text:
    Adams et al. v. Lear et al.
    Where a mortgagee transfers to different persons portions of the mortgage debt, they will he entitled to payment, pro rata, out of the property mortgaged; no preference results from any difference in the dates of the transfers.
    PPEAL from the District Court of Ascension, Burle, J.

      llsley, for the plaintiffs,
    cited Florance v. N. 0. Navigation Co. lRob. 224. Perkins v. Campbell, 5 Mart. N. S. 149. Hermann et al. v. Pfister, 2 La. 456. Pepper v. Dunlap, 16 La. 169.

      C. A. Johnson, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The facts of this case are stated by the counsel for the de fendants, as follows:

“ On the 16th February, 1842, Thomas Cottman sold to Thomas B. Scott, a plantation and slaves, in the parish of Ascension, for the sum of $43,000. In the act of sale certain mortgages are set forth, which Scott assumed in part payment of the price, while for the balance of $12,280, payable in five annual instalments, he furnished his five Dotes to Cotlman's order. The mortgages assumed, were, one in favor of the Bank of Louisiana, and another in favor of the Canal Bank ; the former is stated in the act of sale to amount to $19,850, and the latter to $10,000. Scott having failed to meet his engagements towards these banks, they provoked a sale of the property, which took place on the firstl Saturday of October, 1845. It further appears that after the payment of these claims of the banks, there remained in the hands of the sheriff a balance o: the price of adjudication of $6,264 91, which he deposited in court, for dis-l tribution among the holders of'the mortgages, subsequent to those of the banks. Of the series of notes mentioned, three are admitted to be outstanding, and to belong, the third and fourth to the defendant, John Lear, and the fifth to Mino-Kenner. Lear and Kenner obtained leave by ex parte orders of court, to withdraw the fund deposited by the sheriff, on furnishing bond and security for it; forthcoming on a final partition between all the parties in interest. The present plaintiffs claim to share in this fund, upon grounds set up in their petition, as follows; That the amounts stated in the act of sale from Cottman to Scolt\ as due by the former to the banks, are incorrectly stated ; that the sum really due was less by about $3,000, than what appeared by the act of sale; that this balance no longer due, as was first supposed, to the banks, was consequently payable to Cottman, and that Cottman assigned to them this balance. The plaintiffs then claim that the fund deposited in the court be divided pro rata between themselves and the defendants, who are holders of the three notes above mentioned. It is admitted in the statement of facts that, the notes held by defendants were transferred to them before maturity, and before the assignment made to plaintiffs as set up in their petition. The court below ordered the fund to be distributed pro rata between the plaintiffs and defendants, and defendants have taken this appeal.”

The ground upon which the appellants claim the reversal of the judgment is “that Cottman, to whom the balance afterwards assigned to plaintiffs reverted on its being found that it was not due to the banks, could not himself have come into competition with defendants, holders of the notes previously transferred to them; that he could not assign a greater right than he himself; had and that for this reason the whole fund should be awarded to the defendants in proportion to their claims.”

The claim assigned to the plaintiffs was a portion of the price of the plantation, as well as the notes transferred to the defendants; and the mortgage was given to secure the whole price without constituting a priority in favor of the notes. It is not shown that when Cottman transferred the notes to the defendants he transferred them with a right of preference; and the fact that the transfer to the plaintiffs of another portion of the ¡trice was made subsequently to the transfer of the notes, does not in law postpone the second transferree. Being equally protected in the hands of the mortgagee and transferror, the several portions of the price continues to be equally protected in the hands of the respective transferrees, in the absence of stipulations to the contrary. This doctrine of equality has been frequently recognised. See Florance v. Orleans Navigation Company, 1 Rob. 224. Pepper v. Dunlap, 16 La. Rep. 225. L'orsque le créancier privilégié a cédé son droit á differens cessionnaires, porteurs de titres successifs, ils concourent entre eux et ne peuvent se prévaloir de la date de ces titres pour prétendre une preference les uns sur les autres. Troplong, Priv. et Hypoth. § 366.

Judgment affirmed.


source: Caselaw Access Project

author: King, J,

license: Public Domain

text:
    Valega v. Broussard.
    Where a new trial has heen granted to a party to enable him to establish a fact by the evidence of a certain witness, and this witness is not produced on the second trial, nor his absence accounted for, no oilier trial will be granted to the same party, to enable him to prove the same fact, though applied for on the ground of newly discovered evidence, and supported by an affidavit of the applicant in which a different witness is named as one by whom the fact is expected to be proved. Due diligence was not used to procure the evidence*
    from the District Court of West Baton Rouge, Voorhies, J,

      Lahauve, for the appellant.

      Herron, for the defendant.
   The judgment of the court was pronounced by

King, J,

This suit is instituted to rescind the sale of a slave, on the ground that the slave was in the habit of running away. The cause was, at different times, submitted to two juries, and both trials resulted in verdicts for the defendant. From the judgment rendered upon the last verdict the plaintiff has appealed. 1

The plaintiff moved for a new trial in the court below, on the grond of newly discovered evidence; and in his affidavit named a witness by whom he expected to prove that the-slave ranaway from the defendant while in the possession and ownership of the latter,, and remained absent for several days. The motion was overruled, and we think, under the circumstances of this case, correctly. The plaintiff had applied for and obtained a new trial after the first verdict against him, upon the ground that a different witness would prove the same fact. That witness was not produced on the second trial, and the failure to produce him is not accounted for. The cause had been pending for more than two years before the second trial. These facts justified the conclusion of the judge that, due diligence had not been used by the plaintiff to procure his evidence.

On the merits the testimony is not such as te authorize us to disturb the judgment, after two juries have passed upon the facts, and have concurred in their verdicts. Judgment affirmed.


author: Rost, J.

text:
    Gentile, Administrator v. Foley, Administrator.
    A judgment of interdiction, executed nearly thirty years previously, in the presence of the party interested, and of his wife and relations, without any kind of opposition, and under which property has been purchased by third persons in good faith, will not be annulled because no record evidence of citation or of the appearance of the party is to be found in the office where it should have been preserved. Per Curiam : In consequence of the notorious want of care ixi the preservation of the public records in the country parishes, the absence of such record evidence, when applied to ancient proceedings,raises but a remote presumption, and one which must be held subordinate to the violent legal presumption 'that, the judge before whom the proceedings were had did his duty.
    After twenty years, there is a presumption in favor of every judicial tribunal, acting within its jurisdiction, that all persons concernedhad due notice of its proceedings.
    from the District Court of Assumption, Randall, J.

      W. Hall, forthe appellant,
    cited Bernard v. Vignaud,, 1 Mart. N. S. 9. Stafford v. Stafford, Iff. 551. Segur v. Fellerin, 16 La. 67.

      Beatty, for the defendant,
    cited C-P. 612. Lalanne v. Moreau, 13 Lr,. 431. Ball v. Ball, 15 La, 177. Code of 1808, book 1, tit. 9, p. 80.
   The judgment of the court was pronounced by

Rost, J.

In 1,818, Francois Hebert, being then a married man, was interdicted by a judgment of the Court of Probates. Joseph Hebert, his brother, was appointed his curator, and caused a judicial sale of all his property to be made. No opposition was ever made to the proceedings, nor to the sale of the property by the wife of Francois Hebert, by himself, or by any of his relations. In 1844, he died, and the plaintiff was appointed administrator of his succession. Soon after Joseph Hébertalso died, and the defendant is the administrator of his succession. The plaintiff sues him in that capacity to annul the judgment of interdiction, on the ground that Francois Hébert was not cited, that be was not represented in the proceedings, and that the evidence on'which the judgment was rendered was received ex parte. The judgment in the court below was for the defendant, and the plaintiff appealed.

We take the curatorship of minors-and persons insane-tobe a personal trust, which does not descend to the -legal representatives of -the -curator after h¡3 death. His succession is liable for all damages resulting from maladministration; but we are not prepared-to say that his administrator has capacity'to stand in judgment in a case like this. If he had capacity, we could not, under the rules of evidence by which the courts of this State have been governed ever since the country-became an integral part of the United States, annul, at this jate day, an executed judgment .on the grounds alleged. Tagiaseo et al. v. Molinari’s Heirs, 9 La. 512.

The only evidence of the want-of citation and appearance Is that, no record evidence of these-facts can now be found in the office where it should have been preserved. We have said,iin similar cases, that, in-consequence of the notorious want of care in the preservation of public records -in the country parishes, evidence of this description, -when applied to -ancient proceedings, raises but a remote presumption, -which we-would hold to be subordinate to the violent legal presumption that, the judge before whom those proceedings were had did his duty. Gibson v. Foster and Reese, 2 Ann. Rep. 503.

After twenty years, the-presumption -is made in favor of every judicial tribunal acting within its jurisdiction, that all persons concerned ,had due notice of its proceedings. 1 Greenleaf, Evid. no. 19. Brown v. Mood, 17 Mass. 68. The judgment -in this case was executed .nearly thirty years ago, in presence of the party interdicted, his wife and his relations, without opposition of any kind. The purchasers of the property sold under it have paid for it in good faith; and it is our duty to presume, against mere probabilities, that the law was complied with .in its rendition, if not strictly,in form, at least in substance.

■Judgment affirmed.


author: King, J.

text:
    The Union Bank of Louisiana v. Smith.
    Where, subsequently to the seizure under a.Ji.fa. and advertizementof the property for sala at the court bouse of -the pai-isb, the court bouse is removed, under the provisions of a special law, to another place, the advertizement which had been posted up at the old court house should be l-emoved to the new, and the sale be made at the latter. C. P. 664. Stat. 5 March, 1842. After the new seat of justice was selected, and a court house provided there, it became the only place at which sales under execution could 'be-legally made.
    Where a defendant in injunction prays .for its dissolution, and that the principal and C. M., his surety, be condemned, in solido,.to pay interest and damages, and it appears fromtho bond that J. J., and not C. M., was surety on it, judgment may be rendered against the party really bound as surety. Under sec. 3 of the stat. of 25 March, 1831, it was-sufKcient to show who was the real surety on the bond, to authorise a judgment against him.
    from the District Court of Pointe Coupee, Farrar, J.

      Cooley, for the plaintiffs.

      Hudson, for the appellant.
   The judgment of the court was pronounced by

King, J.

The Union Bank issued a,fieri facias upon a judgment obtained against the defendant, Smith, in virtue of which the sheriff seized two slaves of the latter, and advertized them on the 5th of July, for sale at the court house of the parish of Point© Coupée, on the 7th of August, 1 847. The defendant instituted this action to enjoin the execution of the writ, on the ground that the sheriff, without authority of law, was about to sell the slaves seized ata place different from that named in the original advertizement. The injunction was dissolved, and the defendant, Smith, and his surety, were condemned, in solido, to pay three per cent interest, and twenty per cent damages, on the amount of the judgment enjoined. From that judgment the present appeal has been taken.

It appears from the evidence that, at the date of the seizure and of the advertizements by the sheriff the court house of the parish of Pointe Coupée was at a point upon the Mississippi river nearly opposite to the town of Bayou Sara. The legislature, by an act passed on the 7th of April, 1847, p. 79, authorised the inhabitants of the parish of Pointe Coupée to establish a seat of justice for the parish, and directed an election to be held for that purpose. Under the authority of that law a site was chosen on False river, some distance from the old court house, .and on the 14th of July, the sheriff made proclamation of the fact as directed by the statute. The police jury was convoked, and at its meeting selected a house within the limits prescribed by the vote of the inhabitants, which was rented and established as the court house of the parish. Upon this change being made the sheriff gave public notice, that all sales which had been advertized for the first Saturday of August, would be made on that day at the new seat of justice; and the advertizement of the sale now in question, which had previously been posted up at the court house on the Mississippi river, was removed and posted up at the newly established court house. The defendant, Smith, contends that the sale could only legally have been made at the court house on the Mississippi river, which was the seat of justice at the date of the seizure; that the change of the place of sale by the sheriff was unauthorised by law; and that the advertizements of thirty days required by law are intended to be thirty consecutive days notice at one place.

The sheriff is required by law to advertize under execution at the court house of the parish, and to sell the property seized at the court house, unless the debtor claim the right of having his plantation or slaves sold at his domicil. C. P. art. 664. Acts of 1842, p. 210. The advertizement of the sheriff in the present instance announced that the sale would be made at the court house of the parish of Pointe Coupée, without designating the spot at which the court house stood. When the new seat of justice was selected, and a court house was provided at that point, that became the only place at which he .eould legally proceed to make sales under execution. The old courthouse then ceased to be a public place known to the law, or the place at which the sheriff could legally advertize or sell without the consent of all the parties. The police jury had not only the authority to provide a court house at the place selected for the seat of justice, but it was their duty to do so, both under the general law and the special law providing for the removal. Bui. and Curry’s Dig. p. 164, §10.

It became indispensable to the validity of the sale under this authorised change, that the advertizement should follow the court house to its new site. The sheriff, by removing the advertizement, gave to it the thirty days publicity required by law, and under circumstances rather calculated to increase than to diminish the notoriety of the sale.

The Union Bank, in its answer, prayed for a dissolution of the injunction, and that Smith, and his surety, Charles Morgan, senr., should be condemned, in solido, to pay interest and damages. Joseph Jewell was the surety on the bond, and not Morgan; the court, however, rendered a judgment against Jewell as surety ; and as to him it is urged that the judgment is erroneous, and must necessarily be reversed. We think that the judge did not err. The act of 1831 provides that the surety on the injunction bond shall he considered a party plaintiff in the suit; and, in case the injunction shall be dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest, &c. Under this act it was sufficient to show who was really the surety on the bond, to authorise a judgment, insólido, against him. He was by law a party plaintiff on the record; and the misnomer as to him in the answer was cured by the exhibition of the bond, which disclosed his true name and .character.

Judgment affirmed.

      Eustis, C. J., did not sit, being interested.


author: Edstis, C. J.

text:
    Ryder v. Thayer et al.
    Where an agent fails to ship goods, which he was directed by his principal to do, the latter is entitled to recover the actual value of the goods at the port of destination.
    In oases of breach of contract through negligence or fraud, no more can be recovered as damages than will fully indemnify the creditor, A jury has no more right to exact a larger sum from a debtor, than they have to increase the amount due by a promissory note.
    Decisions in Arrow smith v. Gordon, ante p. 105, and in Porter v. Barrow, ante p. 140, affirmed.
    from the Fourth District Court of New Orleans, Strawhridge, J,

      T. B. Wolfe, for the plaintiff.

      J. Barker, for the appellants.
   The judgment of the court was pronounced by

Edstis, C. J.

The plaintiff, residing at Alton, in the State of Illinois, in March, shipped from St. Louis, a quantity of grain, consigned to the defendants, who are commission merchants in New Orleans, with instructions to forward the same to Hawes, Godfrey Sf Co. in New York. By the bill of lading the consignment was deliverable at the defendants’ warehouse on the opposite side of the river; the defendants received it on this side, and sold it in direct violation of their instructions. The plaintiff received the proceeds of the sale, but gave notice, on having intelligence of the sale, that he would hold them responsible for the act. This suit is for the recovery of Si,000 damages, for the unwarrantable violation of the plaintiff’s orders in the disposition of his property, for which sum there was a verdict and judgment thereon. The defendants have appealed.

The counsel for the defendants contends that, if his clients, under the evidence, are liable for damages, they must be limited to the loss sustained by the plaintiff, and to the profits of which he has been deprived, and the indemnity must be confined to those which might have been foreseen and were the immediate and direct consequence of the breach of the contract, under article 1928 of the Civil Ci de.

The reasons given by the defendants for selling the grain consigned to them to be forwarded to its ultimate place of destination, are not satisfactory; but it brought the market price, which declined immediately thereafter, and the proceeds were remitted to the plaintiff’s consignees and correspondents, in New York. We think the evidence authorizes the conclusion that, at the time of the arrival of the shipment in New York in the ordinary course of a voyage, had it been disposed of, or within a reasonable time thereafter, it would not have produced a nett sum exceeding that remitted as the proceeds of the sale in New Orleans. No commission was charged by the defendants, and the shipment, so far as the grain is concerned, -could have been replaced in New York without loss. We infer from the letters of the defendants offerred in evidence by the plaintiff, that another shipment of grain 'belonging to him was forwarded at about the same time from this port to New York, of the result of which as to profit or loss we have no evidence.

But the counsel for the plaintiff has urged that the jury was justified in assessing exemplary damages, the dereliction of duty on the part of the agents being flagrant and without justification. We do not consider this position as tenable. The rules under which damages are assessed for breaches of contract are fixed by our Code, and .are imperative. We have on several occasions been under the necessity,of reducing the amounts of verdicts of juries in cases of this kind; and, in a recent case, the subject of the assessment of damages has been fully considered, and our views in relation to it explained. Arrowsmith v. Gordon et al., ante p. 105. See also Porter v. Barrow, ante p. 140. In relation to the extent of the responsibility of the agent to his principal, the most approved authority, judge Story, recognizes the same rules. In case of non-shipment of goods by .an agent, which he was bound to make, the principal .is .entitled to recover the actual value .of the goods at the port of destination. 3 Peters R. 84 and S5. Story on Agency, ,§ 216 et seq. To the market value of the grain in New York, the evidence and argument have been principally directed. There is evidence as to some items which, under the verdict of the jury, we feel ourselves authorised to give the plaintiff the benefit of. In ease of a breach of contract by the negligence or fraud «f a party, no other sum nan be allowed as damages than that which fully indemnifies the ’creditor. Beyond this juries 'have no more right ¡to exact m.larger sum from a debtor, than they have to increase the amount due by a ¡promissory note. Within this limit, on questions of fact, we have always .■given great weight to verdicts. We think the jury in this case has allowed the plaintiff an amount which exceeds the fair indemnity which he has a right to •dlairn from Che defend ants for a violation of his instructions, rand -which will be fully covered by the sum of $250.

The judgment appealed from is therefore reversed, and judgment entered in favor of the plaintiff, against the defendants, for two hundred and fifty dollars, with costs and interest from judicial demand; the plaintiff paying the .costs of this appeal.


text:
    Brooks v. Walker, Administrator.
    The delivery of letters of administration is presumtive evidence that the oath required of an administrator has been taken, and w.iU impose upon one who contests the fact the burthen of proving that the formality has not been complied with.
    The objection that-one who sues as an administrator is not a resident of the State, made for the first time on amotion for anew trial, comes too late.
    Where an order of seizure and sale is enjoined, and the creditor answers the petition fox an injunction, praying for a judgment against the plaintiff-in injunction for the debt due him, with mortgage, the only effect of the prayer will be to change the proceedings from the vid executive to the vid ordinaria. The change involves no abandonment of the action, but merely authorizes a judgment to be rendered affecting the debtor’s property with a general mortgage.
    Where an order of seizure and sale is enjoined, and the proceedings are changed from executory to ordinary by the answer of the creditor, both parties being before the court and issue joined between them, the plaintiff in injunction cannot object to the proceedings vid ordinaria, on the ground of want of service of citation and petition.
    Where the conditions announced at a sale of land, and stated in the procés-verbal, show clearly that it was intended that the property should remain mortgaged to secure payment of the notes given for the price, the effect of an adjudication, made upon those conditions, will be at once to convey title and to create a mortgage. It was not. necessary to the perfection of the title that the adjudication should have been followed by a separate act, signed by the parties (C. C. 2C01); and the procés-verbal of a sale, made under the authority of a Court of Probates, is full evidence of the mortgage retained, and when signed by the purchaser and parish judge, in the presence of two witnesses, imports a confession of judgment. Neither the signature of the administrator of the succession, nor of any agent for him, is necessary to complete the purchaser’s title,nor to give to the procés-verbal the authenticity of an order of seizure and sale.
    The purchaser of the property of a succession cannot plead in compensation a debt due to him by the deceased. An administrator cannot assent to such an extinguishment of the debt, in violation of the rights of other creditors.
    A prayer for a jury is too late, after the case has been called for trial. C. P. 494, 495,
    A party to a suit will not be required to answer interrogatories, where the application to propound them was made after the case had been called for trial, and the party proposed to be interrogated was absent.
    from the District Court of Pointe Coupée, Farrar, J.

      Lacoste, for the plaintiff.

      Ratliff and Cowgill, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiff Brooks and W Walker were the joint owners of a tract of land. Walker died, and a sale of the land was made under an order of the Court of Probates, for the purpose of effecting a partition. The terms of the sale required that the purchaser should give his notes, secured by a special mortgage on the land. Brooks became the purchaser at the public sale, and gave his three notes for one-half of the price payable to the administrator of the deceased, and identified with the sale by the paraph of the parish judge. A partial payment was made by the plaintiff, and for the residue Walker’s administrator obtained an order for the seizure and sale of the land, the execution of which the plaintiff instituted this action to enjoin. The grounds upon which the injunction was claimed are: 1st. Because th e procés-verbal of the sale, upon which the order of seizure issued, is not an act importing a confession of judgment, there being no acknowledgment of the debt claimed. 2d. Because the order directs the sale of the entire tract of land described in the procésverbal of the sale, only one undivided half of which it is alleged was included in the mortgage. 3d. Because there was no legal adjudication to the plaintiff, the procés-verbal of sale not having been signed by the administrator, but by one Van Winkle, who professed to act as his agent, but whose authority as such is not shown. 4th. Because the administrator of Walker does not appear to have taken his official oath as such; and, without being sworn, was not authored to maintain the action. 5th. Because he is in danger of being evicted from the land purchased.

The administrator filed an answer to this petition, in which he prayed for a dissolution of the injunction, and for a judgment against the plaintiff for the debt claimed in the original petition, and that his privilege and mortgage should be recognized and enforced. Upon the filing of this answer the plaintiff moved for the dismissal of the executory proceedings, on the ground that the action had been changed from the vid execulivd to the vid ordinarid, and that the two suits could not be conducted together. The motion was overruled, and the judge ordered the two proceedings to be consolidated. After the cause was called for trial the plaintiff in injunction filed a supplemental petition, in which he pleaded compensation and prayed for a jury. He also offered to file an exception and answer, in which he excepted to the want of citation, repeated most of the allegations contained in his original petition, and appended to it interrogatories to the plaintiff. The court overruled the prayer for a jury on the ground that the application came too late, and refused to order the interrogatories to be answered, the defendant being absent. On the trial a judgment was rendered in favor of the succession of Walker for the debt claimed, and the plaintiff has appealed.

As the evidence of his authority, the administrator exhibited the letters of administration delivered to him by the judge, in which it is stated that, “he has been duly and legally appointed administrator of the succession of William Walker, deceased, and has taken the oath, and given the bond and security required by law.” The delivery of letters of administration presupposes that the required oath has been taken, and is such evidence of the fact as to impose upon the party contesting it the burthen of proving that the formality has not been fulfilled. The objection that the administrator is not a resident of the State, was made, for the first time, in a motion for a new trial; and was, if well founded, made too late to be considered. We may remark, however, that there is no evidence that he was a non-resident at the date of his appointment. His subsequent change of domicil, may furnish a sufficient ground for removing him from his trust, but no such removal has been shown. C. C. art. 1119. 12 Rob. 238.

The judge did not, in our opinion, err, in overruling the motion to dismiss j the executory proceedings. The only effect of the prayer for a judgment I against the plaintiff in injunction for the debt claimed in the original petition, was to change the proceedings from the viá exicutivá to the vid ordinarid. This change involved no abandonment of the action, but merely converted it into a suit to be proceeded with in the ordinary form, by the introduction of evidence on the trial in support of the allegations of the original petition, and authorising a judgment to be rendered affecting the debtor’s property with a general mortgage. 4 La. 307. 16 La. 101. 19 La. 374. When this change took place both parties were before the court, issue was joined between them, and the plaintiff in injunction could not then claim to be served with citation and a copy of the petition. Barrow v. Wright, ante p. 130.

The procés-verbal of the sale, which it is contended affords no evidence of a mortgage, recites: “That the terms and conditions of said sale are as follows : the purchase price payable in one, two, and three years from the 1st of January next,by equal instalments, the purchaser to furnish his notes, with approved personal security, in solido, bearing ten per cent interest per annum after due until paid, and a special mortgage on the land to secure the said notes.” It is signed by the parish judge and by the purchaser in the presence of two witnesses, and also by one Van Winkle, as the agent of the administrator. It is contended that the terms used in the proces-verbal create no mortgage, but contemplate a future act in which a mortgage was to be given. It was clearly intended by the conditions announced at the sale, and stated in the proces-verbal, that the land should remain mortgaged to secure the notes given for the price. The effect of the adjudication upon those conditions was, at once, to convey title and create a mortgage. 7 La. 468. It was not necessary for the perfection of the title that the adjudication should have been followed by a separate act, signed by the parties. C. C. art. 2601. The proees-verbal of a sale, made under the authority of the Court of Probates, has been repeatedly held to furnish full evidence of the mortgage retained; and when signed by the purchaser and parish judge, in the presence of two witnesses, to import a confession of judgment. 7 La. 468. 6 Rob. 26. Neither the signature of the administrator, nor that of his agent, was necessary to complete the purchaser’s title, nor to give to the proees-verbal the authority required to authorize the granting of an order of seizure and sale.

The testimony does not, in our opinion, support the allegation that the plaintiff is in^danger of being evicted. The only evidence relied on in support of the averment is, that the admission made at the trial that a witness named in an affidavit for a continuance would, if present, swear “that he was well acquainted with the locality of the land, that he knew the extent and character of the conflicting claim urged by the heirs of James Simpson deceased, he having assisted in surveying and running out the same.” These facts if sworn to would not show that the plaintiff has been disquited, nor would they furnish reasonable grounds for apprehending that he would be disquited in his possession. C. C. art. 2535.

The claim pleaded in compensation was properly rejected. The purchaser of the property of a succession is not permitted to offer a debt due to him by the deceased in compensation. The administrator is without authority to assent to such an extinguishment of the debt, in violation of the rights of other creditors. 7 Mart. N. S. 238.

It is not material to enquire whether the whole, or the undivided half only, of the land was affected with the special mortgage resulting from the adjudication at the probate sale. The conversion of the executory into an ordinary proceeding authorized a judgment operating a general mortgage on the property of the debtor, in virtue of which the entire tract may be seized in satisfaction of the debt.

The prayers for a jury, and that the plaintiff should be required to answer interrogatories, were properly overruled. The cause had not only been set down, but had been called for trial, when the applications were made, and the plaintiff was absent. C. P. arts. 494, 495. 1 Ann. R. 403. 4 La. 511.

Judgment affirmed.


text:
    Dabadie v. Poydras, Curator.
    Parol evidence is inadmissible, between the parties or their representatives, to prove a sale, evidenced by a notarial act, to have been simulated. A counter-letter, or other written evidence equivalent thereto, is the only proof of simulation, admissible under such circumstances. C. C. 2256.

      from the District Court of Pointe Coupée, Farrar, J.

      Cooley, for the appellant.

      Provosty, for the defendant.
   The judgment of the court was p'ronouneed by

King, J.

The plaintiff instituted this action to recover a note, which she alleges that the defendant illegally withholds from her. Her demand was rejected in the lower court, and she has appealed.

It appears from-the evidence that the plaintiff, by a notarial act, transferred to Casimir- Dabadie, all her rights as heir in the successions of her father and mother.. Subsequently she intermarried with Dabadie, the vendee: but, before the settlement of the successions of the plaintiff’s father and mother had been, effected, Dabadie died. On the settlement and partition of those successions the note in question fell to the share of the plaintiff, who received it, and delivered it for collection to the defendant Poydras, who is the curator of her husband’s succession. Poydras was examined as a witness, and stated that he has always held the note as curator since its delivery to him, and that it was inventoried among the effects of Dabadie. On the trial the plaintiff offered several witnesses to prove that Dabadie, during his last illness, declared that the sale from the plaintiff to himself was without consideration, that he acquired nothing by the transfer, and that the rights of the plaintiff in the successions of her father and mother, purporting to- be conveyed by the act, still belonged to her. This testimony was rejected, and the plaintiff’s counsel excepted.

The judge did not, in our opinion, err. The object of the testimony offered was to contradict and destroy by parol the plaintiff’s solemn written act, and to prove that the sale from herself to the deceased was simulated. It has been repeatedly held that the fact of simulation admits of no other proof between the parties to the contract or their representatives than a counter-letter, or other evidence, in writing equivalent to a counter-letter. Liautaud et al. v. Baptiste, 3 Rob. 452, and the authorities there cited. 19 La. 412. C. C. 2256. 5 Rob. 326. Ib. 332. 6 Rob. 447.

It is further to be observed that this action was not instituted to annul the sale, nor is the sale alluded to in the petition. This condition of the pleadings of itself presented an insuperable objection to the introduction even of evidence which wonld have been admissible in a direct revocatory action.

Judgment affirmed.


text:
    The State v. Lyons.
    One who sells spirituous and intoxicating liquor to a slave, will be liable to the penalties imposed by the stat. of 2 April, 1832, though the slave was hired to him at the time. Aliier, | where the liquor was not sold, but given.

    A caption to an indictment is not required by the laws of this State.
    It is no objection to an indictment for an offence created by statute, that it does not aver that I the accused was not embraced within the terms of the proviso. What comes by way of a J proviso in astatue must be urged by way of defence by the accused; otherwise, where the! exceptions are in the enacting part of the law, when it must appear in the charge that the| accused does not fall within any of them.

      PPE AL from the District Court of Lafourche Interior, Randall, J.

      Cole, District Attorney, for the State.

      Beatty, for the appellant.
   The judgment of the court was pronounced by

King, J.

The defendant was convicted of selling spirituous and intoxicating liquor to a slave in contravention of the act of 1832, and from the judgment rendered against her has appealed. On the trial of the cause the defendant’s counsel asked the judge to instruct the jury, that if the slave was hired to the the defendant by a person authorized to hire him at the time the liquor is alleged to have been sold to him, they should render a verdict of acquittal. The judge refused to give this charge, and the defendant’s counsel excepted. The judge did not, in our opinion, err. Persons who give liquor to slaves, under their control by a contract of hiring, are expressly exempted from the penalties of the statute by one of the provisions. The evident intention of the legislature was to permit owners and others to give ardent spirits to their own slaves, or to slaves in their service by hire ; those relations .being considered a sufficient guaranty for their prudent and moderate use. But the prohibition of selling extends to the lessee of a slave. No charge -was asked in relation to giving.

The defendant’s counsel has assigned as errors: 1st. That it does not appear from the record that the grand jury were sworn in the .parish of Lafourche Interior, or at the term of the court when the bill was found ; -that the words “ then and there sworn,” essentia] to the caption of an indictment, are omitted. 2d. That the indictment is defective, inasmuch as it contains .no averment that the defendant was not within the terms of the proviso of the act.

1. The record shows distinctly thatthe grand jury were sworn in the parish of Lafourche Interior, and at the term of the court at which the bill was found. A caption to an indictment is not necessary under our system, and none has accompanied the record in the present instance. It may further be observed that, it has ceased to be deemed essential to the validity of a caption, to prefix the words “then and there” to the word “ sworn.” 1 Chitty C. L. 334, 662. State v. Peterson, 2 Ann. Rep. 921. 8 Rob. 698.

The second objection is equally untenable. In the case of The King v. Jarvis, Lord Mansfield said: “It is a known distinction that what comes by way of proviso in a statute, must be insisted on by way of defence by the party accused; but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them.” See the ease reported in 1 East’s Rep. 643, 646. Also The King v. Stone, at the same pages. 2 Hale’s P. C. 170. 1 Chitty C. L. 283.

Other errors were also assigned, but have not been insisted on in the argument. Judgment affirmed..


author: Eustis, C. J.

text:
    Commissioners of the Exchange and Banking Company v. Yorke et al.
    a. case will be remanded for further proceedings, where the irregularities in the mode of conducting it are such as to render it necessary in order to secure the rights of the litigants.

      from the Fifth District Court of New Orleans, Buchanan, J.

      L. Pierce, Benjamin, and Micou, for the plaintiffs.

      R. M. Carter, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

Henry Florance, subrogated to a judgment against E. Yorke, No. 21,727 of the docket of the District Court, filed an opposition to the distribution of the proceeds of a sale of certain real property of the defendant, under an execution issued on a judgment standing in the name of J. J. Hanna, as subrogated to the rights of the original plaintiffs, on the ground that Hanna’s judgment had been extinguished, having been purchased by him with the money of Yorke, and for his exclusive benefit. The opposition was dismissed, and Florance has appealed.

At the time the judgment was rendered, in June, 1847, the case between the same parties which at this term has been remanded for further proceedings, No. 657,2 An. R. 995, had been already tried in February previous., but no application for an appeal had been made. The fact of the extinguishment of this judgment for the cause assigned, was one of the principal matters at issue in that litigation. The disposition of the proceeds of the property .sold under execution necessarily depended on that fact; thus the cause ofaction and the parties are identical. The judge before whom this case was tried, admitted in evidence the proceedings against the same party in the garnishment, and, on Hanna’s answers, the opposition of Florance was considered as not sustained, and adjudged accordingly. To the admission of those answers in evidence., Florance took his bill of exceptions.

The opposition of Florance was filed on the 16th June, 1847, to which the general issue was pleaded on the 28th of that month. The petition of the same party in the suit we have mentioned, No. 657, and the answers to interrogatories of Hanna, had been filed in December previous, and on the 5th of January, the traverse of Florance was made to them. When this opposition was filed and pleaded to by Hanna, there was pending before the same court and between the same parties a controversy which embraced the cause of action which was the ground of the.opposition, and its pendency ought to have been pleaded, and the proceeds of the sale under execution .arrested, until the matter in dispute was determined according to the mode of proceeding which was recognised by this court in the case of the Bank of Louisiana v. Delery et al, 2 Annual R. 648.

The other case terminating on the 16th of February following, by the dismissal of Florance's opposition for the cause assigned, which was only appealed from subsequently to the decree in this case, and haying been restored to its former condition with the traverse to the interrogatories, present an anomalous question for our decision. No authorities have been referred to by the counsel .on either side, and it is highly probable that no similar question will ever arise, or ever will be again presented for the judgment of this court.

We d.o not consider ourselves called upon to decide every question which a departure from the settled rules of proceeding in the conducting of causes may rfjise up, but rest satisfied that the interests of the law and of the parties themselves are best seryed by keeping suitors within the forms of procedure, from which there can be no departure in cases at all complicated without some interests being jeoparded.

Such .is the condition of the litigation between thesé parties that it must be put in some form in which the established rules of procedure and law can bel applied to it. I here is a cause of action set forth against Hanna in the oppositions of Florance, and the court has power to compel its prosecution in such form as will secure the rights of the respective litigants and the simplicity and order which our rules of proceeding require, whether the adverse party require it or not. The decision we have come to in the other case between the same parties renders it necessary that the same disposition be made of this. •

It is therefore decreed that the judgment appealed from be reversed, and the case remanded for further proceedings; the appellees paying the costs of this appeal.


author: Eds'tis, C. J.

text:
    The Bank of Louisiana v. Briscoe.
    The provision of article 2895 of the Civil Code, establishing the rate of conventional interest, has always been confined to loans of money, and held not to apply to the purchase and sale of promissory notes, hills of exchange or other negotiable instruments, nor of credits.
    An exchange of credits made bond fide, is not illegal; dliter, if the exchange be a mere device to cover usury. In eveiy case the inquiry is, whether the transaction was, in substance, a loan of money; if really a sale or exchange of credits, it will be valid though the contract be in the form of a loan.
    Where the facts of a case present a double aspect, one of which represents a contract which the law authorizes, and the other one prohibited by law, the contract must be sus. tained.
    from the Fifth District Court of New Orleans, Buchanan, J.

      L. Peirce, for the plaintiffs.

      Benjamin and Micou, for the appellant.
   The judgment of the court was pronounced by

Eds'tis, C. J.

The defendant obtained an injunction against the executory process issued for the sum of $14,400 with interest, on an authentic act, by which his property was mortgaged to secure the payment of the sum of $18,000, with interest, &c., the amount of a bond executed by him in favor of the Bank of Louisiana. The injunction was dissolved after a trial of the cause on its merits, and the defendant has appealed. It has been argued before us as presenting a question of usury.

On the 22d of April, 1838, the defendant wrote to the cashier of the bank applying for a loan of money, on a mortgage of his plantation and slaves in the parish of Concordia. To this letter the cashier replies in a letter, under date of the 7th of May following, addressed to the defendant in Rodney, Mississippi, that “the bank has some funds in the Planters’ Bank of Natchez, which you can obtain the loan of, .say $18,000, under the terms of the charter, on mortgage, &c.,” and adds, ‘‘ let me hear from you, as I have other applicants for it.” On the 3d of May, on the application of the defendant, a resolution had been passed by the directors of the bank, agreeing to loan him $18,000, under the terms of the charter, on mortgage, on his titles to the property offered proving .satisfactory. The defendant, by a letter from Port Gibson, Mississippi, of date the 19th May following, accepts the offer of the loan on the terms proposed in the letter of the cashier, gives information concerning his titles, and expresses his desire that the act of mortgage may be sent to him for signature, but if his presence in New Orleans be required, he states he will then be there without delay. Under date of the 22d May, from Yidalia, the defendant forwards to the cashier his title papers and certificate of non-hypothecation : he reiterates jQ jijjg ^¡g desire of not going to New Orleans, unless necessary for the execution of the mortgage; he adds “a check for the money could also be forwarded to me, at Rodney, Mississippi.” On the 30th of June, the cashier notified the defendant at Port Gibson, that the bond and mortgage had been received, and the discount made for the nett proceeds of which, $16,443, he was requested to call on the cashier of the Planters’ Bank at Natchez, who would pay it..

On the same date he writes to the cashier of the Planters’ Bank enclosing a blank check for the defendants’ signature.- The portion of the letter which is relative, reads thus: “Enclosed, I send you William Briscoe's check on this bank for $16,443, to your order, nett proceeds of loan mortgage, and which you will please pay to him and charge the same to our account; and, on return of the check, we will give you credit for the same. I have written to Mr. Briscoe, at Port Gibson, by this mail, to call on -you and receive his money. I was about sending him a check on your bank for the amount, but our attorney thinks best for you to pay his check on us.” Mr. Briscoe when here, mentioned to me that he must have nothing,but Natchez Bank money, and which I hope you will give him.”

The defendant had, in the meantime, gone to the north; the check was forwarded to him, and, on his signature, the amount was paid in notes of the Planters’ Bank. The Planters’ Bank suspended specie payments in May, 1837, resumed them in December, 1838, and continued paying specie duringthe early part of 1839. It again suspended, and has not since resumed, and is not now, nor was it in 1838, able to pay its obligations. Evidence was admitted showing the depreciation of Natchez bank notes in New Orleans, according to the rates quoted in the price-currents of the day, which, on the 30th of June, 1838, would amouutto about twenty-seven percent.

These faets, it is said, constitute a case of usury, the bank having received for the loan nine per cent per annum, the highest,rate of interest permitted by its charter, and a profit of twenty-seven per cent “resulting from the exchange of depreciated credits for mortgage security at par.” It appears that these banks had been doing business together, and at the time the loan was made the Planters’ Bank was indebted to the Bank of Louisiana in an amount exceeding that of the check paid by the former. From February, 1839, the transactions between them were heavy during that year, and the accounts between them were not closed till 1843. The debt to the Bank of Louisiana, was, therefore, always paid with interest, as the accounts in evidence show; and there is nothing before us which shows that the suspension of specie payment by the Planters’ Bank, which existed at the time of the loan and which terminated in December, 1838, when it resumed payment, was considered by those who administered the affairs of the bank as jeoparding the debt due by the former, which bore interest and was demandable at any time in specie.

The more recent cases referred to by the counsel for the defendant in support of his argument are those of Coxe v. Rowley, 12 Rob. 273, and the Canal Bank v. Hagan, 1 An. Rep. 68; those of Owens, 2 Peters, 527, Waggener, 9 Peters, 389, have been commented upon. The counsel who argued the case of Coxe v. Rowley, collected a great number of decisions of courts of the different States on the subject of usury which relate to loans of depreciated bank notes, whieh will be found in the report of that case. They have been examined and considered, and the conclusions to which we have arrived have not been adopted without the most thorough investigation which our other labours have permitted us to give to the subject. This is given as a reason for not noticing in detail several cases, which apparently conflict with this decision.

In Hagan’s case the rule settled in Owe»’*'case, and which had been frequently recognized by our courts, was applied to a state of facts materially different from those of this case. The contract was exclusively one of loan, and the lender was considered as having taken advantage of the necessities of the borrower to exact, in addition to the highest rate of interest which could be demanded lawfully, a mortgage for an enormous debt due by third persons.

In Rowley’s case, Judge Bullard, in delivering the opininion of the court, Says, after stating that a loan of depreciated bank notes payable by the borrower in money at a rate which added to the depreciation will exceed the highest rate of conventional interest, is undoubtedly usurious: “We do not mean to say that in all cases a loan of depreciated currency is always and essentially usurious ; cases may be supposed in which it would be perfectly legal. The case of The United States v. Waggoner, illustrates this position, &c.” In that case the court considered that it was incontestably established that, in point of fact, the contract was for a loan of depreciated stocks and currency, as if it had been specie ; and the rate at which the stocks alone were taken would have brought the case within the general rule, independent of the depreciation of the bank notes. In Waggoner’s case, the Supreme Court of the United States applied the construction of the usury laws in England, to a contract made by the Bank of the United States under its charter. The article of our Code, upon which our decisions on this subject are based, is a simple prohibition of taking more than ten per cent interest on loans of money; “The amount of the conventional interest cannot exceed ten per cent; the same must be fixed in writing, and testimonial proof of it is not admitted in any case.” Art. 2895. By the 14th section of the charter of the Bank of Louisiana, it is provided that, “said corporation shall not take more than nine per cent per annum upon any of its loans or discounts.”

The operation of thin-article of the Code basmlways been limited to loans of money. No evasion of it has ever been tolerated, but it has always been confined to its tvue intent, and been held not to apply to the purchase and sale of promissory notes, bills of exchange, and other negotiable instruments, nor to the transfer and sale of credits. Under the construction above mentioned the court, in Waggoner’s case, held that a loan of notes of the Bank of Kentucky, which were then at a discount of from thirty-three to forty per cent, made by the Bank of the United States on a note payable in three years, with interest at six per cent, was not usurious. The Bank of Kentucky had agreed to pay interest at six per cent on its notes, and all its notes held by the Bank of the United States were ultimately paid, and the loan was made to the borrower on his application for the loan of ¡$5,000 of said notes, saying they would answer his purpose as well as gold and silver.

The debt due by the Planters’ Bank bore interest, and tbe debt, of which the sum received by the defendant formed a part, was not only paid to the Bank of Louisiana, but large transactions in money took place between them after-wards, and the notes received by the defendant would have been paid on presentment at the bank in less than six months after he took them. It is true the rate of interest which the contract between the defendant and the bank bore, exceeded that of the debt due by the Planters’ Bank, but the rate was that allowed by the charter, and no distinction can be made between the cases on that account. In principle they are identical, except that in this case the funds were in a bank in another State ; and it is by no means clear that the defendant would not have had a right to demand a check on the Planters’ Bank for the nett proceeds of his discount, which the Bank of Louisiana had evidently no interest in refusing, as there was no privity between the defendant and the Planters’ Bank, and no agreement n othe part of the Bank of Louisiana, by which it forebore to exact its demands in specie. The mode in which the payment was made was a matter of acquiescence, rather than of contract, With these exceptions, which are in favor of the plaintiff’s case, the principle settled in Waggoner's case is certain!y applicable to the facts of this. The court considered the transaction between the borrower and the bank as a bond fide exchange of credits, for his accommodation. The contract, as closed by the defendant, was for funds in the Planters’ Bank of Natchez, for which he was to give his bond and mortgage, and have the benefit of renewal under the provisions of the charter of the bank, during the space of five years from its date. “ A bond fide exchange of credits is not per se illegal, though it may be so if it is a mere shift or device to cover usury. If the application be not for a loan of money, but for an exchange of credits or commodities, Which the parties bond fide estimate at equivalent values, it seems difficult to find any ground in which to rest a legal objection to the transaction. Because an article is depx-eciated in the market, it does not follow that the owner is not entitled to demand or require a higher price for it, before he consents to part with it. He may possess bank notes which to him are of par value, because he can enforce payment (hereof, and, for many purposes, they may pass current at par in payments of his own debts, or in payment of public taxes, and yet their marketable value may be far less. If he uses no disguise — if he seeks not to cover a loan of money under the pretence of a sale of them, but the transaction is bond fide what it purports to be, the law will not set aside the contract, for it is no violation of any public policy against usury. ”

Such is the language of Judge Story, in delivering the opinion of the court, 1 The application of the borrower for the loan is only important as furnishing a I clue to the intention of the parties, which must be ascertained from a conside- 1 ration of all the circumstances attending the contract; and, whatever be its 1 form, the enquiry is, whether the substance of the transaction was really a I loan of money; and, if it be a loan, whether the lender has stipulated for, or I taken, a higher rate of interest than the law allows. The form of the contract I in this case is for a loan of money, which the defendant promises to pay; the Q equivalent was the nominal amount of the funds of the Planters’ Bank in fl Natchez. The business was transacted in writing between the cashier and the defendant, and if there was any indirection or concealment in the affair, it has escaped our observation. The transaction being perfectly lawful and innocent in itself, it is not perceived how any ill directed and misspent artifice, even supposing it to have been practiced, would have effected its validity. So far however from that being the case, the very check on which the bank notes were received identifies it with the mortgage loan. It reads: “ Pay nett proceeds mortgage loan," áse., and was sent by the bank to the defendant for him to receive the payment. The bond no more disguised the transaction, than! the promissory note given did that in Waggener’s case. 1

But there is another view of this subject. If it was usurious in the bank tog to loan Mississippi funds or dispose of debts due it by the banks of that State,! and exact interest on their nominal value, because they were depreciated',- by the same reasoning it was usurious' for it to loan its own notes with the interest authorized by its charter, for, at the time of this transaction',- June, 1838, tho New Orleans banks had all suspended, and their paper was depreciated-to from 6 to 8 per cent. All the loans at that time were' made in a depreciated currency, and all are liable to the same objection urged against this contract. The difference is merely of degree. For as to what purposes the Natchez bank notes could, or not, be applied in Mississippi, or at the residence of the defendant in Claiborne county of that State, we have no evidence, except that they were at a discount in that State, and at about twenty-seven per cent discount in New Orleans.

The financial state of this part of the country at that time is within the recollection of most of us, and the application of the theory contended for by the counsel for the defendant to the condition of the banks and commercial business at that period, furnishes,in its consequences, the most convinci )g proofs of its radical error.

The practical views of the law, exhibited in the luminous opinion in Wag-goner’s case, appear to us to be conclusive and unanswerable ; and, according to the rule there recognized, we consider the caseas an ordinary sale or exchange of. a credit in another State, for which the defendant is bound to pay the price agreed upon, according to the terms of his contract. In Waggoner’s case there was a loan of depreciated bank notes for which an obligation Was given for the nominal amount, payable in three years, bearing interest. On the facts presented to us under the evidence exhibited by the defendant, we find that, though the contract is in the’form of a loan, the real transaction between the parties is one in which the Supreme Court of the United States would hold there was no usury. There is no necessity for our stating that, in determining this case we have subjected the rights of the plaintiffs to the severest standard, to wit, the construction of the usury laws in England and the United States. Paper money being in general use in this country, the court of the last resort of the Union affords us the highest authority on that subject.

Even if the facts of this case presented a double aspect, one of which represented a contract which the law authorizes, and the other one within the prohibition of the Code — the former an exchange of credits, and the latter a loan— the contract, on principle, must be sustained, in the absence of any proof of any exaction on the part of the plaintiff, and of any necessity on the part of the defendant. It was held in the case of Archibald v. Thomas, 3 Cowen, 284, that where a contract admits of two construction’s, one of which would bring it within the statutes of usury and the other leave it without, the latter should be adopted ; and the rule of our law is : “Quoties in stipulationibus ambigua oratio est, commodissimum est id accipi quo res de quá agitur in tuto sit. L. 80, de Verb. Oblig.

AVe do not think that the form in which the contract under consideration appears affects a! ail the merits of the cause. In Waggoner’s case, as we have seen, depreciated bank notes were loaned at par, and the obligation to pay was in the form of a promissory note, secured by a mortgage on real estate, for the nominal amount. Contracts to pay money on a future day are usually, in this country, thrown into the form of promissory notes, for purposes of convenience.

Under the roman law, obligations having quite a different origin were put in the form of a loan, when a definite sum was to be paid. When accounts were closed, a transaction settled, asale made, or the like, and- the debtor did not pay but retained what was due, it was-often kept under the form of a loan. The texts are cited inDomat, book 1, tit. 6, sect. 1st, which treats of Loan and Usury. The form of the contract is therefore immaterial; its true character, resulting from its cause and obligations, is alone important in directing our enqpiries,-and determining its validity. Judgment affirmed.


author: Slidell, S.

text:
    Fuselier, Administrator v. Lacour.
    An agreement-by which it is stipulated tbat each of the parties shall hold an undivided seventh of certain property to be purchased in the name of one of them, and shall pay each his portion of the price,is not a joint obligation, and, in an action on it, all the parties need not he joined. Each party promises separately for himself to do a distinct thing. C. C. 2073} 2075.
    Where one of several co-propriet'ors of property, not partners, makes advances for the benefit of the common estate, without any contract with his co-proprietors, no joint obligations arises on the part of all the co-proprietors- to pay an entire sum, but each- is bound to refund- aoCOrding to his interest.
    from tile District Court of'Pointe Coupée, Farrar,- Jv

      Cooley, for the appellant.

      Lacoste. for the defendant,
    cited Civil Code,- 2080. 3 La. 4-37. 8 La. 523. 11 La. 453. 14 La. 362. 16La. 11-9. 17 La-. 397. 19 La. 414. 3 Rob. 26, 140’. 6 Rob. 351. 7 Rob. 181. 12 Rob. 323.
   The judgment of the court was pronounced by

Slidell, S.

The’petitioner alleges that? the defendant, the widow of Alfred Fuselier, was the universal legatee of said Alfred, and, after his death, took possession’of all his property, and is liable for all-his debts.- That she is indebted'-to the succession of Edward Fuselier, of which plaintiff is the administrator, in divers specified sums, under the following circumstances: That Edward Fuselier, Alfred Fuselier, and five others, were heirs of the widow Ternant,-and- purchased, at the sale of her estate, certain lots of ground in New Orleans ; that said lots were “ adjudicated to Edward Fuselier alone, it being expressly agreed between the said’parties that it was bought for, and that each of the said heirs-should have and hold one undivided seventh of said property, and pay each his or her portion of the price thereof;” that this property was afterwards assessed in the name of Edward Fuselier, who paid the state, parish, and'eity taxes; that he also paid various sums for filling the lots, repairing the-fences, and paving, &c.; that, at the succession salb of the same estate, he also bought in his own name a slave and some cattle, “ which were adjudicated to the said Edward Fuselier alone, By express agreement among said seven heirs that they should own and pay one undivided seventh of said slave and cattle,” oras more distinctly stated in the french translation — qu’ils seraient chacune propriétaire pen-run septieme indivis,et qu’ils payeraient chacun un septieme du prix; and that Edward Fuselier accounted for the price of the slaves and cattle in a settlement with the other heirs. The suit is for the one-seventh part of the disbursements for taxes, paving, &c., and the oneseventli of the price of the slave and cattle.

The defendant excepted to the action on the ground that, “it was based upon divers joint contracts alleged in the said petition to have been entered into I between E. Euselier, Alfred Fuselier, and five other co-heirs, and that all the heirs, being joint obligors, should have been made defendants.” This exception was sustained, and -the -suit was dismissed.

If this be in reality a suit upon joint ccmtracts,'the-exception was well taken; for the Code is positive that, in such a ease,-all the joint ebligors must be made defendants. The sole -enquiry then is whether the action, according to the allegations of the petition, which fo.r -the purposes of the-exception are to be taken as true, is upon joint obligations. “Several obligations are produced when what is promised by one of -the obligors is not premised by the other, but each one promises separately for himself to do a distinct act; such obligations, although they may be contained in the same contract, are'considered as much individual and distinct as if they had been in different contracts, and made at different times.” Civil Code, art. 2073. “ When several persons join in the same contractto do the same thing, it produces a joint obligation on the part of the obligors.” Ib. -2075. Mow, -as -regards the purchase of the slave and cattle, the contract charged is not a contract of the six heirs to pay Edward Fuselier a sum amounting to six-sevenths of the price, ¡but a contract by each heir to pay one-seventh. Each promised to pay a certain share of a certain sum ; and all -did not promise to do the same thing, that is to pay the entire sum. If seven persons sign a note by which they promise to pay $700, this is a joint obligation. But if they sign a .note by which each'promises to pay the one-seventh of the sum of $700, the obligation is several.

As regards the claim for one-seventh -of the monies disbursed for taxes, paving, &c., the petition does not allege any express contract with regard to them. The liability is one arising ex mquo et.bono, to reimburse necessary expenditures of which the defendant has had the benefit. When one of several co-proprietors of property not partners, makes, without contract with his co-proprietors, advances for the benefit of the common estate, we do not consider the law as raising a joint obligation of all the co-proprietors to pay an entire sum; but each is bound to refund a part, according to his interest.

The rule of the Civil -Code that all the joint obligors must be .made parties to the action, even when some have discharged their part of the obligation, is one which has been found inconvenient in practice; and though courts must enforce it, it should be confined to those contracts which are really joint. We think the case before us not an action upon joint obligations, and the plaintiff was entitled to proceed against the defendant alone.

It is therefore decreed that the judgment of the court below he reversed, that the exception be dismissed, and that the cause be remanded for further proceedings according to law; the defendant paying the costs of this appeal.


author: SniDEim, J.

text:
    Creevy et al. v. Cummings et al.
    The master of a steamer, which had sunk with its cargo, may, in the absence of the owner of the cargo, employ persons to recover the submerged property; and, in the absence of any agreement on the subject, the law will imply a promise to pay a reasonable compensation for its recovery. In estimating the compensation, the skill and science employed, and the exposure and peril to which the operation exposed the parties, should be taken into consideration.
    (\Yhere the judgment of a court appears to have done justice between the parties, any error et the judge as to the legal principles which he applied to the ease will bo disregarded.

      from the First District Court of New Orleans, McHenry, J.

      Upton, for the plaintiffs,
    cited Talbot v. Seaman, 1 Cranch, 1. Coulon v. Neptune, I Pet. Ad. Dec. 358. Hughes on Isur. 347. Warder v. Belle Creole, I Pet. Ad. Dec. 42, 80. Matter of the Sarah, 1 Rob. Ad. Rep. 263. Tyson v. Prior, 1 Gallison, 133. Bowev. Brig Blape, 1 Mason’s R. 377. Hand v. Elpira, Gilpin’s R. 60. Frances Mary, 2 Hagg, R. 89. William Beckford, 3 Rob. Ad. R. 355. 1 Sumner R. 400. 2 Story, C. C. 195. Howland's case, 7 ,vol. Mass. Law Rep. p. 377. Sprague's case, 6 lb. p. 14. Frost, on the same .side.

      Jlptnlop, and Grypies, for the appellants.
   The judgment of the court was pronounced by

SniDEim, J.

The steamer Rodolph, laden with cotton, was sunk in Red fiver. The plaintiffs at the time were the owners of a steamer called the BellB.oat; this boat was furnished with steam pumps, a diving-bell, submarine .armour, .and other implements adapted to the recovery of property submerged in water, .and was employed in that business on tl>e ¡Mississippi and its tributaries. This boat happened, at the time of the disaster, tobe in the Red river, .some fifty miles distant from the Rodolph. A messenger was dispatched .a few days afterwards to obt,ain h.ey assistance. On her arrival at the wrepjt negotiations took place between the captain of the Rodolph and the captain of .the Bell Boat, which resulted in a definite agreement with regard to the compensation for raising the steamer; but as to the cotton, it was vague. Welch, the captain of the Rodolph says, in substance, that the understanding was that for.saving the cotton they were to be entitled to the same compensation that he, Wielch, would have been entitled to, if he had saved it. Apofiier witness says, the words used by Welch, were: >‘I will abandon you all the cotton you can .save.” Under this indefinite arrangement the intention of the parties seems to have been that, the salvors should getwhat they copld from the owners of the .cotton, and look to them only.

The .district judge gave the plaintiffs, as the remuneration for their services in saving the cotton,-one half of jts n.eft proceeds, at its s.ale in New Orleans, at auction, under a consent order; also the sum of $¡680, the amount pf •freight advanced by the plaintiffs for bringing the cotton from Red riyer to the .city. From this decrpp the defendants h.av.e appealed. They declare their willingness to pay such sum as the court may de.em a reasonable and just com» pensation for the services rendered, but contend that the .allowance made by fhe district jjudge was extravagant, and that he erred in the legal principle advanced in his opinion, which was, “that the plaintiffs ought not only to be paid .a fair and equitable compensation for their labor pnd skill; but that they ought to be liberally rewarded.”

The evidence shows that the current of the Red river, at the place of the disaster, was strong, the weather inclement at the time, the deposit of mud upon the boat and cargo was rapid. and the difficulty of raising the submerged boat and cargo such that the loss would have probably been almost total, but for the interposition and services of the plaintiffs. The machinery and apparatus .are proved to be ingenious and costly. The officers and crew of the Bell Boat .acted with zeal and fidelity, under circumstances of bodily exposure at an in-, clement season. Their labors in going beneath the water were not only arduous, but involved some personal danger. The time occupied in.raising the boat and cargo jvas about four weeks.

Tho question .has been pressed at bar by th.e learned counsel for the defend» ants, whether we have a right, in the case of salvage upon inland waters, to follow the rules which are laid down by courts of admiralty with regard to maratime salvage. Those courts do not confine themselves, in their assessment of salvage, strictly to a compensation for work and labor done; but from considerations of public policy, the interests of commerce, the benefit and security of navv igatiou, and the value of human life, estimate a salvage reward upon an enlarged and liberal scale. We have searched in vain for authority upon this question, .and shall not attempt to settle it, because we do not deem it indispensable for the determination of this cause.

If the court below has not in fact adjudged more than a reasonable and just compensation, we have no right to disturb the decree. The captain of the Rodolph, in the absence of the owners of the cotton, had certainly a right to employ the services of the plaintiffs for the recovery of the submerged property ; and as there was no .stipulation of a rate of compensation the law implies a promise to pay a reasonable compensation. Now, in estimating this reasonable co.mpensation, we may consider the plaintiffs outlay for the buijdjpg of their boat, the expense of the officers and crew, the infrequency of employment, the' time expended in saving the property, the inefficiency of ordinary means to accomplish its recovery, the science and skill exhibited by the plaintiffs in the construction and use of the apparatus, th,e bodijy exposure and peril, the result of all which has been a benefit to the defendants. We are certainly at a loss to see why skill and science are not to be taken into the account in a case of this sort, as well as mere bodily labor; and if the labor was under circumstances accompanied by bodily exposure and peril, that also is a fair subject of consideration. Tested, under the evidence, by this merely equitable standard, and throwing out of view any considerations of public policy or liberality, we cannot say that the amount adjudged exceeds a fair and equitable compensation; and as the decree appears to us "to have dona justice between the parties, we must let it stand, whether the district judge was right or not in the legal principles which he applied t,o the case.

^.s to the freight paid by the plaintiffs for bringing the cotton to New Orleans, it seems to us high- B.ut it is shown that the bales, from having been submerged, were saturated with mud and water, so as to render them very heavy and difficult to handle ; and the district judge thought himself warranted by the evidence, in considering it not an excessive charge for conveying cotton inthaf; condition, Judgment affirmed.


author: Eustis, C. J,

text:
    Murrell v. Fowler et al.
    Two contiguous city lots, belonging to ,tlie same proprietor, were purchased by different persons at a judicial sale. On one of .them there was a brick building, the foundation of one of •whose walls projected under the surface of the ocher lot, though the wall itself did not extend over any part of it. The purchaser of the latter having made use of this wall in the erection of a building: Held} that the owner of the first lot was entitled to recover of him one half of the value of the wall, and one half of the value of the ground upon which it was built; and that the projection of the foundation by the original owner, does not impair the right of the purchaserto indemnity for the use m.ade of his land and wall.
    from the Fourth District C.ourt of New Orleans, Slrawbridge, J,
    L. Peirce, for the plaintiff.
    Josephs, for the appellants.
   Tho judgment of .the court was pronounced by

Eustis, C. J,

The plaintiff and the defendants are the owners of two adjacent city lots, which they purchased at the same time at a public sale of the estate of a bankrupt. On the plaintiff’s lot there was a three story brick building, and the defendants having made use of the wall contiguous to their lot, the plaintiff instituted this action to recover one half of the value of the wall, and one half of the value of the land upon which it is built. There was judgment for the plaintiffs, and the defendants have appealed.

The defence is that, by the destination of the original proprietor, as well as by presumption of law, the wall was what is called a common wall between the proprietors of the adjacent lots. The use which the owner has established on one p.art of hjs property in favor of another part, is equivalent to a title with respect to perpetual and apparent servitudes which may be acquired by title; and in relation to those servitudes, permanence of destination and the caractere de perpetuité are essential requisites of their establishment. Durel v. Boisblanc, 1 An. Rep. 408. The building which was upon the defendants’ lot at the time of the purchase, we think, under the evidence, did not possess those requisites, and had not the effect of creating the destination du pire de famille, even supposing such an effect were possible under the law. Even conceding the theory of the presumption of mitoyenneté to exist in relation to walls of separation in our cities and towns, which we do not decide, we think any such presumption is repelled by the situation and condition of the property at the time it was occupied by the original owner. The wall is entirely on the land of the plaintiff. It is two bricks thick in the first story, and one a half in the second and third, the foundation, however, projecting seven, teen inches at its base under tj}e surface of the defendants’lot. The defendants’ have thus the benefit of a portion of the plaintiff’s land, and the use of his wall, for which, in their building contract for the stores they have erected, about $500 was allowed by the undertaker. The district judge, under article 680 of the Code, allowed the plaintiff the value of one half of the wall and of nine inches of ground ; and we think the defendants can be permitted to hold and use the wail on no other conditions.

It is contended that article 680 is not applicable to the present case, because the foundation is not entirely on the plaintiff’s own estate. Without adverting to the discrepancy between the french and english texts of that article, and to the obvious fact that a high wall cannot be erected on the line of a lot on our farms and alluvial soil without the projection of the foundation on the adjacent land, the objection appears to us to be answered by an argument presented by the counsel for the defendants on another branch of the case, in which they urge, with much truth, that both plaintiff and defendants bought the property as it stood, and neither can complain with any show of reason of the owner’s having paused the foundation of this common wall to be laid in partial and unfair proportions on either lot.

The evidence does not show the wall to have been a common one ; but the projection of the foundation by the original owner, we do not think impairs the rights of the plaintiff for indemnity, for the use which the defendants have made of his land and wall, without agreement or condition.

Judgment affirmed.