author: Edstis, C. J.

text:
    Govey Hood v. C. G. Dahlgreen
    Where fche sheriff accepts an office under a municipal corporation, his office of sheriff is not thereby vacated under the Constitution of the State.
    Where the court is called on to arrest proceedings in execution of a judgment, on grounds involving a breach of duty on the part of a public officer, the burthen of proof is on the party alleging the breach of duty.
    APPEAL from the District Court of Carroll, Richardson, J.

      L* Selby, and Thomas and Snyder, for plaintiff.

      Thomas jf\ Farrar, for defendant.
   The judgment of the court was pronounced by

Edstis, C. J.

This is an appeal taken by the plaintiff from a judgment of the Court of the Tenth District, dissolving an injunction obtained at his instance, with seven hundred and fifty dollars damages against the plaintiff and his surety. The principal grounds upon which the injunction was granted were, that the advertisements of the property to be sold under the execution were not properly made, and that the sheriff had vacated his office at the time of these proceedings by having been appointed collector of the parish taxes — -an office the appointment of which rested with the police jury.

We do not think his acceptance of this trust, which if it be an office is one of a municipal corporation, would vacate the office of sheriff. Dorsey v. Vaugham, 5th Ann. 155.

In relation to the first objection, the only question argued before us is as to the fact of the advertisements having been posted up at the places required by law. In cases of this kind, where a court is appealed to by a party to arrest proceedings in execution, on grounds involving a breach of duty of a public officer, we think the burthen of proof rests with the party alleging it. Green-leaf on Evidence, § 78, el seq. Mitchell v. Morgan, 3 N. S. 576. The plaintiff ’s evidence does not establish the irregularity in the advertisements of which he complains.

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


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Wright, Williams & Co. v. Samuel Wood.
    A. pm-chased property of B., which he subsequent sold, and, after some intermediate sales, again re-puroliased the property, assuming to pay a sum due on the price by bis last vendor. The plaintiffs brought suit on one of the notes which A. had thus assumed to pay. Held: that A. had no rights of warranty, so far, at least, as the price he promised to pay does not exceed the amount he received when he sold the property; and that he could not demand security from the plaintiffs against the danger of eviction from a judicial mortgage against B., which existed at the time he sold the property.
    from the District Court of Concordia, Farrar, J.

      Stacey and 'Sparrow, for plaintiffs.

      H. B. Shaw, for defendant.
   The judgment of the court was pronounced by

Rost, J.

On the 9th of July, 1841, a judgment was recorded in favor of the Commercial Bank of Natchez, against Charles N. Rowley, who was then the owner of the land which has given rise to this controversy. That land was purchased of Rowley by the defendant on the 6th September, 1842, and the defendant sold it to Margaret B. Stetson, with full warranty, for $4000, which he received.

On the 8th February, 1847, Stetson and wife sold the land to James and Agnes Izod, also with warranty for $5000; $2000 of which were paid in cash, and for the balance the purchasers'lexecuted their notes for $1500 each, payable on the 1st of February, 1848 and 1849. The last of these notes was transferred by the vendor to Marsh and Pendleton, and by the latter to the plaintiffs.

On the 3d November, 1849, James and Agnes Izod, sold the land and ten.slaves to the defendant for $11,000, secured by notes and mortgage; and the defendant assumed, as part of the price, to pay the outstanding note' which the plaintiffs hold.

This suit is brought against the defendant to recover the amount of this note; and he resists payment on the ground that a suit has been instituted to subject a portion of the land to the judicial mortgage existing upon it in the name of Rowley, and that judgment has been rendered in favor of the plaintiffs in that suit.

There was judgment in favor of the plaintiffs for the sum claimed, but requiring them to give security to the defendant against eviction under the judicial mortgage existing upon the land. The plaintiffs appealed.

It is clear that the defendant has no claim in warranty on the ground of dangers of eviction which existed at the time he sold it to Margaret Stetson,; so far at least as the portion of the price he has to pay does not exceed the sum he received. He is liable as warrantor to Stetson and wife against the judicial mortgage, and he holds in his hands the price of the sale under which that warranty accrued. The obligation, the payment of which he assumed, was given to Stetson and wife as part of the price of the sale of the land, and is in substance the same as his own obligation to them would have been. His only recourse is against Rowley. He has none against the plaintiffs.

It is therefore ordered, that the judgment, so far as it decrees a stay of execution until security be given to the defendant against eviction, be reversed; and that the plaintiffs be authorized to proceed under the judgment rendered in their favor according to law. It is further ordered, that the costs in both courts be paid by the defendant.


text:
    James T. Armstrong v. Police Jury of Madison.
    Unless the Police Jury of the parish complies with the necessary legal formalities as to notice, time of delay, and form of proceeding in making an adjudication for the purpose of building a levee in front of the lands of non-residents, there is no privilege upon such lands for the price of the work done.
    Where the Police Jury has not complied with legal requisites to give a contractor a privilege upon the front lands for the price of building a levee, the Police Jury will be held liable for the price.
    from the District Court of Madison, Richardson, J.

      Thomas and Snyder, for appellee.

      Stockton and Steele for appellants.
   The judgment of the court was pronounced by

Rost, J.

This is a suit brought against the Police Jury of the parish of Madison to recover the amount of an adjudication made by one of the levee inspectors of that prrish, for the repairing of a levee on land belonging to nonresidents. The owners of the land were made parties to the proceeding ; and the prayer of the petition is for a judgment against the Police Jury for the sum claimed and interest; that the plaintiff be decreed to have a privilege upon the land; and that the same may be ordered to be seized and sold under the judgment. The Police Jury pleaded the general issue. The other defendants, and Sarah Cowan, the intervenor, who recovered the land from the defendants after the institution of this suit, denied the existence of the privilege claimed, on the ground of material informalities in the proceedings of the inspector before the adjudication. There was judgment in favor of the plaintiff for the sum claimed an(^ *nterest 5 h’s Pi'bilege upon the land was recognized; and the land was ordered to be sold in satisfaction of the judgment. On the application of Sarah Cowan for a new trial, the plaintiff entered a remittitur of the privilege for a part of the judgment. The application was then refused, and Sarah Cowan appealed.

The informalities alleged by the appellant are fully proved. The notice required by the police regulations was not given; the work to be done was not sanctioned by a jury of planters ; and the adjudication was prematurely made. It cannot be said, therefore, that the work was done in the manner required by law, or by the police regulations of the parish; and unless it had been, the plaintiff has no privilege. C. C. 3216, ¶ 4. The judgment, so far as it allows a privilege upon the land, must be reversed; and as there is no prayer in the petition for a judgment against the owner of the land on the quantum meruit, the intervenor is entitled to the relief she asks.

In the case of Brown v. Police Jury of Madison, 4th Ann. 180, cited by the defendants, it was proved that the formalities required before the adjudication had been complied with; and we held that the Police Jury was not primarily liable. But in this case the plaintiff has lost his privilege by reason of the informalities of the proceedings of the levee inspector, and the rule laid down in Newcomb v. Police Jury of East Baton Rouge, 4 R. R. 233, must govern.

We will here observe, that the case of Brown would, from the language used, seem to have been decided under the act of 1829 relative to roads and levees. This is not the fact. The act of 1829 was never in force in the parish of Madison as an act of the Legislature. But it was adopted by the Police Jury of that parish as one of their ordinances. Brown’s case was decided under the ordinance.

It is therefore ordered, that the judgment in this case, so far as it decrees that for the payment of the sum which the Police Jury is adjudged to pay, the plaintiffs have a mortgage and privilege upon the land claimed by the intervenor, Sarah Cowan, and that said land be seized and sold in due course of law to pay and satisfy plaintiff’s demand and costs of suit, be reversed. It is further ordered, that there be judgment in favor of the intervenor, Sarah Cowan, with costs in both courts.


text:
    Honore P. Morancy v. W. A. Clare et al.
    A party is not liable for exemplary damages for the Wrongful issuance of an injunction to prevent waste, unless lie acted from malice and without probable cause, nor is be liable ai; all unless actual damages have been sustained in consequence of the injunction.
    1 PPEAL from the District Court of Madison, Richardson, J.

      Stacey and Sparrow, for plaintiff.

      Thomas and Snyder, for defendants.
   The judgment of the court was pronounced by

Rost, J.

In the suit of the plaintiff against Ford, reported in 2d Ann. 299, both parties claimed to be the owners of certain back lands fully described in the report of that case. During the pendency of that suits the defendant enjoined the plaintiff in a separate action from committing waste and in any manner entering upon the land in controversy, and gave bond as required in cases of injunction for the sum of two thousand dollars.

After the final disposition of the principal suit in this court, the plaintiff in injunction applied to the court for leave to discontinue the injunction suit, and it was discontinued.

The plaintiff’s title has been perfected by patents, and this action is now brought against the legal representatives of Ford, who has since died, to recover the damages alleged to have been sustained by the-plaintiff Morancy, in consequence of the wrongful sueing out and continuance of the injunction. The plaintiff does not sue simply for damages due on the bond. He charges that the proceedings in injunction were wanton and illegal; that they were resorted to without any just cause, and with the view and intent of injuring and harrassing him: and for this malicious proceedingas well as for the injury sustained by being prevented from improving and cultivating the land, he claims five thousand dollars damages.

The answer denies the malice alleged, and avers, that Ford had good reason to believe, and really did believe, that he had the best title to the land, and that he sued out the injunction in the exercise of a-legal right for the consequences of which he is not responsible in damages.' The answer also contains a plea of prescription. The jury who tried the cause found for the defendants; and the plaintiff has appealed from the judgment rendered on the verdict. .

It is too clear for argument, that this is not a case in which the defendants can be mulcted in damages on the ground of malice and want of probable cause in the injunction suit instituted by their ancestor. Under the facts as presented in the suit for the land, our impression was that the equity of the defendant’s claim was superior to that of the plaintiff; and although the plaintiff has succeeded in obtaining a patent, it is not certain, from the evidence in this record, that he will ultimately hold the land.

In relation to the amount of damages actually sustained by the plaintiff, the record contains nothing but the conjectural opinions of witnesses, which seem to conflict with the facts stated by them and others. The jury appear to have come to the conclusion that no damages had been proved; and as the verdict is not manifestly erroneous we will not interfere with the judgment.

The judgment is therefore affirmed, with costs.


author: Preston, J.

text:
    The State v. Govey Hood.
    In a criminal proceeding, the State has a right to appeal from a judgment of the district court quashing an indictment; but where the accused has been put upon his trial and acquitted by a jury, he cannot be again tried for the same offence.
    Where an offence is charged under a statute, it is best that the language of-the statute should be followed in the indictment; but if the description of the offence given in the indictment complies substantially with the statute it is sufficient.
    from the District Court of Carroll, Richardson, J.

      Isaac Johnson, Attorney General, for the State.

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

Preston, J.

The 4th section of an act approved the 7th of February, 1829, enacts that “ Whoever shall, with a dangerous weapon or with intent to kill, make an assault upon another person, in the peace of the State then being, shall on due conviction thereof be imprisoned, &c.” An indictment under this statute was filed against the defendant, which was quashed upon the motion of his counsel, and the State has appealed.

In the case of The State v. Jones, the late Court of Errors and Appeals - in criminal cases maintained an appeal on behalf of the State from an order of the district court quashing an indictment, and reversed the decision of the district court. For the powerful reasons given by the court in that case, we consider the State entitled to an appeal in the present case. The dismissal of the appeal in the case of Hough et al. was based entirely upon the grqund that the defendants had been put upon their trial and acquitted by a jury, and could not be twice put in jeopardy for the same offence. This ground does not exist in the case before us.

The motion to quash the indictment was made on the grounds that it contained no crime legally charged against the defendant, and was otherwise defective. In the brief filed it is stated, that the finding of the grand jury was not made upon oath ; but the record shows that they were duly sworn, and upon their oaths presented the indictment. It is next stated, that there is not sufficient accuracy in charging that the alleged crime had been committed in the parish of Carroll, and tenth district; but we find it expressly stated that the act was done in the parish of Carroll, and within the jurisdiction of the Tenth Judicial District Court of the State of Louisiana. The last and principal ground urged for quashing the indictment is, that it charges an assault and, an attempt to shoot with a dangerous weapon with intent to kill, while the language of the statute is, “ whoever shall, with a dangerous weapon or with intent to kill, make an assault upon another person, in the peace of the State then being.”

It is true, the language of the statute is not followed, and in this as in all cases where it is not done, serious difficulty is unnecessarily created. The indictment should have charged that the accused, with a dangerous weapon called a pistol, charged with gunpowder, &c., made an assault. The assault charged is not necessarily the assault with the dangerous weapon, or with the intent to kill required by the statute. But the indictment charges, that the defendant did attempt to discharge and shoot off the pistol to and upon William, McCraio with intent to kill him. The attempt to shoot him with a pistol with intent to kill was in itself an assault with a dangerous weapon. So that the assault with a dangerous weapon prohibited by the statute is charged, by the fact charged in the indictment, though not in the words of the statute. The indictment is, therefore, substantially good, and should not have been quashed. It is stated that there are other defects in the indictment, but our attention has not been specially directed to them.

It is therefore decreed, that the order of the district court quashing the indictment in- this case be rescinded, and the case remanded for further proceedings according to law; and that the appellee pay the costs of the appeal.


text:
    George W. Copley v. Wm. Robertson, Trustee, &c.
    Whenever a judgment is susceptible of two interpretations, one of which is within the power of the judge and the other is not, the first must he preferred.
    Where a judgment specifies that property to he sold by the sheriff shall he advertised, it will he presumed that it is to he advertised according td law.'
    If, after a sheriff’s sale is made, hut before the price is paid, the sheriff discovers that the property was not legally advertised, he may re-advertise and sell the property again, and the last purchaser will he entitled to the property.
    from the District Court of Madison, Richardson, J.

      Stockton and Steele, for plaintiff.

      Stacey and Sparrow, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This was originally an action of partition in which the following judgment was rendered : “ By reason of the law and the evidence, it is ordered that the property described, to wit: Lot or Fractional Section No. 20, in Township No. 16, of Range No. 12 East, fronting on the Round-awny Bayou, in the parish of Madison, be sold for cash to effect a partition, and that the sheriff divide the price equally between the plaintiff and defendant, after paying all costs out of the same; and that the sheriff be furnished with a copy of this judgment as his authority to sell the same, after giving thiry days’ advertisement, at the courthouse door. Done and signed in open court, this 23d October, 1849.

Under this judgment, the land was advertised during thirty days by an advertisement put up on the courthouse door; and at the sale which followed, the plaintiff, Copley, by his agent, James M. Wilkinson, became the purchaser for the price of $1000. But before the price was paid, and the sheriff’s deed executed, the defendant protested against the sale, on the ground, among others, that it had not been advertised in the newspapers, as required by law ; that he had no notice of it, and had been taken by surprise. The sheriff, being convinced of his error, re-advertised the land in the manner prescribed by law; and at the second sale, the agent of the plaintiff and the defendant bid against each other, and the land was finally adjudicated to the defendant for fifteen hundred dollars, which sum was paid to the sheriff, and a deed executed by him to the purchaser. After the sale, Wilkinson, still pretending to act as agent, demanded Copley’s.half of the price, but afterwards refused to receive it. Copley subsequently took a rule upon the defendant, to show cause why the second adjudication should not be set aside, and the first declared valid;

The defendant excepted to the rule, on the ground that he was in actual possession of the land under a valid title, and for a valuable consideration paid by him; and that the only remedy of the plaintiff was a petitory action; and, in case the exception was overruled, he pleaded the want of advertisement in the first sale, and other informalities, which it is not necessary to notice. The court overruled the exception, and after trial on the merits, made the rule absolute.

The plaintiff contends, that the judgment prescribes the manner in which the property is to be advertised, and that the legal mode of advertising must be presumed to have been dispensed with. We think this is an error. Judgments,, like other acts, must receive a reasonable interpretation, and whenever a judgment is susceptible of two interpretations, one of which is within the power of the judge, and the other would exceed it, the first must be preferred. There was no consent of the parties that the legal mode of advertising should be dispensed with, and the judge was without authority to alter or modify it. We are satisfied he had no intention of doing so. That portion of the decree relied on by the plaintiff meant nothing more than that after thirty days’ advertisement, the sale should be made at the courthouse door, as is the custom in the country parishes. The expression on the courthouse door, instead of at the court-' house door, would no doubt have been used if the mode of advertising contended for by the plaintiff, had been intended. There having been no sale for want of advertisement, the sheriff was authorized in re-advertising the property; and as the second sale appears to have been formal, the defendant’s title must prevail.

It was urged in argument, by the plaintiff’s counsel, that no authority had been shown in Wilkinson to bid for him at the second sale, or to demand his share of the price. The view we have taken renders a decision of this question unnecessary.

The case being with the defendant, we have deemed it best to decide it without passing upon his exception. But we incline to the opinion, that it should have been sustained, and the plaintiff left to his remedy in a petitory action. The defendant should not have been deprived of the advantage which his possession gave him as defendant, or of a trial by jury, if he wished to resort to it.

The premises considered, it is ordered, that the judgment in this case be reversed. It is further ordered, that the adjudication of Fractional Section No. 20, in Township No. 16, Range No. 12 East, to William Robertson, made by the sheriff on the 2d day of February, 1850, and the deed made thereon be sustained and held valid; and that the rule taken by the plaintiff be discharged, with costs in both courts.


author: Etjstis, C. J. Preston, J.

text:
    William S. Scott v. Sterling Niblett et al.
    Where a sheriff seized on execution a note which was filed in a suit in the clerk’s office, by taking temporary possession of it until he copied it, then returning it to the clerk, giving notice of the seizure to the clerk and the defendant in the suit in which the note was filed; Held: That a sale of the note under this seizure was invalid and conferred no title upon the purchaser. That to constitute a valid seizure of tangible property, it must be taken into actual custody, and that a promissory note must be seized as other movable property.
    from the District Court of Madison.

      Thomas and Snyder, for plaintiff.

      Stockton and Steele, for defendants.
   The judgment of the court was pronounced by

Etjstis, C. J.

This appeal is taken by the plaintiff from a judgment of the Court of the Tenth District, dissolving an injunction obtained by him, with twenty per cent damages, four per cent interest, and the sum of one hundred and twenty-five dollar’s special damages.

The defendant, Niblett, had obtained judgment against the plaintiff for the sum of eleven hundred and sixty dollars and ninety cents, with interest. On this judgment, execution was issued directed to the sheriff of the parish of Madison, who, it is alleged, seized a certain promissory note belonging to the plaintiff, drawn by Sidney S. Erwin to the order of the plaintiff, and bearing his endorsement, which was on file in a certain suit then pending for the recovery of the amount of the note between the plaintiff and said Erwin, in the District Court of the parish of Madison. The sale of the note under this execution was enjoined at the instance of the plaintiff, on the ground that no valid, seizure had been made of the note, it forming a part of the records of the court, and being necessarily in the exclusive custody and possession of the clerk of said court. The defendant, in his answer, asserts the validity of the seizure as made by the sheriff, and the judgment of the court below was in his favor.

It appeal's that the sheriff called at the clerk’s office and asked the clerk for the note; it was handed to him. The sheriff took a description of it and returned it to the clerk with a notice of the seizure. It is plain that the sheriff could in no proper sense be considered, under these facts, as having any possession of the note, which remained under the exclusive custody and control of the public officer. No rights can be considered- as having been acquired by the sheriff having in his hands, for a few moments, a document which formed a part of legal proceedings, and the case must be determined on other grounds than those presented by these facts.

The sheriff gave notice of the seizure of the note to the defendant, and every step appears to have been taken by him, so far as the defendant in execution and the clerk of the court are concerned, to render the seizure formal and valid.

We have always held, that in order to make a valid seizure of tangible property, the thing levied upon must be taken into actual possession by the officer. Gaines v. The Merchants Bank, and cases there cited. 4th Ann. 371. A promissory note endorsed in blank by the payee, is of that class of property; it is not merely the evidence of debts: with its endorsements it contain the obligations of several parties, and is the subject of sale and delivery as much as any other movable. In the case of Galbraith v. Snyder, 2d Ann. 493, we held that a seizure of notes was not made by a levy upon the copies of the notes which were filed in a suit; and there is no case, we believe, in which the proceedings of courts have been permitted to be affected by any other action than through the court itself. We do not understand that it is part of the duties of clerks of court to receive notices of this character or to incumber their archives with papers, except under the direction of the court.

The article 642 of the Code of Practice, which authorizes the seizure and sale of the rights and credits of the debtor, without pointing out the mode in which they are to be reached, has been a fruitful source of abuse and litigation, without affording much real benefit to the bond fide and 'honest creditor. All attempts to give it effect, except in accordance with the just protection of the rights of purchasers at sheriff sale as well as of debtors, we have always discountenanced. Without a legal seizure, a sale under it becomes a nest egg of trouble and litigation.

Wé are not called upon to point out a mode in which we think promissory notes in suit, and on the files of the court can be seized and sold under this article of the code. A rule that we might, under our present impressions prescribe, might work badly in practice and produce difficulties which we do not at present foresee. The only thing before us is the matter in litigation, and our only enquiry must be, is the seizure of the note, as made by the notice to the clerk of the court and to the defendant in execution, valid and sufficient in Jaw to give a purchaser a title to the note under the judicial sale 1 In conforformity with our uniform decisions, we are bound to hold the seizure of no legal effect. As to any consequence being attached to what passed between the sheriff and the clerk in handing the note to the former, it is only necessary to state that the sheriff is not permitted to avow a purpose of interfering with the clerk’s exclusive custody of a document on the files of the court.

The judgment of the district court is therefore reversed, and the further proceedings of the sheriff on his writ, under the alleged seizure of the note are hereby enjoined; the defendant paying costs in both courts.

Preston, J.

dissenting. Sterling Niblett obtained a judgment against William S. Scott, upon which he issued an execution. There was a suit pending in the District Court of the parish of Madison, of William S. Scott v. S. S. Erwin, in which the plaintiff had filed a promissory note as the basis of his claim. The sheriff went into the clerk’s office, took the note into his hands, made a copy, and then handed it back to the clerk with a formal notice that he had seized it as the property of Scott, by virtue of the execution in his hands in favor of Niblett. He gave a like notice to Scott, the defendant in execution, handing him a copy of his note.

The plaintiff has enjoined the defendant and sheriff from selling the note under the execution, on the ground that the sheriff did not take corporeal possession of the note, it being tangible property, and could not legally do so, because it was filed in a suit and formed part of the records of the court.

The Code of Practice, article 647, expressly authorizes the seizure of the rights and credits of the defendant in execution. The note filed in the suit against Erwin was the plaintiff’s property, and the evidence of a right and credit, and therefore subject to seizure by our general laws and not exempted from seizure on account of being filed in a suit, because no law declares such an exception.

Even if the note could not legally be taken out of the clerk’s office, still it was the property of the defendant, and it was the duty of the sheriff to make the plaintiff’s judgment out of it if possible. His notice of seizure being effectual to detain the note in the clerk's office, he might make the appraisement and sale by a copy referring to the original, as deposited in the clerk’s office, which all would have a right to inspect, and his adjudication filed in the suit by the purchaser, would be a subrogation by purchase to the plaintiff’s rights against the defendant in the suit. The note was in the possession of the clerk like any other deposit with him in his official capacity. Suppose it had been money deposited in the clerk’s possession and subject to litigation, the sheriff might seize it, but leave it with the notice of seizure in the clerk’s hands subject to the decision of the court.

But I can see no reasonable objection to the delivery of the note seized by the clerk to the sheriff. The plaintiff could withdraw the note on leaving a copy as is universally practised. It would be reasonable, therefore, to allow the sheriff to do the same thing on seizing the plaintiff’s rights. The notice of seizure and receipt of the sheriff for the note, leaving a copy, would afford ample protection to the clerk for delivering it. Execution is the object of suit and judgment. The officers of the courts should facilitate each other in the performance of their duties, and mutually afford aid in giving effect to the object and end of the law in civil suits. If, however, there be the least danger in allowing the course pursued by the plaintiff in this execution, the ¡n-esent case affords a proper opportunity to indicate to him the propriety of applying to the court, before the day of sale, for an order to the clerk to deliver the note to the sheriff, in order to have it appraised and delivered to the purchaser. To require such an order before seizure, would be, in fact, requiring the plaintiff to give notice to the defendant to withdraw it if he wished to prevent the seizure.

To maintain the seizure in this case, would not conflict with any of the decisions of this court. In the case of Gaines v. The Merchant’s Bank, the decision was based upon the fact, that the debt seized and sold was evidenced by notes of which the sheriff never obtained possession. In the case of Galbraith v. Snyder, copies of negotiable notes were seized and sold without effect, the notes themselves never having come into the sheriff’s hands. In other cases the sheriff undertook to seize and sell notes whioh' never were in his possession, and of which, therefore, he could not deliver possession to the purchaser.

There is no reason why the assets in suit of a defendant in execution, should not be liable to seizure. The furniture in the use of his family is liable. There would be far less injury to him to allow the seizure of his notes in suit. There would be no greater sacrifice in their sale than in the forced sale of any other property, if the debtor afford every facility to make the sale, which is his duty growing out of the obligation to pay his debts. There is much reason in the observation of the counsel, that it would be unjust to allow a man, rich in notes and mortgages, to prosecute them for his own benefit, and in doing so, to make the clerk’s office a sanctuary for their protection against liability for his own debts.

The seizure in this case may be maintained without a violation of any principle of law, or of a proper regard for the security of records or the convenience of their keepers, and seems essential to compel a debtor to apply his means to the sacred duty of paying his debts.

The policy of selling rights and credits of the debtor, instead of authorizing their collection on account of the creditor, is doubtful; but while it is required by the Code of Practice, the law should be executed as effectually as possible, being thé best mode of making the assets available both to the creditor and the debtor. ,

The judgment of the district court ought, therefore, in my opinion, to be affirmed.


author:
Pkeston, J.
     Etjstis, C. J. Peeston, J.

text:
    James Dundas et al. v. James Erwin et al.
    There were two parties who claimed the rent from a tenant. He selected the party to whom he should make payment, taking a bond of indemnity, in case it should he decided in a suit then pending that the other party was entitled to the rent. It was subsequently decided that he had paid the wrongparty. In settling with the party entitled to the rent, he transferred, in part payment, the bond of indemnity he had taken from the other party. Upon this bond suit was brought. Held: That the bond was legal, and that the plaintiffs were entitled to recover on it. *
    from the Third District Court of New Orleans, Kennedy, J.

      T. A. Clarke, for plaintiffs.

      Molt and Ogden and Duncan, for defendants.
   The judgment of the court was pronounced by

Pkeston, J.

Properly to understand this case, it is necessary to state its origin. Henry Hitchcock, late of Mobile, was indebted to the United States Bank of Pennsylvania in a sum exceeding $620,000, to secure which he gave a bond and mortgage to the trustees of the bank upon a valuable property situated in the city of Mobile, called Hitchcock’s Cotton Press, and upon other lands. The debt was not paid, and the bond and mortgage were forfeited. The bank filed a bill to foreclose the mortgage, to which Hitchcock plead that the bond and mortgage were not valid because given for a corrupt and usurious loan of money. He shortly afterwards departed this life, having by will bequeathed all his estate to his widow, Anne Hitchcock, with power to pay his debts by a public or private sale of his property.

A bill was filed against her by the trustees of the bank to foreclose the mortgage ; but it appears it was conducted amicably, to enable them to obtain the peaceable and quiet possession of the mortgaged premises; for in 1840, in consideration of the debt and interest, and a further sum of $150,000, paid to her agent, James Erwin, she conveyed to the trustees of the bank all her legal and equitable title to the mortgaged property, and put them into the peaceable possession of the same. Notwithstanding all this, Mrs. Hitchcock was induced subsequently to renounce all her rights under the will of her husband, and to claim such rights as she was entitled to by law, including dower, and to defend the bill for a foreclosure of the mortgage, on the plea of usury filed by her husband. Isaac H. Erwin, a a brother, was appointed administrator of Hitchcock’s estate, with his will annexed. The trustees of the bank alleged under oath that he was appointed at their instance, with a view to carry the amicable arrangement into effect. He denied it under oath, and at all events made the most strenuous efforts to defeat the arrangement. He plead, that the bond and mortgage were void; that Mrs. Hitchcock had no right to convey the mortgaged property; and that her transfer of it was invalid. He claimed the whole property for the creditors and heirs ; and so formidable were his pretensions, that the trustees of the bank offered him a sum of upwards of $60,000 to quiet their title, which he declined to receive.

James Erwin, another brother, who had been her agent, and apparently the principal actor in arranging the conveyance to the trustees of the bank of the quiet and peaceable possession of the mortgaged premises, and into whose hands the sum of $150,000 had been paid as the consideration for quieting the title, immediately after receiving the money became the most active operator in disturbing the title and possession of the bank. By virtue of an old judgment against Hitchcock, a writ of execution was issued, a seizure was made of the Hitchcock Cotton Press, with the extensive property on which it was situated, estimated in the mortgage and conveyance to the trustees of the bank at $163,000, and was sold by the sheriff of Mobile, and James Erwin became the purchaser for $4500. This brings us to the circumstances which gave rise to the present suit, and which must be recited with dates to show their bearing upon it.

On the 10th of October, 1838, Henry Hitchcock had leased the above mentioned property, known as his cotton press, to Henry Hurtil and Charles J. Mansoni for the term of five years, for the sum of one hundred thousand dollars, payable on the terms and conditions particularly set forth in the lease. In 1839, the trustees of the bank filed a bill in equity, as we have stated, to foreclose their mortgage. At the May term of that year of the Chancery Court at Mobile, Hitchcock filed his answer on oath that the bond and mortgage were given upon a corrupt and usurious consideration, and prayed that they should be decreed to be invalid. At the same term of the court, the complainants applied for the appointment of a receiver, which the chancellor refused to order. Hitchcock died-before the fall term of the court; and at the j\!ay term, in 1840, the corn» plainants dismissed their bill without prejudice to them.

On the 8th of February, 1840, in pursuance of the powers given by her husband’s will, as already mentioned, Mrs. Hitchcock conveyed to the trustees all the property mortgaged by him to the bank; and Hurtil and Mansoni, the tenants of the cotton press, were notified of the'Co'nveyance, and acknowledged the trustees of the bank as their landlords. As soon as the additional sum of $150,000 was received from the bank, the contest for the property was renewed. On the 30th of October, 1840, Isaac H. Endn was appointed administrator of Henry Hitchcock's estate, with the will annexed; and warned the lessees that he was the only legal representatiye of the estate, and demanded the payment of the rents to him alone. On the 1st of November, 1840, under the execution and seizure we have mentioned, the sheriff of the county sold, after public advertisements, to James Endn the cotton press and premises which were leased to Hurtil and Mansoni for $4500, which he acknowledged to have received. The sheriff also made a deed of the property, which was duly recorded. On this sheriff’s deed James Endn demanded the rent from the tenants. Isaac H. EruAn, the duly appointed and qualified administrator of Hitchcock, their original lessor, claimed the past and directed the future rents to be paid to James Erwin. They refused to pay him; and on the 3d of March, 1841, he brought a suit in the Circuit Court of the United States against them to eject them from the premises.

During the whole of this time, the trustees of the bank took no steps against Mrs. Hitchcock or the Erwins having the effect to protect the tenants against their claims. It is true, a bill to restrain their proceedings was filed on the 28th of November, 1840, but no receiver was appointed until the 5th of June, 1841, and he was not ordered to collect rents from the tenants until in November of that year. In the meantime, the tenants Hurtil and Mansoni, had paid the rents, the amount of which is the subject of this suit, to James Endn, but not until they had exacted from him the following bond of indemnity :

“ State of Alabama, City of Mobile. Know all men, by these presents, that we, the undersigned, James Erwin, first, and Joseph Woods, Robert Woods, and Jane Bell, composing the firm of Yeatman, Woods Co., are held and firmly bound in the penal sum of one hundred thousand dollars unto Furman Hurtil and C. J. Mansoni, of this city, good and lawful money, to be paid unto them, their heirs or assigns, subject to the following conditions, to wit: Whereas the said F. Hurtil and C.J. Mansoni did in the lifetime of Henry Hitchcock, late of this city, lease of him a certain cotton press known as Hitchcock’s Press, the same now occupied by them, for the term of five years, on terms set forth in a contract now in their possession, to which reference is made ; and whereas the said Hitchcock did mortgage the said cotton press to the Bank of the United States, who, by said mortgages and other conveyances or writings, claim to be the owners of said press, now in possession of said Hurtil and Mansoni, held by them as tenants of James EruAn, to whom they they have regularly attorned, he, said Erwin, having purchased said press at sheriff's sale; and the said _ Hurtil and Mansoni having been called on by Isaac H. EruAn, administrator of Henry Hitchcock, deceased, regularly qualified as such to pay all rents due to the estate of H. Hitchcock on said lease, and he having furthermore authorized the said Hurtil and Mansoni to pay the rents accruing after said delivery to James Endn, the purchaser of said property, and the said J. Erwin having called on Hurtil and Mansoni and received the said rents. It is, therefore, expressly agreed to, the parties to this bond, viz : James Emin and Yeatman, Woods Sf Co. agree to hold the said Hurtil and Mansoni harmless against all or any responsibility that may attach to them for having improperly settled with J. H. Erwin, or for any monies improperly paid to Janies Erwin, now or here.after, on account of rents of said cotton press and wharf, or by reason of said delivery of possession ; also against all costs or damages in suits for defending or holding possession of said property, as tenants of James Emin, as the intention of James Erwin and Yeatman, Woods Sf Co. is to completely protect and hold F. Hurtil and C. J. Mansoni harmless on account of all responsibility for payments made or to be made for rents, costs or damages in that way. That being done then this bond to be null and void.

“ Witness our hands and seals this 16th of May, 1841, (Signed,) [e. s.] J. Erwin, [e. s.] Jos. Woods, [e. s.] Robert Woods, [e. s.] Jane Bede, [e. s.] A. Erwin, trustee for John and Jane Bell.”

Thus secured by this bond, the tenants made settlements with the administrator, which are abandoned in this suit, but also, on the 18th of May, 1841, paid James Erwin $14,800 rents then due, the amount of which is the subject of the present suit. Notwithstanding the appointment of a receiver, and his demand of the rents, the tenants, secured by the above bond, refused to pay rents to him, and were ruled to show cause why an attachment for contempt of court should not issue against them. In their answer on oath, the truth of which is not disputed, they set out the foregoing facts. They further state, that they were advised by high legal authority that the conveyance by Mrs. Hitchcock to the trustees of the bank was invalid, as well as the bond and mortgage of Hitchcock, and that the sheriff’s deed to James Erwin was a valid conveyance of the property. Nevertheless, that they applied to the trustees of the bank to indemnify them, being willing to pay them if such an indemnity had been given ; but that the trustees refused to give them security, and demanded the rent without indemnity; and their, in consequence of that refusal, they made the settlements with the administrator, and payments to James Erwin on receiving satisfactory security. In April, 1842, they were ordered by the chancellor to pay the rents to a receiver, and that an attachment should issue against them if they failed to do so. They took a'writ of error to the Supreme Court of Alabama; but it was dismissed in March, 1843, as having been improperly sued out.

In the meantime, the trustees of the bank, or rather the present plaintiffs, to whom their rights had been assigned, prosecuted their suit in equity against Mrs. Hitchcock, the Erwins, and indeed against the tenants of the cotton press who had been made parties, and obtained a decree of the chancellor at Mobile in their favor, declaring that the premises and rents belonged to them. A writ of error was taken to the Supreme Court of Alabama; and the most elaborate and able arguments of distinguished counsel were offered against the validity of the bond and mortgage of Henry Hitchcock to the bank, and the conveyance of his widow to its trustees. Their arguments and authorities were not treated lightly; but equal ability and profound research and argument was employed by the trustees of the bank to combat them. And the Supreme Court of Alabama evidently did not regard the controversy as one which Hurtil and Mansoni' might have decided for themselves, and concluded that they were tenants of the bank, on pain of being guilty of a species of treason, as has been contended in this court; but were enabled only by profound research and reflection developed in an opinion extending over eighteen pages of their reports to decide that the bond and mortgage of Hitchcock, and the conveyance by his widow to the bank were valid. They so decided in 1845, and affirmed the decree of the chancellor at Mobile.

While this controversy was pending the receiver had sued the tenants Hurlil and Mansoni, and obtained a verdict and judgment for the balance of rent due upon the lease, including the #14,800 they had-qoaid to James Erwin. This is positively proved by a witness; but the counsel of the defendant has endeavored to show, that the court and jury allowed eight per centinterest on the arrearages of rents, and thereby that the witness is in error'on'this subject. We have no evidence that the jury allowed interest; but there is internal evidence in the verdict that they did not, and that they charged the defendants with the rent paid to James Erwin. The whole rent due on the lease was $100,000. There was paid to Hitchcock during his life, and allowed for disbursements and losses under the lease $26,057 63 ; leaving unpaid $73,942- 37, exceeding by #800 the verdict, and showing clearly that'the defendants were charged with the whole time for which they had made payments to the Erwins. Independent of those payments, the defendants owed but #50,000 for the rent of the last two years, and one installment on the third year, $7000"; in the aggregate, $57,000. And yet judgment was rendered for $73,142, being rather less than the foregoing sum added to what they had paid to both the Erwins. It therefore clearly included what the tenants paid to the Erwins.

This being established, there appears to be a little -inconsistency in the argument of defendants’ counsel, in which he fust reproaches the tenants almost, as traitors, for not having paid the $14,800 to the trustees of the bank instead of Erwin; and, next, is equally severe upon them for not having defended themselves successfully against its payment to the receiver for the assignees of the bank.

Be this as it may, the judgment was rendered against the tenants for the rent, including the $14,800 paid to James Erwin ;■ and they gave their bond of indemnity in payment of so much, with which the assignees of the bank, who were finally decreed to be their true landlords, were satisfied. And the assignees, the present plaintiffs, have sued on the bond for the recovery of the same sum from James Erwin, the obligor, and his securities. .

It is alleged, and so the district court has decided, that the bond was given for the illegal and immoral purpose of inducing a tenant to betray his allegiance to his landlord, and cannot be enforced now. Although the feudal terms of landlord and attornment are still retained, we consider that the contract between lessor and lessee is to be interpreted in this country like any other contract; and that tenants may protect themselves against the adverse claims of different persons to the-rent by any fair and reasonable means. There is no treason in a tenant’s violating his contract; but there is bad faith, if without reason he combines with a third person to defeat the claim of his lessor for rent. And even in that case we cannot see why he and those who combined with him and induced him to act in bad faith, should not be condemned, as expressly provided by our code and statutes, in solido to pay the damages to the injured party. Art. 2304. Acts 1844, p. 14. The damages to be paid would be the rent received by Erwin, who seduced the tenants from their allegiance — the very thing which is claimed by the injured party from Erwin and his securities in this suit.

But we forbear further remark on this view of the subject, being perfectly satisfied by the evidence, that the tenants acted in good faith, and only exercised a prudent precaution to protect themselves, without the intention to injure any one.

When rented property is seized and sold under execution, and transferred by the sheriff by deed and delivery to a new proprietor, the rent should be paid to him. A sheriff’s seizure, sale and deed should be what it purports to be. He should take corporeal possession of the property, advertise and sell it publicly, and after the sale deliver actual, and not fictitious, possession to the purchaser. All should be done under the authority of the court which issued the execution. And this, as to the tenants, is the eviction of their landlord.

If the property seized does not belong to the defendant in execution, it is the duty of the true proprietor to enjoin the sheriff and plaintiff in execution; and to protect his tenant as well as himself against all doubt as to the ownership of the property. If he permits the public sale to proceed, and himself and tenant to be dispossessed, he cannot complain if the tenant subsequently doubts as to whom to pay the rent, and, when sued for the possession of the property, refuses to pay his lessor without security. And if the landlord neither enjoins the sale nor gives the security, he cannot complain that the tenant should pay his rent to the apparent legal owner of the property, especially on taking a bond of indemnity, which may eventually inure to the landlord’s benefit.

These principles entirely exonerate Hurtil and Mansoni from bad faith in their contract with James Erwin. Moreover, as an administrator, with the will annexed, was appointed to Hitchcock’s estate; as he demanded all arrears of rent; disavowed the conveyance of Mrs. Hitchcock to the trustees of the bank; as she joined him in disavowing its validity; as the parties were litigating the matter before a court of chancery, and no receiver was appointed ; and as able counsel advised the tenants that the conveyance was invalid, nothing was more reasonable than that they should settle with the party that gave them ample indemnification, and refuse to pay the other party who declined to do so, and had not yet caused the rents to be sequestered in the hands of a receiver. Under these circumstances the tenants settled and paid the whole rent then due, to the Erwins ; and, in so doing, we have no reason to believe acted in bad faith, but as prudent and honest men. >

And although the chancellor, in ordering the tenants to pay the receiver, very properly speaks of the general rule of law, resting on sound principles of morality, that tenants are held to the strictest fidelity to their landlords, and that they cannot make a contract with an adversary claimant so as to change their relation to their landlord or affect his interest or possession; yet the basis of his decision mainly rests on the ground that the payment to a receiver would secure the rights of both landlord and tenant until it was ascertained who was landlord.

Now, before the receiver was appointed the bond of indemnity was taken, substantially for the same purpose, to secure whoever should eventually be. decreed to be the true landlord. In suits about a specific thing which is sequestered, our courts always allow the defendant to bond, if he thinks proper, and on failure to do so, the plaintiff. There being a controversy about this cotton press, the tenants in possession did precisely what would have been ordered by a court if the property had been sequestered. And we cannot believe but that the courts in Alabama, if James Erwin and his securities were now before them, would compel them to pay over the money he received from the tenants, and which, it has since been ascertained by a decree in chancery, belonged to the plaintiffs, and not to him.

We think that the bond might very properly, under the circumstances, have been delivered to the receiver, and by him to the plaintiffs under this clause in the chancellor’s decree, “that the receiver should deliver over to the complainants all documents and evidences of rent not yet collected or secured, and all contracts in relation to the premises which may be in his possession or power to produce.” And, since Hurtil and Mansoni were willing to transfer the bond, that the decree was, in effect, a transfer and assignment of it to the plaintiffs to the extent of the rent received by James Erwin in.cash.

As the tenants had given notes in part payment of their rent, they could and very properly did reserve an interest in the bond, to defend themselves against recourse on those notes, as they had compromised and settled all the balance of the rent. If unsuccessful in their defence, they reserved a right to recover on the bond what they might be compelled to pay on the notes, and assigned only the right to recover the cash paid by them to Erwin. We see no reason why this qualified assignment may not be made, especially as we have considered it in some degree in execution of the chancellor’s decree.

We do not see the least foundation for the argument, that our courts ought not to take cognizance of the cause, ns it belongs to the courts in Alabama, they having taken cognizance of it. James Erwin and his securities, the defendants in this cause, were not before the courts in Alabama. The decree of the chancellor in Alabama, ordered all the property in controversy, and all contracts and papers in relation to it, to be given to the complainants; evidently terminating all controversies and incidents in that suit, and enabling the complainants to assert their further rights, in the same or other courts in that or other States, as justice and equity might require.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed; and that the plaintiffs recover from the defendants in solido the sum of $14,800 with eight per cent interest from the 22d of March, 1848, the date of the judicial demand, and costs in both courts.

Etjstis, C. J.

concurring. I concur in the conclusions of the opinion just delivered, but my reasons are not the same as those assigned by Mr. Justice Preston. I find no difficulty in assenting to the opinion in all the material points, except that on which the case was decided in the court below.

It was decided on a plea of the defendants, that the bond was given for a consideration unlawful and against the settled policy and laws of Alabama; and for that reason the said bond was not valid, and no action could be maintained upon it by the laws of Alabama. Hurtil and Mansoni were the tenants of certain assignees of the late Bank of the United States; they afterwai’ds attorned to James Erwin and paid him rent, and this bond was given to indemnify them against any loss in consequence of this attornment.

I have not been able to discover that, by the common law or by the jurisprudence of the State of Alabama, an attornment, made under the circumstances attending this, is illegal and against public policy. 'There is no plea charging any collusion or fraud between Erioin and Hurtil and Mansoni, in the attornment; nor is there sufficient proof of any such fraud or collusion. And for these reasons, I consider the objection to the validity of the bond as not supported.

I prefer to rest my decision on this view of the subject, as the matter rests exclusively on the jurisprudence of another State not similar to that of our own; and I do not feel myself Called upon to assent to the views of the law and fact stated in the opinion of Judge Preston: it being sufficient to state my con currence in his conclusions.

Same Case. — On a Re-Hearing.

THE judgment of the court, on an application for a re-hearing, was pronounced by

Peeston, J.

A re-heating having been prayed for by the defendants and appellees in this case, and the counsel for the plaintiffs consenting thereto; it is therefore ordered, adjudged and decreed that the judgment entered by this court in this cause on the 23d of December, 1850, be so amended as to read as follows : And that said plaintiffs, James Dundas, Mordecai D. Lewis, Samuel W. Jones, and Robert L. Pitjield, and Robert Iioioell, assignees and trustees of the Bank of the United States, recovor of and from the defendants, James Erwin, Yeatman, Woods Sf Co., and the partners of said firm, James Woods, Robert Woods, and Andrew Erwin, trustee for John and Jane Bell, in solido, the sum of fourteen thousand dollars, with eight per cent per annum interest thereon from 22d day of March, 1848, and costs in both courts. And it is further ox’dered and decreed that the re-hearing prayed for in this case be refused.


author: Peeston, 3.

text:
    Succession of Harvey St. John.
    The personal property belonging to a succession should be accounted for by the administrator at the place of the domicil of the deceased person.
    An administratrix of the succession of a deceased person who had been domiciliated in New . Orleans, went to Boston, and again qualified as administratrix of property belonging to the succession there. Held: That the administration there was to be regarded merely as auxiliary to the administration here, and that tlie administratrix was bound to account hero.
    from the Third District Court of New Orleans, Kennedy, J.
    &. L. Johnson, for appellants.

      Roselius and H. Lockett, for appellees.
   The judgment of the court was pronounced by

Peeston, 3.

Harvey St.John, departed this life in the city of New Orleans, in January, 1849. His widow, Nancy St. John, and Daniel Weaver, wei'e appointed curators of his estate, and gave a special mortgage upon property situated in New Orleans, to secure their faithful administration.

It appears by the inventory, that the deceased had shipped large amounts of produce to New York and Boston, all the proceeds of which had not been realized befox'e his death.

Mrs. St. John, the curatrix, went to New York and Boston, took out letters of administration, and collected considerable amounts due to the deceased, as administratrix, in the States of New York and Massachusetts. The attorney of the absent heirs, and some of the creditors of the estate, claim that the money collected in New York and Massachusetts shall be accounted for in New Orleans. This was the domicil of the deceased. All his pei'sonal property belonged to the place of his domicil, and his creditors have a right to look to the administrators here for an account of it. It was their duty to have realized the proceeds of the shipments in New.Orleans, if possible.

It appears by the letters of two of the consignees of the produce, that they would have paid the administrators here, but for the administration of Mrs. St. John in New York and Boston. We think, with the district judge, that her administrations there are merely auxiliary to her principal administration at the domicil of her deceased husband. Story expressly lays down this principle. Conflict of Laws, sec. 513.

The courts in New York and Massachusétts would probably authorize her to distribute the funds under her administration in New Orleans, being satisfied that she had given ample security here. Surely they would do so, if it did not prejudice their domestic creditors. If they will not, she should, at least, render an account of her administration there that it might be considered by the court which gave her administration here.

An administrator might be excused from accounting for personal property abroad, when prevented from realizing its proceeds by a foreign administration, but certainly not when he procures that administration himself. A state of facts precisely similar to those before us occurred in New York, in the case of Orcut v. Orms, 3 Paige’s Rep. 439, and the decision of the chancellor was in accordance with that of the district judge in the present case: and indeed the decision is in conformity to the general principles laid down by Judge Story in the chapter on Foreign Administrations in his treatise on the Conflict of Laws.

The district court refused to discharge the curators, or wholly to cancel the special mortgage given to secure their faithful administration, until they accounted for and showed a legal distribution of the personal property of the deceased in New York and Massachusetts, and we have no doubt under the circumstances of the correctness of his decision. It is therefore affirmed, with costs.


text:
    William A. Violett et al. v. C. H. Fairchild et al.
    Every change in the owners of a boat, while she is engaged in carrying passengers and merchandize for hire, dissolves the existing partnership and creates a new one. A retiring partner remains bound for debts already contracted, but cannot be made responsible for new debts. 7
    The partnership created between the owners of a vessel engaged in commerce, is one only as to the use of the vessel, the ownership remaining with the individual partners, subject to the privileges in favor of the creditors of the partnership.
    Where one brother sold his interest in a steamboat to another brother, who was merely a clerk destitute of means, without the ability to have made the cash payment acknowledged to have been received, and the vendor remained in possession, it will be presumed that the sale was simulated.
    Where one of the owners of a steamboat sells out his interest, he will be entitled to the vendor’s privilege on the share thus sold, after the privileged debts against the boat are paid off.
    A revocatory action to annul a proceeding upon the ground of a fraudulent preference given to a creditor, cannot be tried in the form of an opposition to a distribution of a fund. On such an issue, the parties have a right to a trial by jury.
    Parties who sell supplies to a steamboat on time longer than sixty days virtually abandon their privilege, and will be regarded as ordinary creditors*

      APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    -C*- Watts and Spring, for appellees.

      Benjamin and Micou, Wolfe and Sin-

      gleton, Kendall and Howard, C. JDufour, H. St. Paul, Durant and Hornor, for appellants,
   The judgment of the court was pronounced by

Rost, J.

This is an appeal by Horace Conduit, Jesse Hart and Joseph D. Foster from a judgment distributing the proceeds of the steamer Luna, among the creditors of the commercial firms which had in succession used the boat for the transportation of persons and merchandise for hire; and we must here premise, that in styling the diiferent sets of persons who thus used that vessel commercial partners, we mean only that they should be viewed in that light for the purposes of this suit.

The district judge applied the fund as follows: X. To the payment of law charges, and of privileged claims for supplies furnished the boat, within the sixty days which preceded the seizure; 2. To the payment of ordinary claims for supplies, which had lost their privilege, but were held by persons who had not at any time been owners of the boat. The amount of these ordinary claims far exceeds the sum left after payment of the privileges.

The appellants do not object to the judgment, so far as it decrees the payment by preference of law charges and privileged claims. But they claim the preference over the creditors having no privilege.

C. H. Fairchild, Warring, Hart and Conduit built the steamboat Luna, and were joint owners of her. On the X5th of May, X848, Hart sold his fourth interest to C. H. Fairchild, for five thousand dollars, of which fifteen hundred dollars were paid in cash, and the remainder in three notes, each of $XX66 66§.

By a private written agreement between Hart and C. H. Fairchild, it was provided that judgment should be confessed in favor of Hart, in case of non-payment at maturity of the notes given to him for the price, and A. H. Donaldson was appointed attorney to confess judgment in such event.

On the 2d of December, X848, Conduit sold his fourth interest to Fairchild, taking in payment therefor four notes for the sum of $f X25 each, payable from 2d March to 2d December, X849. The only payment made on these notes was a sum of $600 paid on the first note.

On the 6th of January, X849, C. H. Fairchild executed an act of sale of seven-eighths of the boat — this being his entire interest — to his brother, E. II. Fairchild, for the alleged consideration of $XO,000 cash. This sale is alleged by Conduit to be simulated.

On the 24th day of February, X849, E. H. Fairchild executed an act of sale to Joseph D. Foster, of one-fourth of the boat, for the sum of $3500, which was paid in cash.

On the 3d of March, 1849, E. II. Fairchild, having become the apparent owner of the entire boat, bound himself jointly and severally with C. II Fair-child, for a faithful compliance with all the obligations of the latter as purchaser of Jesse Hart’s interest.

On the 4th of J une, X849, Hart brought this suit for the recovery of $2764 57, being the balance of the price due him, against C. II and E. H. Fairchild, who both appeared and confessed judgment. Under this judgment the steamboat was seized and sold on the 20th of September, X849, for $X0,025. This fund is now in the hands of the sherilf, and, in conformity with a usage established in such cases by the late Commercial Court and not objected to, the creditors of the part owners of the boat, and those of the successive firms who have used it in the transportation of persons and merchandise for. hire, ask that it be distributed among them according to their rank and privileges.

The district judge was of opinion that the business of carrying freight and passengers in a vessel being a commercial business, the vessel, with her appurtenances, should be considered as the capital stock, so far, at least, as creditors are concerned; that all persons interested in the ownership of the vessel are, as to all other persons with whom contracts are made in the prosecution of the business, commercial partners; and that, accordingly, although each of the parties interested may withdraw from the partnership by selling his interest to a third person, when the transfer shall have been made by sale upon a credit, the vendor will not be the creditor of the partnership, but only of his vendee; and the privilege of vendor in such a case will not apply to the whole vessel, but only to the share owned by the transferree. And he concluded from this that all those who had furnished supplies to the boat, whether within the sixty days preceding the seizure or previously, were to be considered as creditors of the commercial partnership implied by law, from the trade in which the boat was engaged; and that they must be paid before those claimants who are holders of notes given by part owners in payment of shares- purchased in the boat.

We cannot- assent to this proposition. Every change in the partners while the boat is engaged in carrying persons and merchandise for hire, dissolves the existing partnership and creates a new one. The party selling continues, undoubtedly, bound for all the debts of the old partnership, whether or not they have lost their privilege, and ought not to be permitted to share the proceeds of the boat with his creditors. But he cannot be held responsible for debts contracted after he ceased to be a partner, and his claim for the price of the share sold cannot be defeated by them.

The case of Claiborne et al. v. Their Creditors, relied on by the appellees, presents a state of facts entirely different from those of this case. There, three persons were joint owners of a steamboat, which they used for the transportation of persons and merchandise for hire. The partnership thus formed between them was much in debt when the boat was destroyed by lire. Two of the partners failed, and surrendered to their creditors the policies of insurance of the boat. Lejléchier, the partner who had not failed, subsequently claimed his share of the insurance. The court considered this a demand for a partition and settlement of the partnership concerns, and held that no part of the fund could go into the hands of Lejléchier until the partnership debts were paid. The question whether the fund in hand was a partnership fund or the joint property of the partners, was not raised in argument. It was not before the court; and the casual observation of the court, that it was a partnership fund, did not decide the question. It was enough for the purposes of that case that the fund was liable for the partnership debts. 13 L. R. 279.

We adhere to the rule laid down in the case of Byrne v. Harper, 2 R. R. 229, that when owners of a steamboat use it to carry persons and merchandise, the use of the boat only is brought into the partnership, unless there is an express stipulation to the contrary, and that as it may be enjoyed without being destroyed, the ownership remains in the partners individually, under art. 2834 of the Civil Code, subject to the privileges which the law allows in such cases to the creditors of the partnership.

Under this view of the law, it becomes necessary to ascertain who the real partners were. A careful perusal of the evidence has satisfied us that the sale from C. H. Fairchild to E. IT. Fairchild was a simulation: a mere shadow cast upon the title of the vendor to delay the pursuit of his creditors, and so far as it was in his power, to defeat their claims. There was no change of possession under the sale ; the vendor continued to manage the boat and to receive the profits. At the time of the sale, E. H. Fairchild was a store, clerk, enthely destitute of means and unable to pay any portion of the price which his brother has acknowledged he received from him. There is no reality in this transaction; and in distributing the fund we will consider the ownership of C. H. Fairchild as never having been interrupted, except by the sale of one-fourth made to Foster.

Hart claims to be paid by preference, on the ground that the boat was seized and sold under his execution, and that the seizure gave him a privilege.

The other creditors contend that his judgment was obtained on the confession of C. H. and E. H. Fairchild; that these defendants were insolvent at the time to the knowledge of Hart, and could waive none of their legal rights to the prejudice of their creditors; that by doing so, they gave an unjust preference to this creditor over the others. They also urge that a judgment obtained on the confession of the defendant, is only evidence-of a contract, and that the seizure made under such a judgment does not create a privilege.

The confession of judgment was expressly stipulated in the contract, and it is surely no objection to it, that instead of being made by the agent whom the parties had designated, it was made by the debtor himself. There was nothing hurried or suspicious in the proceeding. Hart suffered four months to elapse after his debt was due before he brought suit and called upon Fairchild to execute his promise. It may be, that he knew that the sale to E. I-I. Fairchild was simulated. But as he could not prevent its being passed, it cannot affect his rights. If C. II. Fairchild was insolvent, the creditors who now complain Were guilty of great negligence in suffering their privilege to expire by lapse of time, instead of bringing suit to enforce it. Their loss arises exclusively from this omission. But besides, if it be true that, by confessing judgment, the defendants enabled Hart to obtain an unjust preference over the other creditors, the latter should have brought a revocatory action for the purpose of setting aside the judgment. This ground involves a question of fraud which should have been tried before a jury, and which Hart ought not to be compelled to litigate in this summary proceeding.

■ The seizure having been made under a valid and subsisting judgment, necessarily created a privilege in favor of the seizing creditor, whatever may have been the nature of the evidence upon which the judgment was obtained.

Conduit also claims a privilege, on the ground that when the boat was sold sixty days had not elapsed since the maturity of any of the notes which he received in payment from C. II. Fairchild. We think this ground untenable. The privilege was created by the contract and expired sixty days after its date. Conduit, in selling on time, virtually abandoned the privilege and dealt exclusively upon the credit of Fairchild, as the other creditors did who suffered the sixty days to expire without enforcing their claims. They are all in the same situation.

We are therefore of opinion that the fund should be distributed as follows: 1. The amount of privileged debts must first be deducted from the proceeds of the sale. 2. The fourth of the balance must be set apart as the share of Foster. 3. Out of the other three-fourths, the amount due Jesse Hart must first be deducted, aud the balance divided pro rala between Conduit and the other creditors, it being well understood that after the dividend to which Conduit and the ordinary creditors are entitled is ascertained,' the creditors of the' firm of Fairchild, Warren, Hart and Conduit, which continued until the 15th May, 1848, shall be entitled to receive out of the share of Hart, the amounts respectively due them by that firm. That the creditors of the firm of Fair-child, Warren and Conduit, which continued from the 15th May, 1848, to the 2d of December, 1848, shall, in like manner, after the dividend is ascertained, receive out of the dividend coming to Horace Conduit up to its full amount and pro rata in case of deficiency, the amounts respectively due them over and above their dividends, and that, in this distribution of Conduit's dividend, Hart shall be classed as his creditor for one-half of the debts of the firm of Fairchild, Warren, Hart and Conduit, which he is adjudged to pay. That the creditors of the firm of Fairchild and Foster, which lasted from the 24th of February, 1849, until the boat was sold, shall, in like manner, receive out of the share of Foster, the amount of their respective claims.

We consider that portion of the judgment which allows the privileged claims to be correct, except so far as allows a privilege to William B. Scott for $338. This claim must be classed as an ordinary claim, the privilege having been lost by lapse of time.

John Muir asks that the judgment in his favor be increased, so as to allow him a privilege for his entire claim. We. are satisfied that there is no error to his prejudice in the judgment, so far as it settles his claim; and as it is not contested by the appellants, we leave it undisturbed.

The tableau annexed to and made a part of this opinion, shows the distribution of the fund in conformity with the view taken by the court of the rights of the parties.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the fund in the hands of the sheriff be distributed in conformity with the tableau annexed to and made a part of the opinion of the court.

Distribution of the funds in the case of W. A. Violett Sf Co, v. C. H. Fairchild et al., owners of steamboat Luna, &c.

Amount price of boat,........................................$10,025 00

Costs of Supreme Court,.......$ 28 80

“ “ Clerk District Court____414 20

“ “ Sheriff,................ 508 00 951 00

9074 00

Privileged Claims.

$3481 96 Amounts as per judgment court below,...........

225 47 Add as per amended judgment for John Muir and Insurance Company,.........................

$3707 43

Deduct claim of William B. Scott, now ranked as ordinary creditor,............................. 338. 00 3369 43

5704 57

Of which one-quarter for Foster,..................$1426 14

“ “ three-quarters for Fairchild,............. 4278 43 $ 5704 57

Distribution of Fairchild’s Share.

Amount his share,......................................... 4278 43

For Jesse Hart,......................................... 2764 51

Balance for division,.................................. $ 1513 92

Amount or ordinary claims, as per judgment of court

below,.......................................$8480 23

Add claim of William B. Scoll,.................. 338 00

“ claim of Conduit,................$4500

Less paid on account,................. 600 3900 00

Total ordinary claims,....................$ 3 278 23

So that Fairchild's share pays a dividend of $11 90 per $100, to the ordinary creditors.

Conduit's dividend on $3900 amounts to $464 10, none of the claims of the creditors bear date prior to the 15th May, 1848, so that no contribution is due by Jesse Hart towards the creditors under the decree.

Distribution of the Dividend of Conduit. Amount of dividend to Conduit,.............................

$464 10

List of the creditors of the firm of Fairchild, Warren and Conduit, which existed from the 15th May, 1848, to 2d December, 1848.

William A. Violeit &f Co........................$ 345 06

Stanton Sf Co........-......-................... 383 95

William B. Scott,.............................. 338 00

Leeds Sf Co.................................... 719 00

F. F. Folger Sf Co.............................1191 08

Hesmarais,..............................-•..... 2041 00

$ 5018 09

Dividend to the above creditors on Conduit's share is $9 25 per $100. Creditors to be paid by Foster, as creditors of partnership of Fairchild and Foster, from 24th February, 1849, till sale of boat.

W A. Violeit Sf Co..............................$874 79

Less amount received by privilege,................. 398 69

476 10

Less $11 90 per cent on this balance, received from Fairchild’s share,............................. 56 66

419 44

D. Felt 8f Co...............................— 53 40

Less dividend of $11 90 per cent,................. 6 35

47 05

J. Carr, Jr.................................... 413 58

Less amount received by privilege................. 360 87

52 71

Less $11 90 per cent,.......................... 6 27 -- 46 44

Long Sf Maglone,............,.................. 65 63

Less received by privilege,....................... 4 50

61 13

Carried forward,............................ 61 13 512 93

Brought forward,........................... 61 13 512 93

Less $11 90 per cent,.......................... 7 26 53 87

Numa Lacoste,................................. 117 90

Less received by privilege,....................... 76 20

41 70

Less$ll 90 percent,........................... 4 96 36 74

Chittenden and Dameron,........................ 49 93

Less received by privilege,...................... 40

49 53

Less $11 90 per cent,.......................... 5 89 43 64

John Cottle,.................................... 157 02

Less received by privilege,....................... 68 34

88 68

Less $11 90 per cent,........................... 10 55 78 13

F. F. Folger Co..............................' 113 99

Less $11 90 per cent,.......................... 13 57 100 42

$825 73

Balance for Foster, 600 41

$ 1426 14

Recapitulation.

Total proceeds of boat,..................... ............$10,025 00

Costs,.................................... ! 951 00

Privileged claims,.......................... 3369 43

Jesse Hart,............................... 2764 51

Creditors of Fairchild,............$1513 92

Less dividend of Conduit,.......... [ XXX XX XXXX ] 82

Creditors of Conduit, as per list, 464 10

Creditors of Foster, as per list,.. 825 73

Joseph D. Foster,............. 600 41 $10,025 00


text:
    W. L. Fenn v. Eliza Holmes.
    The wife is liable for a promissory note given by her, with the authorization of her husband, for the hoard of herself and children, when it is shown the husband had no property. G. C. 2409.
    Where the plaintiff sues the wife on a promissory note signed by her, alleging generally her liability, he will he permitted to show that the note Was for the support of the wife and children, and that the husband had no property.
    APPEAL from the District Court of East Baton Rouge, Burk, J. This action was brought on a promissory note in the following words: “Baton Rouge, February 27th, 1845. In all the month of March next, I promise to pay to the order of TV. L. Fenn, $307 39 with eight per cent interest from date till paid, for value received. (Signed) Eliza Holmes, B. S. Holmes.”

      Andrew Herron, for plaintiff.

      J. M. Brunot, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant, who is separated in property from her husband, was sued upon a promissory note alleged by the plaintiff to have been subscribed by her in payment of board for herself, family and servants. The petition alleges in general terms the liability of the defendant upon said note. The defendant denies her liability, on the ground that at the time she gave the note she was a married woman, under the control of her husband; and that the consideration of said note was a thing which her husband was bound to furnish her. She has appealed from the judgment rendered against her on that issue.

During the trial in the court below, the plaintiff offered witnesses to prove that at the time the note was given the defendant’s husband was in necessitous circumstances, and without any visible means. This evidence was opposed by the defendant, on the ground that the petition contained no allegation under which it could be admitted. The objection was overruled, and the defendant took a bill of exceptions. We are of opinion that there is no error in the ruling of the court.

The plaintiff has made a general allegation, that the defendant is personally bound for the note. ' If he fails in this suit he cannot renew it in another form, because the general ground of action he has taken includes all others he may have, and the judgment in this case would be res judicata against him in any other. ’• ' .

This being the onl/ suit which the plaintiff can maintain upon the note, he ought"tó b'e p'ermj&te'd to adduce all the evidence in support of his claim, unless the generality and Vagueness of his allegations concealed from the defendant the real purport of th^ suit, and the evidence offered under those allegations took him by surprise.'

We are^unaMe to perceive any intentional concealment on the part of the plaintiff, and we are satisfied, that the evidence objected to did not operate a surprise to the defendant. The record of separation between her and her husband had already been introduced in evidence without opposition from her. That-record shows that she had obtained a judgment against her husband for $3398 05 with legal interest on a portion of it since 1839, and on the remainder since 1840. It further shows that $2000 only have been paid on this judgment by the sale of the husband’s property. We are bound to presume that he had no other which could be seized, otherwise the judgment of separation would be void. This evidence, showing that the defendant’s husband had no visible means, and the testimony offered to prove the same fact, could not have taken her by surprise. It being satisfactorily shown that her husband had no property, she was bound to support alone the expenses of her family. C. C. 2409.

We do not think, that the form of the note impairs her liability. She acknowledges it to be her own, and the signature of her husband was merely added as proof of authorization.

The board furnished, moreover, is proved to be worth the sum claimed ; and no objection was made to the introduction of the evidence of its value.

The judgment is therefore affirmed, with costs.


text:
    Jean Pierre Souberain v. S. D. Renaux.
    Where the plaintiff states the amount he sues for in thepetition, and swears that the defendant is indebted to him for the amount stated in the petition, it is a sufficient specification of the sum due to sustain the attachment.
    An affidavit of the creditor stating that he believes the.defendant is about to depart permanently from the State is sufficient to authorize an attachment, the other requisites of the law being complied with.
    from the District Court of East Baton Rouge, Burk, J.

      George S. Lacey, for plaintiff.

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

Preston, J.

The plaintiff issued an attachment against the property of the defendant. The latter moved to dissolve it, on the grounds: 1st. That the plaintiff had not stated in his affidavit at the foot of his petition the amount due him by the defendant. 2d. That the law requires the plaintiff to make affidavit that the debtor has left the State permanently, or resides out of the State, or conceals himself to avoid citation : neither of which., plaintiff’s affidavit; but only, that he believes the defi permanently from the State. 3d. The showing insufficient to prove that the defendant Was about to trict court dissolved the attachment, upon the second appealed, and asks the reversal of the judgment of attachment should be reinstated; and that further\ place in the case, according to law.

The first ground for setting aside the attachment is not tefMBB^’Two claims are presented in the plaintiff’s petition, and the exact amounts of each are stated. The plaintiff then deposes that the defendant is indebted to him the amounts set forth in the foregoing petition. This is sufficient: the plaintiff could be convicted of perjury if he did not believe that the amounts mentioned in the petition were due to him.

Nor should the second ground filed have been maintained. The act of 1839, in amending the Code of Practice, changed nothing but the phraseology of,the first clause of art. 240, substituting the word “permanently” for the four words “ never again to return.” It is, therefore, still the law of the land, as prescribed by that article, that “ a creditor may obtain an attachment of the property of his debtor, when such debtor is about leaving the State permanently, without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing judgment against him previous to his departure.”

To obtain an attachment on this ground, the 243d article of the code requires the creditor, beside complying with the other requisites of law, to present a petition with a declaration made on oath that his debtor is on the eve of leaving the State forever. The article next prescribes the oath necessary in order to obtain an attachment in the cases in which it is allowed by law. The Legislature, by the 5th section of the act of the 20th of March, 1839, proceed to amend the oath to make it conform to their amendment of article 240. The original oath required was, that “ the debtor had left the State never again to return.” The amendment changed it to this form, “ that he verily believes that the debtor has left the State permanently.” To use the words of the amendatory acf;> “it shall be sufficient for the creditor to swear to the existence of the debt demanded by him, and that he verily believes that the debtor has left the State permanently, or that he resides out of the State, or conceals himself so that citation cannot be served upon him,” in order to obtain attachments in those three cases. But this by no means repeals that part of article 243 which prescribes the oath to be taken when the debtor is on the eve of leaving the State forever, and much less the first clause of article 240, which the law does not purport to alter, and which allows an attachment to issue when the debtor is “ about leaving the State permanently, without there being, in the ordinary course of judicial proceedings, a possibility of obtaining or executing judgment against him previous to his departure.”

The law allowing an attachment in this case remains in full force, and the plaintiff made the oath required by it. It has been acted upon by the bar, and recognized by the courts, as being in force from 1839 until the present time. See the case of Sawyer v. Arnold, 1st Ann. 316.

The third ground for dissolving the attachment has not been pressed in this court, nor was any evidence offered in opposition to the oath of the plaintiff in the district court.

We think the attachment should have been maintained. The order dissolving it is therefore reversed, the attachment reinstated, and the case remanded for further proceedings according to law; and the appellee is condemned to pay the costs of the appeal.


text:
    Willis Cairy v. J. and G. Randolph.
    The objection that a suit is on a contract, and that the defendant is not entitled to recover on a quantum meruit, is one which should be made before the evidence is introduced to establish the quantum meruit.

    A suit may be maintained on a building contract although the work be defective or unfinished, and the remedy of the defendant in such a case is, for the reduction of the price agreed upon to the extent of the damages sustained by reason of the defective performance of the work.
    from the District Court of East Baton Rouge, Burk, J.

      Amos Adams, for plaintiff.

      George S. Lacey, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff sues upon a building contract, and claims the sum of $600 which is the entire consideration of it.

The defendants admit the contract, but aver that the plaintiff has failed to fulfill the stipulations on his part, and that so far from having derived any benefit from his work, they have sustained, in consequence of it, $500 damages, which they claim in reconvention. There was a vei'dict and judgment in favor of the plaintiff'for $350, and the defendants appealed.

The argument of the counsel for the appellant is, that the plaintiff sues upon a contract, and that he has failed to show that he had completed the work, and complied with the contract on his part, and has made no claim on the quantum meruit, the action must be dismissed.

If these exceptions were at all tenable, they should have been pleaded in limine litis. The defendants waived them by joining issue on the merits, going to trial, and suffering evidence of the value of the work done to be received without objection. But under the uniform jurisprudence of this court, a suit may be maintained upon a building contract, although the work be defective or unfinished, and the remedy of the defendant in such a case is for a reduction of the price agreed upon to the extent of the damages sustained by reason of the defective performance. See the cases of Bethmont v. Davis, 8 M. R. 391. Thornton v. Linton, 3 L. R. 255. The principle of these decisions is embodied in article 2740 of the code.

On the merits, the evidence as to the value of the work done is conflicting. But it is proved, that the defendants are using the sugar-house and purgery erected under the contract; and a jury of the neighborhood had far better opportunities for knowing its real value than we have. There is nothing in the record to induce us to believe that justice has not been done between the parties.

The judgment is therefore affirmed, with costs.


author: SniDEim, J.

text:
    A. C. Roy v. Gorton and Mason.
    An erroneous date given to a receipt may be corrected by parol evidence.
    The clerk’s memorandum of the evidence should show by which party the evidence was introduced.
    APPEAL from the District Court of Tensas, Richardson, J.

      T. Curry, for plaintiff.

      L. Vincent, Reeves and Shaw, for defendants.
   The judgment of the court was pronounced by

SniDEim, J.

This suit is brought upon a receipt signed by Gorton and Mason on the 11th of September, 1846, by which they acknowledge to have received of W. C. Roy, on deposit, the sum of $463 12, and promise to account for it when called upon. The defendants acknowledge having given the receipt, but say that at various times they had made payments to Boy, and on the 13th October, 1846, paid him the balance, and took a final and full receipt, bearing date, by a clerical error, October 13th, 1845, instead of October 13th, 1846. The judge gave judgment in favor of the plaintiff for the whole amount of the deposit; and the defendants have appealed.

We are not informed what view the district judge took of the evidence in this cause, except from the general conclusion presented by his decree. An examination of the evidence, unassisted by his views as to the particular documents offered at the trial, and the credibility of the witnesses, has left our minds unsatisfied as to the correctness of the plaintiff’s claim; and we have concluded that the ends of justice will be promoted by remanding the cause for a now trial.

• In doing so, we will remark that the testimony and documentary evidence point, it seems to us, to the conclusion that the date of the receipt for $306 22 is a clerical error. The question of the genuineness of tiffs receipt, and of the alleged mistake of date, are the main points in the case, and should receive the principal attention of the litigants. It is proper, also, to observe that the.clerk’s statement of facts is loosely prepared. It should have stated which party offered particular items of evidence, and not have left this to inference.

Judgment reversed, and cause remanded; plaintiff to pay costs of appeal.