author: Buchanan, J. Slidell, C. J.

text:
    Oglesby & Macauley v. Steamboat D. S. Stacy, Captain and Owners.
    An action was brought against the endorser of a note^ who after the institution of the suit admitted? the justice of the claim. Held: Such acknowledgement must be received either as an admission that the notices were good or as a waiver of them.

      By the Court: "We are not prepared to admit the authority of the Clerk to bind the owners of the boat by drawing bills of exchange, except so far as the consideration of the bill is proved to have enured to the benefit of the boat.
    from, the Fourth District Court of Now Orleans, Reynolds, J.

      W. O. Denegre, for plaintiffs.

      Wolfe & Singleton, and Glarke & Bayne, for defendants and appellants.
   Buchanan, J.

This is a suit against the owners of a steamboat, upon a bill of exchange drawn by the Clerk of the boat, of the following' tenor:

§2,100. New Orleans, October 6, 1853.

One day after sight of this second of exchange, first unpaid, pay to the order of Oglesby & Macauley, two thousand one hundred dollars, value received, which iliaco to account steamboat D. S. Stacy.

Sam. Lawson, Clerk.
To Messrs. Hill, Lockwood & Voorhies,
St. Louis.
(Endorsed) Pay Matthews, Finlay & Go. or order.
Oglesby & Macauley.
Pay Lucas & Simonds or order.
Matthews, Finlay & Co.

The petition also sets forth the consideration of the bill to have been, advances made, and supplies furnished, to the steamboat, by the plaintiffs.

The answer was a general denial, and the case has been defended principally upon a supposed want of notice to the drawer of the dishonor of the bill. The proof on the subject of notice is, that the notary in St. Louis, who protested the bill, put a letter in the post office, on the day of the protest, directed to Matthews, Finlay & Go., the last endorsers, and enclosing notices for the payees and for the drawer. The bill had been discounted by Matthews, Finlay & Go. for plaintiffs, who paid the former its amount, with damages added. It does not appear what was done by Matthews, Finlay & Go., with the notice for drawer enclosed to their address. But it is proved by two witnesses, that Switzer, Captain and part owner of the boat, admitted the justice of this claim to the suit brought. A similar admission on the part of another owner, James Vaughan, is proved by one witness. Such acknowledgments, in the language of the Supreme Court in the case of Union Bank v. Grimshaw, 15 L. R. 340,. “ must be viewed either as an admission that the notices were good, or as a waiver of them.” Besides, it is proved, that the Captain and the Clerk of the boat were aware of the dishonor of the bill, before suit brought, and that the Captain even sent a telegraphic despatch from Vicksburg to plaintiffs to have the boat attached on her arrival in Now Orleans, for this debt. The boat left St. Louis in the night of the day preceding the protest of the bill, and was attached immediately after her arrival in New Orleans. When we add to these circumstances, the fact, established by evidence given without objection, that the boat had no funds in the hands of the drawees at the date of the bill, nor afterwards, the liability of the two owners, who have acknowledged its validity, seems clear.

The consideration of the bill is proved to have been, orders upon Oglesby & Maeauley, for charges on goods shipped on board the Stacy, except about two hundred dollars due for salt purchased by the Captain.

Wo are not prepared to admit the authority of the Clerk to bind the owners of the boat, by drawing bills of exchange, except so far as the consideration of the bill is proved to have enured to the benefit of the boat. Upon this principle, Hill and Austin, the two owners who have not acknowledged the correctness of this bill, are only bound to the extent of nineteen hundred dollars of its amount.

The appellees have prayed for damages for a frivolous appeal in their answer filed in this court; and as to Switzer, at whose instance this suit is proved to have been brought, wo think such damages should be allowed.

It is therefore decreed, that the judgment of the District Court be amended ; that plaintiffs recover of William Switzer, James Vaughan, Ezra Hill, and Elisha S. Austin, in solido, nineteen hundred dollars, with legal interest from 3 7th November, 1853, date of judicial demand, and costs of the District Court; and of William Switzer and James Vaughan, in solido, the further sum of two hundred dollars, with legal interest from October 21st, 1858, two dollars and fifty cents costs of protest, and one hundred and five dollars damages on the protested bill; and of William Switzer, individually, a further sum of one hundred dollars as damages for a frivolous appeal; the costs of appeal to be paid, one-half by appellees, and one-half by the appellant Vaughan and Switzer.

Slidell, C. J.

I think it clear there should be judgment against Switzer, Captain and part owner. lie was cognizant of and directed the drawing of the bill by the Clerk, and I am satisfied was seasonabbly informed of its dishonor, and, moreover, seems to have acted in bad faith in the way he loft St. Louis in the night, without providing for the bill.

I am of opinion that Switzer, by mere virtue of his position as Captain and part owner, and without other authority shown, cannot be considered as authorized to bind his co-proprietors in the form of and with the liabilities attaching to a bill of exchange, drawn by the Clerk under his direction. But I am not prepared to say, that as part owner, he had not a right to procure freight for the boat in the way he did, which I understand to have been by advancing to the New Orleans consignees in transitu, the charges on goods, in order to get the freight for them to St. Louis, while lie would look for reimbursement to the ultimate consignee. It was to got freight in this way, he borrowed money from plaintiffs to pay the charges, and this was part, of the consideration of the bill. As the boat made her voyage, wo may fairly infer the arrangement has enured to the benefit of the owners. Whether as mere Captain, Switzer could have bound the owners for money borrowed for such purpose, we need not now inquire.

I think Swüzer, as part owner, had no authority to bind his co-proprietor by a purchase of cargo. But as to this item, there is sufficient proof of Vaughan's assent.

I therefore concur in the decree now rendered.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    P. L. Roussel v. S. Phipps, Testamentary Executor—S. Phipps, Testamentary Executor v. P. S. Roussel.
    This action was to reduce the price of a slave on the ground that she was at the time of the sale, affected with a redhibitory disease. A physician was called in to see the slave one month after the sale. He informed the purchaser that she was too far gone for him do anything hut afford temporary relief the health of the girl continued declining, she was sometimes employed in field work, and sometimes in cooking, but the greater part of her time she was confined to her bed. Pour months from the first visit the physician was again called in, and in a short time he visited her twice. About two weeks after the last visit the slave died: ITélct: The purchaser should have placed the slave under continued medical treatment after the first visit of the physician had disclosed to him the serious nature of the complaint, or at once have offered to return her to his vendor:
    from the District Court of the Parish of Terrebonne, Oole, J.

      Goode, for plaintiff.

      J. 0. & A. Beatty, for defendant and appellant.
   Buchanan, J.

At a probate sale of the effects of the succession of Jem 0. Wallis, made by order of Court, on the 24th February, 18S3, a negro woman slave named Adeline, aged 23 years, and her three children were adjudicated to Pierre L. JRoussel, for the sum of eighteen hundred dollars, payable, onothird in all March, 1854, one-third in all March, 1855, and one-third in all March, 1856. In February, 1854, JRoussel brought an action quanti minoris against the executrix of Wallis’s estate, alleging that the slave Adeline had died, since the sale, of a disease of the lungs, with which disease she had been affected at the time of the sale ; and claiming to have eight hundred dollars deducted from the price, in consequence of the death of said Adeline. In April, 1854, the executrix brought suit against Roussel for the first installment of the price of the slaves, which installment was then past due and unpaid. The court ordered the two suits to be consolidated ; and the question for examination is, whether a case for reduction of price has been made out on the part of the purchaser.

The evidence shows that some days, or perhaps some weeks, after the purchase, (for the witness is uncertain as to the time) the slave Adeline complained of being sick — her symptoms, shortness of breath and tumors. Her belly also appeared swollen. A physician was called in on the 19th March, about a month after the sale, who testifies that he found her laboring under a pulmonary disease which in his opinion had existed at least six mouths. By auscultation ho detected a cavity in the upper lobe of the right lung, and at once told Mr. Roussel that he thought she was too far gone to do anything for her except to afford temporary relief. From this time wo are informed that the health of the girl continued declining. She was occasionally employed in cooking and in field work, but was the greater part of the time confined to her bed. On the 16th July, four months after his first visit, the physician paid her a second visit, and two more on the 30th and 81st August. She died on the 14th September. We arc of opinion that it was incumbent on the purchaser, either to have placed the slave under continued medical treatment after the first visit of the physician had disclosed to him the serious nature and threatening- aspect of her complaint, or at once have offered to return her to his vendor. Having failed to do either, he must support the loss.

It is therefore adjudged and decreed that the judgment of the District Court in these consolidated cases be reversed; and it is further decreed, that Sarah Phipps, executrix of Jesse G. Wallis, recover of Pierre L. Eoussel, and of Marie Madeleine Roussel, in solido, in suit No. 1186 of the docket of the District Court, the sum of one thousand and sixty-six dollars and sixty-six cents, with interest at eight per cent, from 3d April, 1854, until paid, with mortgage and privilege of vendor upon the slaves mentioned in her petitition, and costs in both courts; and that in suit No. 1151 there bo judgment for defendant.


text:
    R. R. Barrow v. J. Ker.
    When the acceptance of a proposition to sell varies the terms presented in the proposition, the sale is incomplete.
    from the District Court of the Parish of Terrebonne, Gole, J.

      Beecher, for plaintiff and appellant.

      J. G. & A. Beatty, for defendant.
   Buchanan, J.

On the 19th January, 1853, the plaintiff addressed a letter to the defendant, containing the following proposition to sell:

“ I have offered you the Point Farm, all the land mentioned in the deed from Gruger, and all the land mentioned in the different sections as are mentioned in the sale from A. McDonald to me, which quantity of land I have consented to guarranty the number of acres. You to assume the payment of $5000 to . John McDonald, in 1852, 1853, 1854, and 1855. I have offered to sell all the. mules and horses, (except six) all the plantation tools, wagons, carts, place,, &c., (except the ox carts) the corn, fodder, hay &c., all the buildings and improvements on the place, all the stock of cattle, hogs, &c., except four yoke of-oxen. The negroes are reserved and not sold. The molasses and sugar also ■ reserved. I have agreed to let the negroes remain on the place and continue the planting the cane, &c., until the first of March next. I first thought I would only subrogate you to all my rights to title and guarantee of land and . ■sell the place as it is, without the negroes, stock, tools, &c. I thought each piece of property, land, stock, provender and buildings, and seed, and stubble .cane, should have a soperate valuation, set forth in the deed of sale. You have -changed me in all this. I first asked you $40,000, and I now offer to take $35,000, of which $10,000 cash, $.02-60 in ’54, $6250 in ’55, $0250 in ’50, $6250 in ’57, with notes to their order, endorsed by them, Win. & J. Bisland, B. Butler, W. J. Minor, A. J. Quitman, as you proposed, payable in New Orleans, with mortgage on the property sold. The certificate of mortgage I have shown you, which has-on the Point Farm, most of which has ¡been paid, and by neglect the liens have not been raised. In making this sale with my guarantee and obligation to clear the place of liens and my own acts, I require your assistance, and I require such terms as I may perhaps find it necessary. Of course it should be done as soon as possible, but I require if necessary until the next payment falls due, say, the 1st March, 1854. I now offer you the property as above stated, and believing the crop of this year will be good for upwards of 300 hogsheads, I announce it cheap property. Wore I aware that my crop on Residence and Myrtle Grove will bo sufficiently large as this crop for the assistance of their'hands to take off, I would not sell for so low a price. In the meanwhile I am anxious to sell the property to you, only because I am induced to believe' it will suit you, and you are anxious to purchase it. My not being anxious to sell, I am willing you should take some days to say whether you accept or not, and I name six days. I leave this morning for Lafourche place, and perhaps to the city. If you should conclude and wish to visit the place, Mr. Pittman will give you a letter to the overseer, J. II. Sanders, stating your wishes.

“ Yours, respectfully,

“ R. R. Barrow.”

At the foot of this letter the defendant wrote as follows:

I accept the foregoing proposition to sell the Point Farm place, and agree to everything therein contained, except the mention of names as security on the notes to bo given for $23,000, and the time to be granted for the release of the mortgages now existing against the place,

“Jorcsr Ker.”

“Houma, January 23th, 1853.”

Thus far there is no agreement between the parties, constituting a bargain. On the contrary, there is a difference in two essential particulars, namely, the endorsers to be given upon the notes for the credit portions of the price, and the granting of time to plaintiff for the erasure of the mortgages inscribed against him and bearing upon the property wdiich he proposed to sell.

But the plaintiff contends that the proof of a contract must be from a letter written by the defendant to plaintiff of the following tenor:

“ Houma, February 25th, 1853,

“ R. R. Barrow, Esq. :

“Dear Sir: — I returned from Natchez last Sunday, and was sorry to find that you were absent from home. I was ready to pass the sale of the Point Farm, and am anxious that it should be done as soon as possible. I am daily expecting my negroes dow'n, and consequently am desirous that the sale should bo passed as soon as may be. The Messrs. Bisland are both to be my endorsers upon the notes I am to give, and they are now ready to do their part towards completing the sale. I hope you will find it convenient to complete the sale soon, as at present I am having a very unsettled life.

“Respectfully, yours,

“John Ker.”

Wo are unable to find, in this letter, the proof of a contract of sale. The writer displays, certainly, a great deal of anxiety to close a sale of some kind, but we are left entirely in the dark as to the conditions of the sale. We cannot infer that he accepts the conditions contained in the letter of plaintiff of the 19th January, for we find him offering only two endorsers instead of the five required by plaintiff. Neither can we infer that in the month which had elapsed, he had changed his mind as to allowing plaintiff time to erase the mortgages. The mortgage certificate which is in evidence shows that there were mortgages inscribed affecting the property in question, at that time, to the amount of upwards of forty thousand dollars, and it is utterly unreasonable to suppose, in the absence of proof, that the defendant was at any time willing to accept a conveyance of a property incumbered, ostensibly toan amount far exceeding its value, and at the same time to give cash and negotiable paper to the full value of the property.

These things are necessary to constitute the contract of sale: The thing sold, the price, and the consent of the buyer and of the seller to the terms and conditions of the sale. Such consent, whore the object of the sale is land, can only be evidenced by writing. We have before us the writings upon which the plaintiff has expected to establish the sale alleged in his petition ; and we are constrained to say, that they are utterly insufficient for that purpose.

Judgment affirmed, with costs.


author: Spojtokd, J.

text:
    State v. J. R. Thompson.
    The case of the ¡State v. Thomas, 12th Rob. Rep. 48, deciding’ that the act of 21st December, 1814, entitled “ an Act concerning the police of slaves in certain cases and for other purposes,” did not create an indictable offence, but was a regulation of police, and prescribed a civil proceeding for a civil penalty, affirmed.
    The interpretation of a statute becomes, as it were, a part of the statute, and it should not be changed but for the most cogent reasons.
    In a civil proceeding the son is an incompetentwitness for the father. C. 0. 2260. In a criminal proceeding he is-corupetent.
    from the District Court of the Parish of Iberville, Robertson, J.
    The District Attorney for the Sicote.

      Deblieux & Mathews, for defendant and appellant.
   Spojtokd, J.

The District Attorney for the Sixth Judicial District filed an information against John It. Thompson, for employing a largo number of slaves on his plantation, in the parish of Iberville, without having permanently on the said plantation a white person for each and every thirty slaves working thereon, to oversee the said slaves, and maintain a good police among thm.

The information was based upon the statute of December 21st, 1834, and concluded against the peace and dignity of the State of Louisiana.

A bench warrant issued under which the defendant was arrested, and, upon his arraignment, he pleaded not guilty.

It appears by a bill of exceptions that, on the trial, the defendant called his son, William Thompson, of the age of majority, to prove that he had on his plantation, at the time mentioned by the District Attorney in his hill of information, the proper number of white persons, and of the age required by law ; but the District Attorney objected to the witness being sworn, on the ground that “ this being in the nature of a penal proceeding the son was an incompetent witness for his father,” which objection was sustained by the court.

The judgment is in these words : “ The court finding- the defendant guilty, on motion of the District Attorney it is ordered that the defendant, J. It. Thompson, be condemned to pay a fine of three hundred and fifty dollars and costs of prosecution, and that he stand committed until said costs and fine are paid.”

His motion for a new trial being overruled the defendant appealed, and he relies for a reversal of the judgment, upon his bill of exceptions, and an assignment of errors.

It was held in the State v. Thomas, 12 Rob. 48, thatthe Act of 21st December, 1814, (B. & O.’s Dig. p. 65) did not create an indictable offence, but was a regulation of police, and prescribed a civil proceeding for a civil penalty. The court which decided this cause sat under the constitution of 1812, and its jurisdiction extended to civil cases alone, (Art. IV, Sec. 2.) Notwithstanding the objection of the District Attorney, who had prosecuted the defendant to conviction by indictment, the court took jurisdiction of the case and treated it as a civil proceeding in its result, although clothed in the commencement with the solemnities of a criminal prosecution.

Whatever might be our impressions, were the matter res integra, we deem it important, in the construction of statutes, to adhere to what has been already adjudged. The judicial interpretation becomes, as it wore, a part of the statute, and should not bo changed but for the most cogent reasons.

Considering these as proceedings in a civil matter, the son is an incompetent witness for the father, C. C. 2260. In a criminal proceeding he was competent. 11 M. 2 Phil. Ev. rr.

But, after arresting and arraigning the defendant as in a criminal case, and excluding the evidence ho offered because it was not admissable in a civil case, the court proceeded to pass sentence upon him as a convicted criminal, whereby he was ordered to stand committed until the fine and costs were paid.

He has in this manner been deprived of the benefits and subjected to the hardships peculiar to both modes of procedures. It is not thus the State should deal even with her erring children.

The proceeding intended by the the statute being a civil one, the defendant was entitled to freedom from arrest, to reasonable notice of the District Attorney’s motion, that he might file an answer, if so disposed, and to have the evidence taken down in case of appeal. Moreover, the judgment should disclose the reason for which it was rendered, and bo signed by the Judge, and executed by writ of fieri facias, unaided by the terrors of imprisonment: In the case of the State v. Thomas, above cited, the court said that although there had been an indictment and a verdict of guilty, that did not vitiate the subsequent proceedings by formal written motion as in a civil case, for a recovery of the penalty. And the judgment was there affirmed expressly on the ground that the facts proved and admitted in the record fully made out the case under the statute.

We cannot say as much here. There is no admission, and no proof. The form of a criminal prosecution was not, for a moment, abandoned.

This has been assigned as error, and, we think, with propriety.

In a case very similar to the present, the Supreme Court, ex proprio motil-, annulled the judgment, where the State had proceeded by a criminal instead of a civil action. State v. Linton, 3 Rob. 56.

It is therefore ordered and decreed that the judgment appealed from be annulled, and the criminal proceedings against the defendant be dismissed, reserving to the State her right to proceed according to the mode pointed out for the recovery of the fine by the Act of December 21st, 1814.


author: Slidell, C. J.

text:
    J. Aucoin, Tutor v. J. B. Guillot.
    The surety on an official bond, given in favor of the District Judge, by a father and natural tutor, conditioned for the faithful performance of his trust, is not bound.
    from the District Court of the Parish of Assumption, Gole, J.

      Malliot & Mills, for Plaintiff and Appellant:
    It is a general rule of law, that in whatever manner a man may deem it fit to bind himself so shall ho bo bound.
    This rule like all others has its limitations and exceptions. ¥e will examine first the extent of, and second the exception to the rule as applied to the contract of suretyship.
    It is found in the Roman law Fidejussor aeeipi potest quoties est aliqua ob-ligatio cirilis rel natumlis, cui applieeiur. Vide Pothicr Oblig. No. 395; also in the Spanish law, Par. 5th, title 12, law 5; in French law, N. 0., Art. 2012; also in our law, O. C., Art. 3005.
    The first material interpretation given to the rule bj' our courts was in the case of Olaiborne v. Dehon 3, Mar. Rep. 505, in which the question at issue was the legal effect of a bond given by an auctioneer to the government of the territory instead of recognisance, though the latter and not the former was required by law. Says the court, Mathews, Judge : “It is clear, from (he manner in which this instrument was executed that it is not a recognisance, yet the obligation imposed by it upon the sureties are good and valid according to the general principles of law. The act of the appellees in becoming security for the auctioneer Moran was voluntary; there is no stipulation or condition in the bond harder than those required by the act of the legislative council; and according to the general principles of our laws one person may bind himself under a penalty for another; for although no obligation is created by a promise pure de alio,'yet when in promising the act of another, one submits to pay a penalty or merely damages, in case of the inexecution of the promise, it is not to be doubted that in this case he did not understand de alio tantum promit-tere, but that he promised for himself, that he would procure the other to do or give the thing. Therefore Ulpian says: se quis relit alienum factum promit-terepmnam rel quanii ea res est, potestpromitlere. Pothier Oblig. No. 56. The appellees are clearly bound by their obligation thus voluntarily entered into, unless there is something illegal or contrary to good morals in the condition; which is not pretended by them. "We are, therefore, of the opinion that the bond is good and valid in law; as the act of the legislative council does not prohibit the taking a bond different from the one required by its provisions, or declare such to be void; and this opinion is fully supported by the decision in the case of Morse v. Hudson, 5 Mass. Term Rep. 314.
    In like manner though the law requires of a natural tutor only the security furnished by a tacit mortgage on his immovable property, yet it does not prohibit him from furnishing other security if ho chooses, nor does it declare such security to be void.
    The next case is that of Lartigue v. Baldwin, 5 Mar. 193, in which it was held that the surety to an attachment bond is bound, though it should appear that, at the time it was subscribed, no such bond was required by law to obtain an attachment. In this case says the court, (Dorbigny, J.) “ The first position of the defendant (that the bond was not a valid one) is subdivided into several points, most of which tend to show that the bond is irregular; but such allegations from the mouth of an obligor, ought not to be listened to ; they are silenced by that law, already referred to by this court in other cases, which prescribes, that in whatever manner a person shall appear to have deemed it proper to bind himself towards another so shall he be bound, Recp. do Oast 5, 16. One objection, however, is entitled to more attention than the others; it is that by which the defendant has endeavored to establish that, at the time this bond was subscribed no such bond was required by law to obtain an attachment, and that this is consequently an obligation without cause. The premises may be true, but the consequences do not necessarily follow. A voluntary promise to indemnify another against any loss which he may suffer by an act of ours, is surely not an obligation without cause on the part of the principle obligor, and if valid on his part must be equally binding on the person who joins him in the obligation and agrees to indemnify the obligee, if the principal obligor does not. The bond is therefore viewed by this court as a valid obligation on the part of both the principal and his surety.”
    In like manner though it be true that the law does not require a father to furnish bond in order to become the natural tutor, yet it by no means necessarily follows that either such an obligation would be without cause or void in law. In truth the obligation of the natural tutor is fixed by law independent of a bond, and is amply sufficient for any accessory obligation to attach to it.

      Ilsley, for defendant:
    ■ The present case is somewhat analagous to that of King v. Baker, 7 Ann. 571, in which case the bond was declared a nullity because the sheriff was not authorized to take such a bond. It was viewed as a judicial bond and therefore exempted from the operation of the rule.
    In the cases cited below, it was held that in judicial bonds an additional condition, not contemplated by the legislature, will not bind the surety, and yet it is argued that a bond furnished when the legislature intends that no such bond shall be executed at all, is valid, as a voluntary obligation. See the cases of Welsh v. Thorn, 16 La. 188. Slocomb v. Boberi, ib. 173. Welsh v. Barrow, 9 Rob. 535. Baker v. Morrison, 4 Ann. 373. Boswell v. Bainhart, 2 La 398.
    The case of Slocomb v. Bobert is one of the cases cited in King v. Baker, 8 Ann. 571, where the bond was declared null in toto.
   Slidell, C. J.

The defendant is surety in an official bond given in favor of the District Judge by a father and natural tutor, conditioned for the faithful administration of his trust. The Judge had no lawful authority to require such bond from the father, and therefore the court below correctly held the bond invalid. The maxim that as aman consents to bind himself so shall he be bound is not fairly applicable to such a judicial bond, which is not in legal contemplation purely voluntary, but is required by the Judge from the parties as the condition for the exercise of a function. If he be entitled to such exorcise ■without bond, its judicial ex parte exaction is illegal, and the bond must therefore justly be deemed inoperative against the surety.

Judgment affirmed with costs.


author: Spoeeokd, J.

text:
    G. Theurer v. L. Schmidt and M. Weisenburger.
    A parly to an authentic act will not be permitted to establish its simulation by parol, and to contradict not only the act itself, but the contemporaneous writing, and that without any allegation of fraud.
    from the Second District Court of New Orleans, Lea, J.

      G. B. Bufour, for plaintiff and appellant.

      A. Grailhe, for defendant.
   Spoeeokd, J.

Gaspard Theurer married Louisa Schmidt, daughter of Margaret Weisenburgcr.

Pending the marriage, ho convoyed, by notarial act, to Mrs. Weisenburgcr,, his mother-inrlaw, a family of slaves, for the. expressed consideration of eleven hundred dollars, which he acknowledged to have received in cash. His wife intervened in the act relinquishing- all her dotal, paraphernal and other rights upon the slaves. Ho brought this suit nearly two years afterwards, alleging that ho had discovered his wife’s infidelity, and had petitioned for a divorce, that the above-mentioned sale to Mrs. Weisenburger was, in truth and in fact, a donation intended for Louisa Sohmidt, his wife, and that no consideration was ever paid therofor; wherefore, ho prayed that the act of sale might be declared a donation, and as such, avoided and annulled, and the said Louisa Sohmidt and Margaret Weisenburger, decreed to restore to him the slaves therein conveyed.

His wife excepted peremptorily to the suit, on the ground, that such an action could not be maintained against her by her husband, during their marriage or prior to a decree of separation from bod and board.

The District Judge sustained this exception, and dismissed the suit as to her. Prom that decree there has been no appeal, and we cannot, therefore, question its correctness.

But the plaintiff went on with the suit aginst Mrs. Weisenburger alone, who pleaded the general denial, and claimed the slaves sued for as owner, under the authentic act of sale before alluded to.

This act was offered in evidence, and also an instrument sous seing privé, signed by Mrs. Weisenburger alone, which the plaintiff styles a counter-letter. That paper, under the same date with the act of sale, recites that, whereas she had purchased the slaves from Oaspard Theurer for the sum of eleven hundred dollars paid in cash, she declared that the said sum of eleven hundred dollars had been furnished to her by her daughter Louisa Theurer, and that she had purchased the said slaves for the said Louisa Theurer, to whom she bound herself and her heirs to convey a clear title when called for.

The defendant took a bill of exceptions to the admission of this instrument.

The plaintiff then offered to show by parol evidence, that his intention, as well as that of Mrs. Weisenburger, in the act of sale and in the private act signed by the latter, was to effect a donation to Mrs. Theurer. This evidence was rejected, and the plaintiff took a bill of exceptions.

It is unnecessary to express an opinion upon the first bill of exceptions ; for, giving its full effect to the private act, not as a counter-letter, (for it lacks an essential element of the counter-letter,) but as a contemporaneous writing signed by one of the parties to the authentic act of sale; still, it confers no right of action in favor of Gaspard Theurer against Mrs. Weisenburger. It must bo borne in mind, that these are the only parties before us, and that they were not under any legal incapacity to enter into such a contract.

In this state of the case, wo are clearly of opinion that the parol evidence offered by the plaintiff was inadmissible. The offer of such proof was an attempt by a party to an authentic act to establish its simulation by parol, and to contradict not only the act itself, but the contemporaneous writing, and that without any allegation of fraud.

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


author: Spofford, J.

text:
    W. H. Avery v. L. Onillon et al.
    Vagueness in an injunction affords a good ground for its dissolution.
    PPEAL from the District Court of the Parish of Iberville, Boberison, J.

      B. A. Upton and Watson, for plaintiff and appellant.

      Labaum, for defendants.
   Spofford, J.

The injunction was properly dissolved for its vagueness.

It was sued out to restrain the defendants from trespassing “ upon the lands of Wm. S. Avery, lying in the rear part of his plantation and in that part of the parish of Iberville known as Manchae, about seven miles below the town of Plaquemine, and on the left bank of the Mississippi river, by cutting timber upon the same,” &e.

No other description of the location, extent, or boundaries of the land is given in the petition, affidavit, order, or writ.

Such an injunction could only operate as a snare to the defendants. It did not notify them what lands the plaintiff claimed as his, and deprived them of all recourse in damages, if it should turn out that the plaintiff was really seeking to restrain them from what they had a right to do.

Nothing is before us but the interlocutory decree dissolving the injunction. We cannot inquire into the exception to the suit.

Judgment affirmed, with costs.


text:
    W. H. H. Rider v. Wright & Marshall.
    The slave was sold on the 13fch December, 1851, and died on the 21st of September, 1852. Plaintiff sued to recover the purchase money, and alleged that a few days after the xmrehase, he discovered that the slave was af&cted with serious redhibitory vices, &c. Held: Plaintiff should not have kept the slave for months without making at least an effort to procure an amicable rescission of the
    PPEAL from the District Court of the Parish of Terrebonne, Cole, J.
    21. J. G. & A. Beatty, and W. If. Mereer, for plaintiff.

      Ilsley & Belcher, for defendants and appellants.
   Spofford, J.

This is a redhibitory action for the price of a slave, alleged to have been unsound in mind and body, although fully warranted in the act of sale.

The sale was made in the parish of Terrebonne, on the 13th of December, 1851, the vendors being residents of Kentucky.

The boy died on the 21st of September, 1852. No offer to return the slave or to rescind the contract was alleged or proved. Wo think the defects for which the plaintiff now claims a return of the price, wore independent of the last illness which produced the death of the slave. That illness was the result of an acute disease and lasted but a few days. The main defect relied on is alleged imbecility of mind. But the plaintiff declares in his petition that a few days after the purchase, ho discovered that the slave was afflicted with most serious redhibitory vices and defect, both of body and mind.

Ho should not have kept him nine months without making at least an effort to procure an amicable rescission of the sale.

The District Judge seems to have thought the plaintiff was excused by the fact that his vendors were non-residents of the State. It is true the law does not exact impossibilities. But to avail himself of such an excuse, the plaintiff should have made the impossibility apparent. It is not shown that the defendants misrepresented or concealed their residence. This offer to return could have been made by letter. Besides, one of the vendors was often in the parish ■of Terrebonne. The notary who passed the act of sale to the plaintiff, says he bought mules of one of the defendants at Houma in February or March, 1852. The plaintiff’s shop is near the town of Houma.

Judgment reversed, and judgment for defendants.


author: Vooriiies, J.

text:
    C. Gardiner v. L. Carpenter et al.
    The Sheriff must offer a valid excuse, or else, under the Act of 1S26, he will be bound for his failure to execute or return a writ within the legal delay.
    from the District Court of the Parish of Point Coupée, Oooley, J.

      TJ. B. & E. Phillips, for plaintiff.

      Haralson, for defendant and appellant.
   Vooriiies, J.

The plaintiff seeks to make the succession of Richard L. 'Carpenter, the late Sheriff of the parish of Pointe Coupee, and his sureties,liable for the amount of a writ offieri facias issued on a judgment in his favor ¡against Demid Gay, on the 10th December, 1852, which writ was placed in the hands of said Gmpenter, and was retained by him until his death, in October, 1853.

The record shows that this writ was received by Oarpenter within a week or ten days from the time it was issued,, and that it was found without any return endorsed thereon, at the taking of the inventory of his estate.

It is well settled, that the liability of the Sheriff under the Act of 1826, extends to the cases in which ho offers no valid excuse for his failure to execute or return a writ within the legal delay. As the defendants have offered no proof of such excuse in the present case, it is clear that they must be held liable to the plaintiff. 2 Ann. 370. Ibid, 409. 3 Ibid, 622.

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


author: Slidell, 0. J.

text:
    Foley & Townsend v. M. Bourg et al.
    Creditors who have supplied the owner with materials for the construction or repair of an edifice are subject to the same prescription which runs against architects and undertakers, bricklayers, and other workmen employed in constructing, rebuilding or repairing houses, under Article 2747 of the Code.
    C. C. 3216.
    A PPEAL from the District Court of the Parish of Lafourche Interior, Ban-j-JL (Loll, J.

      G. Belcher, for plaintiffs.

      J. G. & A. Beatty, for defendants and appellants.
   Slidell, 0. J.

The third clause of Article 3216, is not found in the Oode of 1808, nor in the Napoleon Oode. See Oode of 1808, page 470, Article 75. Napoleon Oode, Article 2103. It was an amendment suggested by the Jurist appointed to revise the Code of 1808, who thought that justice and expediency required that those who had supplied the owner of a house with materials for construction or repairs, &c., should be protected like the workmen, &c., mentioned in the antecedent clause. See Amendments, page • 138. In making this interpolation at this part of the Code, they omitted to introduce an equivalent provision in the antecedent portion of the Oode treating of the same subject-matter. See Articles 2743 and the following. But under the circumstances, it may ho reasonably inferred, it was intended to range them in the same category, and while giving the privilege to this additional class, to give it with the qualifications attached to it with regard to the kindred class with which, by this interpolation, it was associated. Any other interpretation of this loose amended codification, would lead to consequences so dangerous and absurd, that they never could have been intended. For example, while the privilege for other claims of a kindred class is wisely subjected to a brief prescription, furnishers of materials for the construction or repair of buildings would be subjected either to no prescription at all, or a very long one. Our conclusion is, that w’e must so construe the interpolation as to rank fur-nishers of materials in the kindred class of workmen, &e., employed by the owner in the construction or repair of the buildings, and subject them to like prescription. In this view of the case, the claim of Foley & Townsend is barred, as to third persons, by prescription. 0. O. 2747.

The motion for dismissal appears to us untenable.

It is therefore decreed, that the judgment of the District Court, as between the appellant, John Gollins, and the appellees, Foley & Townsend, be reversed; and that as to said appellant, the claim of privilege made by said Foley & Townsend be rejected; the costs of appeal, and of the proceedings of said Foley & Townsend, in the court below, so far as concerned said Gollins, to be paid by said Foley & Townsend.


text:
    Union Bank of Louisiana v. J. L. Lobdell.
    The oblig.ation of a borrower from the Union Bank of Louisiana, to pay ten per cent, interest on loans made on stock, after maturity, was recognized in Bermudez v. Union- B avile ^ 7 An. 62. That decision is correct.
    The following mode of calculation of interest is in conformity to Art. 2160 O. O.: The principal and interest due at the time of payment, were calculated; and when the amount paid was less than the interest accrued at the time, no deduction was made from the gross amount of principal and interest, until by another payment, the amount received was made equal at least to the accrued interest. The principal and interest, up to that time, were then added together, and from the total, was deducted the aggreate of the several payments made since the last deduction of the interest.
    Defendant cannot set up a claim in reconvention, which he has already made the subject of a direct action.
    from the District Court of the Parish of West Baton Rouge, Robertson, J.

      Atery & Lacey, for plaintiff.

      Lobdell, for defendant and appellant.
   Buchanan, J.

This is a suit for a balance due' upon four loans; two made upon stock under the provisions of the charter of the bank, and the other two, additional loans upon stock, under a resolution of the board of directors.

The defendant contends, that upon the unpaid installments of those loans, he is not liable to the payment of ten per cent, interest. This question has been fully discussed in the case of the Union Bank v. Bermudez, reported in 7 An., 62, and settled adversely to the views entertained by defendant. We see no reason for disturbing the doctrine established in that case.

The defendant also urges, that there is a compounding of interest in the calculation of the cashier, annexed to the petition, which is the basis of the plaintiff's demand.

An inspection of that calculation has not shown to ns the compounding of interest alleged. The mode of ascertaining the amount due, followed by the accountant, appears to have been : to calculate the principal and interest due at the time of a payment, and when the amount paid was less than the interest accrued at the lime, then to make no deduction from ihc gross amount of principal and interest, until, by another payment, the amount received by the hank is made equal, at least, to the accrued interest; the principal and interest, up to that time, were then added together, and from the total, was deducted the aggregate of the several payments made since the last reduction of the principal. We think this operation was a strict compliance with the provision of the law, which requires that partial payments upon a debt carrying-interest, are first to be imputed to the interest. C. C. 2160. Heynson v. Maddox, 1 N. S. 571.

The defendant has also set up a claim in reconvention against plaintiff, under the following circumstances:

In May, 1853, the plaintiff sued out executory process against one Francis M. Hereford, under which were seized, among other slaves, two, named John Gurry and Toni Hall, who belonged to the defendant. The defendant did not claim those slaves by third opposition ; but brought a sejiarate action against ihe Sheriff for damages for their seizure and'salo. The Sheriff called the plaintiff in warranty; and this suit was finally decided by the decree of the Supremo Court, (reported in 8 An., 120,) awarding to John L. Lobdell$4L0 damages, to be paid him by the Sheriff, with judgment in favor of the Sheriff over egainst tho Union Rank for a like sum ; and reserving to Lobdell his right to recover tho slaves Tom Sail andJiPi» Gurry." Now the defendant pleads that ho is entitled, under the said judgment of the Supreme Court, to claim of plaintiff hire for each of said two slaves, at the rate of one dollar per day from the 25th of May, 1851, tho time of their seizure, until they are returned and delivered up to him, and he claims fourteen hundred dollars of the said hire, accrued up to tho time of the institution of this suit, by reconvention.

To the reeonventional demand of defendant, the plaintiff pleaded the exception of litispendence, which was sustained by the court below on proof of tho institution of a suit in the Fourth District Court of New Orleans, by the defendant, against the Union Barth, John L. Lewis, Charles Jjamarque, and Alphonse Robin, for tho recovery of the slaves, Toni Hall and John Gurry, and their lien ; 'which suit was pending and undecided at the time of the institution of the demand in reconvention herein. We ;think tho exception was properly maintained.

Judgment affirmed, with costs. •


author: Ogden, J.

text:
    State v. Hannah, a Slave.
    Slaves have no rights guaranteed to them by the Constitution of this State} and it is competent for the Legislature to create such special tribunals as they may deem necessary for tlxe trial of offences committed by them.
    Voluntary confessions, made by the slave to his master, may be used on a criminal charge against the slave.
    l'he dying declarations of the deceased may be given in evidence against a person charged with his manslaughter.
    from a tribunal composed of a Justice of tho Peace and ton freeholders of tho Parish of Lafourche.

      Homan, District Attorney, for the State.

      Sail & Bush, for accused and appellant.
   Ogden, J.

The accused was tried and convicted of the crime of manslaughter, by a tribunal composed of t-wo Justices of tho Peace and ten freeholders She was sentenced to imprisonment in the penitentiary at hard labor for life, and on appeal to this court, her counsel relies for reversal of the judgment on three bills of exception in the record.

The first exception was taken to the competency of the tribunal, on the ground of its not being organized agreeably to the Constitution, which requires that the Judges shall be elected by the people.

In the case of the State v. Slaves Lethe, Biner, Hal and Chloe, 9 An. 182, we recognize the power of granting new trials as resting in the discretion of the Justices who preside over the trial of slaves. The freeholders do not act as judges, but as jurors summoned by the Justices of- the Peace who, alone, exercise the proper functions of judges. Were it otherwise, wo are of opinion that there is no restriction in Constitution on the power of the Legislature to create such special tribunals as they may deem necessary for the trial of offences committed by slaves, who have no rights guaranteed to them by the Constitution.

Tho next objection was taken to the admission in evidence of the confessions of the accused made to her master’s son, under whose charge and authority the slave was, during the absence of her master. It is contended, that a confession to one having the power of a master, is not of that voluntary character which the law requires to render such confession evidence against the accused. As it is shown affirmatively that no inducements or promises were held out to induce the confession, and that neither threats nor violence were used to extort it, it must be considered as entirely voluntary. The proposition seems to us inadmissible, that the relation of the master to his slave is such, as to render objectionable, evidence of that character. On the contrary, as it is alike the interest and the duty of the master to protect and defend his slaves, confessions made to the master and voluntarily deposed to by him, ought to have the highest moral weight as evidence. We do not understand the case referred to of the State v. Christy, 2 Dreux’s N. C. Reports, as establishing a different principle. There may be, no doubt, cases where the confession having been made in referrence to the defence to be made for the slave, it ought to be received and weighed with great caution, but to exclude entirely confessions made to the master on the ground of his relation to the accused, is not required by any motive of justice or humanity to the slave, and is opposed to sound reason and public policy.

The prisoner’s counsel urges, as the last objection, that the declaration of the slave, whoso decease, was proven, was improperly received in evidence. Asa question of law, we have no hesitation in deciding that the dying declarations of the deceased were admissible as evidence.

The judgment of the Court below is therefore affirmed, with costs.


text:
    J. G. Stocks v. J. A. & P. W Furguson.
    Defendants’ answers to interrogatories, propounded by the plaintiff to establish a sale of lands, cannot be contradicted by parol.
    from the District Court of the parish of Point Coupee, Cooley, J.

      A. Provosly and F. IT. Farrar, for plaintiff.

      U. B. & F. Phillips, for defendants and appellants.
   Ogden, J.

The plaintiff alleges that in the month of November, 1853, he contracted to sell to the defendants nine hundred and fifty-seven acres of land, for which they agreed to pay him thirteen thousand dollars.

The present suit was instituted to recover a balance of three thousand four hundred dollars of the price alleged to be due. The plaintiff states in his petition, that at the time of the agreement which was not reduced to writing, he had himself a full, perfect and formal title to only one hundred and sixty acres, which was known to the defendants; but he alleges it was understood and agreed that he would procure a complete title to be made to the defendant of the whole nine hundred and fifty-seven acres. The plaintiff further alleges, that he made subsequently to the defendants, a deed of the one hundred and sixty acres, to which he had then a complete title, at which time the defendants paid him $4,000 in cash ; that he procured a title to be made to them by S. A. Lacoste, of six hundred and sixty acres more, which Laeoste had previously contracted to sell to the plaintiff, and that for the remaining one hundred and thirty-seven acres, he had procured a patent from the State of Louisiana, and had tendered to the defendants, a deed For the land embraced by it, which they refused to receive.

Interrogatories to establish these facts were propounded to the defendants. They admit, by their answers, that such an agreement had been made; but say that it was upon the understanding that the plaintiff owned the nine hundred and fifty-seven acres, and that when they found he only owned one hundred and sixty-acres, they bought that quantity from him, with a wagon and four mules, for which they paid him. They deny that they ever made any other purchase from the plaintiff.

It was proved that Laeoste had made an agreement with the plaintiff to sell him the six hundred and sixty acres, and that at his request the deed was made directly by Lacoste in favor of the defendants. The deed contains no reference to any agreement between the plaintiff and Lacoste, and the defendants bound themselves to pay the price to Lacoste.

The deed to the one hundred and sixty acres from plaintiff to defendants was not produced in evidence. That deed would have shown whether the $4,000 paid to the plaintiff was on account of the verbal agreement for the sale of the whole of the land, or for the specific price of the property then sold, as the defendants aver. It is to bo presumed, the plaintiff' would have produced it, if by doing so, he could have contradicted the defendants answers.

It is however clear, that the plaintiff did not obtain the confession of the defendants in answer to the interrogatory, that there was a sale of any other land. Parol evidence could not be received to contradict the answers and thereby establish a sale, and the plaintiff consequently failed to make out his case.

It is therefore ordered and adjudged, that the judgment of the court below bo avoided and reversed, and that there be judgment for defendants, with costs ira. both courts.


text:
    J. A. Scuddy v. W. A. Shaffer.
    Congress passed a lair on the 4tli September, ISlt, granting upon certain conditions- land to the-States therein specified, and among them Louisiana, for the purposes of internal improvement. The legislature of Louisiana, in 1844, provided for the sale of warrants for the location of the land, and also that patents should issue on proof that the warrants had been properly located. Plaintiff being the holder of such a warrant located it on the land in controversy. The location having been approved by the Secretary of the Interior, and a certificate to that effect having been-granted by the Register, the Governor of Louisiana issued a patent to the plaintiff, bearing date1 12th November, 1852. The opposing titles of defendant are derived, first from MlUor whose entry was cancelled as having been obtained by fraud, and second by purchase, from- the State of Louisiana, in April, 1853j under the provisions of an Act of Congress, passed 2nd of March, I84ff, and of acts of the legislature of Louisiana, passed in 1850,1852 and 1858, to carry that act into effect. Defendant contended that the Secretary of the Interior had, under the authority of the act of 1841, in April, 1858, revoked his approval to the State of the lands in controversy, which defeated the plaintiff’s claim under the act of the legislature of 1844. By the Court. — The construction of the act of 1849 by the Secretary of the Interior may be strictly correct, and yet it does-not follow that the location of a warrant under the Internal Improvement law of 1841, which had been approved by the proper department of the government, and for which a patent had subsequently issued by the State, could be revoked so as to destroy the title conferred by the patent. As both the acts of 1841 and 1849 were grants of land to the State, the courts cannot go behind the patent which the State has granted. The patent can only be attacked on the ground of error and fraud,
    The Commissioner General of the Land Office has the right to vacate illegal entries prior to the issuing of the patent.

      i PPEAL from tho District Court of tho Parish of Terrebonne, Oole, J.

      J. 0. <& A. Beatty and Fite, for plaintiff and appellant.

      Connelly & Rightor and Mercer, for defendant.
   Ogden, J.

This is a petitory action for a quarter section of land. The plaintiff' claims title by virtue of the location on the 12th of July, 1850, of a warrant of the State of Louisiana, issued under tho provisions of an Act of Congress of tho 4th September, 1841, and of an Act of the Legislature of Louisiana, of tho 25th March, 1844.

Tho defendant called in warranty his vendor, Alexander MeMaster, who sets up two titles, one derived by MeMaster, by purchase from Madeline Billio in 1836, and the other, a title acquired by the defendant himself, by purchase from the State of Louisiana, on the 16th of April, 1853. Tlie title of Madeline Billio is founded on -an entry made by her in 1830, and purchase as evidenced by tlie receiver’s receipt. The entry was subsequently cancelled as fraudulent, and as no patent had issued, the authority of the Commissioner General to vacate the entry on that ground cannot be doubted. Bettis v. Ammonett, 4 Ann. 364. Pepper v. Dunlap, 9 Rob. 288. Grudy v. Woods, 19 L. R. 337. Wilcox v. Jackson, 13 Peters, R. 498.

The case must be decided on tho relative merits of the two titles derived 'from tho State of Louisiana. The plaintiff derives his title in the following manner; by the 8th section of an Act of Congress, of the 4th September, 1841, the government of the United States granted to each of several States specified in tho Act, and among them Louisiana, five hundred thousand acres of land, for the purposes of internal improvement. The Act provided that the selections of tho land were to be made in such manner as the Legislature of tho State should direct, the locations to bo made on any public lands except such as were or might be reserved from sale by any law of Congress, or proclamation of the President of the United States. Tho 9th section of the Act provided that the nett proceeds of the sales of the lands so granted should be applied to objects of internal improvement within the State, such as roads, railways, bridges, canals, and improvement of water courses, and draining of swamps. An Act of the Legislature of 1844 provided that warrants for tho location of the lands should be sold in the same manner as tho lands located, and it was made the duty of the Governor to issue patents for the lands located by warrants, whenever he should be satisfied that they had been properly located.

The plaintiff being the holder of such a warrant, located it on the land claimed in this suit. The location having been approved by the Secretary of the Interior, and a certificate to that effect granted by the Register, the Governor of Louisiana issued a patent to the plaintiff', bearing date the 12th November, 1852.

The title was thus derived in strict conformity with the Act of Congress, and the Act of the Legislature of the State.

The opposing title of defendant was derived as follows under an Act of Congress of the 2nd March, 1819, and certain Acts of the Legislature of this State, passed to carry into effect the Act of Congress. The first section of the Act of Congress of 1849 declares, “ That to aid the State of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, which are or may be found unfit for cultivation, shall be, and the same are hereby granted to the State.” The second section provides, “ that as soon as the Secretary of the Treasury shall be advised by the Governor of Louisiana, that the State has made the necessary preparation to defray the expenses thereof, he shall cause a personal examination to be made under the direction of the Surveyor General thereof, by experienced and faithful deputies, of all the swamp lands therein which are subject to overflow, and unfit for cultivation, and a list of the same to be made out and certified by the deputies and Surveyor General, to the Secretary of the Treasury, who shall approve the same, so far as they are not claimed and held by individuals, and on that approval, the fee simple to said lands shall vest in the said State of Louisiana, subject to the disposal of the Legislature thereof; Provided, however, that the proceeds of said lands shall be applied exclusively, as far as necessary, to the construction of the levees and drains aforesaid.” On the 21st of March, 1850, the Legislature of Louisiana passed an Act to enable the Governor to have the swamp and overflowed lands selected ; and in 1852 they passed an Act giving a preference in entering such lands, to those in possession of or cultivating' them, and the time of entering them was further extended by an Act of 1853.

The defendant entered this land on the 15th of July, 1853, by virtue of a preference right claimed under that Act of the Legislature. He was permitted to make this entry at the State Land Office, in consequence of the Secretary of the Interior having, on the 14th of April, revoked his approval to the State, under the Act of 1841, of this and other lands, which had been located under warrants sold by the State in conformity to the Act of the Legislature of 1844. The reason assigned by the Secretary of the Interior was, that these locations had been made subsequent to the passage of the Act of Congress, of 1849, granting to the State all the swamp and overflowed lands. He states, in his opinion, that lie considered the words used in the first section of that Act as importing a grant in presentí, and as conferring a right to the land, though other proceedings were necessary to perfect the title, and that when the title was perfected it had relation back to the date of the grant. Ilis approval to the State of the location of the land in controversy, under the internal improvement law of 1841 was revoked, but the land was at the same time approved to the State, as having a vested title to it, under the Act of 1849, and taking effect from the date of the passage of the Act. As the second section of the Act of 1849 declares in express terms that the fee simple in the lands shall vest in the State, and be subject to the disposal of the Legislature, on the approval of the Secretary of the Treasury, after certified lists should be made out by the deputies and Surveyor General, it is contended by the appellants that the construction placed on the law by the Secretary was erroneous.- We do not consider it necessary to decide that question. It is certain that the Legislature could not have disposed of the land, as belonging to the State, under the provisions of that Act, until she had complied with the conditions imposed on her by the Act of Congress, and until the approval of the Secretary of the Treasury, but if she had not chosen to avail herself of the right given to her to appropriate those lands as svramp lands, by defraying the expenses of locating them, she had still the right of locating them, under the Internal Improvement law of 1841, which was unconditional. The construction of tho Act of 1849 by the Secretary of the Interior may be strictly correct, and yet it docs not follow that the location of a warrant under the Internal Improvement law of 1841, which had been approved by the proper department of the government and for which a patent had been subsequently issued by the State could be revoked, so as to destroy the title conferred by the patent. The question would have been different if, after the passage by Congress of the Act of 1849, the United States had granted the land away from the State of Louisiana. Such was not the case, and as both the Acts of 1841 and of 1849 are grants of land to tho State, we cannot go behind the patent which the State has granted. The patent can only be attacked on the ground of error or fraud. Pattern v. Weir, 5 Peters 241. United States v. Andrews, 6 Peters, 728. Lote v. Prudhom, 3 Rob. 293. Begnell v. Brodwick, 13 Peters 437. Thuyer v. Lessee of Young, 3 Peters 320. It is true that a patent issued against law is void, but in the present case the patent and all the proceedings on which it was based was in conformity to the law. As between the governmant of the United States and the State of Louisiana, a question will arise whether the State is not entitled to an additional quantity of land, to be located under the Act of Congress ofv 1841, in consequence of the swamp lands having been appropriated for locations of warrants issued under tho Internal Improvement Act; but we are of opinion that the title which the State has granted to the plaintiff, and for which she has been paid, is unaffected by the acts of the officers of the United States government and of tho State government, done since the patent was issued.

The ground on which tho judgment of the court below, declaring the plaintiff’s title to be void, was rendered, seems to be that the object of the donation of the swamp lands by Congress would bo thereby defeated. We cannot presume that the State will not do in this respect what her honor and duty requires, but the titles which she grants to lands given to her by the government of the United States, under either the laws of 1S41 or 1849, cannot be made to depend on the faithful application by the State of the funds derived from them, to the purposes for which the grants were made.

It is therefore ordered and adjudged that the judgment of the court below be avoided and reversed, that the plaintiff be decreed to bo the owner, and that he recover possession from the defendant, of the land described in his petition, to wit: lots No. 6 and 6, being the south-east quarter of Section No. '71, in Township No. 17, of Range No. 16, containing one hundred and sixty-•one 62-100 acres; that the case be remanded to be tried as to tho claims of the defendant against his warrantor.

The costs in both courts to be paid by the defendant and warrantor.


text:
    V. Gautreaux v. W. R. Boote.
    The adjudication of land sold by the Sheriff in pursuance of an order of court, rendered in the mor-iAbdria of a succession, imports full legal warranty.
    Obscure and ambiguous clauses in an act of sale, will be construed against the seller. 0. C. 2449.
    The only exception stated in Article 2535 of the Civil Code, to the rule thus laid down, that the buyer may require security to be given to him, when he has just cause to apprehend being disquieted by adverse claims, is in the case where the buyer has been informed before the sale of the danger of eviction.
    The certificate of entries under which the vendor derived title having been cancelled by the Commissioners of the Land Office, under the authority of the proper department of the government; Held: The purchaser is entitled to security against the danger of eviction, before he can be compelled to pay the purchase money.
    APPEAL from the District Court of the Parish of Ascension, Albert Buf-fel, J.

      Iisley for plaintiff in Injunction :
    1'he probate proceedings in relation to the public sale of the succession of XJrsin Hebert, imparted full legal warranty. See Arts. 2477, 2602 L. C. 7 La. 123. £ Rob. 188.
    The adjudication was of itself a complete legal title, and did not require any notarial act to strengthen it. See Arts. 2584, 2686, 2695, 2601 L. C. 11 La. 180.
    And here a question of construction in relation to a clause in the notarial act of 16th February, 1850, arises, i. e., whether or not the warranty, resulting from the judicial sale, was abandoned by the purchaser, Gautreaux.

    If the clause alluded to tended in any manner to restrict or exclude the warranty, resulting from the judicial sale, it was not contemplated by the parties, and was evidently erroneous.
    That the title to the property acquired at the public sale was fully guaranteed, cannot certainly bo questioned. And it may reasonably be asked what possible inducement there could have been for dispensing with it? It was a vested right, and the terms stated in the proves verbal of adjudication corresponding with those stated in the notarial act of sale, will show conclusively that there was no valuable consideration for the release. It would therefore have been null and of no effect. See Art. 1887 L. O., and an enunciation of the same principle in the case of Dubueh v. Go&eclieaux, 6 Ann. 780. The administrator in answer to interrogatories, candidly admits, that prior to the signing- of the notarial act there had never been, between him and Gautreaux, anjr agreement, or understanding, or even any mention about the renunciation or abandonment, by Gautreaux, of this vested right of warranty.
    Mr. Boole's statement makes it clear that there was no motive or consideration for any restriction or release of the warranty, and it can hardly be supposed that Valentin Guatreaux intended gratuitously to abandon so important a right as nemo presumeteur donare.

    If the clause did stipulate a restriction of warranty, and it was signed by Gautreaux without objection, it might be readily accounted for by the fact that he was a very ignorant man, as he signed the act with his ordinary mark, and that ho did not understand the language in which it was written.
    Acts like that of 16th February, 1850, are always considered as matters of form, merely to furnish evidence of what had previously occurred, to identify notes representing price, &c., &c. Gautreaux therefore very naturally supposed that the notarial act was to have no other effects than those stated, and did not examine the wording of it as closely as, under other circumstances, he might possibly have done.

      But does the clause, after all, limit or in any manner affect the warranty due by the vendors, i. e., the estate of Ü. Hebert and his widow ? Was it not rather to restrict and limit the liability of the vendors themselves, as warran-tors, to the part only sold by each, and not intended in any manner to curtail or impair the full legal warranty which resulted from the public sale? Each warrants his title and no more, and this is all that a vendor ever does. If there is ambiguitj’' in the clause it must be construed against the vendor. Sec 2449 L. 0., Gray v. Lowe, 7 Ann. 466.
    But supposing, for the sake of argument, that the clause referred to realty was one of non-warranty, and this is all that could possibly be pretended, still Valentin Guatreaux might retain the price until secured from the danger of eviction. It is not alleged, nor proved, that prior to the sale, hs was aware, of the danger of eviction, and purchased at his peril and risk. See Arts. 2535, 2481 L. C. Bowles v. Alfred!, 5 Ann 667. Olague v. Denis, 7 N. S. 95.
    And a purchaser who would have the right to reclaim the price, after eviction, has the corresponding right to withhold it, if it is not paid, when he fears being disturbed. See the case of Dufieff’s Heirs v. BoyJdn, not yet reported, annexed to this brief. DeRae v. Chapman, 3 0 Rob. 67.
    We are aware that it is for us to show the danger of eviction, or grounds to fear being disquieted, and we think we have been successful in so doing.
    The plantation adjudicated consists, as the answer admits, of certain entries described in plaintiff’s petition, and in the diagram annexed to the deposi-sitions of Mr. Butterfield.

    The testimony of Mr. Commissioner Butterfield shows that all the said entries have been cancelled and annulled by the General Land Office as illegal, null and void, ah initio, conflicting as they do with a confirmed and patented claim, and in violation of the Act of Congress of 3d March, 1811, the title of which is set forth in his depositions. While upon the authority of the case of Stoddard v. Chambers, 2 Howard’s Rep. 317; Morrison v. Whetstone, 5 An. 636,. and of Ba/rry v. Qamhee, 3 Howard’s Rep. 61, makes the entries not voidable, but absolutely null and void. No patents ever issued on these entries, and they were therefore entirely under the control of the United States when they were cancelled. And the action of the Government thereon cannot be revised by a State court. See the cases of Pepper v. Dunlap, 9 Rob. 283. Moranceyv. Ford, 2 An. 299. Bettis v. Armonett, 4 An. 364. Haydee v. Nixon, 5 An. 558. Robertson v. Wood, 5 An. 197. McGill v. McGill, 4 An. 262. Terry v. Eennen, 4 Ann. 458.

      Upton & Watson, for Boote, Administrator.

      Duffel, for Babin, defendants and appellants:
    “ Volenti non fit injuria,” — “ In whatever manner a man binds himself, he shall remain bound.” Plaintiff voluntary executed a contract, on which he knew execution would issue de piano, he cannot complain. 6 N. S. 723. The plaintiff took possession of the property and enjoyed the revenues thereof under the notarial title, and it is now too late to complain. 17 La. 345 ; 3 R. 147, 196. The plaintiff is, besides bound by this notarial act, because he ratified it, and thereby confirmed it by the payment of the note due March, 1850, for it has been held, that the partial execution of a contract is as much a confirmation of it, as if the execution had been entire. Vide 2 R. 1; 4 R. 127; 6 R. 443; 0. 0. 2252; Toullier, vol. 8, Nos. 510, 511, 519 and 520.
   Ogden, J.

The plaintiff became the purchaser at a public sale made by the Sheriff, of a tract of land partly belonging to the succession of Ursin Hebert, and partly to the widow of Hebert, in her own right. The land was sold in pursuance of an order of court, rendered in the mortuaria of the succession of Hebert. In the notarial act of transfer of the property to the purchaser, consequent upon the adjudication, which was signed by the administrator of the succession, and by the widow, there is the following clause relating to warranty : “ And that they do by these presents, in all their respective capacities, grant, bargain, sell, assign, transfer and set over with all lawful warranty, that they, the said Boote and widow Hebert, have and may have hereafter in their respective capacities, (i. e.) that the said W. Boote hereby sells all the rights, titles and claims, belonging to the estate of the said Ursin Hebert, and tho said widow Hébert, hereby sells all tho rights, titles and claims, that she has personally, and no other warianty whatever, unto the said Valentin Gautreaux, here present and accepting,” &c. The plaintiff enjoined an order of seizure and sale taken out by the vendors, on the mortgage notes for the price executed by Gautreaux in their favor, on the ground of failure of the title and danger of eviction. Tho only point which is presented in the argument of the appellant’s counsel before this court is, that the clause in the act of sale as above set forth excluded any warranty of title, and that the buyer when threatened with eviction- has no right to require security, under Art. 2535 of tho Code, when there lias been an exclusion of warranty. The adjudication of the property to the defendant at tho probate sale imported full legal warranty. The .clause in tho notarial act is nota clear expression'of the intention of the parties to vary the terms on which the adjudication had been made. “ The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him.” Art C. 0. 2449.

But admitting it to be a correct construction of the act of sale that the vendors were to be subject to no warranty as to the validity of their title, this case cannot be distinguished in principle, from that of Dufieff v. Boykin, 9 An.

The only exception stated in Article 2535 to the rule there laid down, that the buyer may require security to be given to him when he hasjust cause to apprehend being disquieted by adverse claims, is the case where the buyer has been informed before the sale of the danger of eviction.

The seller is bound to restore the price in case of eviction, oven where it was stipulated that there should be no warranty, unless the buyer was aware at the time of the sale of the danger, and purchased at his peril. Art. 2481..

The plaintiff did not purchase at his risk, and with knowledge of the danger of eviction. He is entitled to the relief which he has asked for if he has shown that he has just reason to apprehend eviction. It is shown by the evidence that the certificates of entries under which the vendors of the defendants derived their title to the land, have all been cancelled by the Commissioner General of the Land office, as being in conflict with a confirmed claim, and in violation of an Act of Congress of the 3d of March, 1811. As no patents had issued on these entries, the authority of the proper department of the government to order them to be cancelled has been recognized by frequent decisions. See cases of Pepper v. Dunlap, 9 Rob. 283. Morancey v. Ford, 2 An. 299. McGill v. McGill, 4 An. 262, and Poydras v. Millaudon, 9 An.

The judgment of the court below is therefore affirmed with costs.


text:
    J. Cochrane, et. al. v. C. A. Miller, Administrator.
    A judgment by default creates a tacit joinder of issue and no dilatory exception can be pleaded after it.
    A special denial is necessary to put a party upon proof of the representative capacity in which lie sues.
    from the District Court of tho Parish of Tensas, Snyder, J.
    Farrar, for plaintiff and appellant.

      Stacy & Sparrow, for defendant.
   Ogden, J.

The defendant iras sued as security in a tutor’s bond. Ho suffered a judgment by default to be taken against him, which was subsequently confirmed on proof of tho plaintiff’s demand, without any appearance on tho part of the defendant, who now prosecutes his appeal therefrom.

Tho suit was brought in tho names of Joshua, Leah and Harriet Oochrame, as the only surviving' children and heirs of Edioard Cochrane, deceased. The principal in tho bond, Andrew D. Bonqua, had boon appointed tutor not only to the plaintiffs, but to two of their sisters, named Margaret and Fancy, and to a brother named John. The petition alleges that Margaret, Fancy and John died without issue, and that the plaintiffs are their sole heirs.

Tho appellant asks a reversal of tho judgment on several grounds :

1st. That there is no proof in the record that tho plaintiff Harriet, who sued as a married woman, had been authorized by her husband or by tho court to bring this suit.

2ndi That there is no proof to establish tho death of the two sisters, 31ar-garet and Fancy.

3d. That the death of tho mother of the plaintiffs, between whom and their father there must have been a community of goods, was not proved, and that by law she is presumed to be still alive and to be entitled to one-half tho property which was administered by tho tutor.

4th. That no steps had boon taken to enforce payment against the principal, which, by the Act of tho Legislature of 1842, is made a prerequisite to any action against tho surety.

Tho effect of tho judgment by default is to create a tacit joinder of issue, and the reason given for it in Art. 300 of tho Code of Practice is, that tho defendant is presumed by his silence to have confessed the justice of his adversary’s demand. Although it is, notwithstanding such presumption, made necossaiy for tho plaintiff' to proceed with his proofs, in order to have the judgment confirmed, tho defendant cannot be permitted to take advantage of any matters of exception or defence which ho would have been bound to plead specially, if he had thought proper to make an appearance in the cause.

No dilatory exceptions can bo pleaded after a judgment by default is rendered, and a special denial is necessary to put a party upon proof of the representative capacity in which ho sues. It follows that the defendant cannot have the benefit of such pleas, when no appearance has been made for him in the court below. Art. O. P. 320, 321. Reynolds v. Reynolds, 12 L. R. 618. Lopez, et al. v. Berghel, 7 L. R. 181.

Tho tutor took possession of all the property as belonging to the succession of tho father of the plaintiffs and tho defendant, without a special plea to that effect, and proof to support it, cannot now contend that a part of it belonged to the mother, and that she is still alive. The defence set up that no steps had been taken as required by the Act of tho Legislature of 18-12, to enforce payment against the principal, ought also to have been specially pleaded.

The Judgment was rendered in favor of Joshua, Leah and Margaret Coch-rane. The name of Margaret, who is dead, was erroneously inserted in the judgment for that of Harriet, one of the plaintiffs. The appellee’s counsel has asked for an amendment of the judgment to correct that error, but it is not one of those cases in which the appellee has a right to an amendment of the judgment at the costs of the appellant.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be amended by inserting the name of tho plaintiff, Harriet Coch-rane, in the place of that of Margaret, and thus amended the judgment be affirmed, and that the costs of the appeal be paid by tho plaintiffs and ap-pellees.


text:
    State v. V. Jacob.
    The fifth section of the Act supplementary to the Act for punishing crimes and misdemeanors, (B. & 0. p.270) approved 7th February, 1829, must be construed according to tho English text:
    After the evidence had been concluded, and after tho argument had closed, the counsel for the accused asked that the District Attorney should bo compelled to choose between two counts in the indictment, and select on which of the two he would ask the verdict of the jury. The court refused to compel the District Attorney to make the selection. ZTeld: The charges are not so distinct us in any manner to confound the prisoner or to distract the attention of the jury. The application should have been made before pleading to the indictment. The refusal of the District Court was correct.
    Where the signification of the French and English text of the law is difierent, the Judge cannot charge the jury thatneither text can have the effect of the law.
    The District Court did not err in refusing to charge the jury that an ordinary pocket knife was not a dangerous weapon, within the meaning of the fifth section of the Act of February 7th, 1849, entitled “ An Act supplementary to an Act entitled an Act for the punishment of crimes and misdemeanors.” Nor did the court err in refusing to instruct thejury under that statute that, to justify the verdict of guilty againrt the accused, the evidence must show that the wound was inflicted with a coucealel weapm, or if not, thejury must be satisfied, that if death had resulted, the defendant would have been guilty of murder.
    PPEAL from tho District Court of the Parish of Terrebonne, Cole, J.

      Roman, District Attorney, for plaintiff.

      J. C. <6 A. Beatty, for defendant and appellant.
   Ogden, J.

We bad occasion in tho case of tho State v. Lovenstein, 9 A., recently decided, to consider the first question presented by this appeal, as to the proper construction of the fifth section of the act of 1829, under which the first count in the indictment in this case was framed.

We consider it settled by that decision that tho English text is to govern as being free from ambiguity and creating two distinct offences. One of these offences, to wit, that of inflicting with a dangerous weapon, a wound less than mayhem, is properly charged in the indictment.

The charge in the first count is that the accused “ feloniously, wilfully and unlawfully, inflictecl.a wound less than mayhem upon the said Raphael Callahan. The second count is for an assault and battery. By a bill of exceptions in the record it appears that after the evidence had been concluded, and after the ar-gumenthad closed, the counsel of the accused asked that the District Attorney should be compelled to choose between the two counts in the indictment, and select on which of the two he would ask the verdict of the jury. The court refused to require him to make such selection, and the jury found the accused guilty on both counts. This is assigned as error. The charges are not so distinct as in any manner to confound the prisoner or distract the attention of the jury, and the application, should have been made before pleading to the indictment. Chitty on criminal law, p. 248, 249.

A bill of exceptions was taken to the refusal of the Judge to charge the jury that where the text of the law, published in the two languages, was entirely different in signification and effect, in such case, neither of them could have the effect of law. The court very properly refused to give this charge.

The court was further requested to charge the jury “that if the knife used by the defendant was shown by the evidence to be an ordinary pocket knife, such as is commonly used by planters for proper purposes, and was not by the accused specially provided for this occasion,” that then it is not a dangerous weapon within the meaning of the law, and “ that to justify a verdict of guilty against the accused under the law of 1829, (if at all in force) the evidence must show that the wound was inflicted with a concealed weapon, or if not, that the jury must be satisfied, that if death had resulted, the defendant would have been guilty of murder.” We are of opinion the Judge did not err in refusing to give such instructions.

It is therefore adjudged and decreed that the judgement be affirmed with costs.


text:
    R. J. Watkins v. A. J. Gibbins.
    A purchaser oí land who, for his better security, buys up an out standing title to the same land, can - not, in the absence of any proof of fraud, or of an entire failure of the title derived from the first vendor, resistthe payment of the price to him.
    from the District Court of the Parish of Point Coupée, Cooley, J.

      IT. B. c6 B. Phillips, for plaintiff and appellant.

      Provosty and F. IT. Farrar, for defendant.
   Ogden, J.

The defendant, on the 7th January, 1852, sold to the plaintiff a tract of land and five negroes for the price of eight thousand dollars. The land is described in the act of sale as the south half of section No. 26, in township No. 5, of range No. 9 east, in the South Eastern Land District of Louisiana, containing three hundred and twenty acres. The price for the land, separately was $4,000, payable in four unequal installments, of different amounts, and this suit was brought to enjoin an order of seizure and sale which the defendant had obtained to enforce the payment of the notes given for the price, for the security of which the vendor had reserved a mortgage on the property sold. The plaintiff asks that the notes which were given for the price of the land may be declared to be null and void, and that the defendant be enjoined from collecting them.

The ground alleged for the injunction is, that the defendant had no title whatever to the land when he undertook to sell -it to the plaintiff; that the south western quarter of the section, being the west half of the land, bad been, since the sale to plaintiff, entered by the heirs of Ramillón, and that the plaintiff finding he had acquired no title by his purchase from defendant, had himself purchased the other half from the United States.

certain incumbrances on the negroes were removed. The order of seizure and sale was taken out for the other notes, omitting the two which were only to be paid conditionally. The act of sale contains a clause to the effect, that the fourth installment for the price of the land was to be paid only in case the vendor should give to the purchaser a full and complete title to the west quarter of the section, which was half of the land conveyed in the act of sale, and that in case the vendor failed to procure the title for it, the note for that installment of $1,500, should be null and void. It was also made a condition, that the payment of the note for the last installment of the price of the negroes, should not be enforced until

The evidence of title in Gibbins to the land which he sold, consisted of a certificate of purchase from the State of Louisiana, dated December 2d, 1851.. The certificate is signed by W. R. Crenshmo, Register of the Land Office, and assures to the purchaser within six months after its date, a patent for the land,, or for so much thereof as should not be ascertained to be claimed by any valid right of preemption under the Act of the Legislature, approved February 25,. 1847. Gibbins was aware that the title to one-half of the land thus sold to him by the Register, would not be good, and the plaintiff could not pretend ignorance of that, as the fact is disclosed by the act of sale itself. It is not shown that he was aware that the certificate would not be a good title to the other half, and there is no evidence that it was not a good title, except that the Register of the United States Land Office permitted the plaintiff, on the 8th of April, 1854, to locate a State warrant on the same land. The case is therefore to be viewed in the light of a purchaser of one title, having for his better security, purchased another title to the same land. In such a case, in the absence, of any proof of fraud or of an entire failure of the title derived from him, the purchaser will be bound for the price to his first vendor, notwithstanding his. second purchase. If the plaintiff had not secured another title to the land, he. could have successfully resisted the payment of the price to the defendant, only by showing conclusively that the title he had acquired from the defendant could be of no avail to him. See Woodward v. Ledoux, 8 An. Bessy v. Pintado, 3 L. R. 489. Geidry v. Green, 1 Martin N. S. 475, and the only effect of his having bought up another title is, that he has an equity to require that his vendor should refund to him the money expended in procuring it. Pepper v. Dunlap, 5 An. 200. Galloway v. Finly et al., 12 Peters R. 314. No patent has yet been issued either by the State or by the United States government, and both titles being now united in the plaintiff, the inquiry as to which is the best title, ought not to be entertained in the absence of any proof on the part of the defendant of fraud in imposing on his vendee a title which he knew to bo worthless. The Judge of the court below dissolved the injunction, with an increase of interest on the notes from eight to ten per cent, by way of damages, and at the same time ordered a credit to be allowed to the plaintiff for the amount paid by him in perfecting his title.

The appellee has asked for an increase of the damages to twenty per cent. As the notes already bore eight per cent, interest, the Judge erred in allowing any additional interest, and we think the case is not a proper one for damages, which ought to have been allowed in the court below, if at all, eo nomine.

It is therefore adjudged and decreed, that the judgment of the court below, so far as it allows additional interest on the notes, be reversed; and that in all other respects it be affirmed, and that the costs of this appeal be paid by the defendant and appellees.


text:
    T. Jewell v. R. B. Read and W. H. Harris.
    Where the act of mortgage neither describes the person nor gives the name of the slave mortgaged, but simply states that Read, the mortgagor, mortgages to Jewell, the mortgagee, “ the property conveyed by him {Jewell) this day to the said Hice B. Read, as per act of sale passed before me the said notary,” and the act of mortgage was recorded, but the act of sale was not. JTeld: That the mortgage was insufficient to effect a purchase without notice, for a valuable consideration.
    from the District Court of the Parish of J.

      Bernias & Hynes, for plaintiff and appellant.

      Short & Barham, for defendant:
    The mere reference to a deed, for the description of property, will not bind third parties. O. C. 3273, 3272, 3274. 5 An. 123. C. 0. 3275, 3275. A mortgagee who seeks to enforce his mortgage against third persons, must show that his mortgage has been duly recorded. 2 R. R. 17. 6 R. R. 333.

      It does not appear from the record that the judgment of the District Court was signed.

   Slidell, 0. J.

The plaintiff seeks to enforce a mortgage upon a slave in the hands of Harris, a. third possessor. The act of mortgage does not mention nor describe the slave, but Bead, the mortgagor, simply mortgages to Jewell, “ the property conveyed by him this day, to the said 1lice B. Bead, as per act of sale passed before me, notary.” This mortgage was recorded in the book of conventional mortgages, but the deed of sale which conveyed the slave to Bead, was not recorded with it simultaneously in the mortgage book, nor at any other time in that book, so far as the evidence informs us. This inscription was manifestly insufficient to charge with notice the defendant, Harris, an admitted purchaser for a valuable consideration. Perot v. Chambers, 2 An. 800. Robertson v. Brown, 5 An. 154.

Judgment affirmed, with costs.


author: Voorhies, J.

text:
    J. D. Spear & Co. v. D. S. Peabody.
    The law o f the place where the contract is made, or to be performed, must prevail in. the construction or effect to be given to the contract whether the parties to it be inhabitants of that place or not.
    A contract is not discharged by the obligor having been admitted to the benefit of the cessio "bonovv/nh under the laws of a country where the contract was not made or tp be performed.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Q-. B. Duncan and J2. G. Mix, for plaintiff and appellants.

      J. Q. Bradford, for defendant.
   Voorhies, J.

The judgment rendered in favor of the plaintiffs in this case, by the late Commercial Court of New Orleans, was founded on the defendant’s promissory note, drawn at Mobilfe to the order of one Daniel MaGartney, by whom it was endorsed in blank, and payable at the branch of the bank of the State of Alabama. The plaintiffs, in their petition, are represented as residents of Mobile, and the defendant as a resident of Now Orleans. In January, 1840, a writ of fieri facias was sued out and returned nulla bona. It does not appear that any further proceedings were had on this judgment, until the 31st of February, 1854, when an alias writ of fieri facias was issued and levied on the defendant’s property. Whereupon the defendant ruled the plaintiffs to show cause why the same should not be set aside, on the ground that he had been admitted to the benefit of the cessio bonorwm.

The writ was ordered to be set aside by the District Court, on the ground that the plaintiffs had failed to show that they were citizens of another State. From this judgment the plaintiffs have appealed.

The record shows, that on the 6th of February, 1840, the defendant presented a petition, to which a schedule or summary statement of his affairs was annexed, to the Judge of the late Parish Court of New Orleans, with the usual prayer for a cession of his property to his creditors; on which, an order was accordingly granted for a meeting of his creditors on the 13th of March, 1840, and for a stay, in the meantime, of all proceedings against his person and property. The plaintiffs were placed on his schedule as judgment creditors residing at Mobile. No further steps appear to have been taken, or that the creditors of the defendant have ever been notified of the order thus granted.

The only question presented in this case, is whether the defendant’s discharge may be pleaded as an extinguishment of the plaintiffs’ remedy on an Alabama contract.

The fact that the defendant not only contracted the debt, but obligated himself to pay it, at the Branch of the Bank of the State of Alabama, is clearly established. The rule is well settled, that the law of the place where the contract is made, or to be performed, must prevail in the construction or effect to be given to the contract, whether the parties to it be inhabitants of that place or not. This rule, it would seem, is based on the presumption of law, that the parties to a contract are conusant of the laws where the contract is made, and are presumed to contract in reference to those laws. The doctrine, that the discharge of a contract by the law of a place -where it was not made, or to be performed, will not be a discharge in any other country, is equally well settled. In his review of the jurisprudence of the United States on this subject, Mr. Chancellor Kent said: “It will be perceived, that the power of the States over this subject is, at ali events, exceedingly narrowed and cut down ; and as the decisions now stand, the debt must have been contracted after the passing of the act, and the debt must have been contracted within the State, and between citizens of the State, or else a discharge will not extinguish the remedy against the future property of the debtor.” 1 Kent’s Oom. 422. 2 Ibid, 392. Story’s Conflict of Laws, 282. 8 An. 339. 5 An. 271.

Hence, we conclude, that the insolvent’s proceedings did not operate as an extinguishment of the plaintiffs’ remedy, and that the writ was therefore erroneously set aside.

It is proper to- state, that some of my brethren concur in this conclusion solely on the ground of precedent in the jurisprudence of our own State.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the rule taken by the defendant in this case be discharged at his costs; and that the Sheriff proceed according to law to execute said writ. *


author: Spoitord, J.

text:
    Larche & Haughton v. I. N. Kent—R. H. May, Garnishee.
    The answer of the garnishee, that he holds property, not for the presentbenefit of the defendant, but to pay the creditors of the succession from which the defendant inherited, is not an admission that the garnishee has funds which belong of right to the defendant, so as to bind him by his answers to pay the money.
    O. 0. 2863.
    from the District Court of the Parish of Carroll, PerJcins, J.

      Dubose, for plaintiff and appellant.

      The record does not disclose wbat counsel appeared on behalf of defendants in the Supreme

   Spoitord, J.

There is no error in the judgment, which was rendered in favor of the garnishee.

The plaintiffs do not complain of any evasion in his answers, nor have they attempted to traverse them.

They rely upon the point, that the answers contained an admission that the garnishee has funds in his hands which belong of right to Isaac N. Kent, their judgment debtor.

We do not see how such an inference can be drawn from the answers. The property therein spoken of, it is admitted by plaintiffs, belongs to Kent's wife, and is not itself liable to seizure for his debts. They contend that its revenues go into the community subsisting between Kent and his wife, and, therefore, that they have made a valid seizure of the revenues in the hands of the garnishee.

But the garnishee swears that neither Kent nor his wife have any interest in the revenues until the debts of the succession of Joseph M. Patton (from whom Mrs. Kent inherits) are paid; that he is a large creditor of that succession himself; that there are debts due to others, and that the land and slaves in question were to remain in the possession of the executors or representatives of the succession of Patton, until all the debts of the said succession are paid.

This is substantially an averment, that he holds the property not for the present benefit of Mrs. Kent and her husband, but to pay the creditors of Patton's succession out of its revenues.

Although the answers do not seem to be clear or consistent in regard to the mode in which the share set apart by the experts to Mrs. Kent is really held, still they positively exclude the idea, that it has ever been under the administration of her husband or herself. But, it is only where the paraphernal property is administered by the husband, or by him and the wife indifferently, that the fruits belong to the conjugal partnership. 0. 0. 2363.

The judgment is therefore affirmed, with costs.