text:
    A. Bird, Executor, v. A. B. Vail et al.
    Slaves set free by will are not entitled to freedom until after a compliance with the formalities prescribed by law for the emancipation of slaves- Until these formalities are complied with, they remain slaves, and the heirs and not the executor have a right to the possession ot them and to their services and labor, tfhis possession does not preclude the executor from taking the necessary steps for their emancipation/
    APPEAL from the District Court of East Baton Rouge, Robertson, J. The will has the following clause : “ It is my request that my executors set my girl Jam free, and give her the money of two notes I have, each of one hundred dollars.”

      J. M. Brunot, for plaintiff and appellant. A. M. Dunn, for defendant.
   Campbell, J.

Plaintiff, as testamentary executor of the last will of H. 0. Vail, deceased, sues for the possession of a slavenamed Jane, who was directed by the testator to be liberated. Seizin of the slave is not given to the executor by the will. The defendants, Alexander and wife, disclaim possession, and the latter, who is one of the heirs of the deceased, releases in favor of Jane, any right to her that she may have.

The defendant Vail, who is also one of the heirs of deceased, averring that he has accepted the succession unconditionally, claims that even though the slave be entitled to her freedom under the will, which however he denies, he is entitled to her services, and, consequently, to her possession, until her emancipation shall legally take place.

Judgment was rendered in favor of defendant, dismissing the suit, and plaintiff lias appealed.

This case, in its important features, is not distinguishable from that of Nimmo et al. v. Bonney et al., Executors, 4 R. 179, in which it was in substance held, under a similar bequest, that as the slaves did not become absolutely free by the homologation of the will, but only entitled to their freedom, upon compliance with the formalities prescribed by law for the emancipation of slaves ; until these formalities were complied with, they remained slaves, and the heirs had a right, as against the executors, to detain them in possession, and enjoy their services and labor. The possession of the slave by the heir, will not preclude the executor from talcing all stops, which in law may bo necessary, for her emancipation.

Judgment affirmed, with costs in both courts.


source: Caselaw Access Project

author: Slideiyl, C. J.

license: Public Domain

text:
    R. P. Gaillard v. J. O. Nicolas.
    Person receiving a quit claim, does not thereby acknowledge the party grantingitto be the true owner ot the property; and where it does not appear that the latter was the owner, a judgment against him, not recorded at the time of the quit claim, will not affect the property abandoned,
    a 0. 8926.
    APPEAL from the District Court of the Parish of Lafourche Interior. Bole, J.

      0. A. Johnson, for plaintiff and appellant, J. 0. & A. Beatty, for defendants.
   Slideiyl, C. J.

The plaintiff holds a judgment against Joseph Nicolas, recorded in August, 1841, and seeks to enforce his judicial mortgage upon certain slaves, and a tract of land in the possession of the defendant.

The tract of land in question, has one arpent front on the right bank of the Lafourche, by about forty in depth.

The plaintiff bases his alleged right of judicial mortgage, as to this tract of land, upon the fact, that in 1886, J. Nicolas executed under private signature to his brother, the defendant, a quit claim of all his interest in this tract — tous mes droits et tontos mes pretentions sur une terre, &c., which act was not recorded until October, 1841, after the registration of the plaintiff’s judgment.

It does not appear that Joseph Nicolas ever had a valid title to this tract. All we know of his interest is deducible from the face of the deed of quit claim; and at the time of the sale, and before, J. 0. Nicolas was in possession of the tract. By accepting this quit claim under such circumstances, J. 0. Nicolas cannot be considered as acknowledging Joseph Nicolas as the owner of the tract at the time of the sale; and we are therefore not able to say that there is error in the judgment below, refusing the plaintiff the right of enforcing on this tract a judgment not recorded at the time this quit claim was made. See Civil Code, Art. 3296.

A judicial mortgage upon the slaves is claimed upon similar grounds, to wit, that on the 2d July, 1836, by two acts under private signature, not recorded until 12th October, 184T, Joseph conveyed them to his mother and the defendant. But it also appears, that on the 12th October, 1841, there was also recorded a conveyance by the mother and brother, of the same slaves, with other property, made by private signature, and bearing the same date, 2d July, 1836. The way in which those private writings came to be recorded was this: The attorney of plaintiff had charged the brothers with simulation, and Joseph Nicolas voluntarily produced the private writings, which had been signed in duplicate, and gave them to the attorney, who had all three recorded. The evidence shows that these slaves were in the possession of J. 0. Nicolas and his mother, previous to the signing of these private writings, and have so remained ever since. Parol evidence was offered by the defendant, to show the reason of these conveyances, and the circumstances under which they were made, but the plaintiff resisted in the court below any explanatory evidence by parol, and insists it should be disregarded here. He rests his claim to a ju'dicial mortgage upon the ground, that the execution of these two conveyances to the defendant and his mother, amounted to an acknowledgment on their part of title in Joseph Nicolas, on the 2d July, 1836, and that the conveyance is inoperative against his judicial mortgage, which ho says attached upon the slaves by its registry before those private writings were recorded.

But in our opinion, this position cannot be maintained upon these instruments, coupled as thojr are with the fact, that the conveyance of the same slaves by his mother and brother to Joseph, bear date the same day and were recorded simultaneously, and that the possession of his brother and mother continued after the sale. These three instruments, all bearing date the same day, are to bo taken as parts of the same transactions; and while they show divestiture from J. 0. Nicolas and his mother, of the ownership of this and other property on the 2d of July, 1836, they also show an immediate reinvesti-turo of part of the property thus convoyed, to wit, the slaves, in J. 0. Nicolas and his mother respectively; two of the slaves and their children being con-yeyed to the former, and one slave with her children to the latter. Thus, by a simultaneous transaction, the title passed to, and immediately from Joseph Nicolas there was no continuing estate vested in him upon which, five years subsequently, the judicial mortgage could operate; and so far as the registry law is involved, the record which exhibited a transient investiture of the title in him, showed, at the same time, its simultaneous transmission to those from whom he received it.

The plaintiff was, however, entitled to exercise his judicial mortgage on the interest in a portion of the slaves which, as admitted, Joseph subsequently acquired by inheritance from his mother; and as his claim, even to that extent, was resisted by the defendant, we see no reason to change the judgment below as to costs, from which the appellee, in his answrer to" the appeal, asks to he relieved.

Judgment affirmed, with costs of the appeal, to be paid by the plaintiff,


author: Campbell, J.

text:
    C. C. Macon v. G. G. & J. L. Willson.
    "Where the fact of agency appeared from documents on file in a case, and the proof of it would not surprise, it may be proved although not alleged.
    Where the inquiry is as to the validity of title to slaves, or the authority of the agent to sell them, parol proof cannot be received as to the agency; but the inquiry being whether in a transaction adopted by the plaintiff, which he is estopped to deny, the defendant acted as attorney at law, for the law firm of which he was a member, or as the attorney in fact of the plaintiff, parol proof is admissible.
    O. P. 89, 129.
    APPEAL from the District Court of the Parish of Carroll, PerTdns, J.

      M. Pitbose, for plaintiff. Stacy & Sparrow, and B. P. GlarTc, for defendant and appellant.
   Campbell, J.

■ Plaintiff seeks to make defendants liable, in solido, as partners in the practice of law, for $583 33, with interest thereon, at the rate of ten per cent, per annum, from January 1, 1847, an amount by them collected, as is alleged, and never paid over.

The defendants sever in their defence; George G. Willson, pleads the general denial, and his co-defendant, J. L. Willson, opposes to plaintiff’s right against him, the exception of domicil, and pleading over, with reservation of his exception, denies generally the allegations of plaintiff’s petition, and averring, further, that he has paid plaintiff all that is due him, claims judgment in re-convcntion for $500, for professional services rendered.

An agreement was entered Into by the parties, that the case should he tried on the merits, and that the exception of domicil need not be passed upon, until the question of G. G. Willson's liability shall he decided; the defendant, J. L. Willson, expressly reserving his right to urge his exception at any stage of the proceedings.

Judgment was rendered in favor of the plaintiff, condemning defendants to pay the sum claimed in solido, from which judgment this appeal has been taken.

In 1843, defendants, then practising law as partners, as attorney of the present plaintiff, instituted suit for him against Willson and others, in the District Court of Carroll, and obtained judgment thereon in May, 1844. In this suit, certain slaves were sequestered. Before the rendition of judgment, (viz., Nov 1, 1843,) J. L. Willson, acting as the attorney in fact of plaintiff, entered into a written contract with one Bailey, by which it was agreed that, at the said of the sequestered slaves, plaintiff would purchase them and sell them to Bailey, on certain terms of credit and for a price stipulated. That this contract, made by the attorney in fact of plaintiff, was consummated, and the whole proceeding under it assented to by plaintiff, cannot be doubted; for we find that on the 5th of December, J. L. Willson, acting as the attorney in fact of plaintiff, accepted for him from Bailey, a mortgage on the slaves who had been sequestered to secure the notes in conformity with the agreement of November 1st. That Bailey paid the notes as they became due, to J. L. Willson, as attorney in fact, who in the same capacity released the mortgage in favor of plaintiff. It further appears from the acknowledgment of plaintiff, that the two first in-stalments of the debt were paid over to him by J. L. Willson, and this suit is brought to recover the amount of the third, which he alleges defendants collected, but failed to account for.

From the act of mortgage annexed to plaintiff’s petition, from the release of the mortgage thereon endorsed, and from the written agreement of the sale of slaves found in the record, it appears that in all things after the judgment in the first suit, J. L. Willson acted alone, and in his capacity as attorney in fact of plaintiff not as his attorney at law. Nor does it appear, that during the transaction of this business, the style of the law firm was ever used, or that G. G. Willson was in anywise connected therewith, except as one of the counsel in the original suit. The contract entered into with Bailey, out of w'hich the alleged liability results, was such a one as an attorney at law could not lawfully enter into under his general powers.

If any doubt existed with regard to the position in this matter of G. G. Willson, it would bo removed by the testimony of Bailey, a -witness for plaintiff, and the maker of the note, the amount of which is sued for, who says: “I never knew George G. Willson in the transaction. The whole business was transacted with me by John L. Willson, as attorney in fact. I paid him said note in his said capacity as attorney in fact.”

To the introduction, however, of so much of the testimony of this witness as relates to the agency of J. L. Willson, plaintiff excepted. The objections are substantially, that parol proof of an agency to sell slaves is inadmissible. 2d. Because no agency was alleged in the answer, and its proof would therefore be a surprise to the plaintiff.

That a party will not be permitted to prove -what is not alleged, lest his adversary should be surprised, is true, as a general rule; but the facts of this case do not warrant the application of it, contended for. The agency, as has been seen, is set forth in the act of mortgage in plaintiff’s favor, and annexed to his petition as part of his evidence. It was accepted by J. L. Willson, as the attorney in fact of plaintiff, and the institution of this suit can but be regarded as a ratification of the contract, and consequently as a recognition of the quality of the agent by whom it was made. Evidence of the agency, therefore, could not have surprised him. Ory v. Winter, 4 N. S. 277. Lauson v. Ripley, 17 La. 238. Freerson v. Irwin, 5 Ann. 531. Waterman v. Gibson, 673.

Indeed, the capacity in which J. L. Willson acted, fully appears on the face of the instrument, concerning which plaintiff' himself interrogated the witness Bailey.

If the question before the court had involved an inquiry as to the validity of title, or the authority of the agent to make the sale, the objection to the proof of such agency by parol alone, would have been well taken ; but the inquiry being whether, in a transaction adopted by the plaintiff and which he therefore is estopped from denying, the defendant acted as attorney at law for the law firm, of which he was a member, or as the attorney in fact of the plaintiff, parol proof was, we think, properly received.

In view of all the facts, we think that judgment was improperly rendered against the defendant, G. 0. Willson. Touching the liability of J. L. Willson, for the full amount of the debt claimed, there can be no doubt; yet we are constrained to withhold, in the present action, the judgment prayed for against him.

He filed in limini litis, the exception of domicil, and though the case was tried as to him on the merits ; by express agreement, it was stipulated, that he should not thereby lose the benefit of his exception, but should be permitted to urge it at any stage of the proceedings.

The petition was filed in the District Court of Carroll, 10th of March, 1852, and makes no averment of the then residence of this defendant. Citation was served upon him in the parish of Ouachita, on the 5th of April following, and it is admitted that he removed from the parish of Garoll to the parish of Oua-chita in the fall of 1840, since which time, ho has never been a resident of Carroll. C. P. 89, 129.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed; and proceeding to render such judgment as in our opinion should have been rendered by said court, it is further decreed, that, as regards the defendant, G. G. Willson, plaintiff takes nothing by his action, and that there be judgment in favor of said defendant for the costs of suit. It is further decreed, that the exception of domicil, filed by the defendant, J. L. Willson, bo sustained, and that the suit, as to him, be dismissed without prejudice. The costs of both courts to be paid by plaintiff and appellee.


author: Ogden, J.

text:
    L Desobry & Sons v. J. Carmena.
    The hypothecary action may be prosecuted by resort to the executory process, in those cases in which it is allowed, and where the property can be directly seized in the hands of the third possessor, but if it cannot be seized because the third possessor refuses to deliver it up, the hypothecary ere ditor may proceed by an ordinary action to compel him to deliver it up, or pay the amount for which it stands hypothecated. O. P. 08.
    In the hypothecary action, if the plaintiff prove that the property subject to the mortgage was once in the defendant’s possession, it then rests on the defendant, in order to discharge himself from the obligation of either delivering it or paying the debt, to show in what manner he has parted with the possession — if he has sold the property, he is no longer liable, and the creditor must pursue itin other hands; but, if it continues in his possession, or under his control, he must either pay the debt, or deliver it up.
    APPEAL from the District Court of Bast Baton Rouge, Robertson, J.

      S. Matthews, for plaintiff. J. IF. Seymour, for defendant and appellant.
   Ogden, J.

This suit commenced by executory process, to enforce a judicial mortgage on property in the hands of defendant as third possessor. The plaintiffs, ia their petition, alleged, that Nanay Hady, against whom they had obtained and recorded a judgment, had transferred, by notarial act, to the defendant, a negro woman named Ann, who, while her property, was affected by their judicial mortgage, and prayed that the defendant might be condemned to deliver up the negro to bo sold in satisfaction of the judgment, or in default thereof, that he be condemned to pay the amount of the judgment and interest. The order of the Judge, on this petition was, that defendant should deliver up the mortgaged property within ten days, to be sold to satisfy the plaintiffs’ judgment, and that in default of so doing, execution should issue against him for the amount of the judgment and interest. On tho writ which issued, the Sheriff returned that ho had demmdod the negro woman from the defendant, who replied, that she was not in his possessionand that after diligent search she could not be found in the parish. The plaintiff then caused an execution to issue against the defendant, under which the Sheriff seized other property, and this execution having been enforced, the proceedings under it were subsequently dismissed, on motion of the plaintiffs. A supplemental petition was then filed, setting forth the proceedings which had taken place under the exe-cutory process, and praying that the defendant be cited and condemned to pay the amount of the plaintiffs’ mortgage debt, in consequence of his failure to deliver up the negro woman to the Sheriff, or offer any excuse for failing to obey the order of tho court. To this supplemental petition, the defendant filed an exception, denying tho existence of any cause of action against him, as disclosed by the supplemental petition, and afterwards an answer was filed, denying all the allegations of the petition, except the purchase by" him of the negro woman. On these pleadings, a judgment was rendered absolutely against the defendant for the amount of the plaintiff’s claim, and the defendant lias appealed.

Tho answer of the defendant is general in its terms, and must be considered as applying to the original as well as tho amended petition. It is only in the original petition, that the averment was made, that the defendant had purchased tho negro woman, and this fact is expressly admitted in tho answer. Although the proceedings were extremely irregular, the petition for the order of seizure and sale, and the supplemental petition taken together, converted the suit into one, to enforce the plaintiffs’ mortgage by the ordinary action. The hypothe-cary action may be prosecuted by resort to the executory process in those cases in which it is allowed, and where the property can be directly seized in the hands of- the third possessor ; but, if it cannot be seized because the third possessor refuses to deliver it up, the hypothecary creditor may proceed by an ordinary action to compel him to deliver it up, or pay the amount for which it stands hypothecated. O. P., Art. (18. Venott's Heirs v. Caudolle, 4th Mart. N. S. 402. Broussard v. Phillips, 6th N. S. 310.

In such an action, if the plaintiff prove that tho property subject to the mortgage was once in the defendant’s possession, it then rests on the defendant, in order to discharge himself from tho obligation of either delivering it up, or paying the debt, to show in what manner he has parted with tho possession — if he had sold the property, he is no longer liable, and the creditor must pursue it in other hands; but if it continues in his possession, or under his control, ho must either pay tho debt or deliver it up. By the notarial act of sale from the plaintiffs’ judgment debtor to the defendant, the defendant in fact acknowledged the delivery to him of the negro woman, and it was thus sufficiently established on the part of the plaintiff, that the defendant was a third possessor of the property subject to the mortgage, and in the absence of any proof on his part to show that he had subsequently parted with his title and possession under that sale, we think the plaintiff was entitled to a judgment against him. The judgment, however, should have been in the alternative, that he either surrender the property or pay the debt.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed, and proceeding to give such judgment as in our opinion should have been given : It is further ordered and adjudged, that the defendant deliver up the negro woman Arm, to be sold in satisfaction of the plaintiff’s hypothecary claim as set forth in his petition; and that in default of doing so, within ten days from demand, that said defendant pay to the plaintiff the sum of three hundred and fifteen dollars, with interest thereon at the rate of eight per cent, per annum from the 2d of January, 1849, until paid, and that defendant pay costs in the lower court, except the costs of the order of seizure and sale, and of the seizure and execution under it, which together with the costs of appeal, are to be borne by the plaintiffs.


author: Buchanan, J.

text:
    State of Louisiana v. Slaves Lethe, Biner, Hal and Chloe.
    Justices of the Peace who preside over the trial of slaves, have the power to grant and refuse new trials.
    APPEAL from a tribunal composed of two Justices of the Peace and ten owners of slaves, in the Parish of East Eeliciana.

      D. 0. for the accused. Isaao B. Morse., (Attorney General,) for the State.
   Buchanan, J.

This is a case of a capital prosecution of slaves before a tribunal, composed of two Justices of the Peace and ten slave owners,, organized under the Act of the 1st June, 1846.

After the conviction of these slaves, a motion was made before the two Justices who presided, for a new trial; which motion was sustained after argument, and a new trial granted. A day was assigned for the second trial, and jurors summoned; but on the day fixed, before the tribunal was organized, the District Attorney moved the Justices to set aside their order for a new trial, and to proceed to sign the sentence of the prisoners. The principal ground taken by the District Attorney was, that the new trial had been moved before, and granted by the two Justices of the Peace, and not by the justices and jury of slave owners, who collectively composed the tribunal, and who collectively, it was argued, were alone competent to entertain a motion for a new trial.

The application of the District Attorney prevailed; the order granting the new trial was rescinded, and it was ordered by the justices that the sentence, originally pronounced, should be carried into effect. Erom this, the prisoners have appealed.

The trial of slaves accused of capital crimes, is the subject of a special jurisdiction, of which the rules of proceeding are found in the statute which created it — the statute of 1846 above mentioned. That statute is silent on the subject of new trials; but the power of revising its judgments for the purposes of justice, seems incident to the constitution of every court of judicature. The Supreme Court, in the case of the State v. Jackson, 6 Annual, recognized the power of granting and refusing new trials, as resting in the discretion of the justices who preside over the trials of slaves. Upon that authority, we conclude that the ruling of the justices, rescinding the order granting the new trial for want of jurisdiction in the present case, was erroneous; and that the motion for new trial was properly addressed to the Justices of the Peace who presided at the trial.

This view is further strengthed by the phraseology of the 8th section of the Act of 1846, which is as follows: “ In case the offender or offenders shall be convicted of any crime punishable with death, the said Justices (or Justice, as provided in the fifth section of this Act,) shall sign a sentence to that effect, which sentence shall be put in execution by and with the concurrence of the jurors assisting at the trial.”

Here it is apparent that the conviction of the slave, by the tribunal composed of the justices and slave owners, cannot produce effect until the sentence is signed — not by the jury of slave owners — but by the Justices (or Justice) who presided at the trial; thus recognizing a separation of functions, and a position on the part of those Justices, similar to that occupied by the Judge in relation to the jury, in criminal trials conducted according to the forms of the common law. It should not be forgotten, as part of the history of the jurisprudence of this State, that in consequence of the abolition of the office of Parish Judge, by the State Constitution adopted in 1845, it became necessary to create a tribunal for the trial of slaves accused of capital crimes, to supply the place of the jurisdiction formerly vested on that subject in the Parish Judges. In the exercise of that jurisdiction, the Parish Judge was in like manner assisted by six freeholders, and the organization of that tribunal was similar to that in the statute of 1846. The words used in the statute of 1825, (Session Acts, page 206) are “a tribunal composed of the Parish Judge and six inhabitants, freeholders.”

In practice under that old organization, it is believed that motions for new trials were always addressed to the Parish Judge alone.

It is therefore adjudged and decreed, that the judgment of the court of the first instance, rescinding the order granting a new trial in this case, be reversed ; and that this cause be remanded to the same or other Justices of the Peace of the parish of East Feliciana, with directions to cause to be summoned a sufficient number of persons duly qualified to try the same de novo, and to proceed in all other things as the law directs.


author: Vookkies, J.

text:
    L. Day v. W. S. Gordon et als.
    Where the wife is alone interested in the suit, she must be a party to the appeal bond, or her appeal will be dismissed.
    APPEAL from the District Court of the Parish of St. Helena, Watterson, J. The appeal was taken by motion in open court in behalf of the “ defendants” generally. The bond stated that “ we, William S. Gordon and Wil •

      Mam 8. Bates, as principals, and Willimn Allen bx¡ó. Thomas B. Allen, as their securities, were held and firmly hound,” &c. It recited that “the said obli-gors, William 8. Gordon and William S. Bates had appealed from the judgment,” &c., and there was nothing to show that the wives were in any manner bound by the bond — it being signed by
    W. S. Gordon,
    W. S. Bates,
    W. Allen,
    T. D. Allen.

      Muse S, Merrick, for plaintiff. Damidson Venn, for defendants and appellants. 1
   Vookkies, J.

The plaintiff has moved for the dismissal of the appeal on several grounds, one of which only need be noticed. The plaintiff is the surviving spouse, and the defendants the descendants and heirs, by a former marriage, of William Bay, deceased. This action was brought by the plaintiff to recover one-half of the property and effects belonging to the community which formerly existed between her and the said Bay. Her demand was resisted by the defendants on several grounds, as alleged in their answer. The case was submitted to a jury, and from the judgment rendered on their verdict in favor of the plaintiff, an appeal was granted to the defendants. The ground on which we are of opinion that the appeal must bo dismissed, is, because the appeal was taken by the defendants generally, and the appeal bond is only signed by W. 8. Gordon and W. 8. Bates, as principals, who arc not the real defendants in this suit, their wives only being parties in interest. O. P. 513, 578, 579'. This case can hardly bo distinguished from that of Wood v. Wall, 5 A. 179.

It is therefore ordered, adjudged and decreed, that the appeal be dismissed at the costs of W. 8. Gordon and W. S. Bates.


text:
    Leggett & Brother v. H. L. Potter.
    Under a rule of the Fourth District Court of New Orleans, no amendment of petition or answer can be allowed after the case has been set for trial.
    After the cause had been set for trial, defendant sought to amend his answer and urge the defence that the plaintiffs had made an assignment, and were no longer owners of the note sued on. He also stated under oath that these facts were not known to the defendant at the time of filing his original answer. Held: That the affidavit was defective in not stating that the facts were not known to defendant before the cause was set for trial.

    APPEAL from the Eourth District Court of New Orleans, Reynolds, J.

      Elmore & King, for plaintiffs. H. Gaither, for defendant and appellant.
   Campbell, J.

The only question important to be considered in the decision of this case, is the correctness of the order of the Judge of the court of the first instance, in striking from the record the supplemental answer of defendant.

It is established as a rule of the Eourth District Court, that “No amendment shall bo permitted to be made to any petition or answer, after the cause has been called and set for trial, nor shall any motion be made in a cause at the time it is called to be tried, if such motion could with propriety have been made previous to that time. Such peremptory exceptions as the law allows to be pleaded at any time, excepted.” This cause was, on the 12th November, fixed for trial on the 21st. On the 18th November, defendant filed with leave of court, a supplemental answer, subject, however, by the terms of the order, to plaintiffs’ right to object to it, as having been filed too late.

When the cause came on for trial, defendant moved for a continuance on the ground, that the answers of plaintiffs to the interrogatories annexed to his supplemental answer, were material to his defence. In the supplemental answer, it was alleged, (and the allegations v'ere verified by the oath of defendant,) that plaintiffs who resided in New York, had failed, and, as he had reason to believe, had made an assignment of their effects, and were no longer the owners of the notes and bills sped on; to establish which facts, pertinent interrogatories propounded to plaintiffs were subjoined to the answer. It was further alleged, that these facts had come to the knowledge of defendants since the filing of the original answer.

By this showing, the party did not bring himself within the terms of the rule; for though the matters urged in the amended plea, may not have come to the knowlvdge of defendant until after he had filed his original answer, non constat, that he had no knowledge of them before the cause was fixed for trial.

On the trial of the merits, the evidence was complete and the case of plaintiff clearly made out.

The judgment of the District Court is therefore affirmed with costs; with this qualification however, that in case an assignment of the instruments sued on shall have been made, as alleged, and plaintiffs shall proceed to enforce their judgment in their own right, and for their own use; that upon showing these facts, defendant shall not be precluded from his right to an injunction.


author: Slidell, C. J.

text:
    Elizabeth Percy v. C. E. Percy, Administrator.
    The law of the place where, at the time of the marriage, the parties intend to fix the matrimonial domicil, governs the rights resulting from that marriage, where the intention is unequivocally ascertained and supported by a subsequent removal to the place contemplated, within a reasonable time.
    Where, at the time of marriage in Mississippi, the spouses contemplated removing, and shortly after did remove to Louisiana, the slaves of the wife, owned in Mississippi at the time of the marriage, were held to be paraphernal property. And a slave received by the wife in Mississippi, in exchange for one owned by her at the time of the marriage, was also held to be paraphernal. Put where the husband exchanged one of the wife’s paraphernal slaves and received title in his own name, the slave received was held to be community property, and the price chargeable to the community.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      Brewer & Oollins, for plaintiff. 0. Ratliff.\ for defendant and appellant.
   Slidell, C. J.

Mrs. Percy was married in Natchez in June 1833, to Dr. Percy. He was at that time domiciled in Louisiana, where be was born and roared; and owned a tract of land in Louisiana, to which he took his wife in 1834, and on which they lived until his death. The proof is full, and entirely satisfactory, that the parties entertained at the time of their marriage the well settled intention of living in Louisiana, and carried this intention into effect as soon afterwards as they conveniently could. At the time of the marriage, several of her slaves were hired out in Mississippi for the year. Her furniture was packed up soon after her marriage, for the purpose of transportation; and they took lodgings at a hotel in Natchez, during the interval necessarily employed in making preparations for the wife’s new home, and the withdrawal of her property from Mississippi.

The case is, therefore, brought by the evidence within the operation of the well settled principle, that the law of the place where, at the time of the marriage, the parties intend to fix the matrimonial domicil, governs the rights resulting from that marriage, when the intention is unequivocally ascertained, and supported by a subsequent removal to the place contemplated within a reasonable time. See Hayden v. Nutt, 4th Annual 65, and authorities there cited.

The District Judge, therefore, did not err in putting on the same footing, as paraphernal, both the slaves she had in possession in Mississippi at the time of the marriage, and those which came into her possession under the will of her first husband, after she removed to Louisiana.

Nor did the court err in treating as paraphernal, a slave given to Mrs. Percy in her own name, by her mother, in Mississippi, in exchange for a slave which was paraphernal.

We think, however, the court erred in treating as paraphernal, the slave Elisa and her issue Mary, and other children since born, because that slave was bought by a bill of sale in Mississippi in the husband’s name, although acquired in exchange for a slave belonging to Mrs. Percy. The community must be charged in favor of Mrs. Percy with $150, the price of Eliza and child. Claiming the benefit of our laws respecting paraphernal and community property, the plaintiff must take it with its qualifications.

We also think the court erred in not charging the community with $500, the value of the slave Shadrach, the paraphernal property of Mrs. Percy, sold by her husband.

For the above amount, she is entitled to a tacit mortgage, the date of which the evidence does not enable us to state with precision.

It is therefore decreed, that the judgment of the District Court be affirmed, so far as it decrees all the properly in said decree mentioned to be paraphernal, and awards hire therefor, except only as to the slave Elisa and her issue, Mwry, Francis, Celeste, Acarón and Green, which are now adjudged to belong to the community of acquets and gains which existed between the said plaintiff and her said husband Thomas B. Percy. And it is further decreed, that the said community is indebted to the said plaintiff in the sum of $150, for the price of the said slave Eliza and her child Mary, and in the further sum of $500 for the value of said slave Shadrach, sold by said husband, with tacit mortgage, and with interest on said sums from the death of said husband ; and that for the purpose of ascertaining the date of said tacit mortgage and making a proper reduction from the amount awarded by the court below for hire, and other necessary proceedings, this cause be remanded. The costs of the appeal to be paid by the plaintiff; and those of the suit in the court below, to be paid by the said administrator.


text:
    F. Shelden v. D. Miller.
    Judgment was rendered in favor of plaintiff against defendant in the State of Mississippi. Under a statute of that State, the clerk of the court which rendered the judgment, seized and sold it for the payment of his costs. The defendant purchased it. 22eld: That it is competent for the Supreme Court to examine the regularity of the proceedings under which the judgment was sold. The sale was void:
    1. Because the description of the suit in the execution issued by the clerk, did not describe correctly the judgment which was to be sold.
    2. Because the record does notshow that the defendant paid the amount of his bid for the judgment.
    3. Because the Sheriff made no assignment of the judgment to the defendant, as required by the statute.
    The court will not, where it can be avoided, declare an act of a sister State unconstitutional.
    Where the proceedings are em parte., and without notice to the party whose rights are to be affected, the forms of law must be strictly complied with.
    APPEAL from the District Court of the Parish of Concordia, Farrar, J.

      T. P. Fwrrar, for plaintiff. Stacy & Sparrow and Orymes, for defendant and appellant.
   Buchanan, J.

This is a suit upon a Mississippi judgment, rendered in the Circuit Court of Adams county, on the 24th of November, 1841.

The defence is, that the judgment was satisfied and extinguished by a purchase of the said judgment, by the defendant, at a Sheriff’s sale, on the 2d of December, 1844.

The judgment was seized and sold upon an execution for costs, issued upon the motion of the clerk, in virtue of an act of the Legislature of Mississippi, approved the 24th February, 1844.

The counsel of appellee contends, that the purchase of the judgment by said defendant, is a nullitjr, the law under which it was sold, being in violation of the Constitution of the United States, Article 1st, section 10th, which declares that no State shall pass any law impairing the obligation of contracts.

The Mississippi statute of Eeb. 24th, 1844, provides, in substance, that when an execution issued upon any judgment in Mississippi shall have been or shall hereafter be returned nulla bona, and when there are any costs due in the suit, it shall be lawful for any person interested in the receipt of the costs due, at the next term after the passage of the act, or at the next term succeeding such return of the execution, to move the court which rendered the judgment for an order to sell the judgment at public auction to tho highest bidder for cash.

The statute further provides, that if the defendant in the suit purchase tho judgment at the sale made in execution of such order, the Sheriff shall assign the judgment to him; and “the sale and assignment shall operate as a complete satisfaction and extinguishment of the judgment.”

The practical operation of this statute is exemplified by the facts of the present case.

The plaintiff brought against the defendant and others, in the Adams county Circuit Court, an action of assumpsit upon three notes of hand subscribed by the latter; and recovered judgment upon a verdict of a jury, for the sum of five thousand one hundred and five dollars, with costs of suit. Upon this judgment, a writ of fieri facias was issued, and was returned nulla bona, at the May term of the court, 1842. Nothing further was done in the suit, until the May term of the court, 1844, being, it is presumed, the nest term after the passage of the act of the Legislature of the 24th Eeb., 1844, when, on motion of the clerk of the court, an order was made to sell the judgment to satisfy the costs then due. The judgment was accordingly advertised and sold to'the defendant for the sum of thirty-one dollars and ninety cents, being, as is supposed, the exact amount of the costs of tho suit with the costs of the sale added.

Now, tho plaintiff’s action of assumpsit was unquestionably the remedy given him by law, for enforcing the obligation of the defendant’s contract as contained in his promissoiy notes sued upon. The judgment in that action fixed the defendant’s obligation and made it executory. It even superadded another accessory and incidental obligation to the primitive obligation of the contract, namely, that of paying the costs of the suit.- But by the effect of the statute of tho 24th of February, 1844, the fulfilment of this incidental obligation, relieves him entirely from the principal one, sanctioned though it had been by a solemn judgment; and tho payment of the insignificant amount of thirty-nine dollars costs, which he was already bound by that judgment to pay, satisfied a debt of five thousand dollars, which the plaintiff had too credulously supposed he was securing by the incurring of those costs.

The constitutionality of the statute in questions appears never to have been passed upon in tho tribunals of Mississippi; but that doubts have there been entertained upon that subject, may be inferred from the language of Chief Justice Sharkey, in pronouncing the opinion of the High Court of Errors and Appeals in the case of Lee v. Boykin, 13th Smedes & Marshall, 530.

But we are unwilling to put our decision of this case upon the unconstitutionality of an act of the Legislature of a sister State, if it can bo avoided. Wo therefore turn to the other ground taken by the counsel of appellee to defeat the plea of the defendant, that the judgment in Mississippi has been satisfied and extinguished by the Sheriff’s sale of the 2d December, 1844.

The appellee contends that that sale cannot have the effect claimed for it, because of an incorrect description of tho judgment sold, and for other irregularities in the proceedings.

* Our right to examine the irregularity of the proceedings in question, has been disputed by the appellant. But we consider this point settled adversely to his views, by the decision in the case of McDonogh v. Gravier's Curator, 9 Louisiana Reports, a decision confirmed in the case of McGary v. Dunn, 1st Ann. Gales v. Christy, 4th Ann., and others.

A party who claims title, is bound to make out hi's title; and the proof to divest a title should be equally complete. This latter principle, indeed, is consecrated in the Constitution of tho United States. “No person shall be deprived of life, liberty, or property, without duo process of law.” Constitution United States, 5th amendatory article.

There is no question that the judgment upon which this suit is based, was originally tho property of plaintiff; the defendant alleges that plaintiff has been divested of that property. It is incumbent upon him to show that such divestiture has taken place by due process of law; that the proceedings by which the extinguishment of the judgment is alleged to have been effected, have been clothed with tho formalities required by the statute upon which they were founded. The necessity of a strict observance of the forms of law is especially obvious, when the proceedings have been expa/rte, without notice to the party whose rights have been affected by them. Viewed in this aspect, we aro disposed to subject the statute of the 24th of February, 1844, to the strictest interpretation.

Testing the regularity of those proceedings as exhibited in the record by a comparison with that statute, we find them deficient in the following particulars ;

1. That the description of the suit, in the execution issued by the clerk, did not describe correctly the judgment which was to be sold.

2. That the record does not show that the defendant paid the amount of his bid1 for said judgment.

3. That the Sheriff has made no assignment in writing of the judgment to defendant, as required by the statute.

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

Application for re-hearing refused.

      In the application for a re-hearing, it was stated that a gentleman of the Mississippi bar liad informed Mr. Stacy, that the High Court of Errors and Appeals of that State, had but recently decided a case, affirming the constitutionality of the law. The case, it was said, had not been reported.


author: Bdciianan, J.

text:
    J. L. Owen, Administrator, v. H. F. Vanderslice.
    Defendant being sued on his promissory note, pleaded two accounts for work and labor done In compensation and payment. Meld: The Court below properly rejected the evidence offered on part of the defendant to prove that the work was done, and the prices charged were reasonable. C. G. 2205.
    O. C. 212T.
    Defendant cannot compensate a debt due by note, by an account for work, where there was no agreement to pay a fixed price for the work and no acknowledgement of the correctness of the account.
    APPEAL from the District Court of the Parish of West Feliciana, Sterling,
    J. G. Bailiff,¡ for plaintiff. Brewer & Collins, for defendant and appellant..
   Bdciianan, J.

Defendant being sued upon his promissory note, pleaded two accounts for work and labor done in compensation and payment. The Court below properly rejected the evidence offered on the part of the defendant to prove that the work was done, and the prices charged were reasonable. C. C. 2205. The claim sued on was an unconditional promise to pay a sum of money certain. That set up in defence had neither been the subject of an agreement to pay a fixed price for the work, nor been liquidated by an acknowledgement of the correctness of the account after the completion of the work. The latter case would, indeed, have been the only proper ground of a plea in compensation. But had there been an agreement for a fixed price to be credited upon the note, coupled with proof that the work had been done according to agreement, this would have come within the definition of payment given in Article 2127 of the Code, and such proof would have been properly offered under the plea of payment. But that is not the present case.

The plaintiff has asked for damages as for a frivolous appeal; but the evidence discloses equities, which incline us to consider this as not a case for damages.

Judgment affirmed with costs.


text:
    In the Matter of the Successon of Wilford Kemp, deceased. Opposition of William Kemp.
    The Clerk certified that the record contained all the documents filed, all the testimony adduced, etc., "that can befoimd on file and of record."1 Appeal dismissed for insufficiency of certificate.
    APPEAL from the District Court of the Parish of St. Helena, Sterling, J.

      J. R- & J. D. Jones, for plaintiff and appellant. E. T. Merrick, for defendant.
   Campbell, J.

Appellees move the dismissal of this appeal for the reason, among others, that the Clerk does not certify that the record contains all the evidence on which the case was tried.

The Clerk certifies that the record contains all the documents filed, all the testimony adduced, etc., ‘'■that can be found, on file and of record."

It does not follow from this certificate that other testimony may not have been adduced on the trial, than appears on the record. Indeed the record contains no other than documentary evidence, and it is evidentfrom the proceedings, that parol evidence must have been adduced though it may not have been reduced to writing, or that the case was tried upon the admissions of parties. Carpenter v. Reynolds, 3 A., 592. Powell v. Williams, 5 R., 169. 6 La., 166. Anderson v. Stephens, 6 La. 303.

No application has been made for the correction of this apparent error. The •appeal is therefore dismissed.


author:
Yoorhies, J.
      VanDalsen,

text:
    A. Cash v. J. Durand.
    If acts. — Charge of fraud against defendant for obtaining the notes of plaintiff under false pretences and misrepresentation. Held : That there was no proof of defendant’s fraud.
    APPEAL from the Third District Court of the Parish of Jefferson, Clarice, J.

      J. H. VanDalsen, for plaintiff and appellant. Ogden & Leomj and Race & Poster, for defendant.
   Yoorhies, J.

The plaintiff alleges, that she was the owner of two promissory notes drawn by the defendant to the order of and endorsed by John M. Durand, dated the 24th of November, 1846, one for the sum of $2047 33£, payable five years after date, and the other for the sum of $1751 33&, payable nine years after date, and both secured by mortgage on certain property situated in the parish of Jefferson ; that she was induced to surrender said notes to the defendant, on his representation that it was for the purpose of erasing the mortgage and selling the property, so as to enable him from its proceeds to give immediate assistance to his uncle, John M. Durand, who was embarrassed in his money affairs, and to reinstate him in business, and thereby enable him to pay her, and for which ho was to give her his joint obligation with his uncle ; that she surrendered said notes on or about the 17th of April, 1851, and received two joint notes from John Durand and John M, Durand, amounting in the aggregate to $4300, as collateral security, tha.t the former would fulfil his contract with the latter as soon as he should affect the sale of said property ; that in view of said agreement, on the 17th of June, 1831, John Durand conveyed to Isaac A. Smith by authentic act seven lots of ground and improvements thereon, &c., and on the 3d of July, 18S1, the latter conveyed the same property to James B. Durand, a young brother of the defendant; that the said defendant has sold, or otherwise disposed of, the remainder of the property described in the act of sale from Mrs. E. A. Durand to him, and on which a mortgage existed to secure the payment of said original notes; that having made a simulated sale of said property, first, to Isaac A. Smith and from the latter to his young brother, the defendant now refuses either to give the promised aid to his uncle, in order to enable him to pay her, or to give her the same or equal securities to those which he fraudulently obtained from her by false representations and promises; that the defendant has been guilty of a gross fraud in obtaining from her her good and legal securities by means of false promises and misrepresentations : and that the two sales of the 17th of June, 1851, and of the 8d of July, 1851, from the defendant to Isaac A. Smith and from the latter to James B. Durand, are false and simulated, and made with a view to defraud her of her legal rights as a mortgage creditor. She therefore prays that the defendant be cited, and also arrested to answer the charge of fraud; that he be condemned to pay her the sum of $3798 66|, amount of said mortgage notes, with 8 per cent, per annum interest from maturity, that on the charge of fraud he be dealt with according to law, and that the sales from the defendant to Isaac A. Smith and from the latter to James B. Durand be declared fraudulent, simulated and void. The defendant was accordingly arrested and held to bail. An exception to the plaintiff’s petition was filed by him and overruled. He then pleaded the general issue. .

The case was submitted to a jury, who found a verdict in favor of the defendant, and from the judgment thereon rendered, the plaintiff appealed.

The record shows that on the 24th of November, 1845, the wife of John M. Durand, authorized by him, sold to the defendant certain lots of ground and buildings thereon, &c., situated in the parish of Jefferson. As the price,, sundry promissory notes were given by the vendee, payable at different periods, and secured by the vendor’s privilege and mortgage. The vendor deposited in the hands of the plaintiff two of these notes, the same described in her petition, to secure the payment of a loan of $3000 which he had obtained from her, and for which she held his interest notes. Thus it appears that John ■ M. Durand, and not the defendant, was indebted to her, and that the notes in question were not held by her as owner, but as pledgee. But it may he asked, why were these notes taken out of the possession of the plaintiff and restored to the defendant? The defendant, it appears, on the 14th of April, 1851, retroceded to his vendor five of the lots of ground and buildings thereon, &c., which he had purchased from her on the 24th of November, 1845, and the restoration of the notes in question constituted a part of the consideration of that retrocession. The plaintiff admits in her petition that she received the two joint notes of the defendant and his uncle, amounting in the aggregate to $4300 ; and it is neither alleged nor proved by her that the defendant bound himself to give her any other security for the restoration of his notes. It is true that mortgage notes of Zebedec Doten, in favor of John M. Durand, which turned out to be worthless, were given to the plaintiff as good security in lieu of those of the defendant. But by whom were they given ? Not by the defendant, but by John If. Durand himself, the plaintiff’s debtor.

If any fraud or deception was practiced upon the plaintiff in relation to the Doten notes, such fraud or deception must be imputed, in our opinion, to John M. Durand, who was the real party in interest. The obliquity of conduct on the part of John M. Darand in the transaction which has given rise to this suit, may, we think, be fairly deduced from his own testimony given in the cause, his various acts, and particularly his affidavit for the arrest of the defendant.

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

VanDalsen,

on an application for a re-hearing:

The counsel for plaintiff and appellant respectfully submits the following as reasons why the Hon. Court should grant a re-hearing in these premises.

The Hon. Court sustains the counsel in his declarations that the “ Doten" notes given to plaintiff were worthless and wholly non-effective, and that the two sales, the first from defendant to Smith, and the second from Smith to defendant’s younger bother, were fraudulent; and also that plaintiff fully established her title to the original mortgage notes, at least as pledgee from John M. Durand, who was her original debtor, and the payee and endorser of those notes so pledged.

From this point, the interest of the plaintiff was overcome by the following (in effect) reasoning of the Hon. Court: Say the Hon. Court, “ John M. Durand was her debtor, not the defendant, who owed her nothing. She also received the joint notes of defendant and John M. Durand as additional security.” And lastly, “The plaintiff was only the pledgee of the original notes.” And then, as judgment against plaintiff immediately follows, counsel is compelled to the only conclusion deduciable from the argument of the Court, to wit: That because the plaintiff was only the pledgee of the notes, the defendant was not guilty of fraud in obtaining possession of them by the base trickery and dissimulation he so successfully practiced upon the plaintiff. With profound deference for the expressed opinion of the Hon. Court, counsel will proceed to consider the three branches of the above set forth reasoning, and not without the fullest confidence of being able to convince the Hon. Court that the plaintiff’s claims for a rehearing, are based upon and sustained by the clearest principles of law.

1st. “ John Jf. Durand was her debtor, not the defendant, who owed her nothing.”

C. C., -3100. “ The pledge is a eonbraet by which a debter gives something to his creditor for his debt." John M. Durand was our debtor and gave us the notes as a pledge to secure that debt.

C. C., 3103. “Every lawful obligation may be enforced by the auxiliary obligation of pledge.”

John M. Durand's obligation to plaintiff was lawful, and she had a right to enforce it by the auxiliary obligation of a pledge.

O. 0., 3109. “A debtor may give in pledge whatever belongs to him.”

John M. Durand was the original payee and endorser of those notes, had them in his possession, and pledged them to plaintiff' before their maturity, for a legal cause ; and negotiable money obligations so drawn, so endorsed, and so transferred to an unsuspecting third person, without notice of any fraud or want of consideration, carry with them every right known to the law, to enforce their payment for all the purposes and to the full extent of the transferee’s property in them. See all the jurisprudence of Louisiana on this subject, and every American and English writer on Bills and Notes. See also, C. C., 3121, 3122, 3124. See also King v. Gayoso, 8 N. S., 373.

It was not pretended that the defendant was entitled to receive notice of John M. Durand's pledge to plaintiff, of the obligations of defendant; but if it had been, or if this Hon. Court have any doubt on the point, Art. 3128, 0. C., lays the question at rest, for that Article expressly declares that such notice is un-neeessarjr. King v. Gayoso, 8 N. S., 373.

0. C., 3137. “ If the debt, which has been given in pledge becomes due before it is redeemed by the person pawning it, the creditor, (pledgee,) by virtue of the transfer, which has been made to him, shall he justified in receiving the amount, and in taking measures to recover it.”

It is confidently believed, that after the above authorities shall have been examined, the Hon. Court will conclude that the first considered ground as a reason for judgment, is wholly untenable.

We now consider the second branch, to wit: “ The plaintiff also received the joint notes of defendant and John M. Durand as additional security.”

As additional security for what, did she receive them ? There is not one lino in the record that shows the plaintiff to have received them in payment of the mortgage notes, nor was any such absurdity contended for by defendant’s counsel, either in the District Court or in this Hon. Court. Then for what purpose were they given ? A legal mind can only conclude (in absence of positive proof) that they were handed to plaintiff as a pledge for the fulfilment of a double obligation of her debtor, the defendant: 1st, That acknowledging himself to be the debtor of plaintiff by reason of her possession of his obligations, he intended them as a pledge that he would not wrong her; and 2d, Being well assured that the plaintiff was fully convinced she would never receive back the money she had loaned, except by means of the pledge she held legally, and on which chose pledged he (defendant) was the principal obligor; the act of executing and giving to her, new notes, made and endorsed by himself and his uncle, was a solemn pledge that he would secure to her the debt due her, for the payment of which she held his mortgage paper. This is what we charged, what the plaintiff did necessarily believe and the defendant both promised and intended the plaintiff should believe. Any other conclusion would lead into a labyrinth of false logic. The money due to plaintiff was her little all. Before her was her debtor and pledgor, beside him was the debtor of the thing pledged, on which, by the clearest and strongest provisions of our Civil Code, she had a paramount privilege to the extent of, and for the restitution of her loan. And yet the Hon. Court said the defendant was not our debtor. Not to be our debtor, defendant must have paid our debt; for he was our debtor while we remained the legal pledgee of those mortgage notes which he and his property were bound to us for.

C. 0., 3137. From the laws cited, this position is too clear to be successfully assailed, which leaves us to examine, as to one fact, to wit: Did he pay us? There can be but one answer : he did not. Nor has it been pretended, nor is it so declared in the judgment of this Hon. Court. From the beginning one of defendant’s counsel has contended that his client owed us nothing, never had owed us anything; that although we were pledgees of notes which the law says we could collect from defendant, yet, says he, my uncle John should have surrendered them to me as per document D, page 55, of the record, and as uncle John has done him wrong, by not surrendering to him according to document D, a thing the poor plaintiff knew nothing about, and is in no manner bound by, he is justified in taking from us our securities by false pretences and misrepresentations. This logic is certainly not less startling than new. To sustain such a position, the maxims, that “all’s fair in war,” “stratagem is better than force,” and “all’s well that ends well,” may be properly cited; but there is no maxim or principle of law or natural right to sustain it, notwithstanding this Hon. Court seems to have considered the argument favorably.

Another of defendant’s counsel contended at bar that it is alleged, the defendant promised to sell the property on which the notes bore mortgage, if plaintiff would let him have the notes; and that forasmuch as defendant did sell the property when he had obtained the notes, he had done all he had promised, and plaintiff had no cause to complain. Yes, he did sell the property, and as per the evidence in the record, he conveyed it into the pocket of his young brother to take it back at will. This position is certainly below legal criticism.

The third branch proposed to be considered, to wit: The plaintiff was only the pledgee of the notes, has been necessarily touched in the first part of this brief. All the laws shewing that the pledgee’s right against the debtor of the thing pledged, is pure, clear and forcible, have already been cited. Much more could be said on this point if there over had been an expressed opinion adverse to such a right in a pledgee; but as all laws and authorities are clearly in favor of the right of a pledgee, as is sought to be enjoyed by this plaintiff, counsel will close this brief, by praying that the re-hearing may be granted.


author: SLIDELL C. J.

text:
    Same Case—On the application for a Re-hearing.
   SLIDELL C. J.

Pursuant to the opinion of a majority of the Judges, it is ordered that the re-hearing prayed for in this case he refused.

Buchanan, J., and Ogden, J., dissenting.


text:
    John Buhler v. J. A. McHatton.
    The circumstance that a slave is not a cook does not constitute a redhibitory defect,, unless that quality -was the principal motive for the purchase. 0. CM 250T.
    Parol evidence is inadmissible to prove that a slave sold was represented as possessing qualifications not mentioned in the act of sale.
    APPEAL from the District Court of the Parish of East Baton Rouge. The case was tried by a jury before Robertson, J.

      J. W. Seymorn, for plaintiff and appellant. Lacy, Davidson and Mediation, for defendant.
   Campbell, J.

This is a redhibitory action, instituted to annul the sale of a Steve and for the return of the price. The vice alleged is madness. Plaintiff seeks the rescission of the sale on the further ground that the slave sold was, by a* verbal contract, warranted a good cook, when in truth, she had no acquaintance whatever with cooking. There is no allegation that this quality waü^the principal motive for the purchase.

f '£he jiase was tried by a jury, and in conformity with their verdict, judgment was Rendered in favor of defendant.

On the trial of the cause, plaintiff offered testimony for the purpose of showing that the slave Jane, in controversy, was verbally warranted to him by defendant as a good cook, and that she was in reality totally valueless for that purpose, which testimony was rejected by the Judge, on the ground that the want of this quality not being a redhibitory vice, unless this quality formed the principal motive of the purchase, and there being no allegation of this fact, but the action being for the rescission of the sale on the ground of redhibition alone, such testimony could not be received.

Another reason assigned for its rejection, is, that the agreement of the parties having been reduced to writing, neither one of them can bo permitted to go behind the same and give in evidence a parol understanding or agreement of a fact not included in such written agreement. In these opinions of the Judge of the District Court we concur. The action is purely one for the rescission of the sale for redhibitory defects. Not being a cook, is not a redhibitory defect unless that quality was the principal motive of the purchase. C. C., 2507. Nor is there any demand for the diminution of the price, or any allegation of fraud.

The authority of Milliken v. Andrews and others, 11 R., 242, fully sustains the ruling of-the last point.

The Art. 2508 prescribes that the buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him, unless it makes its appearance within three days immediately following the sale, when its pre-existence is presumed.

From the testimony of Dr. Denali and his wife, who hired the slave from plaintiff some ten days after the sale and retained her eight months, and of A. Cartle, it appears that though she acted, as it is expressed, “oddly and strangely,” it did not attract particular attention, and was not noticed for a month or more. That she refused, from religious scruples, to eat or take medicines on Fridays, and later, on Saturdays, saying that God had appeared to her and forbidden it. This, and the fact of her having on one occasion burnt her clothes, seem to have induced the belief on the part of the witnesses, that the girl labored under an aberation of mind, which they ascribed to religious enthusiasm and grief at being separated from her children.

If it be conceded that these speculative opinions, formed on the conduct of the slave, establish insanity — which is by no means clear — jet there is no evidence showing its existence at the time of the sale or for weeks afterwards.

On the other hand, the testimony of Edger, a witness for defendant, who frequently saw and conversed with the slave at the plantation of plaintiff during the year succeeding the sale, establishes that, to all appearances, she was perfectly sound in mind and body; that he frequently heard plaintiff speak of her character and qualities without complaint, except for her religious scruples.

Bitter, another witness, states that the slave was a servant for five years in a family in which he lived, and that, until she left Kentucky, (which was but a short time before the purchase by plaintiff,) she was sound in mind and body and considered a very valuable servant.

We think the evidence sustains the verdict and that there is no error U^tho judgment, which is affirmed with costs.


author:
Campbell, J.
      T. C. &P.H. Morgan,

text:
    H. C. Young et al. v. City Bank of New Orleans et als.
    The reinscription of a mortgage as prescribed by Article 8,838 of the Civil Code, is indispensable to the enforcement of the mortgage against third persons. The institution of a suit on the mortgage or a litigation in respect to it does not dispense with the reinscription.
    APPEAL from the District Court of the Parish of East Baton Rouge, Robertson,| J.

      Bunn, for plaintiff and appellant. Morgan, for defendant.
   Campbell, J.

The conclusion at which we have arrived on one of the points presented in this case, renders it unnecessary to inquire into the many conflicting demands of the parties litigant.

The mortgage on which the order of seizure was granted, was executed on the 8th May, 1888, and recorded on the 10th of May, of the same year; and it does not appear that it has ever been reinscribed.

Article 3,333 of the Civil Code provides that “ The registry preserves the evidence of mortgages and privileges, during ten years, reckoning from the day of their date: their effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made.” This article was so amended in 1842, as to exclude the mortgages given by the stockholders of the various property banks of the State, from the operation of the rule, requiring reinscription at the expiration of ton years from the date of their registry; (Acts 1842, p. 232), leaving it in full force with regard to all other conventional mortages than those excluded.

In 1843, this article was further amended by making it the duty of the Recorder on the simple application in writing of the owner, or other party interested to erase all inscriptions of mortgages which have existed more than ten years without renewal. Acts 1843, p. 52.

Under this article, it has been held that the reinscription as prescribed is indispensable to the enforcement of the mortgage against third persons, and that in the institution of a suit on the mortgage, or a litigation in respect to it, does not dispense with it. Shepherd v. N. O. Cotton Press, 2 A. 104. McElrath v. Dupuy, Curator, 2 A. 321. Hyde v. Bennott et al., 2 A. 799. Adle v. Anty, 5 A. 632. We are of opinion that prescription results from the omission to reinscribe within ten years from the date of its first registry.

It is therefore adjudged and decreed that the judgment of the District Court be annulled and reversed, and that there be judgment in favor of the plaintiffs reinstating and perpetuating their injunction. The costs of both courts to be borne by the appellees.

T. C. &P.H. Morgan,

for a rehearing:

In this case, the intervenors Piles & Menwd, respectfully ask of the court a rehearing.

The counsel for intervenors understand the court to have decided the case on the ground of want of reinscription of the mortgage granted by Lilley and Wife to the City Bank.

The intervenors respectfully represent that no such issue was made in the District Court, nor has it been made, within their knowledge, in the Supreme Court. That this defence, if it would avail the parties in this case, not having been sot up by them, must be considered as waived, and cannot now be supplied.

We respectfully urge upon the court that prescription does not apply in this case because, in the first place, it was interrupted :

1st. By the executory process issued 8th June, 1845, and there is a pact of non alienando in the mortgage of Lilley and Wife to the City Bank. See cases of Stanborough v. McCall, 4 A. R. 322, 327.

2d. By payments made by the defendants in the executory process.

The executory process was issued on the 8th June, 1845, and returned on the 17th July, 1845, with an endorsement of a credit of two hundred and fifty-nine dollars paid by the defendants.

An alias order of seizure and sale issued on the 10th February, 1847; property seized and advertised for sale on 1st April, 1847, and sale postponed at request of defendants.

Pluries seizure 23d February, 1848, returned 11th March, 1848, credited with the sum of (1103 19) eleven hundred and three dollars and nineteen cents, paid by Henry Carl for the defendants.

The seizure enjoined in this case issued for the balance due after crediting these payments.

The mortgage of Lilley and Wife to the bank is dated 8th May, 1838, and the debt for which it was given was payable in five equal annual instalments from that date. C. C. 3424, 3486. 3 L. R. 262. 8 L. R. 283. 12 L. R. 455. 1 R. R. 556. 6 R. 419. 8 R. 145. 9 R. 18, 113. 3 A. R. 552. 4 A. R. 509.

We also refer the court again to the 5th and 6th points made in our printed briefs, and the authorities there cited.

In the case of King v. Hicky, 2 A. R. 367, the Supreme Court decided that “Prescription is an exception which the debtor and his creditors alone can plead. The obligation subsists until they avail themselves of the prescription ; courts of justice cannot supply it.” And in the case of Young v. Carl, 6 A. 412. The court say that the judgment decreeing the present plaintiffs in injunction, creditors of the defendant in this suit, is clearly erroneous. Then, if the present plaintiffs were not creditors of their mother (the mortgagor), they could not plead prescription, because, say the court, “ prescription is an exception which the debtor and his creditors alone can plead.”

We understand the court to rest this case upon the Art. 3333 of the 0. O. and the case of Shepherd v. The Cotton Press Co., 2. A. pp. 100, 113. We x'espectfully submit that the case of Shepherd refers alone to the inscription of mortgages, and not to the prescription of them.

The defence of non-inscription cannot he made in this court, by way of argument. Like all other peremptory exceptions, it must be pleaded specially, C. P. 346, and when pleaded in the Supreme Court, the proof of it must appear by the mere examination of the record. C. P. 902.

For these reasons, we respectfully ask that a rehearing may be granted.

Rehearing refused.


text:
    Union Bank of Louisiana v Ira Bowman.
    A purchaser who, as part of the consideration of his purchase,, stipulated with his vendor to pay a debt due by him, may when sued by the person to whom the debt was due, set up the same equities that he has against the vendor himself. The creditor and the person to whom the debt was due might, by consent change the relation under the stipulation and thus cut off the equities. O. C. 1884,1896.
    from the District Court of the parish of East Feliciana, Sterling, J.
    TK D. Winter, for plaintiff, cited Arnous v. Dmern, 18 La. 42. Lejeune v. Hebert, 4 A. 59. Carrollton Bank v. Chapman, 8 Ann.

      B. T. Merrick and if. J. Boimnan, for defendant and appellants:
    The bank being a stranger to the contract between Qanjle and the defendant the consideration of that contract as to her were res inter alios acta, and she cannot be affected by any of the equities that may exist between the parties to the contract.
    In support of this proposition the plaintiff relies on the case of Amoue v, Dacern et al. in the 18 La. p. 42, and the case of Lejeune v. Herbert, 4 An. 60. In the first case the defendants had assumed to pay to the plaintiffs the promi-sory notes of their vendor, and they resisted their payment because a street upon which the lots wore situated had not been opened within the time specified by their vendor. Nothing was said about the opening of the street in the contract. The decision of the court was rendered according to the rules applicable to commercial paper, as is apparent from the language of the decision: “ If, instead of assuming to pay Locket’s notes due at a future day, the defendants had given their own notes, payable to the order of their vendor at the same periods, and they had come into the hands of the plaintiffs without notice of any latent equity between the original parties, we are of opinion ho would be entitled to recover. How is the case varied when the engagement is made directly with the present plaintiff, by whom the stipulation is accepted, especially when nothing is said about the opening of a street within a given time ?” From the language of the court in this case, we think we are warranted in concluding that if the notes assumed by the defendants had been past due, or if the contracts had contained a stipulation that the street should be opened within a given time, the decision would have been different; for we cannot believe that the court would give facts as reasons in support of its decision unless the reverse of those facts would lead to a different opinion. This inter-. pretation is in accordance with a decision in the case of the City Bank, of New Orleans v. Desban et al., 1 Rob. 670, in which one of the defendants had assumed to pay a note in favor of a third person, and resisted its payment on the ground of a failure of consideration. The court sustained the defence, because the bank, although not orignally privy to the contract between the defendant and his vendor, yet was acquainted with the consideration. It is evident that each of these cases were decided with direct reference to the commercial law. The first in favor of the plaintiff, because the notes assumed directly with the plaintiff were due at a future day, and the holder was not subject to the equities between the parties to the bill. The second was decided against the plaintiff, because he was informed of the consideration ior which the bill was given. They only re-affirm a long established rule of commercial law, and if they were decided without reference to it, they would be irreconcilable with each other.
   Slidell, C. J.

In 1833, Gayle and Wife became stockholders of the Union Bank to the amount of forty-eight shares, mortgaged therefor certain lands and slaves, and availed themselves of the credit allowed by the charter by obtaining a loan, for which a bond in the usual form was given. In 1834, Gayle and Wife sold the land and shares of stock to Bowman for $5,284. Bowman gave his notes for $3000, and for the residue of the price, assumed the payment of the debt to the bank. He paid two instalments in 1835 and 1836, leaving a balance due with interest, for which, the bank now asks that the land be sold, and also a judgment against Bowman personally. There was a decree in favor of the Bank in the court below, and the defendant has appealed.

The defence was that at the time of the sale by Gayle, a large portion of the land was in the possession of one Bowles, from whom the defendant was subsequently obliged to purchase; that another large portion was and still is in the possession of one Lissenby, and that the quantity sold was otherwise deficient. That Liszenby had taken proceedings before the United States Register and Receiver to have the whole claim of Gayle sot aside as obtained through fraud.

At the trial the defendant offered evidence to support the above defence, which was opposed by the plaintiff, and excluded by the court below, substantially upon the ground that the Bank could not be affected by any equities existing between Bowman and Gayle, and that it was not pleaded, and did not appear that the defendant had even given any notice to the Bank of the equities against Gayle.

In this ruling we think the court erred. It is true that one in whose favor a stipulation is made by another, may bring an action to enforce it, though not a party to the contract. This is permitted by express provisions of our Civil Code and Code of Practice. C. P. 35. 0. C. 1884, 1896. These Articles, however, do not estop the person making the stipulation from setting up equities ; and the right to do so must be determined by a recurrence to such general principles of law and justice as regulate the subject of contracts, and especially the contract of sale.

Under what circumstances and for what consideration was it that Bowman promised to pay the debt due by Gwyle to the Bank ? It was in a contract of sale, and as part of the price of a sale. He bound himself in the quality of a purchaser. As between him and Gayle, the latter could not expect the fulfilment of his promise to pay so much of the price in that mode, if the consideration of the promise had totally failed, or failed to such an extent as to authorize the cancellation of the sale; and if there was a material partial failure, in that at least a reduction of price. Gayle warranted the title of the land sold, and the liability of the buyer was dependent upon the fulfilment of the warranty, and qualified by all the reservation which the law makes in favor of the buyers in such cases. By what right can the Bank claim an absolute character for a promise, which, by the very nature of the transaction, was qualified? It seems to us quite clear she cannot. The promise to pay the Bank was a promise sub modo — a promise to pay so much as part of the price of a sale, and justly subject to the defences incident to such a promise. We do not say that subsequent action between the person so'promising and the third person in whose favor the promise is so made, might not change the character of their relations and convert the promise into a positive or qualified obligation, unaffected by the original equities. For example, if the Bank had subsequently dealt with Bowman as its solo debtor, and he had voluntarily assumed that attitude, each agreeing that Gayle's liability should bo waived, or if in any other way at the instance, or with the consent of Bowman, the Bank had been put in duriori casn as to its claim on Gayle, it might be just to say that Bowman should pay the Bank what Gayle could not equitably demand from him. But we do not find in this case any such equitable considerations supervening to affect Bowman's liability. The mere fact that he made two payments on Gayle’s bond, which were credited in account to Gayle, the stock still standing in Gayle’s name, and the bond and mortgage remaining unchanged, does not seem to us as enlarging the extent of Bowman's liability under the covenant in the deed of purchase. We cannot assent to the broad language of the court in Arnous v. Davern, 18 La. 45 ; and it cannot be reconciled with what was intimated in Flower v. Lane, 6 Martin N. S. 152. A very strong argument by analogy, in support of the doctrine we now recognize, may be found in Art. 711 of our Code of Practice, and in the observations of Troplong on the right of the buyer, who has been evicted, to recover the price he has paid, not only from his vendor, but from the creditors of his vendor, to whom he has consented to pay it; a departure from the principles of the Roman Law which he founds upon the 1877th Article of the Napoleon Code, corresponding to Article 2288 of our own. See Troplong vente No. 498.

As to so much of the defence as rests on the fact that no transfer of the stock has been made to Bowman on the books of the Bank, we attach no importance to it. If ho desired the stock to be so transferred, he should have offered to comply with the requisitions of the charter in such case. Act of 1882, Sea 29, p. 64.

While we think it necessary to reverse the judgment against the defendant personally, and remand the cause for a new trial, there is no reason to disturb so much of the judgment as enforces the mortgage upon the land, given by Gayle to the Bank.

It is therefore decreed that so much of the judgment as decrees the seizure and sale of the land mortgaged to pay the balance due, as in said judgment stated, be affirmed, and that as regards so much only of said judgment as condemns the said Bowman, personally, the judgment be reversed, and the cause remanded for a new trial, the plaintiff to pay the costs of the appeal