonment at hard labor for the term of his natural life, has appealed.

The objections to certain testimony admitted by the judge a quo have been abandoned, and a plea in bar founded on an alleged repeal of the statute relative to murder will not, we premuse, be insisted on since the recent decision of this court in the case of State v. Brewer. 22 An. p. 273.

The remaining points made by the appellant arise from a challenge to the array of jurors, aud from objections to the manner of drawing talesmen.

Mrst — On the first day of the term the defendant moved to quash the venire of jurors, on the ground that it was not drawn according to law, not having been drawn, selected, or summoned by James G-. Hays, sheriff of the parish of St. Landry, but by James M. Thompson,, (or his deputy or deputies,) styling himself sheriff of St. Landry.

The record teems with evidence that at the time the jury in question was selected and summoned by James M. Thompson, he was the sheriff de facto of the parish of St. Landry. He was in possession of the office. He was recognized by the judge a quo. He was the minister of the court in which the jurors were summoned to appear, and to which the bill of indictment was reported. He was thus acting under color of title, under a commission from the Governor of the State, and it can not be successfully contended that his legal right to the office can be collaterally inquired into or attacked upon a motion to quash a venire of jurors. The rule in this regard is elementary, and hardly requires a citation of authorities in its support. It is a rule established in the interest of peace, quiet and good order, and we are unable to-perceive any reason why the prisoner should not be held amenable to it. Turner v. Hill, 21 An. 543, and cases there cited.

Second — The appellant objected to the organization of the petit jury by whom he was tried, on the ground that at the time it was rmpanneled certain persons who had been summoned did not answer to their names, and the judge a quo ordered a sufficient number of talesmen from the bystanders to complete the jury. It appears by the bill of exceptions that the objection was overruled, “ for the reason that a list of jurors had been properly served on the prisoner three days before the trial, according to law; that six or seven of the above jurors had not been found in the parish by the sheriff after diligent search, and that the remainder (of those who did not answer to their names) had been excused for good and valid reasons; that the prisoner was not entitled to have a special' venire summoned, but that a sufficient number were to be selected from the bystanders; and that the prisoner had no ground of complaint, as he had accepted ten jurors before the regular panel was exhausted.”

We do not think the court erred in this ruling. It is sometimes necessary for the speedy and proper administration of justice that talesmen should be resorted to, and the reasons which appear by the bill of exceptions to have been given by the judge a quo seem to entirely sustain Ms action in the premises.

It is contended by the counsel of the appellant that the statute of March 3, 1860, relative to the drawing of jurors in the parish of St. Landry, is still in force and ought to have controlled this case; and that, as its provisions were not complied with, the jury was unlawful.. We find ourselves unable to assent to this view. The statute in question was a local one, adapted to a state of society and a qualification of citizenship which no longer exist, and the mode of procedure in-case of the panel being exhausted was founded upon the same condition of things. The statute was evidently repealed by the law of 1868, relative to juries in all the parishes of the State, save the parish of-Orleans, by the fifth section of which the use of talesmen is specially recognized and their compensation established. Laws of 1868, p. 143.

Judgment affirmed.


text:
    No. 738.
    The State of Louisiana v. Charles Walker.
    It is not necessary in an indictment for larceny of money, to specify the kind or denomination of the gold or silver coin alleged to have been stolen. The simple averment of “money *' in snch a case will admit proof of the amount. Eevisecl Statutes of 1856, p. 176, § 88
    In this case the indictment declares that the accused took money, and that its value was one hundred and fifty dollars: Held — That this averment placed the accused on his guard, and. that his plea of guilty admitted the truth of the averments.
    PPEALfi'om the District Court, parish of St. Landry. King, J.

      George ilf. Hudspeth, District Attorney, for the State. H. T.. Lewis, for defendant and appellant.
   Howe, J.

The defendant was indicted for the the larceny of “ certain money, to wit: One hundred dollars in gold, five dollars in silver, and forty-five dollars in currency, the property of Dr. Allen Bridges.”

He pleaded guilty, but before sentence filed a motion in arrest of judgment. The motion was overruled; he was sentenced to imprisonment at hard labor for six months, and has appealed.

He has assigned for error, apparent on the face of the record, that the hind or denomination of the gold or silver money is not described, in the indictment; that no value of the articles stolen is alleged or-shown; and that “ currency ” per se, is not susceptible of larceny under-the laws of Louisiana or the common law.

Kir si — It is not necessary in an indictment for larceny of money to specify the hind or denomination of the gold or silver coin, as claimed, by appellant. ' Whatever may have been the rule at common law, it is, provided by our statute relative to criminal proceedings that it shall be sufficient to describe such money simply as “ money,” without specifying any particular coin; and that such allegation as far as regards-the description - of the property shall be sustained by proof of any amount of coin. Revised Statutes, 1856, p. 176, sec. 88.

Second, — It is an error on the part of the appóllant to say that no value of the articles stolen is alleged or shown. If such allegation' and proof be necessary where no distinction is made between grand and petit larceny, (and, as to this, it is unnecessary to' express an opinion), the requirements of law are fully met in this case, the defendant was fully placed on his guard, for the indictment declares that he took money, and that its aggregate value was one hundred and fifty dollars, and his plea of guilty admits the truth of these averments,

Third — It is unnecessary to pass on the third point that “ currency' is not a subject of larceny. The averments and plea relative to the gold and silver money sufficiently sustain the sentence imposed by the court a qua.

Judgment affirmed.


text:
    No. 698.
    Armas Gillard v. Placide C. Huval.
    • Parol testimony is admissible to show the consideration of a promissory note,
    Payments that have been made, after emancipation, on notes given for slaves and personal property before emancipation, will be imputed to that portion of the debt which is ascertained to be for the personal property; that being the most onerous, and in fact the only pari of the debt that is exigible at all.
    APPEAL from Third District Court, parish of St. Martin. Train, J.

      Gary & Fournet, for plaintiff and appellee. DeBlane & Berry, for defendant and appellant.
   Wyly, J.

This is a suit on a promissory note, the defense to which is its slave consideration.

The court gave judgment for the plaintiff for the amount of the note, less a credit of $340, paid on the fifth of November, 1865; and the defendant has appealed. An examination of this case satisfies us that the judgment is erroneous. It was competent to prove by parol the consideration of the note. The hill of exceptions was not well taken.

There is no doubt that the consideration of the note was the balance due by the defendant in the partition of a succession to which he was called with his coheirs, which was part slaves and part personal property — the slave part of the lot drawn by the defendant being valued at §5450, and the other property being valued at $1182 72. The note evidences the amount, the lot drawn by the defendant, exceeded that drawn by the payee under the doctrine settled in Sandidge v. Sander-son, 21 An. 757. The note is only exigible for that part which was not for slaves, the proportion thereof being about $203.

This amount was extinguished by the payment of $348, made on tho fifth of November, 1865. This part of the contract being then more onerous, and, indeed, the only part exigible, the payment should be imputed to it under tbe law then in force. We therefore think that there is nothing due the plaintiff under the constitution and settled jurisprudence of this State.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that there he judgment for the defendant, plaintiff .paying all costs.


author: Wxlt, J.

text:
    No. 697.
    Ethan Allen v. John Tarlton et al.
    Payments made before emancipation, on a debt contracted for the sale of a plantation and slaves, discharge the debt pro tanto. But that which is found to be due after emancipation can only-be enforced for that portion which is not for slaves, in the proportion that each bears to the entire debt. Sandidge v. Sanderson, 21 An. 757.
    A mortgage debtor can not be allowed, in defense, to a proceeding to enforce the mortgage rights, to urge the plea of domicile in bar of the proceedings in rem.

    •Credits placed on promissory notes must, in computing the amount still due, be applied first to the extinguishment of the interest due at their respective dates.
    APPEAL from District Court, parish of St. Mary. Gates, J. A. L.

      Tuelcer, for plaintiff and appellee. McMillan & Mossy, Gibbon & Wilson, and Olivier & JDumartrait, for defendants and appellants.
   Wxlt, J.

In December, 1856, the plaintiff, Ethan Allen, sold to Mrs. Elizabeth McWaters, in the parish of St. Mary, two tracts of land, nnd about twenty-eight slaves, the purchaser paying ten thousand dollars cash, assuming certain mortgage notes of her vendor, and executing to him a series of promissory notes for the balance of the price; also, executing a mortgage on the property to secure the ■deferred payments.

A few months after her purchase, Mrs. McWaters sold the same property to John Tarlton for $75,000, who paid $10,000 in cash, assumed his vendors liabilities existing on the property, and for the balance executed his promissory notes, securing the credit part of the X>rice by special mortgage on the property bought, and also ou certain •other property which he owned. This action is based on the last note of the series executed by Mrs. McWaters to Ethan Allen, aud assumed by John Tarlton. In it the plaintiff seeks to recover a personal judgment against each of the defendants; and also to render executory the mortgage given by Mrs. McWaters and the mortgage given by John Tarlton. Mrs. McWaters pfteaded in defense, the slave consideration of the note, and Tarlton pleaded an exception of domicile; and, in event it should be overruled, pleaded the general issue.

The court gave judgment for the amount claimed against the ■defendants, except Tarlton, who did not reside in the parish, and rendered both mortgages executory. The defendants have appealed.

It appears from the evidence, that the slaves embraced in the purchase of Mrs. McWaters from Ethan Allen, were worth $28,300, and the other property was worth $21,700; that all the installments of that purchase have been paid, except the note in suit, which has several ■credits indorsed thereon; that all these payments were made prior to emancipation. By the law then in force, they must he regarded as discharging pro tanto the debt — there being neither legal nor conventional imputation.

Under the doctrine of Sandidge v. Sanderson, 21 An. 757, the debt must he apportioned, and judgment can only he had for that proportion thereof which was not for slaves.

The position taken by John Tarlton to escape judgment in rem, is ingenious but not sound. His exception of domicile was not passed on prior to trial on the merits. It was considered only in the judgment on the merits. He was present and gave evidence at the trial, and it would be strange if the judge could not render executory the mortgage granted by him, on account of the exception of domicile which saved him from the consequences of a personal judgment also. We think the plaintiff was clearly entitled to have judgment against the property hypothecated by Tarlton; and that, as to him, there is no error in the judgment except as to amount. In the note before us the several credits should be applied to the interest which they extinguish up to the first of January, 1863, at which date the interest will begin on that part of the debt ascertained not to be for slaves, which we estimate at $4200.

It is therefore ordered that the amount of the judgment be reduced $4200, bearing interest at eight per cent, from first of January, 1863, and as thus amended, that the judgment of the court below bo affirmed. It is further ordered that plaintiff pay costs of appeal.

Rehearing refused.


text:
    No. 710.
    Charles M. Conrad v. Gustave A. Callery.
    The maker of a promissory noto who enters into an agreement with the holder, whereby he obtains an extension of the time of payment, with a promise to pay interest, is preclude! thereby, from setting up that the holder is not the owner thereof! Such agreement, it is true, does not change the real title to the paper, but it bars the maker from contesting the ownership with the holder.
    Where a partnership exists, the partners have no cause of action against each other for a specific sum resulting írom a partnership transaction, until there has been a settlement of the partnership, nor can the maker of a promissory note oppose a claim which he holds against the partnership of which the holder of the note is a member.
    In a suit on an obligation given for a mixed consideration, part land and part slaves, that portion which is ascertained to be for slaves will be deducted from the entire amount of the contract, and judgment will be given for the balance. But in case payments hive been made before emancipation, the amount will be credited ratably, that is, in the proportion that each bears to the entire contract. Sandidge v. Sanderson, 21 An. 757.
    APPEAL from Third Pistriot Court, parish of St. Mary. Train, J.

      O. M. Conrad & Son and Tuclcer & Davis, for plaintiff and appellee. DeDlano & Derry, for defendant and appellant.
   Wyly, J.

The plaintiff, claiming to be the holder and owner of two certain mortgage notes made by the defendant, sued him to recover a personal judgment, and to foreclose the mortgage.

The defendant admitted the signature, but specially denied “ that the plaintiff became tbe owner of said notes for a good and valid consideration, inasfiiuch as, to his knowledge,"those notes were, as they now are, the property of the- insolvent estate of W. T. Palfrey, and subject to the following deductions:

First — Three thousand dollars, being the value and price of two negroes, named Charles and Granaville, represented at the date of said sale as being slaves for life, and the property of William T. Palfrey, which price is included in the amount of the notes herein referred to.

Second — Six hundred and fifty dollars, being one-half the price ol ten mules purchased by respondent for the benefit of the partnership which then existed between Palfrey, Callery and Segur, and paid for by Callery and Segur.

Third — Five hundred dollars, being one-half of the price of carts and oxen purchased for the aforesaid partnership and paid for by and with the funds of Callery and Sigur.

Fourth — Two thousand five hundred dollars, being one-half of the improvements put upon the land of William T. Palfrey, clearing said land and growing crop; * * * and that, long before the notes sued upon passed into plaintiff’s possession, they were subject to the deductions of three thousand six hundred and fifty-five dollars, being the amount paid by Callery and Segur for William T. Palfrey, as before stated, which payments extinguished by compensation an equal amount of the notes sued upon. The defendant amended his answer, and alleged that, ever since the maturity of said notes, he has been ready and willing to pay, and has often offered to pay, the balance he justly owes on the same, “ but that the pretended owner of said notes and the administratrix of Palfrey’s estate have refused to accede to his proposition; and, by that unlawful and arbitrary course, have made him suffer damages in an amount equal to the interest which has accrued on the notes sued upon by plaintiff and to the fees of the attorneys he was compelled to employ, which fees are fully worth $500, and, together with the interest on the notes, ought to be deducted from the amount of plaintiff’s claim.”

The court gave judgment as prayed for, except as to the slave part of the debt, which was deducted from the whole debt, and ratably apportioned in the paid and unpaid.installments.

The defendant has appealed.

As to the defense, that the plaintiff is not the owner of the notes, we think the defendant is precluded from denying it, not only by the averments of his amended answer, but by the agreement he entered into with the plaintiff, on the twenty-fifth of January, 1866, in which an extension of three years was stipulated for, and he promised to pay him ■ the interest. It is very true that no act of the defendant, the maker of the notes, can operate a divestiture of title, or give the plaintiff the ownership of the notes, which he did not otherwise possess, but by his judicial averments and by his- contract with the plaintiff, the defendant is precluded from denying it.

The compensation pleaded by the defendant can not be maintained-He seeks to oppose to this demand the claim of Callery and Seguí against the partnership of Palfrey, Callery & Segur. It has often been held, by this court that partners have no cause of action against each other for a specific sum resulting from a partnership transaction, until there has been a settlement of the partnership. Sewell, executor, v. Cooper, 21 An. 582 ; Succession of Dolhonde, 21 An. 3.

If the defendant would have no cause of action against Palfrey, the payee, for a specific sum resulting from a partnership transaction, he certainly can not oppose that claim to the notes held by the plaintiff herein; besides, the claim set up is not equally liquidated and demand-able. C. C. 2205.

In reference to the slave part of the debt, we think the view taken by the judge a quo correct. See Sandidge v. Sanderson, 21 An. 757, and subsequent decisions on this subject.

In reference to the plea filed in this court that, ponding this litigation, the inscription of the mortgage has perempted by failure of plaintiff to reinscribe it within ton years, we will remark that, if the plea be permissible, of which we express no opinion, the proof of its correctness does not appear “ by the mere examination of the record,” C. P. 902; and we, therefore, can not give it effect. From the view we have taken of the case, it becomes unnecessary to examine the other defenses and the bill of exceptions taken by the defendant. The plaintiff asks for damages for frivolous appeal, and we think they should be awarded him.

It is therefore ordered that the judgment appealed from be affirmed, and that the plaintiff recover of the defendant one hundred and fifty, dollars damages and costs.

Rehearing refused.


text:
    No. 676.
    Marie T. Castille v. N. and W. Offutt.
    Ihe holder of a note given for land and slaves can only recover that portion which is ascertained to he for the land predicated on the entire price of the sale. Sandidge v. Sanderson, and Satterfield v. Spurlock, 21 An. 757, 771.
    APPEAL from the District Court, parish of St. Landry. Bailey, J.

      Dupre & Garland, for plaintiff and appellee. John B. King & Kstilette, for defendant and appellant.
   Howe, J.

This action was brought to recover the last installment of ten thousand dollars, due on the purchase of .a plantation and slaves, and the evidence has satisfied us that the value of the slaves was one-fourth of the entire price. The question of law discussed by counsel has been settled in Sandidge v. Sanderson and Satterfield v. Spurlock, 21 An. 757, 771.

The judgment from which the defendants have appealed is erroneous in allowing plaintiff to recover the whole amount of the claim; hut she-is entitled to recover three-fourths.

It is therefore ordered that the judgment appealed from he reduced in amount to the sum of seven thousand five hundred dollars, with interest at eight per cent, per annum from February 4, 1859; that, as. thus modified, it he affirmed, and that the plaintiff pay the costs of appeal.


author: Taliaferro, J. Taliaferro, J.

text:
    No. 708.
    Arpha M. Smith, Widow of S. Smith, deceased, v. Elizabeth McWaters et al.
    If tlie principal obligation, such as a promissory note, be proscribed, tlie mortgage given to' secure its payment falls with it.
    An original holder of a promissory note who has transferred ifc by indorsement, before maturity, can not be held liable, as indorser, unless he receives notice from the holder at maturity, that the maker has failed to pay. But the holder can enforoe the mortgage given by the maker to secure the note.
    A party acliug in the capacity of a general agent is not capacitated to waive notice and protest ol a note indorsed by his principal. Such waiver is not binding on the principal, unless the power to make it is express and special.
    Notes given for land and slaves can only be enforced for that portion which is ascertained to be for the land. And where the evidence in the record fails to show what portion is for land and what ior slaves, the case will be remanded, with instructions to the judge a quo to ascertain, by evidence, the relative proportion of each, and give judgment accordingly.
    APPEAL afrom the Third District Court, parish of St. Mary. Gates, J.

      K. Jf. McMillan and John JS. King, for plaintiff and appellee. Gibbon & Wilson, for defendants and appellants.
   Taliaferro, J.

This suit is brought by the plaintiff against the defendant and husband and John Tarlton to enforce a mortgage against two tracts of land, one of which is in possession of Mrs. MoWaters? and the other in possession of the other defendant, Tarlton.

The defendants severed in their answers. Tarlton’s answer is a. general denial; that of Mrs. MoWaters avers that having passed three of the negotiable notes sued on, by indorsement, before maturity, the plaintiff, by her laches in not having the notes protested when due, and giving notice, she has lost recourse upon the defendant as indorser; that if liable for the debt sued on, it is only to the extent oí her own note, forming part of the price of the land purchased from plaintiff. The judgment of the lower court was in favor of the plaintiff for the amount of the four notes, and decreeing a sale of the tract of land in possession of the defendant, McWa«.ers, who has taken this appeal.

The facts seem to be that in June, 1857, the defendant, Tarlton, bought a plantation and twenty-six slaves from Mrs. Elizabeth MoWaters, at the price of $75,000. Ten thousand dollars were paid in cash. The purchaser assumed the payment of outstanding liabilities against his vendor to tlie extent of forty thousand dollars, and, •besides, executed in her favor four promissory notes — one for $5000; the other three for $6666 66 each falling due respectively on the first-day of January in the years 1858, 1859, 1860 and 1861, with eight per cent, interst per annum from maturity, and gave a special mortgage on the property purchased to secure the payment of the price. Mrs. McWaters subsequently bought a plantation with the stock of cattle, work animals and farming implements upon it, from Homer Smith, for which she gave the four notes of Tarlton, above described, and one note of her own for $872 32. She indorsed the Tarlton notes to Homer Smith and subrogated him to all her rights and action of mortgage upon them. The property thus purchased was declared in the act of sale to be and remain specially mortgaged and hypothecated until the full, entire and punctual payment of said notes, as well as the one given herewith, with all interest that may accrue, etc. It ax>pears .that the note for $5000 was paid at its maturity by Tarlton to Homei Smith, and tliat the latter indorsed over to the plaintiff the other three notes executed by Tarlton and the individual note of the defendant, Mrs. McWaters.

In this court the defendant and appellant pleads against two of the notes sued on the prescription of five years. This plea, we think, should be sustained. The two notes due respectively on the first of January, 1859 and first of January, 1860, were not put in suit until October, 1865 ; the citation being served on the twenty-eighth of that month. Although Mrs. McWaters specially mortgaged the plantation she purchased from Smith to secure the payment of the Tarlton notes, as well as her own, still the principal obligation, to the extent of the two notes prescribed, being extinguished, the accessory right of mortgage to the same extent became extinguished also. Having indorsed the Tarlton notes before their maturity to her vendor, she was entitled -to the right of notice of their dishonor. No protest having been made, and no" notice of non-payment being given, she was released from any personal obligation to pay the Tarlton notes. The plaintiff shows that a brother of the defendant acted generally in business matters as her agent, and that he, acting in that capacity, waived demand, protest and notice. There was no -written authority to this agent to make the waiver, nor any express .power shown to have been given to him, in any manner, to do the act, and we think it void and without effect. 2 An. 418.

We think both the land mortgaged by Tarlton to secure the payment of his notes to Mrs. McWaters, and that mortgaged by her to Homer Smith is hypothecarily bound for the payment of the note of Tarlton due first of January, 1861. The plaintiff is entitled to judgment against Mrs. McWaters for the amount of her individual note with recognition of mortgage upon the land purchased by her from- Homer Smith to secure its payment.

The notes of Tarlton haying been given for both land and slaves, the payment of the one not prescribed can only be enforced to the extent to which the land mortgaged formed its consideration. We find no evidence in the record that enables us to fix the relative value of the huid and slaves mortgaged, and must therefore refer the case to the lower court for further proceedings for that purpose.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the plaintiff recover from the defendant, Mrs. Elizabeth McWaters, the sum of eight hundred and seventy-two dollars and thirty-two cents, with interest at eight per cent, per annum from the first day of January, 1861, until paid, and that the land and plantation mortgaged by defendant to secure its payment, as shown by act passed before James Gr. Parkinson, notary public, of the parish of St. Mary, on the nineteenth of June, A. D., 1857, be seized and sold to pay the said sum and interest and all costs of suit.

It is further ordered that this case be remanded to the court of the first instance, with instructions to ascertain, by competent evidence, the relative value of the land and slaves sold by the defendant, Mrs. Elizabeth McWaters to John Tarlton, and mortgaged by him tó the vendor by act before the aforesaid notary on the sixteenth of June, A. D. 1857, and to fix, ratably, the deduction to be made from the amount of the note hereinbefore referred to as executed by said Tarlton, and which became due on the first of January, 1861.

It is further ordered that the amount legally due on said note being ascertained according to the above instructions, and in conformity with the principles announced in the case of Sandidge v. Sanderson, 21 An. 757, its payment be enforced by seizure and sale of the lands mortgaged, respectively, as aforesaid, by John Tarlton and Mrs. Elizabeth McWaters.

It is further ordered that this case be remanded for the purpose of inquiry into the question of prescription raised by defendant, for the first time, in this court. The plaintiff and appellee paying costs of this appeal.

On Application por Rehearing.

Taliaferro, J.

The application for rehearing is refused. The omission, by clerical error, in the decree, to insert the credit of eighty dollars and eighty cents, to which the note of Elizabeth McWaters for $872 32, dated June 19, 1857, is entitled, and which credit took effect on the first of March, 1862, we now correct, and order, that as thus corrected, the judgment remain unaltered.


text:
    No. 94.
    L. Titche v. Amanda M. Lee, Administratrix, etc.
    The surviving wife has thirty days within which to make a choice between renouncing and accepting the succession of her husband. But after this delay she still has the right of renunciation, which is continuous until she has been compelled by an action to make the choice. Therefore, no personal .judgment can be rendered against her until the action by the creditor, to compel her to make the choice, has been passed upon.
    APPEAL from tile District Court, parish of Franklin. Grawforcl, J.

      Isaac S. Crawford and A. L. Slack, for plaintiff and appellee. II. J?. Wells, for defendant and appellant.
   Howe, J.

The plaintiff instituted this suit against the defendant as administratrix of the estate of her deceased husband, and also asked for a judgment against her personally, upon the allegation that she ‘‘is partner in community, that the notes (in suit) are debts due by tbe community, which existed between the deceased and Mrs. Amanda M. Lee, at the time of their execution, and that therefore she is bound ior one-balf of petitioner’s claim.”

There was judgment for plaintiff upon one of the notes, for the full amount against tlic defendant in her representativo capacity, and for the half thereof individually; and she has appealed.

The succession of Lee was opened in 1863 by the appointment of the defendant as administratrix, and an inventory was regularly made. So far as we can perceive she hasmanaged the estate as administratrix only; and has not, as widow, concealed or made way with any of the effects of the partnership or community of gains. C. C. 2337. But the plaintiff contends that she is personally liable, because, up to the time this action was instituted, she had not renounced the community. It would seem, however, that the surviving wife has the thirty days allowed to a beneficiary heir, to make a choice between renunciation and acceptance. After the expiration of this delay she may be forced, by suit, to make her decision, in the same manner as an heir, and then judgment may be rendered against her personally if she does not renounce. Tiius she has, for thirty days, a right of deliberation, and her deliberations can not be disturbed by the action to compel a choice. But after this delay has expired she still has a right oí renunciation, for, in the action to compel, a judgment is to he rendered against her personally, “ unless she renounces.” The phrase implies a continued power of renunciation. C. C. 2383; C. P. 980, 982. Succession of Bichardson, 14 An. 1.

The pleadings and evidence do not justify the personal judgment appealed from, nor do wo feel authorized in this form of action to render the judgment contemplated in article 2383 C. C.

It is therefore ordered that the judgment so far as it is a persona one against Amanda M. Lee, he avoided and reversed; that in all other respects the said judgment he affirmed; and that the plaintiff pay costs of appeal.


author: I-Iowe, J.

text:
    No. 96.
    C. A. McCay, Wife, etc., v. J. W. Boatner, Husband, et al.
    la a suit by the surviving wife against the succession of her deceased husband, to enforce her paraphernal rights, if the evidence shows that certain lands have been purchased as her separate property, with her separate funds, which she was administering iadependently of her husband, and which had never come under hi3 control, she will he decreed to be the separate owner thereof, although the lands were acquired during the community. Succession of Wade, 21 An. 343, •
    APPEAL from the District Court, parish of Morehouse. Crawford, J.

      S. G. Parsons, for plaintiff and appellant. P. O. Morgan, for ¡ntervenor. Jamies W. Boatner, in person. G. N. Morrison, in person.
   I-Iowe, J.

The plaintiff in this case had judgment for the amount found to he due her by her husband, with recognition of her legal mortgage; hut her demand that certain lands described in the petition should be decreed to be her paraphernal property (though acquired by her during the existence of the community), was rejected, and she has therefore appealed.

The statement of facts upon which the case comes before us, contains the following admission of all the parties:

“It is agreed that the evidence‘establishes that the said property was purchased by the plaintiff, at the time stated, from A. Mclver, as alleged; that it establishes that the title thereto was made in her name, as her separate paraphernal property, for the price of one thousand dollars: that it establishes that the said sum of one thousand dollars has never been in her husband’s possession, nor subject to his control) and that it establishes that it was paid to said Mclver, on plaintiff’s order, by her agents, A. Miltenberger & Co., of New Orleans, in whose hands a large amount of the paraphernal funds of the plaintiff (including the said one thousand dollars), which had fallen to her from her father’s estate, in Mississippi, had been recently deposited by her agents, in Mississippi, subject to her order and under her exclusive administration) and that her father died in the year 1847, in Pike county, Mississippi, leaving a large estate to plaintiff, in money and lands.”

Upon such a statement of facts as this, it seems clear that the judgment is erroneous in not decreeing the lands in question to be the paraphernal property of the plaintiff. It is clearly shown to have been purchased as her separate property, and with her separate funds, which she was administering independently of her husband, and which had never come under his control. Succession of Wade, 21 An. 343, and authorities there cited.

It is therefore ordered that the said judgment, so far only as it rejects the claim of plaintiff to said lands, be reversed; that the following described lands be decreed to be the paraphernal property oí the plaintiff, to wit:

The west half of the northeast quarter, and the northeast quarter oí the northeast quarter of section number thirty-five, containing one hundred and fourteen and ninety-six-one-hundredths acres; also, the share formerly belonging to A. Mclver, and then undivided, in and to the southwest quarter of northwest quarter of section number thirty-six, and the southeast quarter of the northeast quarter of section number thirty-five, all of township twenty-one north, range five east, of the land district north of Red river, which said interest was partitioned between the several owners of the lands held in common by an act passed on the twenty-fourth day of August, 1858, and recorded in notarial book D, pages 547, 548 and 549, of the notarial records of the parish of Morehouse, and amounted, with the said one hundred and fourteen and ninety-six-one-hundredth acres, to one hundred and forty-one acres, more or less; that in all other respects the said judgment be affirmed, and that the appellees pay the costs of appeal.


author: Hoave, J.

text:
    No. 106.
    Bres & O’Brien v. S. C. & J. A. Cowan.—R. W. Faulk, Intervenor.
    The privilege given to a furnisher of supplies attaches to every fibre of the cotton made during the year, as fast as it matures, and a sale, or other disposition, made of any portion thereof, by the planter, will not defeat this lien. Therefore, if the planter has sold or transíorrecl a portion of the crop to the laborers, in payment of their wages in malting the crop, the assignee or transferee of the cotton by the laborers, in payment of a debt they owe, will not enable such third party to hold the cotton in opposition to the claim of the furnisher of supplies.
    APPEAL from the District Court, parisli of Ouachita. Bay, J.

      John Bay, ior plaintiffs and appellees. Morrison & Farmer, for intervenor, appellant.
   Hoave, J.

The motion to dismiss in this case is overruled.

Upon the merits, we find the action to have been commenced by sequestration of twenty-eight bales of cotton upon the plantation of the Cowans, upon which the plaintiffs claimed the privilege of the furnisher of supplies.

The intervenor, Paulk, claimed nine bales of the cotton as owner, and a privilege upon the remaining nineteen bales. The latter claim has been entirely abandoned, and the only question of practical importance before us, is the conflict, as to the nine bales, betweeu the claim of the plaintiffs, as furnishers of supplies, and that of the interven or, alleging himself to be owner.

There was judgment in favor of plaintiffs, and dismissing the intervention of Paulk, and the latter has appealed.

The plantation in question was owned by the defendants in the year 1867, and cultivated by them in cotton. The plaintiffs furnished the supplies on which the suit is brought. The defendants employed certain laborers and agreed to give them, in lien of wages, one-third the gross product of cotton. There was plainly no partnership in this. The plantation was the Cowans; the cotton as it' grew was theirs; the supplies were furnished to them for the crop; and every fibre of the cotton, as it matured, was affected by the privilege of the plaintiffs — for without the supplies the crop could not have been made.

It appears that after the cotton had been ginned and baled the intervenor and the defendants entered into an arrangement which is supposed by the former to have defeated the privilege of plaintiffs as to the nine hales. The laborers were indebted to the defendants for provisions; the defendants, Paulk claims, were indebted to him. The defendants then assigned to Paulk the debt due them by the laborers, and rolled out to the laborers the nine bales as their promised one-third of the crop, and the laborers then turned over this cotton to Paulk in satisfaction of their indebtedness to him as transferee of the claim of defendants. If we concede that there really was a debt due by defendants to Paulk, the effect of all this was to pay a debt of defendants’ with cotton on which the plaintiffs had a privilege of a high character, and we doubt if the rights of plaintiffs could be thus extinguished. But we are not satisfied, even, that there was any claim by Faulk on defendants. He has not established any with that clearness which is demanded by his position as intervenor, and, in the .absence of such proof, ho appears in the case as a party interposed to rescue nine bales of cotton, for the benefit of defendants, from the just grasp of the plaintiffs’ privilege.

There is no question in this case of the privilege of the laborers, inasmuch as their contract was evidently entered into before the act •of March, 1867, by which, for the first time, a privilege in favor of laborers was established.

Judgment affirmed.


text:
    No. 110.
    Pinckard, Steele & Co. v. Wm. Hampton.
    'Tliis is an action to recover on an obligation under private signature, viz: a draft. The defendant, in Ills answer, did not acknowledge, expressly, bis signature, but contended that it was a forgery. Held — That, under this averment in the answer, the inquiry-must be limited to the genuineness of the signature. C. 3?. 324.
    The evidence of one witness “that he was present when the draft was given,” with that of another “that he is very familiar with the signature of the defendant, and believes his signature to the draft sued upon to be genuine,” corroborated by circumstantial evidence given by two other witnesses, is sufficient to establish the signature over the averment of the defendant that it is a forgery. C. 3?. 325.
    APPEAL from the Fourteenth District Court, parish of Richland. Crawford, J.

      Isaac H. Crawford and A. L. Slack, for plaintiffs and appellees. Morrison & Farmer and H. F. Wells, for defendant and appellant.
   Ludeling, C. J.

This is a suit against the drawer of a draft for $634 t5, payable to the order of plaintiffs.

Tbe answer contained a general denial, a denial of any consideration, and an averment that “the signature to tbe draft looks like his genuino signature, but that he believes it to be a forgery.”

The answer further contains interrogatories on facts and articles to ■all the plaintiffs, to substantiate his defense.

Subsequently, defendant filed the plea of prescription of five years. Pleadings are intended to aid in the investigation of truths, in tho •■administration of justice; and courts of justice will not listen with Javor to pleadings which have a contrary object, or which tend to mislead or deceive.

Article 324 of the Code of Practice directs that when the demand is •founded on an obligation, or an act under private signature, which is alleged to he signed by the defendant, such defendant shall be bound in his answer, to acknowledge expressly, or to deny his signature. The next article directs that, if the defendant deny his signature, or con tends that it has been counterfeited, the plaintiff must prove the genuineness of the signature.

The defendant did not acknowledge expressly his signature, and he did contend that it was a forgery. The inquiry should therefore be limited to the genuineness of the signature. This, we think, is abundantly proved. One witness swears he was present when the draft was executed by defendant. Two other witnesses, plaintiffs, say that, “ under false representations on the part of the defendant, the goods were shipped; after they were shipped, the draft sued on was given us by the defendant, with a pledge that he would send us cotton to pay the draft.” And a fourth witness swears that he ‘‘has often seen defendant write his name; that he is very familiar with his signature ; has known him for twenty years; says he believes the signature to the draft sued on to be Win. Hampton’s genuine signature.”

The defendant contends that the law is imperative in requiring that at least two witnesses must swear that they know the signature, because they have frequently seen him write and sign his name. And he refers to two decisions in the 21 An. 148 and 523, to sustain this position.

Those decisions simply affirm that article 325 of the Code of Practice provides how the plaintiffs shall prove the genuineness of defendants’ signatures when they are denied. Neither those decisions nor the Code affirm the doctrine contended for by defendant. In this case, one witness proves the signature, and his knowledge is derived from having been present when the party signed it; another witness proved the genuineness of the signature from his knowledge of the signature of the defendant;, though he did not see him sign the draft in question. We think this a compliance with article 325 of the Code of Practice.

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