author: Labauve, J.

text:
    No. 1055.
    Alfred Duperier v. B. F. Flanders.
    Where property has been seized by the sheriff under a writ of sequestration, the defendant has the right to execute bis bond, and have the property release.3., provided he does so within ten days from the date of the seizure. After the ten days have expired, the plaintiff may bond the property” sequestered, provided the defendant has not done so within the ten days. O. P. 279.
    The law as it now stands, contemplates only two parties who have the right to bond property seized under a writ of sequestration; first, the defendant; and secondly, the plaintiff, after the lapse of ten days from the date of the seizure.
    PPEAL from the Third District Court of New Orleans, Fellowes J.

      Whitaker & Whitaker, for appellee.

      Stuart & Walker, for appellant.
   Labauve, J.

This appeal is taken from an interlocutory judgment, dismissing a rule taken by Silas Talbot, to set aside the order authorizing the plaintiff to bond the cotton, and in his motion praying for this rule, he prays to be allowed to bond it himself.

The plaintiff, alleging himself to be the owner of twenty-three bales of cotton, which, as he states, are in the possession of the defendant, and then in the Woods’ press, on Canal street, prayed and obtained a sequestration.

The cotton was accordingly sequestered, and taken possession of by the sheriff, on the 6th April, 1866. On the 14th of same month and year, the citation and petition were duly served upon the defendant. On the 19th of same month and year, on motion of plaintiff’s counsel, suggesting that more than ten days had expired since the seizure of the cotton, it was ordered by the Court that the cotton be returned to the plaintiff on his executing a bond in the sum of four thousand dollars, which was done accordingly. On the 20th of same month and year, a motion of the following tenor was filed:

“On motion of Stuart & Walker, attorneys for Silas Talbot, and showing the Court that said Talbot is the true owner of the cotton sequesterd in this case, and on showing the Court that said Duperier and the said Goodwin, or the said Goodwin’s wife, are so far as any claim they have, if any, to the cotton in question, are one and the same parties, and that said Goodwin is entirely worthless, pecuniarily, and that he is the only security on the bond of sequestration; and on showing the Court that said Talbot has instituted a suit as owner thereof, in the Fifth District Court of New Orleans, and sequestered thé said cotton, it is ordered that the said Duperier show cause on the 27th day of April, 1866, at eleven o’clock, a. m., why the sequestration herein issued should not be set aside for insufficiency of bond, and other defects patent on the face of the proceedings, and that all parties interested be duly notified in the premises.”

On the said day fixed to try said rule, the Court, after hearing the parties, dismissed the same.

On the 9th May, 1866, Silas Talbot, by his counsel, moved the Court that plaintiff be ordered to show cause why the order of the Court authorizing the plaintiff to bond said cotton, should not be set aside for the following reasons:

1. That the same was granted prematurely, and ex parte.

2. That no bond has been given to said sheriff in conformity to law, and why this defendant should not be authorized to bond this cotton in this suit sequestered, on giving security as required by law, and that the plaintiff be notified of this rule.

On the 26) h June, 1866, the Court discharged this rule, and the said Silas Talbot appealed from that interlocutory decision.

We are of opinion that our learned brother below did not err. This case must be governed by Article 279, C. P., and its amendment of 5th March, 1812. By the provisions of the original article, it is clear that the defendant alone had the right to bond; such right was conferred to plaintiff by the amendment, if the defendant neglected to bond within ten days after the seizure of the property by the sheriff. The law, as it stands now, contemplates but two parties who are entitled to bond; it is first, the defendant; and secondly, the plaintiff, after ten days; this law cannot be extended to the intervenor at any time; in case both defendant and plaintiff neglect to give bond, the property must remain in the possession of the sheriff.

Judgment appealed from affirmed, with costs.


source: Caselaw Access Project

author: Labatjve, J.

license: Public Domain

text:
    No. 1059.
    B. F. Taylor v. D. DeGoicouria & Co.
    Plaintiffs shipped a cargo of lumber to his agent at New Orleans, with instructions to sell the same, and deposit the proceeds with DeGoicouria & Oo. The agent sold the lumbor, and deposited the proceeds with DeGoicouria & Oo., and took their receipt for the amount. Plaintiff, the owner of the lumber, brings suit against DeGoicouria & Oo. for the amount of the proceeds of the sale, which they resist, on the ground that the agent is indebted to them, and they have passed the same to his credit: JTeW — That the owner must recover from the depositary the amount of the sale, with interest.
    The principo! is nob liable for the debts of his agent, contracted before the agency commenced.
    "Where an agent deposits money belonging to his principal, in his own name, the principal can recover the same from the depositary, on showing that it belonged to him at the time of the deposit.
    PPEAL from the Fourth. District Court of New Orleans, Théard, J.

      D. G. Ldbait and A. Walker, for plaintiff and appellant.

      A. L, Tissoi, for defendant and appellee.

      Brief of plaintiff and appellant.

    ■» * * The facts present a clear case of agency by Elliott, and the relation of depositary as to DeGoicouria & Oo. The responsibility of a depositary is not due alone to the individual depositing, but it is also due the third person, where the thing deposited does not belong to the depositor. See Art. 2926, C. 0., and 6 La. Rep., Oneto vs. Delanny et aL, p. 34
    The defendants cannot be permitted to enrich themselves at plaintiff’s expense. He who first trusts must lose, Taylor is more innocent than DeGoicouria <& Oo. They sent Gilman out with a schooner to get charter or freight, and he was their supercargo. Taylor ships a cargo of lumber, and directs the supercargo to deliver it to Elliott, with particular instructions, which were followed. Defendants trusted him before Taylor, and seeks now to reimburse himself out of money deposited with them for another, by applying the amount to the extinguishment of subsequent indebtedness growing out of new transactions with an unfortunate or delinquent supercargo, all which plaintiff claims cannot affect him or his rights.
    The special defence in the answer is not satisfactorily proven, and plaintiff most respectfully asks that the erroneous judgment of the Court below be reversed, and for judgment as prayed for in his petition.
   Labatjve, J.

The plaintiff claims of the defendants $2,494 98, proceeds of a cargo of lamber shipped, as he alleges, by him per. schooner Mabel, in 1862, to New Orleans, to Mr. Elliott, with instructions to sell the same, and deposit the proceeds with the defendants, subject to his orders.

The defendants answer, that on the 8th November, 1862, John R. Elliott remitted to them for account of S. H. Gilman $2,494 98, which sum was the net proceeds of a cargo of lumber consigned by said Gilman, to be sold for his account, and the said proceeds to be applied to his credit at D. DeGoicouria & Co. That in accordance with said instructions, the said sum was applied to the credit of the aforesaid S. H. Gilman, who still stands indebted unto the firm of D. DeGoicouria & Go. in the sum of $3,456 95.

The Court below, after hearing the evidence, gave judgment for defendants, and the plaintiff appealed.

It appears that said cargo of lumber was shipped by S. H. Gilman, on board schooner Mabel to J. R. Elliott to be sold, and when sold, the proceeds to be handed to the defendants. Gilman, being asked where was the lumber from, answered that it was from Dr. Taylor’s mill. When Elliott deposited the money, he did not direct the defendants to place it to the credit of any one, but simply handod it over to them, taking a receipt of the following tenor:

“Received, New Orleans, 10th November, 1862, of Jno. R. Elliott, twenty-four hundred and ninety-four dollars and ninety-eight cents, amount net proceeds of sale of lumber, schooner Mabel, of 10th ult., $2,494 98.”

(Signed) “D. DeGoioouniA &Co.”

The money was entered on the books of defendants to the credit of S. H. Gilman.

S. H. Gilman, to whose credit the money was deposited, testified in substance, that he brought the lumber for plaintiff, which was delivered by his (plaintiff’s) order to Mr. Elliott, with instructions to have the same sold, and the money deposited with defendants, subject to plaintiff’s orders, and that the lumber was the plaintiff’s.

This witness is uncontradicted and unimpeached, and we are bound to believe him, and no attempt has been made to show that the lumber belonged to Gilman; the mere deposit in his name of the money, under the circumstances, as explained, cannot make him the owner of the lumber and of the proceeds, The only question before us is as to who was the owner of the lumber between Gilman and the plaintiff. We are of opinion that the lot of lumber belonged to the plaintiff, and that the deposit in the name of Gilman, without plaintiff’s consent or participation, efrd not divest him of his.right to the proceeds.

It is therefore ordered and decreed that the judgment appealed from be annulled and avoided; and it is further ordered and decreed that the defendants pay in solido to the plaintiff the sum of twenty-four hundred and ninety-four dollars and ninety-eight cents, ($2,494 98) with legal interest, from judicial demand, to wit: from the 8th of December, 1865, and costs of suit in both courts.

Application for a Rehearing, by defendants and appellees. — The appellees, believing that they are grievously injured by the decree of this Honorable Court lately rendered against them, reversing the judgment of the Honorable the Fourth District Court, in the above-entitled suit, respectfully submit the considerations on which they presume to ask, and expect to obtain, a rehearing of this cause, as prayed for in the petition filed herewith.

They were cast in this appeal, not, as they believe, on account of any demerits of their defence, but because the Court has taken into consideration only the testimony of S. H. G-ilman, indepedently of the other evidence contained in the record. These applicants think that Your Honors have overlooked the fact shown by the record, that B. F. Taylor is a complete stranger, and was unknown to these petitioners up to the institution of this suit. That his agent, S. II. Gilman, to whom was entrusted the cargo of schooner Mabel, the property of Taylor, to be sold in New Orleans, received certain instructions from his principal, Taylor. Those instructions were that Gilman should deliver to Mr. Elliott, a lumber dealer, the lumber brought over from Taylor’s mills per schooner Mabel, the same to be sold by Elliott, and the proceeds to be deposited with defendants, subject to Taylor’s orders.

There was then a direct mandate, Taylor to Gilman. Gilman was the legally constituted agent of Taylor. Did he comply with the instructions given him?

He says that he did, and as Your Honors very judiciously remark, his testimony is unimpeached, and must be believed. He says that he brought the quantity of lumber spoken of per schooner Mabel for plaintiff; that he delivered it to Mr. Elliott, with instructions to have the same s>ild, and the money deposited with DeGoicouria & Co., subject to plaintiff’s orders.

The mandate of Taylor to Gilman contained a power to substitute. Gilman fulfils his mandate, and substitutes Elliott in his stead. So far so well.

Elliott is now the mandatory of Taylor. Does he comply with the instructions given him? We are of opinion that the question is answered negatively by the testimony of Elliott himself, and by that of Harang.

Disregm-ding his instructions, without any notice of said instructions having ever been brought home to DeGoicouria & Co., Elliott, in disobedience of his orders, deposits with DeGoicouria & Co., innocent third persons, the proceeds to Gilman’s credit, acting throughout the whole transaction as if Gilman was the owner of the lumber, and of the proceeds thereof.

The good faith of DeGoicouria & Co. has evidently been surprised. They, at all times, thought that Gilman was the owner of the amount deposited with them by Elliott to his (Gilman’s) credit. Their accounts with Gilman were at the time of the deposit about even. The deposit thus made encourages them to give a further credit to Gilman, and when this suit is instituted Gilman is still indebted to DeGoicouria & Co. The proceeds thus deposited go to his credit, and extinguish his debt. If Gilman had been in good faith, he should afterwards have brought to the knowledge of these applicants that the deposit was made for Taylor, and for his account. But he ratifies the acts of Elliott, by tacitly adhering ■thereto.

If a principal were allowed to claim from third persons moneys deposited to an unfaithful agent’s credit, in commercial matters, the spirit of confidence which should animate commerce would be destroyed, completely annihilated. Business would be impossible.

It was the duty of Taylor to select agenls who would carry out his instructions. We were entirely ignorant of mandate prior to this suit, and should not be made liable. The right of action of Taylor is not against DeGoicouria & Co., but against Elliott. Art. 2971, C. C.; 2972 C. C.; 7 M. 101; 2 N. S. 367; 4 L. 28; 11 R. 81.

“ One who entrusts another with blank signatures, to be filled up with promissory notes, is bound by those issued by the agent, even if he apply the proceeds to his own use.” Dicks vs. O’Conner, 5 N. S. 550.

May we not apply the language used by the Court in this ease?

Taylor trusted Gilman and Elliott. Elliott either willingly or inadvertently abused Taylor’s confidence by not obeying his instructions. Taylor must bear the consequences of his indiscretion, and not DeGoicouria Ac Co. It seems to us that Taylor cannot throw on DeGoicouria & Co. the-loss which his agent causes him. Bee also 12 A. 276.

These proceeds having gone to the extinguishment of Gilman’s debt towards DeGoicouria & Co., Taylor cannot now make DeGoicouria & Co. liable for that amount, they having acted in good faith, á A. 19.

Rehearing refused.


author: Howell, J.

text:
    No. 1494.
    Succession of James Forsyth.
    All parties interested in maintaining the judgment of the lower Court must be made parties to tho appeal, otherwise the appeal will be dismissed. 18 A. 281.
    APPEAL from the Second District Court of New Orleans, Thomas, J.

      W. O. Denegre, for appellant.

      S. Belcher, for appellee.
   Howell, J.

A motion is made by the appellee to dismiss this appeal, because the executor is not made a party.

The judgment appealed from sustains several oppositions to the account filed by the executor, approves the account so far as not opposed, and orders the executor to file an amended account in accordance with the decree. A legatee has appealed, and given bond in favor of one of the opponents alone, who is also a legatee. The executor, not having been made a party to the appeal, the decree remains in full force as to him, until reversed, which can only be done contradictorily with him, and all other parties to be affected. All such parties are not before us. See Succession of Perry, 4A. 577; Succession of Penniston, 18 A. 281.

The motion should therefore prevail.

We cannot forbear expressing our disapproval of the careless and imperfect manner in which the transcript of this appeal is prepared.

It is ordered that the rule be made absolute and the appeal dismissed, at the costs of appellant.


author: Ilslet, J.

text:
    No. 1043.
    Sullivan, Randolph & Budd v. David R. Godwin.
    Notice of protest of a bill of exchange or promissory note may be served on the drawer or endorser, by leaving it either at his residence or place of business, with a cleric or servant staying there, or it is sufficient if left on a desk, cr put under the door.
    Where payment of a promissory note nas been extorted by military authority from the endorser, who endorsed the note merely as the agent of the owner for tbe purpose of collection, and the owner, on being informed of the fact, returns the amount to tho agent, the drawer cannot set this up as a payment ot the note, and plead his discharge from further liability.
    PPEAL from the Fourth District Court of New Orleans, Théard. J.

      J. Ad. Bozier, for plaintiffs and appellees.

      Breaux & Fenner, for defendant and appellant.
   Ilslet, J.

The note sued on, drawn by Nathan C. Folger & Son, payable to the order of David R. Godwin, the defendant, who endorsed it, was sent by the holders, the plaintiffs, from New York, to Messrs. Taylor & Knapp, at New Orleans, for collection — and the collecting agent, for that purpose only, endorsed it. They caused protest of the note to be made, and notice of protest to be served on the endorser, Godwin.

During the supremacy of the Confederate Government, so termed, in New Orleans, the note was surrendered by Taylor & Knapp to the Confederate States receiver, as property of alien enemies, under their confiscation act — at which time the endorsement of Taylor & Knapp was on it. Subsequently, the commanding general of the Department of the Gulf, through Major Strong, owing to the surrender of the note, as above stated, to the Confederate States receiver, sentenced Taylor & Knapp to six months imprisonment at Fort Jackson, unless they produced the note or paid it. Under this duress, they paid it to the United States Provost Court.

As soon as the plaintiffs heard of what had occurred, they at once, to their credit, caused the amount paid as above stated, to be refunded to Taylor & Knapp; and they now claim from the makers and endorser of the note the amount of it, with interest and costs.

The defence set up is twofold.

1. Want of legal protest after proper demand, and want of notice, of legal notice, of protest in the endorser.

2. Payment of the note to the plaintiffs through their agent, Major Strong, in the manner before stated, by which payment defendant is discharged.

I. From the certificate of the notice of protest annexed to the protest, which protest is in due form, it appears that the defendant, the payee and endorser of the note, was notified in due time of the said protest.

The notice to him was delivered to Mr. Emile Cazare, clerk of Messrs. Cochrane & Hall, the place of business of the said endorser. This we hold to be a legal notice of protest, as when a notice is left at the residence or place of business of a drawer or endorser, it may be delivered to a clerk or colored person staying there, or the notice may be simply left on a desk or thrust under the door. See 1 Hennen’s Digest, p. 199 (c) No. 2.

The place of business of the defendant, Godwin, being the office of Cochrane & Hall, it was sufficient that notice of protest was left with any one staying there.

If, which is not shown, the money thus extorted from Taylor & Knapp, ever came into the hands of the plaintiff, or of Major Strong, who, if the agent of the plaintiffs, in regard to the plaintiffs’ claim, was not authorized by them to demand and receive from Taylor & Knapp, the amount thereof — such receipt of the money from Taylor & Knapp, of their money, would not operate a payment of the note, so as to divest the plaintiffs of th air title to it.

The defendant has not set up or established any valid defence against the plaintiffs’ claim, and they cannot, therefore, contest their title to the note.

The law and the evidence are in favor of the plaintiffs, but we do not consider the appeal one in which damages should be awarded.

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


author: Hyman, C. J. Hyman, C. J.

text:
    No. 748.
    Christophe Camutz, Syndic, v. The Bank of Louisiana.
    All parties having an interest in maintaining the judgment of the lower Court, must be made parties to an appeal therefrom, otherwise the appeal will be dismissed.
    Where an appeal has been granted in chambers, citation of appeal must be addressed to and served on the appellee, in the capacity in which he appears on'the record in the lower Court.
    Citation of appeal, in a personal capacity, where the record shows that he occupies a representative capacity only, is defective, and the appeal will be dismissed.
    PPEAL from the Third District Court of New Orleans, Felbwes, J.

      G. L. Bright, for plaintiff and appellee.

      Miles Taylor, for defendant and appellant.

      Brief of plaintiff' and appellee.

    This is a suit by Christophe Camutz, syndic of the creditors of Mrs. Henriette Brand; syndic of the creditors of the succession of J. A. Braud, and syndic of the creditors of the succession of Amandeo Landry, and especially authorized to represent the firm of J. A. Braud & Landry.
    The appeal should be dismissed, because the plaintiff is not cited to answer the appeal. The citation is addressed to and was served on Christophe Camutz, individually, and not in his representative capacities. Individually, he is not a party to this suit. The appeal bond is made in favor of Christophe “ Camutz, syndic.” He is plaintiff in the additional capacity of “and specially authorized to represent the firm of J. A. Braud & Landry.”
    This authority, to represent the firm of J. A. Braud & Landry, is by a special order of the Court. Because he is the syndic of the creditors of Mrs. Henriette Braud; of the successions of J. A. Braud and Amandeo Landry, he is not thereby authorized to represent the firm, which is in law a different person from the individual members of the firm; it is by virtue of the special authority he is plaintiff, consequently the bond should have been in his favor as syndic of the creditors of Mrs. Henriette Braud; of the successions of J. A. Braud and Amandeo Landry, and in Ms favor as the representative of the firm of Braud & Landry.
    In the ease of Clark v. Hebert, 14 An. 183, this Court said: “This is a motion to dismiss the appeal in this case. The suit has been brought against the defendant in her capacity of tutrix to the minor children of Vincent Kirkland, deceased, and the defendant in her capacity of tutrix has set up a reconventional demand.
    The appeal bond is executed by the plaintiff in her favor in her individual capacity only. The appeal is defective, in not making the defendant a party in her capacity as tutrix. It is ordered that the appeal be dismissed.” If it be necessary that the bond be given to the appellee in his representative capacity, can it be less necessary that he be also cited in his representative capacity?
    The appellee, not having cited all the parties interested in the judgment, the appeal must be dismissed. 13 An. 231, 296. 2 An. 452.
    Camutz, individually, is in no way interested. He is interested only in a representative capacity.
   Hyman, C. J.

Plaintiff sued defendant as syndic of Henriette Braud; of the creditors of the succession of J. A. Braud; of the creditors of the succession of Amandeo Landry, and as representing the firm of J. A. Braud & Landry, and in that capacity recovered judgment against defendant.

Defendant appealed from the judgment, and failed to give an appeal bond in favor of the firm of J. A. Braud & Landry, or their representative.

The firm of J. A. Brand & Landry, therefore, are not parties to the appeal, and they are interested in having the judgment maintained.

Parties to a judgment, having an interest in maintaining it, must be made parties to an appeal therefrom, or the appeal will be dismissed. 14 An. pp. 315 and 316.

Let the appeal be dismissed.

Petition for a Rehearing, by defendant and appellant. — -The petition of the Bank of Louisiana, the defendant and appellant in the above-entitled case, respectfully represents:

That appellant is informed, and believes, there is error in the judgment of the Court rendered in the said case on Monday the 14th of January, 1867, dismissing said appeal, and now applies for a rehearing of the cause.

Petitioner further represents that it is informed, and believes, that the said judgment is erroneous, for the following reasons, and now submits the same with the subjoined citations of authorities in support of that opinion:

1. The appellant, in the petition of appeal, as will be seen by the original thereof, which is herewith presented for inspection, gave the title of the case in the lower Court in the following words: “ C. Camutz, Syndic of, etc. v. Bank of Louisiana,” together with the number of the case on the docket of the lower Court, and in the prayer of the petition prayed that “ the said Christophe Camutz, syndic, the plaintiff in the said case, may be cited according to law,” to answer the same.

2. A copy of this petition, together with the citation, was served on him in person, on the 19th June, 1865.

3. The transcript of the appeal was filed according to law, on the 11th day of November, 1865, further time for bringing it up having been granted.

4. Two agreements were entered into by C. Camutz, syndic, the appellee, with the appellant, in relation to the transcript of appeal, and perfecting it for a hearing long after the service of the citation upon him, viz: one on 7th of November, 1865, p. 17th of the transcript, and one on the 2d day of June, 1866. See ev. of transcript.

5. No motion, in writing, to dismiss the appeal has ever been made in, the cause by the appellee, and the only reference to the matter of dismissal is made in the brief of the apjDellee, filed as the case was about to be heard.

Upon these facts, as shown by the record, the appellant respectfully suggests that the judgment dismissing the appeal was erroneous, because:

1. The case had been twice set down for trial. There was no motion whatever made to dismiss the appeal on any ground. Such a notion could only be made in the Supreme Court by the appellee within the three days after the time allowed him for appearance by the citation of appeal, and the Court could not base a judgment upon a suggestion contained in a brief. Murray vs. Bacon, 7 N. S. 271. O’Donald vs. Lobdell, 2 L. 300.

2. The service of the citation was sufficient, because it was accompanied by a copy of the petition of appeal, in which the plaintiff and appellee is described in his representative capacity, and there is a prayer for his being cited in that representative capacity. Gertum est quod cerium reddi potest.

3. The acts of the appellee in appearing in Court to perfect the transcript of appeal, and to prepare it for a hearing, by signing various agreements in the cause in his reprfereutative capacity through his counsel, and going to trial on its merits, without making any motion to dismiss, would have been a waiver of citation, if the service b ^e had been defective. Debreys vs. Johnson, 4 N. S. 286. Rowlett vs. Shepherd, 4 L. 91. Livingston vs. Dick, 1 A. 323.

4 The appellee has not the right, in any case, to a dismissal cf an ap-, peal “ on account of any defect, error or irregularity in the petition or order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal, or service thereof,” etc., “whenever it shall not appear that such defect, error, or irregularity is imputed to the appellant,” etc. See Acts of 1839, p. 170, sec. 19.

Here, if the citation, or service of it, be defective, the error or defect is attributable to the clerk, and not to the appellant; and if the appellee had a right to avail himself of the error, or defect on the hearing of the cause, then the Court is by law expressly prohibited from dismissing the appeal, and it is made its duty to “ grant a reasonable time to correct such errors or irregularities (in case they are not waived by the appellee,”) etc. See Acts of 1889, p 170, sec. 19; Ratliff vs. His Creditors, 14 L. 292-3; Comstock vs. Pari & Smith, 17 L. 516; Lee vs. Kemper, 3 R. 1; William Barry Grove vs. William Harvey, 3 R. 271; Lambeth et al. vs. Vawter et al. 6 R. 130-1; Broussard vs. Broussard et al. 2 A. 769; Anderson vs. Irwin et al. 6 A. 793; Cullibes vs. Joublanc, 12 A. 237; Barton vs. Kavanaugh, 12 A. 332; Surgi vs. New Orleans, 13 A. 32; Lewis vs. Hennen, 13 A. 259; Jones vs. Capperton, 14 A. 698; Ludeling vs. Frellsen, 4 A. 534.

Os Rehearing.

Hyman, C. J.

Plaintiff sued the bank in his capacity as syndic of tho creditors of Henriette Braud, and J. A. Braud, and also as syndic of the creditors of the succession of Amandeo Landry, and obtained judgment in that capacity against the bank.

The bank filed a petition for appeal, and the Judge granted the appeal in chambers, and not in open court.

When an appeal is so ordered, it is necessary that citation of appeal be made on the appellee (C. P. 581 and 582) and the plaintiff suggests the dismissal of the appeal, because no legal citation of the appeal has been made on him as appellee.

Citation of appeal was addressed to him, and served on him as an individual, and not in his representative capacity.

Camutz was only a party to the suit in a representative capacity, and in that capacity should the citation have been directed to him. The appellant has not asked for time to correct the irregularity in the citation.

Let the appeal be dismissed, at appellant's cost.


author: Hyman, O. J.

text:
    No. 1054.
    Hugh O’Donnell v. J. W. Burbridge & Co.

    Where a party gains possession of property in dispute, by the unlawful use of force, such possession will not avail him.
    A party claiming the right to control propel ty by virtue of possession, must show that he acquired possession in a lawful manner, or by delivery trom the party having the rightful custody of it.
    A contract, the consideration of which was Confederate treasury notes, cannot be judicially enforced in the Courts of this State.
    An exception will be sustained, and the suit dismissed, where the evidence shows that the considera" tion of the contract sued upon was Confederate treasury notes.
    APPEAL from the. Fourth District Court of New Orleans, Th&ard, J.

      Bradford, Lea & Finney, for plaintiff and appellee.

      II. G. Miller and Sluari & Walker, for defendants and appellants.
   Hyman, O. J.

In the years 1862 and 1863, Silas Tolbert sold for Confederate States obligations 490 bales of cotton to Hugh O’Donnell. .By the contract of sale O’Donnell risked the loss of the cotton.

Tolbert delivered to O’Donnell 350 bales of cotton, and kept the remainder in his possession.

The treasury agent of the United States, hearing that O’Donnell had cotton on Tolbert’s plantation, in the parish of Rapides, seized the cotton thereon, with the intention of having it confiscated as the property of O’Donnell, took by the aid of military force from Tolbert 74 bales thereof, and shipped the same to New Orleans, consigned to J. W. Burbridge & Co.

After this cotton thus seized and shipped was brought to New Orleans, both Tolbert and O’Donnell attempted to get control of it.

On the 24th of March, 1866, J. W. Burbridge & Co. were, by order of the treasury agent at New Orleans, required to release it to O’Donnell, on his paying the cost of insurance, $808, and other charges, and on the 26th of the same month the order was revoked.

On the 20th of April, 1866, an order was issued by the treasury agent, requiring J. "W. Burbridge & Co. to deliver the cotton to Tolbert.

They refused to obey this order, and Tolbert was put in possession of it by military force, under order of Maj. Gen. Canby.

Tolbert, after getting possession, permitted it to remain at the cotton press, where it had been deposited by J. W. Burbridge & Co., under order of the agents of government, and while it was thus in the press, O’Donnell brought against J. W. Burbridge & Co. this suit, to get possession of it, and caused it to be sequestered, as if in their possession.

J. W. Burbridge & Co. filed their answer, and alleged therein that the cotton was claimed by Tolbert, and prayed that he be made a party defendant in the suit.

Tolbert, in answer, asked that it be restored to him, etc.

Tolbert, after filing answer, had a rule served on O’Donnell, to show why he should not be authorized by the Court to bond the cotton, and thereafter filed a peremptory exception to the right of O’Donnell to bring this suit, as it was an attempt to enforce a contract, the consideration of which was Confederate money. The rule and exception were tried tor gether, and the District Court ordered the rule to be discharged, and the exception to be dismissed. Therefrom Tolbert has taken this appeal.

The cotton in dispute was not delivered by Tolbert to O’Donnell. There is no proof that O’Donnel ever had possession of it. It is not even proved that he complied with the condition required in the order, stated above, on which he was to have control of it, and even if he had gotten in possession of it by unlawful use of force, such possession could not have availed him.

He should have gotten possession by lawful means, or by delivery from Tolbert.

The facts clearly show that the contracts between Tolbert and O’Donnell, for the sale of cotton to the extent of the cotton in controversy, were unexecuted by Tolbert.

This Court has frequently decided that such contracts could not be enforced by the Courts of this State, and this suit of plaintiff is an attempt by indirection to enforce in part such contracts.

There is a receipt of Tolbert’s introduced in evidence for purpose- of proving that he delivered to Blake for O’Donnell a part of this cotton,

The receipt does not prove the fact for which it was adduced in evidence, and did it unequivocally declare such fact it could have little or no weight, as it would contradict the well-established facts, that Tolbert did not deliver the cotton in controversy to any one, but that it was taken from him by force.

The exception should have been sustained, and the suit and all the proceedings therein should have been dismissed.

Let the judgment of the District Court be annulled and reversed; let the sequestration be dissolved, and let the suit be dismissed at • plaintiff’s cost.


author: Hyman, C. J.

text:
    No. 1088.
    P. J. Cockburn v. Mrs. C. E. Wilson.
    Confederate treasury notes having been issued in violation of law, cannot be considered as forming a part ot the estate of a deceased party, nor can the surviving partner in community be held accountable tor these notes, although it is shown that she has used them.
    The widow of a deceased husband may renounce the community at anytime before the Court having unlimited jurisdiction over the subject-matter, has pronounced a final judgment against her as a partner in community. O C. 2383.
    A jAl RREAL from the Fourth District Court of New Orleans, Théard, J.

      J- tí. Van Dolson and F A. Bartlett, for plaintiff and appellant.

      Miles Taylor and Thomas Taylor, for defendant and appellee.
   Hyman, C. J.

Plaintiff being owner of a debt contracted by William C. Wilson, now deceased, during his marriage with defendant, brought this suit, and proved judgment against her for the debt, because, as he alleges, she intermeddled with the property that was acquired by the community of acquets and gains, which existed between her and W. C. Wilson during thoir marriage, since its dissolution by his death, selling and disposing of the property for her own use, and because the debt owing to him was a community debt, defendant after the suit was instituted renounced the community in proper form, and in her answer she denied that she had intermeddled with the property acquired during the community, or that she had disposed of any of its effects, and averred that she had renounced the community.

If defendant has concealed or made way with any of the property acquired by the community since the dissolution of the marriage, her renunciation will not avail her, and she is liable for a half of the debt owned by plaintiff. See C. C. 2378, 2387.

The only evidence introduced by plaintiff to show that the defendant had intermeddled with the effects acquired by the community since the dissolution of the marriage, is her declaration that she used some Con. federate money since the death of her husband to support herself and family.

Confederate money was the written obligations of rebels, issued by them to enable them to carry on a war against their government.

These obligations were not property, and this Court cannot regard them as effects of the community, as no right or title could be acquired in them which law would recognize.

It is contended by plaintiff, that as defendant did not cause an inventory to be made of the property of the community after the dissolution of the marriage within a certain time, she lost the right of renouncing. We do not so read the law; she could renounce the community at any time before a court of unlimited jurisdiction had passed judgment against her as a partner in community. O. O. 2383, 238C.

There was judgment in the lower Court m favor of defendant, rejecting plaintiff’s demand.

Let the judgment be affirmed, and let the plaintiff, who is appellant, pay the costs of appeal.

Rehearing refused.


text:
    No. 1089.
    P. J. Cockburn, Curator, v. Mrs. C. E. Wilson.
    Property purchased during the marriage, whether in the name of one or the other of the spouses becomes community property, unless thore be a stipulation in the marriage contract to the contrary. O. O. 2369, 2371.
    The wife has the right to purchase property in her own name for her separate advantage, and pay for it out of her paraphornai funds. C. O. 2361.
    Property purchased during the marriage with the paraphernal funds of the wife, belongs to her alone, and she has the right to administer it personally, without tho assistance of her husband.
    PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Van Balsón c& Bartlett, for plaintiff and appellant.

      Miles Taylor, for defendant and appellee.

      Brief for defendant and appellee.

    * * * 1. “ All the property which is not declared to be brought in marriage by the -wife, or to be given to her in consideration of the marriage, etc., is paraphernal.” C. C. 2360. And the wife has the right “personally, without the assistance of her husband to administer it.” C. C. 2361. Flower vs. Conner, 8N. S.556. Robin et ais. vs. Oastille, 7 L. 296.
    2. Property bought with the funds of the wife is her separate or paraphernal property. Dominigues vs. Lee et ais. 11L. 295, 299. 1 L. 520. Eilis vs. Rush, 5 A. 110.
    3. Parol evidence is admissible to prove that property purchased by a married woman was paid for out of her paraphernal funds, though not so stated in the act of sale. Such evidence is not repugnant to the deed. Terrell vs. Cutrer, 1 R. 367, 368. Stroud vs. Humble, 2 A. 930.
   Hyman, C. J.

This suit was brought by plaintiff in his capacity of curator of the succession of William C. Wilson, deceased, to recover from defendant a certain house and lot in New Orleans, and also certain movable property alleged by him to belong to the succession of tho deceased Wilson.

Defendant, in answer, claimed to be the owner of the house and lot, because she purchased and paid for the same with her paraphernal funds, received from her father’s succession. She also claimed that she was the owner of the personal property.

It is proved that at the time defendant bought the house and lot, she was married with William C. Wilson, that she wished to buy the house and lot, and pay for tho same with her paraphernal funds, and did with .the const her husband, buy the property for part of the price in cash, and part on credit.

It is further proved that the property was paid for out of the funds which she received by inheritance from her father’s succession. It is not proved that William O. Wilson, her husband, took or had any control over the funds thus received from her father’s estate, except that with a part of the funds he made the cash payment on the property, acting in the name and for defendant.

It is contended by plaintiff that the house and lot is owned in common between the succession of W. O. Wilson, and defendant as being a part of the community of acquets and gains acquired during the marriage of W. C. Wilson with her.

The general rule is, that property purchased during marriage, whether in the name of one or both of the spouses becomes community property, if there be no stipulation in a marriage contract to the contrary. See O. O. Arts. 2369, 2371.

The wife has the right to purchase property in her own name for her separate advantage, and to pay for it out of her paraphernal funds, otherwise she would not have the right to administer for her own interest her paraphernal property which the law clearly accords to her. See O. O. 2361.

The property thus acquired by the wife during marriage, forms an exception to the general rule, and belongs to her alone. 17 La. Rep. 299. 5 A. Rep. 116. Were it otherwise, and did the property thus acquired become community property, the wife by the very act of management of her paraphernal means, would make the husband part owner of the property she acquired by these means, lose her control and management of the same, cause the husband to be part owner thereof, subject to be sold and disposed of at his option during the marriage and without her consent; and should the husband not dispose of the same before the dissolution of the marriage, neither she nor her heirs could ever have any right or interest therein, but the property would be the husband’s or his heirs, unless the community should be accepted by her or them. We cannot conclude that the law-maker ever intended such irrational results.

The personal property sued for, is proved not to have been owned either by W. C. Wilson or his estate.

The District Judge gave judgment in favor of defendant, rejecting plaintiff’s claims, from which he has appealed.

Let the judgment be affirmed, and let plaintiff pay cost of suit.


author: Howekd, J.

text:
    No. 1087.
    Mrs. M. Collins and Husband v. J. A. Shaffer and James O’Dowd.
    Where a sale has been made of real estate in due form, and the price stipulated is shown to have been paid, the property passes to the purchaser, and cannot be seized and sold by the judgment creditor of the vendor, nor can the sale be declared null under an allegation that the sale is simulated; the remedy in such cases is by direct action for fraud.
    APPEAL from the District Court, Parish of Jefferson, Gctzabai, J.

      A. P. Field and John Henderson, Jr., for plaintiff.

      T. H. Howard, for defendants.
   Howekd, J.

In December, 1863, James O’Dowd instituted suit against Cornelius Boyle, and on the 4th February, 1864, obtained judgment against him, which, on appeal, was reversed, and the cause remanded for further proceedings, See 18 A. 303. While the case was pending in this Court on a devolutive appeal, O’Dowd issued execution, seized and advertised a certain lot and improvements thereon in the city of Jefferson, as the property of Boyle, his judgment debtor, and at the sale became the purchaser thereof.

Mrs. Collins brought this suit, opposing said seizure and sale, praying to be declared the owner of said property, by virtue of a purchase by notarial act on 9th January, 1864, before her marriage and prior to the date of O’Dowd’s judgment against Boyle, her vendor, and for damages against these defendants. The defence is, that the alleged sale from Boyle to plaintiff was collusive, fraudulent and simulative, the vendor remaining in possession, and was made to defeat the claim of O’Dowd. Judgment was rendered declaring the sale simulative, and plaintiff appealed.

The act of sale from Boyle to plaintiff, in evidence, is in due form, and properly registered. The parish recorder, before whom it was passed, testifies that the purchaser actually paid to the vendor the stipulated price in cash, and counted by him, except the sum of ten dollars, for which the vendor agreed to wait; that the property was worth about the price stipulated, and that he had no evidence that the sale was a sham. It is proven that the plaintiff had money of her own sufficient to make the purchase. It is also shown that the vendor remained in possession after his sale, that he bid on it at the two sheriff’s sales, and that he was forcibly ejected after the purchase by O’Dowd.

From this state of facts, it is evident that the judgment declaring the sale to plaintiff to be simulated, was erroneous. A price was paid, and although it may be fraudulent there was a real sale, which must be set aside before the property could be subjected to the debts of the vendor. 18 A. 732. This principle is the more applicable, as the creditor in this case is without a judgment against his alleged debtor, whose property he has caused to be seized.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that the plaintiff, Mrs. Margaret C.ollins, be declared to be the owner of the property described in her petition, without prejudice to the right of defendant, O’Dowd, to attack her act of purchase. Costs in both courts to be paid by defendants.


text:
    No. 1103.
    Daniel Blum v. Bidwell & Reddington.
    Where the bolder of a bill of exchange or draft presents it to the drawer, who refuses to pay it. he must prive the drawer notice of the dishonor before he can bind him, unless he shows that the drawer had no funds or assets in the hands of the drawee at the time; and that he had no reason, to expect that the draft would be honored or paid at the time it was drawn.
    Where the holder of a draft seeks to recover on a subsequent promise, he must show that the promise was made by the party sought to be made liable, with a full Knowledge of his discharge. A promise to pay after discharge must be absolute and unconditional.
    The plea of payment relates to transactions between plaintiff and defendant, and exclusively to sums paid by the latter to the former in discharge or in part payment of the plaintiff's demand.
    PPEAL from the Third District Court of New Orleans, Fellowes, J.

      J. B. Cotton, for plaintiff and appellee.

      F. Filleul, for H. Bidwell, defendant and appellant.

      Bv ieffor IL Bidwell, defendant and appellant.

    * * “A bill of exchange is presumed to be drawn on funds, with the understanding b< tween drawer and drawee, that it is an appropriation of the funds of the former in the hands of the latter, and acceptance is an admission that it was so drawn, and of such a relation between the parties.” Parson’s Notes and Bills, vol. 1, p. 323.
    It seems to have been held that the mere fact of acceptance is sufficient proof of a right to draw, or a right to expect that the bill would be honored, although the drawer may have no funds. Parson’s Notes and Bills, vol. 1, p. 544.
    And he is then entitled to notice of dishonor. Id., note same page.
    Any funds, although to a very small amount, entitles him to notice. Id. page 546.
    Protest is necessary by the universal law merchant, in the case of Foreign Bills. Parsons, vol. 1, p. 642.
    Protest.has become, by the custom of merchants, a part of the constitution of a foreign bill. .Parson’s id., note b.

    The draft drawn at Matamoras, Mexico, on Brownsville, Texas, is clearly a foreign bill. It was payable at sight.
    The right to demand acceptance is merged or confounded, as Pardessus says, with the right to demand payment. Kent’s Commentaries, vol. 3, page 105.
    it must be presented in reasonable time, or the holder will have to bear the loss proceeding from his default. Kent, vol. 3, p. 106.
    When a bill or note is not presented for payment, or not presented at the time, or to the person, or in the place, or in the way required by law, all parties but the acceptor or maker, are discharged. Parson’s Mercantile Law, p. 110.
    The bill should have been protested for non-payment, and notice of protest sent to the drawer within reasonable time. If the parties live in the same town notice must be given, so that the party to whom it is seiw may receive the notice in the course of the day next after that in which the party sending has knowledge of the fact. If the parties live in different places, the notice must be sent as soon as by the first practicable mail of the next day. (Authorities there cited.) Id. p. 115.
    There is no presumption of notice, and the plaintiff must prove that it was given, and was sufficient; thus proving that it was given in two or three days is insufficient, if two would have been right, but three not. Id., p. 116.
    Notice should be given only by a party to the instrument, who is liable upon it, not by a stranger.
    And it has been held that notice could not be given by a first endorser, who, not having been notified, was not himself liable, 'id., p. 110.
    In general, all parties to a negotiable paper, who are entitled to notice, are discharged by want of notice. The law presumes thorn, to be injured, and does not put them to the proof. Id. 118.-

      In Bridges v. Berry, 3 Taunt. 130: “In this case the defendant being unable to pay a bill when due, which he had accepted, obtained time and endorsed to the plaintiff, as a security, a bill drawn by himself to Ms own order, which, when due, was dishonored by the drawee, but the holder omitted to give the defendant notice: Held — That by this omission the defendant was not only discharged as endorser of the one bill, but also as acceptor of the other.” Quoted in Parson’s Mercantile Law, p. 118. * * * The District Judge says: “ Again, Bidwell promised to pay the draft sometime after its maturity, and supposing he had been discharged for want of notice, a new obligation was created, and he was again made liable.”
    We are again compelled to join issue with the District Judge, and to deny the fact as found by him.
    Bidwell did not promise to pay the draft. Nor was this imaginary promise made “ sometime after the maturity of the draft.” The expression “ sometime,” does not extend to a period of three years.
    And as for his conclusion, that Bidwell contracted a new obligation by his alleged promise, it rests upon no foundation, because thero is no proof that it ever was made to the plaintiff, and if such a promise had been stated to a third person, it could not create any new obligation towards the plaintiff, for whom it is not shown to have been intended, nor had it been accepted by him, if it were interided for him.
    The testimony bearing upon this point is very short, and it is indeed painful that it could have been so badly misstated, and the conclusions drawn so illogically.
    Here is the whole testimony. The plaintiff’s only witness, S. Sterne, says: “ Witness never saw Bidwell after he got the note (July, 1803, Record, p. 22) until he saw him in this city, about last spring (1866) and before this suit was brought. Bidwell and Reddington came to see him, and Bidwell offered to pay ¡ffáOO cash, and give Reddington’s note without his individual security, which proposition witness made known to the owner of the draft, who refused it. ” See Record, p. 23.
    Let us examine this testimony wdth some attention:
    1. The witness did not state that he was the agent of the plaintiff; that he was authorized by him to accept a compromise, or that he intended to inform the plaintiff of the conversation which he would have with Bid-well, in fact that he had any authority to bind the plaintiff'. This witness tells the Court, that in 18G3, “ the draft was given to him by Mr.Frank, the original payee, to collect from Reddington,” and that was the limit of his mandate. It is shown by the pleadings, and by the endorsement of £3. Frank, that the draft had passed from the hands of Frank into those of the plaintiff, Blum; but it is proved nowhere, that the witness was the agent of Blum, or had any authority to collect the draft from Bidwell. It is clear that Bidwell could not enter into a new obligation, because he was not in the presence of any person with whom he could enter into a new obligation; there must be in every contract an obligor and obligee, here we had no obligee.
    But let us look a little more into these few lines of testimony: “ The witness stated that he made known the proposition of Bidwell to the plaintiff, who refused it.”
    But he does not state that he was authorized by Bidwell to do so, or that Bidwell had intended that he should make it known to the plaintiff;, he stated that Bidwell came to see him, but he did not state that Bidwell came to see him for the purpose of making this proposition, and the Court cannot suppose that he paid his visit to the witness for that purpose, because there is no proof that he had made an antecedent call on Bidwell to collect the draft. We are then left to conjecture the visit of Bidwell had another object, that the witness and Bidwell came to talk about this ■ draft par hazard in a loose conversation, just as they would have talked of any other subject, without any intention of entering into any contract. 5
    The witness stated, “ that Bidwell offered to pay $400 cash, and give Reddington’s note without his individual security.” But, again, we are in the dark; thé witness does not state for what purpose Bidwell would make this proposition; he does nowhere state that it was to pay the draft. That could not be, because the fact that Bidwell insisting that the holder should take Reddington’s note without his individual security, is a clear proof that Bidwell insisted that it was Reddington’s debt and not his, and that if he made the offer of $400, it was not to enter into a new obligation, but to buy Ms peace, which is a very lawful intention. Adore non jrrdbanie reus absolvitur.

    * * To entitle the holder to recover against an endorser or drawer, upon a promise to pay, after the latter has been dischai’ged by the laches of the former, plaintiff must show that the promise was made by the defendant with a full knowledge of Ms discharge. 8 M. R. 148. 12 L. R. 465. 1 R. R. 572. 2 R. R. 158. 7 R. R. 418. 10 R. R. 40-61. 12 R. R. 251. 2 A. R. 824.
    The promise with full knowledge must be absolute, creating in law a new obligation. Lambeth vs. Petrovich, 16 L. R. 815.
    An endorser who pays in ignorance of his discharge, by a release to the maker or insufficiency of the demand and protest, may recover back the money so paid. 17 L. R. 386. 7 R. R. 334. 5 A. R. 12.
    It is useless to tire Your Honors with further citations, no rule of law is better and more universally settled.
    The testimony of a single witness is insufficient to prove a promise to pay a bill exceeding five hundred dollars, without the piroof of corroborating circumstances appearing aliunde. C. C. Art. 2357. 2 R. R. 304.' 7 R. R. 451. 7 A. 54. 14 A. R. 705.
    The Court will search in vain, in the record, for any corroborating circumstances of the testimony of the plaintiff’s witness, and in examining the case with attention Your Honors will find that all the circumstances of the case tend to show that his testimony is unreliable.
   Labauve, J.

The appellant is sued upon a bill drawn by him, dated 4th of July, 1863, on Thomas Reddington, of Brownsville, Texas, for $1,000, and payable on demand.

The plaintiff alleges that he resides in New Orleans; that said draft was presented to said Thomas Reddington, time and again, in Brownsville, shortly after it was drawn, and he verbally accepted the same, and has repeatedly since said date, and at other times and places, promised to pay said draft as an accommodation acceptor; that he did not cause the said draft to be protested for non-payment, because the drawer had no funds in the hands of the acceptor at the time of drawing the bill, nor at any time subsequently. He prays judgment for $2,000, with interest, from 4th July, 1863. A final judgment by default was rendered against Thomas Reddington, the drawee and acceptor, for $1,000 in gold, or its equivalent in currency, with interest. This judgment was not appealed from.

H. Bidwell, the drawer, answers by a general denial, and specially that he was not notified of the protest and dishonor of the draft, and that in the opinion of defendant the draft had been paid long ago, and the present holder has no right to, interest or claim in the same; that in point of fact, there is no longer any property or right in the draft sued on, and this fact is well known to S. Prank, the original holder of the draft, and that this suit to recover on this bill is fraudulent, and w thout any foundation. After the filing of this answer, plaintiff filed a supplemental petition, alleging that about the 1st May, 1866, in the store of D. Bloom, Stern & Co., No. 63 Customhouse street, and before and since, said H. Bidwell, the drawer, acknowledged Ms liability, and as drawer promised to pay the draft; admitted that it had not been paid by him or the acceptor, and that he had no funds in the hands of Reddington, and moreover, he admitted that the draft was given for goods at gold price. The answer to this reiterates the defence set up in the original answer.

The Court, after hearing the evidence, gave judgment against H. Bid-well, anil he appealed.

The plaintiff, having failed to protest the draft, and give notice to the -drawer to recover,.must show that the drawer had no funds or effects in the hands of the drawee, nor had any reason to expect that the draft would be honored. Williams vs. Brashear, 19 L. 370.

And to recover upon the alleged subsequent promise to pay, plaintiff must show that the promise was made by defendant, with a full .knowledge of his discharge. 1 R. 572. 2 R. 158. 7 R. 418. 10 R. 40-61. 12 R. 231. 2 A. 824.

• It appears by the testimony, .that when the draft was presented to Reddington, the drawee, he answered: "that he would pay it, if he had the money.” That does not mean that he had no funds or effects of the drawer in his hands; if anything, it admits impliedly his liability to pay, and .does not negative the presumption that he had funds of the drawer; and this is corroborated by the testimony of Currier, who says “thatBidwell and Reddington were doing business in Brownsville, and that Reddington yras owing Bidwell and witness $2,000.” Another witness, Tabor, testified that Bidwell and Reddington were doing business in Brownsville in 1863. We are of opinion that the plaintiff should show a notice to the drawer of non-payment.

The. subsequent offer of Bidwell to pay $400 cash, and give the note of Reddington for the balance, which offer was refused, does not bind Bid-well; it is in the nature of a compromise and conditional; a promise to pay must be absolute; besides, it is not shown that this offer was made with a.full knowledge of his discharge.

But the plaintiff contends that the defendant pleaded payment, and admitted the debt by that plea. The expression is thus: That in his opinion the draft has been paid tong ago. This means that it has been paid by some one that was liable; he does not say that he has paid it himself; he alleges a fact not apparently within his knowledge. The plea of payment relates particularly to transactions between plaintiff and defendant, and exclusively to sums paid by the latter in discharge, or in part payment of the plaintiff’s demand. 17 L. 259. 1 A. 254.

Upon the whole, we are of opinion that the plaintiff has failed to make out his case against Bidwell.

It is therefore ordered .and decreed that the judgment appealed from be annulled and reversed;, it is further ordered and decreed, that there be a judgment in favor of defendant, Bidwell, and that plaintiff pay the costs- of. .this appeal and those below, so far as this defendant and appellant is concerned.

Rehearing refused.


author: Howebii, J.

text:
    No. 1112.
    Mrs. Jane B. Tompkins v. John Thornhill.
    Where one of the parties to a contract seeks to avoid its effect on the ground that the consideration was illegal and immoral, he must in order to relieve himself adduce evidence so complete that nothing is left to surmise or conjecture. The doctrine iu the case of Weaver vs. Anfoux (ante page 1) reaffirmed.
    Defendant executed six promissory notes in favor of himself, and by him endorsed in blank, secured by mortgage for the sum of $30,00D, which he gave to Abat. Generes & Co., and received from them their check on the Citizens’ Bank for $28,00C. payable to and endorsed by Thornhill & Co., which was deposited in some other bank, and collected in the next morning’s exchange# between banks. Nothing was said at the time of the agreement about the currency to be received. The proof further shows that at the date of the check, Generes & Co. had not in the Citizens’ Bank, subject to tbeir checks, anything but Confederate currency; that general checks were paid in such currency, and that plaintiff acquired the notes in suit sometime before their maturity for a valuable consideration: Z/eW — That this state of facts does not establish, with that legal certainty required in such cases, the allegation that the loan was made to defendant in Confederate notes.
    PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Buchanan & Gilmore, for plaintiff and appellee.

      Harrison <& Huntdn, for defendant and appellant.
   Howebii, J.

Defendant, sued by executory process, enjoined the sale of his property mortgaged to secure six notes, payable to his own order, and by him endorsed (of which three are held by plaintiff) and not paid at maturity.

The only ground for the injunction, urged in this Court, is, that the consideration of saidnotes was unlawful, being a loan in Confederate notes.

The proof is, that on the 1st day of April, 1862, the defendant made an agreement with Abat, Generes & Oo. for a loan of $30.000, for which he gave them the said six notes, secured by mortgage, and received from them their cheek on the Citizens’ Bank for $28,620, payable to the order of, and endorsed by Thornhill & Co., which was deposited (it does not appear by whom) iu some other bank, and collected in the next morning’s exchanges between banks; it was not paid over the counter. Nothing was said at the time of the agreement about the currency to be received. It is also shown that at the date of the check, Abat, Generes & Co. had not, in the Citizens’ Bank subject to their checks, anything but Confederate currency; that general checks were paid in such currency, and that plaintiff acquired the notes in suit on 11th August, 1862, (some months prior to their maturity) for a valuable consideration.

Tliis does not establish, with certainty, the allegation that the loan was made to defendant in Confederate notes. As held in the case of Weaver v. Anfoux, recently decided, it was incumbent on him to adduce evidence so complete as to leave nothing to surmise or conjecture, to relieve himself from a contract, in the alleged immorality and illegality of which he is a participant. This he has failed to do. He manifestly did not receive Confederate notes from the lenders. What he did receive was a check, which, by the evidence, was simply exchanged, and not. paid in any currency; but it does not appear that the parties, by their transaction, gave circulation and credit to a “ treasonable issue;” for nothing was said between them at the time as to the currency in which the loan was made or to be made, and no such currency passed between them. The drawing, delivery, and subsequent exchange of a check on a bank, as in this case, do not constitute the offence or injury to the public, for which courts of justice would refuse to give effect to an agreement between the parties. It is not to be presumed that the payee agreed to violate the law or gopd morals, Judgment affirmed.


text:
    No. 1517.
    The State of Louisiana v. John M. Cason.
    ■ The jurisdiction of the Supreme Qourt in criminal cases is not confined to the examination of questions arising before, or after verdict; nor is the right of appeal limited to either party.
    A party tried and convicted on a defective indictment, has not been put in jeopardy; for the judgment must be arrested on motion, and the accused may be proceeded against on anew iudictment.
    The indictment charged the defendant with larceny of “goods and lawful money of the United States, (commonly called greenbacks) of the value of twenty-four dollars and twenty-five cents:’’ UtM — -That the indictment is defective, and judgment must be arrested. No such effects or notes as “ greenbacks” are known in law.
    fl J\ PPEAL from the District Court, Parish of Ouachita, Crawford, J.

      B. W. Jemison, District Attorney, for State.

      B. J. Caldwell and J. & B. Bay, for defendant and appellee.
   Labauve, J.

The accused was found guilty of larceny, and Ms counsel filed a motion in arrest of judgment, which was sustained by the Court. The State appealed.

The defendant moves to dismiss the appeal, for the following reasons:

“1. The right of the State to appeal is limited to the class of cases found in the precedents, to wit: those where the iudictment has been quashed before a trial, or held bad upon a demurrer, and cannot be extended to cases in which trial has been had and verdict rendered.

“2. The District Attorney filed an information against defendant on the 10th April, 1867, directly after the Court had arrested the judgment in this cause, thereby waiving any right of appeal the State might have had; and afterwards, to wit: on the 16th of April, 1867, applied and obtained an order of appeal, without dismissing said information against defendant, whilst, at the same time he attempts to procure this appeal, contrary to law”

It must be admitted that in a case like this, punishable with hard labor, an appeal lies to this Court upon questions of law alone. Con. 1864, g 70. Rev. Stat. p. 188, $28.

The Constitution, in giving appellate jurisdiction to this tribunal upon questions of law in certain criminal cases, does not confine our power to the examination of questions arising before or after verdict; nor does it limit the right of. appeal to either party. We connot, therefore, draw a distinction, when the law makes none. Ubi lex non dislinguil, nee nos distinguere debemus. It is granted that if the motion had been made and sustained before verdict, the State could have appealed; (14 A. 364) but it is contended that after verdict, it would put the accused in jeopardy of Ms life or limb, more than once for the same offence. It is not so. A party who has been tried and convicted on a bad indictment, has not been in jeopardy, for the judgment mustbe arrested on motion, and the accused may be proceeded against on a new indictment. 8 R. 583. 3 A. 715. 16 A.' 400. 11. A. 648.

As to the second ground, that the appeal has been waived by filing an information directly after the Court had arrested the judgment, it is not tenable in law. The question before us is simply, whether or not the Court erred in sustaining the motion; no subsequent matters in another prosecution can be considered. 3 R. 131.

The motion to dismiss is overruled.

The motion in arrest of judgment ^e^ds thus:

“ 1. There is no crime punishable by the laws of this State charged in the indictment. The words ‘ greenbacks ’ alleged to be the ‘ lawful money of the United States,’ not being an issue of said government, •either as bills, notes, bonds or securities, which might be the subject of larceny under the laws of this State.

“2. That the indictment does not contain any averment, that accused stole any bond, bill, obligation, security, bank-note, treasury note, or gold or silver coin issued by the United States, which, as the lawful money of the United States, might become the subject of larceny, and the general averment of ‘lawful money of the United States,’ in itself does not contain the subject of larceny; and unless the species or one of the species of the thing subject of larceny be inserted and alleged, there can be no judgment.

“3. There is no general averment, both as ‘ to the value,’ and the thing as required by the State.

“4. That the indictment alleges that the ‘ greenbacks ’ stolen were of the goods and chattels of T. O. Standifer & Co.; it does not allege that they were the property óf said parties, and as such, ‘greenbacks,’ if known to the law at all, are only choses in action, and are not goods and chattels, within the meaning of the criminal law.”

The defendant is accused under section 26, Revised Statutes, page 138, reading thus:

“The robbery or larceny of bank-notes, obligations or bonds, bills, obligatory, or bills of exchange, promissory notes for the payment of money, or notes for the payment of any specific property, paper, bills of credit, certificates granted by or under the authority of this State, or of the United States, or any of them, shall be punished in the same manner as robbery or larceny of goods and chattels.”

The indictment charges the defendant with larceny of “goods and lawful money of the United States (‘commonly called greenbacks,’) of the value of twenty-four dollars and twenty-five cents, ‘ of the goods and chattels of, ’ ” etc.

The first question presented is, whether or not the defects alleged to exist in the indictment are matters of form or of substance.

We are of opinion that they are of the latter kind, and not of the former. The defendant is accused of a statutory offence; in such a case, the indictment should describe the crime in the words of the statute, or in words certain and equivalent, going to show on the face of the indictment that the offence has been committed, and is punishable under the law. If this has not been done, the indictment is not good, and cannot support ■conviction and sentence, for the simple reason that no crime known to tho law has been committed.

The defendant is accused of having stolen “ goods and lawful money of the United States (‘commonly called greenbacks,’) of the value of twenty-four dollars and twenty-five cents,” etc.

No such effects or notes as greenbctdcs, are known in law; but treasury notes of the United States are recognized by the laws of Congress. 5 4. 326. 10 A. 191-207. 11 A. 648.

For the reasons above assigned, we are of opinion that the District Court properly sustained the motion.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, without prejudice to the State, to a further prosecution under a valid indictment or information. 11 A. 648.


text:
    No. 1034.
    Bank of Kentucky v. Nathan Goodale.
    An endorser of a promissory note is not bound to go to the mortgage office to examine into the consideración of the note, although marked ne carUtur 14 A 177.
    It is not necessary to allege that the note was protested and notice given, in order to admit the protest in evidence. The act of protest and certificate of notice are proper evidence under the allegation to prove demand
    Where the evidence shows that there is no foundation for the appeal, damages will be awarded asfor frivolous appeal.
    PPEAL from the Eourth District Court of New Orleans, Théard, J.

      Given Campbell, for plaintiff and appellee.

      W. II. Hunt and Roselius <& Philips, for defendant and appellant.
   Labauve, J.

This suit is on a promissory note for $3,000, made by one Henry Miller to the order of defendant, who endorsed it in blank.

The defendant filed an answer pleading a general denial, and a failure of consideration, and alleging that the note was not negotiable, because of the notary’s paraph ne varietur across its face, identifying it with the act of lease annexed to the answer, and that this was sufficient to place the plaintiff on his guard, and on inquiries, etc.

The Court gave judgment for plaintiff, and the defendant appealed.

It is well settled that an endorsee or pledgee of a note, is not bound to go to the notary’s office to examine into the consideration of the note, although marked ne varietur. 12 Martin O. S. 235, Cawfield vs. Gibson. 1 Martin N. S. 143. See also 16 L. 207. 5 A. 364. 14 A. 177.

On the trial of the case below, plaintiff offered in evidence the protest and certificate of notice of protest; the defendant objected on the ground that no protest or notice of protest were alleged in the petition. The objections were overruled, for the reason that the allegation was immaterial.

We are of opinion that the Court did not err.

The petition alleges, that when said note became due, and payable according to its tenor and effect, payment was duly demanded of the same at the Eirst National Bank of this city, but the same was mot paid, and payment was refused, of all which facts the defendant had due and legal notice.

The protest and certificate of notice of protest, were proper evidence under the allegations to show demand and refusal of payment, and that the defendant had due notice.

The plaintiff and appellee has prayed for damages as for a frivolous appeal, and we are of opinion they should be allowed.

It is therefore ordered and decreed that the judgment be affirmed, with one hundred and twenty-five dollars as damages, the appellant to pay-costs.


text:
    No. 1097.
    E. N. Fielding v. J. Westermeier.
    After suifchad been filed and a judgment by default entered, the parties, plaintiff and defendant, agreed in writing to submit the matters in dispute to arbitrators, named in the writing; they afterwards met, and plaintiff and defendant submitted their respective claims, but before a decision was reached, the defendant declined to abide by the result, and said he would refer the whole matter to the oourts. Plaintiff afterwards confirmed the default, and defendant enjoined the execution, and sued to annulbhe judgment on the ground that from the date of submission in writing to . arbitration, the Court was without jurisdiction in the cause: Held — That the agreement in writing to submit the matter in dispute to arbitration, did not ipso facto deprive the Court of jurisdiction over the case.
    APPEAL from the Fourth District Court of New Orleans, Tliéard, J.

      W. W. Sandlin, for plaintiff and appellee.

      Eavliari & Ferguson, for defendant and appellant.
   Howell, J.

This is an action to enjoin an execution and annul a judgment, on the grounds that said judgment was based on fictitious claims, which were by agreement to be settled by arbitration, and the suit to be dismissed on the motion of the plaintiff therein. The defence, besides the general denial, is, that the attempted arbitration was broken off by the plaintiff in injunction, who stated that he would “leave the whole matter to the Court,” and who had ample opportunity to make his defence in said suit.

It appears that Fielding instituted suit against Westermeier, in the Fourth District Court of New Orleans, and after default was taken, a written agreement was entered into by the parties, “ that the lawsuit pending between them be submitted to arbitration, and that they each pledge themselves to be bound by the decision; that the arbitrators, who were named in the said agreement met, and each party made his statement to them, when before any decision was made, Westermeier, the defendant in the suit, became angry; said he would not submit to arbitration, but would leave it to the Court, and went off; whereupon the effort was abandoned, and some twenty days thereafter, the plaintiff confirmed the default.

It is contended by counsel for Westermeier, the appellant, that the written agreement to submit the lawsuit to arbitration, ipso facto, divested the Court of jurisdiction thereof. We think such an effort did not necessarily follow; and it is evident that the defendant himself did not so consider it, as he alleged in his petition of injunction, but failed to prove a verbal agreement, that the suit should be dismissed. His own conduct, and that of thi other parties at the meeting of the arbitrators, showed that all considered the litigation still pending.

Judgment affirmed, with costs.


author: HowexiE, J.

text:
    No. 1050.
    Wm. Baker v. Pena.
    A party purchasing real estate with a servitude imposed and acknowledged by his vendor, takes the property subject to the servitude, and cannot prevent the use and benefit of the servitude by the party in whose favor it has been established, on the ground that he never consented to it.
    The vendee acquires no greater rights or privileges over property which he purchases than his vendor
    ■Where a servitude is once established on property, it takes ten consecutive years of non-use by the party in whose favor it is established, to entitle the party on whom it is imposed to prescribe against the right 0.0.3511.
    A recognition of the right of servitude by the party owing it will interrupt prescription, which only begins to run again from that date, and must continue for ten years from the date of the interruption before it is prescribed. O. O. 800, 3486.
    APPEAL from the Sixth District Court of New Orleans, Dupktntóer, J.

      Joseph P. Hornor, for plaintiff and appellant.

      E. Bermudez, for defendant and appellee.
   HowexiE, J.

This is a suit to compel the defendant to remove obstructions to the use of a common alley-way; the defence to which is the prescription of ten years.

Madame Gertrude Leauthier, being1 'the owner of a large portion of ground in the square comprised within Apollo, Erato, Bacchus and Clio streets, on the 15th of April, 1851, sold to Amar Ereres four lots fronting on Erato street, designated on a plan of the whole property made by Geo. T. Dunbar, surveyor, on 31st January, 1848, as lots Nos. 9, 10,11 and 12, and “bounded by a passage of nine feet in width, opening upon said Erato street, the use of which is common to them, with other lots figured on said plan.” Through subsequent conveyances, lot No. 9 and half of lot No. 10, with all the rights, ways and privileges thereto pertaining, became the property of plaintiff on the 6th October, 1865; each act of conveyance preserving the same boundaries and the use of the said alley, common to all the lots described on the said plan.

On the 31st May, 1860, the said Madame Leauthier sold to defendant the balance of her said property in said square, agreeably to a plan drawn by P. N. Tourné, architect, on 25th February, 1860, on which said land is divided into eleven lots, and the said alley figures. In this act of sale and plan, the vendor and common author of plaintiff and defendant describes the property sold as bounded on one side by the said “alley nine feet wide, opening on Erato street, and common to.said convoyed property, and another sold to Amar Brothers,” and also by another alley eleven feet wide, communicating with the first-named alley and running in the rear of said Amar Brothers’ property. The obstruction complained of is a very old building used as a kitchen, and extending across the alley opening into Erato street, at its junction with the one in rear of plaintiff’s lots, both forming the side and rear boundaries thereof.

It is evident that defendant did not purchase the soil of this alley-way, and the only question is, is plaintiff’s right to the use thereof prescribed by non-usage during ten years ?

We think not.

The right of servitude was granted in April, 1851, and was acknowledged and recognized in May, 1860, by the debtor, which interrupted prescription, and this suit was brought before it could again accrue. O. O. 3486.

There was no reservation in his favor, nor restriction of this servitude in defendant’s title. He acquired no greater rights than his vendor, who at the date of the sale to him, could not have legally restricted the enjoyment of the servitude by those in whose favor she had established it; for their right was not then prescribed. By accepting a title recognizing this servitude, it could be enforced as against him during a new term for prescription.

It is contended that under Art. 800, C. 0., by the mere filing of the plea of prescription, the burden of proving usage during the ten years previous, was thrown upon plaintiff. To this, it is replied that plaintiff has shown an effort, on his part, “during the time necessary to prevent the establishment of prescription,” to obtain the use of the servitude, and that he is resisted by defendant, who cannot, in this respect, take advantage of his own wrong. The case would probably be very different, if ten years had expired since the re-establishment of the servitude by defendant’s vendor. In point of fact, prescription had not been acquired at the date of defendant’s purchase, and the reference in the act to the existence of the alley-way as common to the various lots bordering on it, is sufficiently precise and explicit to interrupt prescription.

We think no damages can be allowed.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiff and against defendant, ordering him to remove all of his obstructions to plaintiff’s free use and passage of the alley-way nine feet wide, running along the whole length of plaintiff’s property on the side next to Apollo street, and established as a perpetual servitude. It is further ordered, that defendant pay costs in both courts.