text:
    No. 133.
    William Little, Liquidator, v. B. M. Johnson.
    An agent can not be made liable for a note placed in his hands for collection, if it be shown on trial that the original consideration thereof was the price of a slave.
    APPEAL from the Tenth Judicial District, parish of Caddo. Devisee, J.

      James W. Duncan, for plaintiff and appellant. T. T.&A.D. Dand, for defendant and appellee.
   Taliaferro, J.

This suit is brought against the defendant to compel him to account, as agent of the commercial firm of M. & W. Little & Co., of the State of Tennessee, for the sum of $1494 99, with eight per cent, interest from the first day of December, Which the plaintiff' -alleges the defendant collected for them, and has failed to pay over to-them, and for which he refuses to account.

The defendant answers by a general denial. He specially denies the «contract of mandate alleged, and also that he ever collected a promissory note which was the property of the firm of M. & W. Little & Co. 'The judgment of the lower court was in favor of the defendant, dismissing the plaintiff’s action, and he appeals.

The facts shown by the record are, that Montgomery Little, who was a brother of William Little, the plaintiff, and a member of a partnership composed of himself, William Little, the plaintiff, Robert Lyle and George W. Hitching, all of Sumner county, Tennessee, placed in the hands of the defendant a promissory note, of the amount stated, for collection. The defendant’s receipt for the note, dated twenty-third May, 1860, is shown. The note was given to Montgomery Little by Samuel Edmunds, for the payment of the price of a slave, and was due first December, 1860. ' The defendant collected the amount of the note early in the year 1863, in Confederate money, and invested the .money in seven per cent. Confederate bonds, The defendant states, in his own evidence, that he “ afterwards obtained possession of the note from Mrs. Edmunds, to be prepared for any litigation that might arise on it.” It is clear that the defendant never know the partnership in the agency he had in the matter. The note was given to Montgomery Little in his own name, .and defendant receipted to him individually for it, and not to the partnership. The evidence makes it sufficiently clear, however, that the note really belonged to the partnership.

An exception was filed, long after the case was put at issue, to the capacity of the liquidator to maintain the action. It was objected, on the other hand, that this exception came too late, and a large space was given by counsel to the discussion of these questions. We do not think it necessary, in deciding this case, to express any opinion on these points. We do not see any legal or equitable ground upon whicli the plaintiff can recover in this case. The failure on his part to collect the note within the very brief space whicli intervened between its maturity and the general confusion and suspension of business that rapidly ensued, was not such a want of diligence as ought to render him liable on the ground of laches. He swears that he was unable to collect the note, except in Confederate money. His having done so was ho compliance with his duty, but ho makes it reasonably sure that It was not in his power to got legal currency for it. The utter nullity of the obligation that soon followed, released him from all further liability on its account.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 87.
    Thomas H. Brown v. A. H. Brown—J. W. Wilson, Administrator, etc., Intervenor.
    Where the plaintiff claims to he the owner of a promissory note and sues for possession, and the intervenor, who claims to be the owner of the same note, alleges that the transfer of the note to plaintiff is Iraudulent and simulated, the revocatory action by the intervenor is not necessary to enable him to show the simulated transfer to the plaintiff.
    If the intervenor alleges ownership of the note in controversy, the additional allegation that the claim of ownership of the plaintiff is fraudulent and simulated, is not inconsistent therewith, such an allegation only raises the question of ownership between the plaintiff and intervenor.
    APPEAL from the District Court, parish of Claiborne. Egan, J.

      John Young, for ulaintiff and appellant. J. D. Watkins, for intervenor and appellee.
    This case was before the Supreme Court in 1869, and remanded See SI An. 461. It was tried the second time by a jury.
   Howe, J.

It wil be seen by reference To 21 An., p. 461, that this cause was remanded to enable an issue to be joined upon the amended petition of intervention. In pursuance of this, the -amended petition and accompanying citation were served on tlie plaintiff, T. H. Brown, who excepted that the intervenor had cumulated two separate, distinct and contrary demands in his amended petition, namely: “A demand to have the purchase of the note in controversy by T. II. Brown, the plaintiff, from L. C. Ferrell, decreed a simulation, and a demand to have the transfer of said note from L. C. Ferrell to plaintiff annulled, because made with the view and purpose of defrauding the creditors of Ferrell.”

The court sustained- this exception and ordered the intervenor to eleet; and the latter, after reserving a bill of exceptions to this ruling, and under protest, abandoned the allegations and averments of simulation, and prayed that the purchase by Brown be declared fraudulent and void and in fraud of creditors.

The cause was theu triod before a jury who rendered a verdict for plaintiff, and from a judgment thereon.the intervenor has appealed. We are of opinion that the court erred in its ruling upon the exception to compel the intervenor to elect. The plaintiff brought this suit to recover from A. H. Brown a note which he alleged to be his property. He made a simple allegation of ownership, without disclosing in any manner his title. The intervenor came in and alleged ownership in the estate he represents. Upon the first trial, it appearing from the testimony adduced by plaintiff, that the pretended transfer of the note from Ferrell to plaintiff, in virtue of which he claimed to be owner, was a gross simulation; the intervenor filed his amended petition, which was as follows:

“Petitioner alleges that the pretended jmrchase by Thomas H. Brown from L. C. Ferrell of the note m controversy, as first developed by evidence on the trial, was simulated and fraudulent on the part oi both said Brown and Ferrell, and done eollusively with the view and purpose of defrauding the creditors of said L. C. Ferrell, who was greatly embarrassed and insolvent, and petitioner adopting otherwise his original petition, prays for all orders necessary and general relief.”

The design of this pleading was to enable the intervenor to introduce further evidence of simulation, and to notify the plaintiff to produce evidence to establish the reality of a sale, which at that point certainly presented the appearance of a corpus sine anima. No revocatory action was instituted. No demand was made to annul a real, but fraudulent and injurious contract, and therefore, in deciding this case last year we said that the intervenor had not changed the substance of his demand. It was still a demand as owner, fortified by the allegation that the simulated sale to T. H. Brown was a mere shadow on the title. There was but one demand, and it is impossible therefore that there could have been the cumulation complained of by plaintiff.

Without going further in the case we feel constrained to order a new trial, so that the case may be considered in the court below upon the issue which the parties have made for themselves. It is au issue of ownership, and. does not contain the elements of the revocatory action. See the authorities collected in Hennen’s Digest, p. 1031, No. 1.

It is therefore ordered that tnc judgment appealed from be avoided and reversed, and the cause remanded for a new trial according to law, plaintiff to pay the costs of appeal.

Eehearing refused.


author: Taliaferro, J.

text:
    No. 83.
    A. McCranie, Adm'r, v. Isaac Murrell and John Murrell
    An offer to pay a promissory note in a worthless currency, such as Confederate notes, unac_ cepted by the holder, will not interrupt prescription.
    APPEAL from the Eleventh Judicial District, parish of Claiborne.

      J. S. Young (attorney at law), Special Judge, we Egan, J., recused. Henry Gray, for plaintiff and appellant. John Young and J. J). Watkins, for defendants and appellees.
   Taliaferro, J.

This is an action brought by the plaintiff as administrator of the estate of Winfred Wood, to recover from the defendants certain sums of money, as remainders due in principal and interest on two promissory notes executed in favor of Wood, by John Wilson and the defendants, in the year A. D. 1859, and due in 1860. It seems that, originally, there were three notes; one for $1800, one for $1222, and the other for $891. These notes were drawn in the solidary form — “ We, or either of us, promise to pay,” etc., and signed by John Wilson and the two defendants. In October, 1861, the plaintiff brought suit against Wilson alone on the three notes, and on the twenty-third of that month, judgment by confession was rendered against him for the several amounts claimed to be due, after deducting partial payments that had been made by him. An execution was issued on this judgment, in January, 1867. Property was seized and sold, and the proceeds applied first to the extinguishment of the first note, and the remainder as credits pro rata on the other two. For the balance yet due, the administrator brings the present suit.

The defense is, prescription of the notes, and also that the defendants were only sureties of Wilson, and that they are released by the extension of time given, without their knowledge or consent, by the plaintiff to their principal. It appears that, upon the confession of judgment by Wilson, in October, 1861, a stay of execution was granted until first of March, 1862. Judgment in the court below was for the defendants. The plaintiff appealed.

An interval of more than five years occurred between the date of the rendition of the judgment against Wilson, and the service of the citation upon the defendants in the suit now before us. The plaintiff, however, offers to show an interruption of prescription. He states, as a witness in his own behalf, that in the fall of 1863, or tlie spring oí 1864, in a conversation with Isaac Murrell, the latter asked him if lie would take Confederate money for the debt, and that ho replied he would not. That no further conversation on the subject took place at that time. That afterwards, in the spring of 1867, Isaac Murrell acknowledged the correctness of the debt, but said that he did not intend to pay it if he could keep from it, and asked the witness if he blamed him ,- and, in answer, witness said he did not.

On cross examination, the plaintiff stated that Murrell remarked that John Wilsoh ought to pay the debt. We. see nothing in this evidence which shows that the defendant either acknowledged that he owed the debt, or that he promised to pay it. lie may have thought it a matter of policy, to avoid the annoyance and expense of a lawsuit, to pay the debt in a worthless currency, and this may have prompted the inquiry he made of the plaintiff, if he would take Confederate money. At all events, the plaintiff declined to receive it; and, if all the defendant said were construed as a conditional offer to pay the debt in Confederate money, as a compromise or avoidance of a lawsuit, it could not amount to an interruption of prescription. 9 An. 15; 11 An. 85; same 184; 21 An. 275. Deeming the plea of prescription well taken, wo omit an examination of the other grounds of defense. C. C. art. 3540.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


author: Wyly, J.

text:
    No. 105.
    Pierre A. Dubuys v. P. A. & W. W. Farmer.
    In a suit to make the indorser of a promissory note liable the holder may, under the allega* tion that due notice has been given, introduce parol evidence showing that demand has been made and notice given. The fact that protest has been made and notice given by the notary, does not preclude the holder from introducing other evidence of notice.
    The acts of the Legislature of 1855 and 1858, declaring that on all bills and notos made negoti • able by law or custom, three days of' grace shall be allowed, do not repeal or modify the general law merchant, which allows three days of grace on-aon-negotiable, as well as negotiable notes. Therefore notice to the indorser of a non-ncgotiable note is in time, if given at the expiration of the three days of grace allowed by the law merchant.
    APPEAL from tlie Fourteenth District Court, parish of .Ouachita. Bay, J.

      Biehardson cC JIcEncry, for plaintiff and appellee. W. W. Farmer in vro. ver. Garrett & Garrett, for defendant and appellant.
   Wyly, J.

The defendant, W. W. Farmer, has appealed from a judgment against him as indorser of a promissory note. He contends that under the pleadings his liability can not bo established in any .other manner and by any other evidence, than the protest and the certificate of notice of protest annexed to plaintiff’s petition, and that they are insufficient:

First — Because the protest. should have been made on the day of' maturity instead of on the.last, of the three days of grace, the note being non-negotiable.

Second — Because the notice of protest, deposited in the postoffice,. was not sufficient, he residing in the same place with the maker,-should have been • served personally or at his domicile.

Of course the plaintiff can not establish the liability of the indorseron any other ground than that laid in his petition, he can not prove-what ho has not alleged, and to that extent the bill of exceptions of the appellant, to which our attention has been called, was well taken-,, but under the averment that the liability of the indorser was fixed by due notice of dishonor,- we think it was competent for plaintiff to prove-it by parol, although he alleged the fact as appearing by the protest and certificate of notice of protest attached to his petition.

The object of pleadings is to apprise the defendant of the grounds taken to establish his liability so that he may prepare his defense. The indorser here was informed that the plaintiff claimed his liability on the ground that he was duly notified of dishonor. If the protest and certificate of notice thereof, attached to the petition, were not sufficient to establish the fact, we see no reason why it could not be established by other competent evidence. Yerbal notice of dishonor is as competent as written notice. Chitty on Bills, 503. It is in proof in this case that the indorser was verbally notified of the dishonor on the day the note was protested.

The only remaining question is, was the demand of payment of the-maker, and the protest, on the last of the three days of grace in due time, the note being non-negotiable. On this point we can not agree with the appellant. Under the general law merchant, which is recognized and enforced in this State, the three days of grace are allowable on promissory notes, whether negotiable or non-negotiable. Chitty on Bills 553- Smith v. Kendall, 6 T. R., 123; and authorities there cited.

But the appellant contends that the commercial law lias been-modified by the statutes of 1855 and 1858, declaring that on all bills of exchange and promissory notes made negotiable by law or the custom of merchants of this State, three days of grace shall be allowed, and on bills payable at sight and drafts or orders lor money, payable on demand, no days of grace shall be allowed.

In these statutes we see no abrogation of the commercial law allowing days of grace on non-negotiable notes, nor anything inconsistent therewith ; and we presume if such was the intention of the lawgiver-it would have been expressed.

The rule expressio unvus exclusio alterhts, invoked by the appellant, is here inapplicable.

If, instead of the statutes referred to, the Legislature had enacted a general commercial law for this State, and therein declared that three ■days of grace shall be allowed on all negotiable paper, this specification would have excluded non-negotiable notes, and the rule invoked by the appellant would be specially applicable.

But as these statutes neither repeal nor conflict with the general commercial law allowing days of grace on non-negotiable notes, we ■are bound to conclude the demand of payment was in due time. The note was duly dishonored and the appellant, being verbally notified thereof on the same day by the notary, became liable.

It is therefore ordered that the judgment appealed from be affirmed, and that appellant pay cost of appeal.


text:
    No. 173.
    The Succession of John A. Ross.—Opposition of E. H. Crosby and the Union Bank of Louisiana.
    A contract for the hire of slaves cau not be enforced. Ante page 300. But if a partition of the succession has been made between the coheirs, as in this case, and one of the heirs is found to be indebted to the succession for the hire of slaves, the amount oí such indeb'edness was properly deducted by the executors from the share coming to such heir.
    APPEAL from the Parish-Court of De Soto parish. Sutherlin, Parish Judge.

      B. J. Bowman, for executors, appellants. JElam & Wimple, for opponents and appellees.
   Wyly, J.

The executors of John A. Ross have appealed from the judgment of ihc parish court homologating their account, and disallowing various items thereof, on the opposition of Crosby and the. Union Bank.

They contend here that the item No. 28, of $3350, for hire of ten hands for two years, due by John A. Ross to J. H. Goodwin, was improperly reduced by the court to $2625 46 ; also that the item for the labor of twenty-four hands, the property of Mrs. Ross, as per voucher thirty, was improperly rejected; also that the item of hire of negrods, •as shown by voucher twenty-two, was improperly disallowed; also that the item for “piano and stool,” appraised at $300, for which they claim credit, having delivered it to thp daughter of Ross, was improperly rejected.

As to the credit for the piano, which the executors contend was given by Ross to his daughter and for which they claim credit, having-delivered it to her, we will remark there is no evidence of the donation in the record, and we think this item was properly disallowed. As to claims for negro hire, this court has decided that they can not bo enforced, 22 An. p. 300, and therefore the items Nos. 30 and 22 were properly rejected.

We find, however, from the evidence, that the item No. 28, for $3350, was not for the hire of slaves so far as the heirs of Mrs. Ross are’ concerned, and as it now appears on the account.

It appears that at the settlement and final partition oí the succes■sion of J. II. Goodwin, the father in law of John A. Ross, that Ross v as owing the said succession the sum of $3350 for hire of negroes, and that Mrs. Ross collated or settled it by deducting that sum from the share due her in the settlement with her coheirs. The court beiow reduced this claim, because Goodwin died before the end of the ■second year for which the hire was owing; that after Goodwin’s death the negroes belonged to Mrs. Ross, and the remaining hire from September, the time of Goodwin’s death, to the end of the year, fell into the community existing between Ross and his wife. This is not correct. It was not till after the final settlement by the heirs that Mrs. Ross acquired ownership of the negroes hired to Ross by her father. Although Goodwin divided his slaves among his children he did not convey the title — indeed it was expressly stipulated that Ross was to pay the hire claimed. At his death all the slaves hired to the different heirs belonged to his succession. At the partition- Ross was owing the succession the full amount of $3350, for hire of slaves up to that date. This sum his wife had to deduct from the share coming to her, and to this extent Ross, her husband, became her debtor, not for hire but for so much of her funds applied to the payment of his debt.

We think the heirs of Mrs. Ross were properly entitled to the amount of this claim, and that the judge erred in reducing it. In other respects the judgment appealed from is correct.

It is therefore ordered that the judgment homologating the provisional account of this succession, be amended so that the full amount of $3350, in item twenty-eight, be allowed instead of $2625 46, as reduced by the court below, and as thus amended that the judgment be affirmed. It is further ordered that the appellees pay costs of this appeal.


text:
    No. 166.
    Henderson McFarland v. Elias Connell.
    •One partner in the planting business, can not sue for, nor recover in his individual capacity, cotton or other produce, made on the plantation, untif the partnership affairs have been liquidated, and the proceeds divided. Therefore, the plaintiff in this suit, a partner, can not recover the cotton delivered by the othor partners to defendant in payment for supplies furnished to mate the crop.
    APPEAL from the District Court, parish of Bossier. JOevisee, J.

      It. B. Watlcins and J. X). WatMns, for plaintiff and appellant. Griffin <& Snider, for defendant and appellee.
   Howe, J.

The plaintiff alleging-that the defendant had wrongfully and tortiously taken and removed out of the possession, and from the plantation and premises of plaintiff, fourteen bales of cotton, prayed for judgment for the amount of cotton or its value, and for $750 damages.

It appeared on the trial, that the plaintiff entered into an agreement in 1866, with B. P. Bruton and Louis Monzingo, by which a planting partnership was formed. By its terms the plaintiff was to furnish the use of certain land, and to supply one-half the mules, farming utensils, and rations, while his partners were to pay the wages, manage the hands and furnish the other half of necessary teams, utensils and rations. The net proceeds of the adventure were to be divided one-half to plaintiff, and the other half to Bruton and Monzingo. The enterprise seems to have been unsuccessful, the cotton in controversy being nearly all that was produced. This cotton was delivered to defendant by Bruton and Monzingo, who were indebted to him for supplies and money advanced. There is some evidence to show that plaintiff did not comply with his agreement in the matter of rations. It is claimed by defendant, and there is some testimony to support the assertion, that the laborers would have abandoned' the place for want of food, if he had not advanced these supplies on the faith of the crop. However this may be, it does not appear on behalf of plaintiff that the partnership was ever liquidated, or the proceeds ever divided. The cotton for which the suit is brought, was, therefore, so far as we are advised, a partnership asset. It never belonged to plaintiff, and he had no more right to sue for it in this form of action than Ms co-partners had to turn it over to defendant. The allegation that the defendant “tortiously took and removed out of the possession and from the plantation and premises of plaintiff,” certain cotton, not being proved, the court did not err in its judgment of nonsuit.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 114.
    L. M. B. Rind v. Succession of D. J. Fluker and W W Farmer.
    Tlie tacit mortgage allowed bylaw in favor of minors on the properly of tbeir tutors, to secure tlie faithful administration of tlieir estates, does not attach to property that has come into the possession of the tutor under a deed from a party, who did not himself own the property,
    APPEAL from the District Court, parish oi Ouachita. Bay, J.

      W. J. Q- Balcer, for plaintiff and appellee. Morrison & Farmer, for defendants and appellants.
   Ludeling, C. J.

This is a suit to. enforce a tacit mortgage on two tracts of land in the possession of third parties.

N. D. Rind, as tutor of his minor daughter, the plaintiff, is shown to have received $11,007 31, which was inherited by her. He died, owing this sum to his minor child, and the probate court of Ouachita gave judgment against his succession, for that amount, with interest.

Since the rendition of this judgment two thousand two hundred and four dollars have been collected from the estate of N. D. Rind.

In April, 1839, James H. Brigham sold to N. D. Rind a plantation, situated in the parish of Ouachita, containing about eight hundred arpents. This sale was made in part on a credit; and a mortgage and the vendor’s privilege was retained in the deed. The act of sale was recorded in the notarial record of deeds, about two months before it was registered in the book of mortgages.

The plantation sold to Rind was composed of two tracts of land; the one known as “ The Arpen Tract,” embracing about 290 acres, and the other formed a part of the Maison Rouge grant.

Under a mortgage made by Brigham to the Citizens’ Bank to secure a loan, and which Rind had assumed to pay, the Arpen tract was seized, and was sold for six thousand and sixty-six dollars; the purchase price exceeded the loan secured by the mortgage by two thousand four hundred and fifty-three dollars. The plaintiff claims that she is entitled to a mortgage on the property for this balance, as her tacit mortgage was the next in rank to the bank’s mortgage. If it be true-that the plaintiff’s mortgage was the next in rank to the mortgage under which the property was sold, and that there was no other mortgage on the land which was preferable or anterior to the seizing-creditor’s, the proposition of the plaintiff would be correct. C. P. 707.

But, it appears, that the Citizens’ Bank had a mortgage on the land,, to secure the payment of $15,000, the amount subscribed for the stock of said bank by Brigham and Downs, dating from the sixteenth of January, 1838, long anterior to the mortgage of Rind.

It is conceded that the bank had this mortgage, but it is contended that, by the sale of the property, under the mortgage of the bank for the loan,- the mortgage for the stock was extinguished, and both amounts were secured by a mortgage or mortgages in the same act.

The plaintiff seems to have supposed that the act of mortgage to secure the sum subscribed for stock, and also to secure any loans which might be made, contained but one mortgage, or that the two mortgages were of equal rank, because contained in the same act. Either supposition is erroneous.

The stipulation of the mortgage to secure the loan, thereafter to bo made, was an obligation potestative on the part of the mortgagor; It was not the agreement itself, which created the vinculum juris, but the accomplishment of the condition. C. C. 2016, 2019.

The mortgage for the loans remained inoperative until the loans were actually made, which was sometime after the execution of the act of mortgage. 2 Troplong, Hypotheques, Nos. 478, 479 and 480; 15 An. 630, Haynes, Liquidator, v. Courtnay.

The property subjected to the stock mortgage for fifteen thousand dollars was sold for six thousand and sixty-six dollars. It is clear that this sale did not affect the stock mortgage, which was older, by several months, than the loan mortgage, under which the property was sold. And it is of no consequence to tli o plaintiff whether.the act of the sh; riff in transferí ing the property to the ad ydicatee was valid or not, as i.i any event, it could not make her mortgage outrank the bank’s.

The bank’s mortgage was the oldest, and it is first in rank still, unless it has been extinguished in some manner different from that above stated. But as the bank is not a paity to this suit, we deem it unnecessary further to discuss its rights, as they can not be affected by the decision in this case.

The plaintiff’s claim to a mortgage on that part of land bought by Rind, embraced in the “ Maison Rouge grant, ” is clearly unfounded.

The grant to the Marquis de Maison Rouge was hold, by the Supreme Court of the United States, not to have invested him with title to the lands, and it was decided that they belonged to the United States.

This was in 1849 and 1850, long after the lands had passed out of the possession of Rind. The sale to Rind, by Brigham, in 1839, was, therefore, the sale of the property of another, and it conferred no title. C. C. art. 2427.

It is too obvious to need argument that the tacit mortgage of the minor could not attach to the property of another, simply because it happened to be in his possession, under a deed from one who did not himself own the property.

The ease of the succession of D. W. Coxe, relied on by the plaintiff', does not support h:'s views.

In that case, this court held that one who had availed himself of the benefit of the pre-emption act of (ho twenty-seventh of March 1851, in favor of actual settlers in good faith, who had paid a price for the land, could not be permitted to recover from his vendor the price paid him — that was the only issue in the case.

But the question at issue in the case at bar is, did a tacit mortgage against Rind attach to lands, to which ho never had a title?

The title to the lands in question remained in the United States until Miss McCaleb acquired it from the United States, long after the death of Rind.

The plaintiff has failed to make out her case; but as she may bo able to show, in her contest with the bank, now pending in another suit, that the stock mortgage of the bank has been extinguished, we think the ends of justice will be subserved by rendering a judgment of non-suit.

It is thererore ordered that the judgment of the district court be avoided, and that there be judgment of nonsuit against the plaintiff, with costs of both courts.

Rehearing refused.


text:
    No. 126.
    A. Winter v. S. B. Jones.
    A. promissory noto, given for Confederate notes or bonds as an equivalent, is void for want of a legal consideration.
    APPEAL from the Tenth District Court, parish of Caddo. ' Levisee, J.

      J. W. Duncan, for plaintiff and appellee. Land and Taylor, for defendant and appellant.
    This case was tried by a jury in the court below.
   Ludeling, C. J.

This is a suit on a promissory note, secured by mortgage, against the maker. The defense is that the consideration of the note was Confederate money or bonds, an unlawful currency issued to assist in subverting the government of the United States. The plaintiff filed an amended petition and prayed for a jury, which was properly allowed by the district judge.

The case was submitted to a jury who rendered the following verdict : “ We, the jury, find for the plaintiff in the sum of six hundred and fifty dollars, in United States currency, without interest.” The balance claimed on the note was $4862 83, with interest. A new trial was granted by the district judge; and the case was a second time submitted to a jury, who found a verdict for the plaintiff for $4862 83, without interest. And judgment was rendered in accordance with the verdict.

Both verdicts seem to have been the result of compromises.

The only question at issue is, was the consideration of the note Confederate money or not? Both the plaintiff and the defendant have testified in this case, and as is usual, their testimony is somewhat conflicting.

The plaintiff swears that cotton, loaned by him to the defendant, was the consideration of the note; while the defendant swears that Confederate States bonds or notes constituted the consideration. Jones swears that Winter sold his cotton to the Confederate States for bonds or notes, and loaned him the bonds or notes, for which he executed the note in suit. The Confederate States’ agent says he bought the cotton for the Confederate States; that he took an order from Winter directing Jones (on whose place the cotton was stored), to deliver the cotton to him; that the cotton was weighed and delivered by Jones, and that he gave to Jones a certificate for the amount of the cotton, payable to the order of Winter. And Winter himself says he “turned over the bonds to Jones.”

It is clear Winter never ceased to be the owner of the cotton until, by his consent and order, the cotton was sold and delivered to the Confederate States for bonds or notes; and these notes were turned over to Jones by Winter, who had collected them on the certificate given by the purchasing agent of the Confederate States. For the use of these bonds or notes the obligation sued on was given. Under the settled juiisprudence of this State such obligations can not be eniorced by the courts.

It is, therefore, ordered that the verdict of the jury bo set aside, that tho judgment of tho court a qiio be reversed, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demand, with costs in both courts.

Rehearing refused.


author: Wylt, J.

text:
    No. 149.
    Johnson & Hamilton v. Jordan & Foster.
    Tlie evidence of a donation inter vims of real estate must be in writing. But, in a suit by the wife against her husband for a separation of property, in which sho claims the price of a tract of land which she acquired from her ancestor by donation inter vivos, parol testimony is admissible to show that the husband sold tho land and received the proceeds thereof. Third parlies, creditors of the husband, in a suit to annul the judgment of the wife against the husband, can not inquire into tho validity of the donation. 8 An. CIO.
    APPEAL from the Tenth District Court, parish of Caddo. Levisee, J.

      C. M. Pegues, and S. L. Taylor, for plaintiffs and appellees. Plain & Wimple, for defendants and appellants.
   Wylt, J.

Tho plaintiffs sue the defendants, Jordan & Poster, to recover judgment in solido against them for the amount of two promissory notes. They also aver that tho said Poster, with a view to defraud and injure them, procured Ms wife, Sarah E. Jordan, to institute suit in the district court for the recovery of certain simulated claims, which his said wife pretended to hold against him for various paraphernal effects, said to have been received by him, and converted to his use; that, without any legal evidence having been offered in support of her unfounded claims, and by the illegal and fraudulent connivance of herselt and her said husband a judgment was rendered in her favor, at the October term, 1865, for a large amount of money, with interest, with a recognition of a tacit mortgage and a dissolution of tho community.” They also aver that, under said judgment, certain laud of her said husband was illegally sold and adjudicated to her; they aver that said judgment and all the proceedings thereunder are absolutely null and void, because obtained by fraud and connivance, and without sufficient evidence,- they deny that the pretended paraphernal claims of the wife ever had any existence or that the husband ever received the sums as alleged by her.

The answer of Mrs. Poster is a general denial, and the averment that the judgment obtained by her against her said husband, complained of by the plaintiffs, was rendered upon sufficient evidence, has been regularly executed, and that she has acanired a valid title to the property adjudicated to her thereunder.

At the trial the court reduced the judgment of Mrs. Poster against her husband to one hundred and ninety dollars, with legal interest from, the twelfth of October, 1865, and maintained her title to tho land, and ordered her to pay over to the plaintiffs the surplus of the price of said purchase, to wit: $3500, loss one hundred and ninety dollars, to be retained in satisfaction of her judgment, and she has appealed.

The appellant abandons in this court the claims against her husband, which were disallowed by the court below, except the one for $1750, which, she contends, was erroneously rejected, the same having been fully established by the evidence.

The contest then is limited to this claim.

It was for a tract of land and an improvement given to Mrs. Foster by her father, which her husband sold for the aggregate price of $1750. The father swears that “ the paper title of the land was made by him, and the notes for the price were made payable to his daughter.” It is satisfactorily shown that the price was collected by the husband.

The evidence however establishing these facts, was excepted to by the plaintiffs, on the ground that said depositions went to establish, by parol, a donation, of either land, or a note, arising from the sale oi land, when the law requires said donation to be established by writing.” The judge overruled the objection, on the ground that the plaintiffs, by their counsel, had expressly agreed that said depositions should be used as evidence, and that the agreement appended to the depositions ■estopped them from objecting. We think the bill of exceptions taken to the ruling of the court in receiving this evidence was not well taken. The object of the evidence was not to establish a donation inter vivos, by parol; it was to prove the husband’s indebtedness to the wife, regardless of the validity of her title to the property converted to his use. Whether Mrs. Foster had a good title to the funds appropriated by her husband or not, was no defense for him; he collected the money as her agent, and was bound to return it to her, even though he had received it unduly. His creditors have no better defense to this claim than he had.

Tho validity of the donation does not concern them; it is a matter between the donor, and those claiming under him, and the donee Snow v. Copely et al., 3 An. 610.

The case of Chachere v. Dumartrait, 2 La. 40, and Pecquet v. Pecquet’s executor, 17 An. 224, cited by the appellant, are directly in point ■and furnish ample reasons in support of the position taken by her.

We are satisfied there was error in rejecting this claim of $1750.

It is therefore ordered that the judgment appealed from be amended so as to change Mrs. Foster’s judgment from one hundred and ninety dollars to nineteen hundred and forty dollars, and as thus amended, that it be affirmed. It is further ordered that plaintiffs pay costs of this appeal.


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    No. 143.
    G. M. Bender, v. R. J. Looney et al.
    The character of the action is determined by the prayer of the petition, and if suit is brought for damages, or the value of the property, with interest, in solido, alleged to have been received by the defendants, the action is prescribed by one year.
    Agents acting under, a quasi contract are not liable for interest and expenses incurred on tho property in their hands, nor are they liable in solido.

    APPAEL from the Tenth District Court, parish of Caddo. Levisee, J.

      Land & Taylor, for plaintiff and appellant. Robert J. Looney, pro se, defendant and appellee.
   Wyly, J.

The plaintiff alleges that in the suit of J. T. Belknapp against him and James F. Ainsley, in which said Belknapp illegally sequestered nineteen bales of cotton, Looney & Wells, a law firm, 'filed a petition praying that said sequestration be set aside and that the petitioner and Ainsley be permitted to bond the cotton sequestered ; that in pursuance of said prayer the order was granted and the bond was signed in the name of the petitioner by Looney & Wells, as attorneys, it was also signed by James F. Ainsley and by Robert J. Looney and by M. Baer j1 that on the execution of said bond the cotton was delivered by the sheriff to the said James F. Ainsley, Robert J. Looney and M. Baer; that the said suit of Belknapp against ■him and Ainsley, in which the cotton was sequestered, was afterwards dismissed for want of prosecution and the writ of sequestration set aside by a judgment of the court; “that the said nineteen bales of cotton, sequestered as aforesaid, were bonded without his knowledge •or consent, or any authority derived from him, and were likewise delivered by the sheriff to the said James F. Ainsley, Robert J. Looney and M. Baer, without any consent, knowledge or authority given by your petitioner. Your petitioner further represents that he is informed and believes that said cotton, after its receipt, as aforesaid, was sold, and the proceeds of the sale received by said parties, to wit: James F. Ainsley, Robert J. Looney and M. Baer, or received by one of said parties, with the knowledge or consent of the others. Your petitioner further represents the act of said parties in bonding said cotton and in selling it and receiving the proceeds thereof, without the consent, knowledge or authority of your petitioner, makes them liable in solido• to pay your petitioner the full value of said cotton, with interest thereon from the date of its receipt and sale.” After alleging the value of the cotton he prays judgment in solido against the defendants for its value.

The defendants set up a general defense and pleaded the prescription of one and three years.

The court gave judgment for the defendants on the plea of prescription, and the plaintiff has appealed.

From the petition wo regard the suit as an action for damages for a tort, and therefore think the prescription of one year applicable. CC. 3201; 20 An. 151; C. C. 2304.

The cause of action is summed up in the allegation that the act of said parties in bonding said cotton and in selling it, and receiving-the proceeds thereof, without the consent, knowledge or authority of your petitioner, makes them liable in solido to pay your petitioner the full value of said cotton and interest from the date of its receipt and sale.” "We regard this clause as determining the character of the action.

The defendants are. sought to be held liable in solido and to be compelled to pay interest from the day of the sale for an act, the bonding and selling of plaintiff’s cotton and receiving the proceeds thereof without his consent, knowledge or authority. If plaintiff should recover it will be for the damage the act complained of has done him.

But the plaintiff insists that his action is based on a quasi contract,, and comes under article 2274 of the Civil Code, which declares that When a man undertakes, of his own accord, to manage the affairs-of another, whether the owner be acquainted with the undertaking or ignorant of it, the person assuming the agency, contracts the tacit, engagement to continue it and to complete it, until the owner shall be in a condition to attend to it himself; he assumes also the payment of the expenses attending the business. He incurs all the obligationswhieh would result from an express agency with which he might have been invested by the proprietor.”

It seems to us that the plaintiff has not proceeded against these defendants as his agents under a quasi contract. If they are his agents,, and have sold his cotton, he should have demanded that they account, to him for the proceeds they have received for the cotton •, he could not ask of his agents more than they received. Here he sues for the value of his property, which, he says, was worth two hundred dollars. per bale at the time it was received and sold by said parties.”

If these defendants were his agents and assumed the tacit engagement to continue it and complete it, until he, the owner, came into a condition to attend to it himself, how can he set up a claim for interest on the value of the cotton from the time it was received and sold by these-parties; while under the tacit engagement to continue the agency these defendants were not liable for interest on the proceeds of the cotton in their hands, yet he claims it from the day of the sale. Again, if these defendants are only sought to be made liable as agents why does, the plaintiffs claim that they are liable in solido. An agent is liable for his own acts; but here the plaintiff complains that his cotton was sold and the proceeds received by these defendants, or one of them, with the knowledge or consent of the others, and therefore they are? liable in solido.

It is evident to us that this is an action for damages, and the prescription of one year must prevail.

It is therefore ordered that the judgment appealed from be affirmed, and that appellant pay costs of this appeal.

Rehearing refused.


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    No. 120.
    Louisa Turner, Administratrix, v. Joseph C. Beall.
    An agent is not accountable to bis principal, nor to tbe legal representatives of tli? principal, for rents wbicb be collected during tbe war in Confederate notes, witb tbe knowledge and approval of tbe principal.
    Parol evidence is admissible to prove a written agreement by tbe bolder of a promissory note, extending tbe time of payment. Sucb evidence is not intended to prove an interruption of prescription, and is not, therefore, excluded by tbe act of 1858, wbicb prohibits tbe reception of parol evidence to establish an interruption of prescription as against an estate.
    APPEAL from the District Court, parish of Caddo. Levisee, J.

      J. W. Jones, for plaintiff and appellant. 8. W. Ohagmcm, for ■defendant and appellee.
   Howe, J.

The plaintiff, as representative of the succession of Jarret L. Turner, instituted this action to recover from the defendant the sum •of $1920, alleged to have been collected by him as agent of the decedent, from October 1, 1802, to October 1, 1866. There was a demand in reconvention by defendant, for professional services and for commissions as agent. Judgment was rendered in favor of plaintiff for $100, with interest, and the reconventional demand was sustained for $33 33, and the plaintiff appealed.

It appears that, in 1862, Turner left Shreveport and went to Texas, placing his real estate in the former place in charge of Beall, as his ■agent, to rent it and collect rents. At the time, there was nothing in circulation but Confederate notes, or currency equally unlawful; no property could be rented except for this consideration, and no rents could be collected except in this sort of paper. There can be no ■doubt that Turner knew this, and tacitly authorized such renting and collection. It would be unjust, therefore, to allow his representative to collect in lawful money this portion of the amount received by Beall.

The war having closed, Beall commenced to collect rent in lawful currency, and the amount thus received by him was $455. Of this sum he paid out for Turner $232 85 upon the note of the latter, held by E. Johns. His authority to do this is sufficiently established; but the plaintiff contends that this note was prescribed when paid, and that the evidence of Johns on the subject of prescription was improperly received by the district judge, under the law of 1858. R. S. 1870, Sec. 2819, which forbids the reception of parol evidence to prove an interruption of prescription as against a succession. But we do not think the court erred. The proof was not of an interruption of prescription, but of an extension of the note, presumably before maturity, by a written agreement of the holder, so that it first fell due October 15, 1861, and it was therefore not prescribed when paid by Beall in February, 1866. In fine wo see no sufficient reason for disturbing the decree.

Judgment affirmed.


author: IIowe, J.

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    No. 116.
    A. W. W. Brooks v. James Wortman.
    In a petitory action, if the plaintiff establish a good and valid title to the land claimed, and the defendant holds under a title translative of property, but it is shown that the title of his vendor is defective and void, the plaintiff will recover the land, but the defendant, not being aware of tbe delects in his title at the time of purchase, can not be condemned to pay rents.
    A party purchasing real property, in good faith, under what he believes to be a valid title, is entitled, on eviction, to recover the value of the improvements he has put upon it. But, aftor making h.s claim for a certain amount expended for improvements, and failing to amend his petition, in order to augment his demand, he must lose the overplus. C. P. 156.
    The prescription of five years, urged by a possessor of lands in good iaith, only covers the informalities which may have occurred in the execution of a decree or other sufficient mandate to sell real estate, but this prescription can not be urged by the possessor to cure manifest fundamental defects in the title of his vendor.
    APPEAL from tbe District Court, parish of Caddo. Levisee, J.

      Land & Taylor, for plaintiff and appellee. A. W. O. Hides, for defendant and appellant.
    This case was tried by a jury in the court below.
   IIowe, J.

This is a petitory action, brought to recover certain lands in the city of Shreveport, and rents therefor from September 14,1860. /

The defendant answered by a general denial, hut admitted that he was in possession of the property claimed. He alleged a good title in himself, and possession in good faith for over five years; pleaded the prescription of five years, and claimed, in reconvention, the sum of $2000, as the value of improvements placed by him on the lots.

The case was tried before a jury, who returned a verdict in favor -of plaintiff for the property, and in favor of defendant on his reconventional demand. Erom the judgment rendered on this verdict, the defendant alone has appealed. In this court, by answer, the plaintiff asks for an amendment of the judgment, so as to decree him the rents claimed in his petition, hut makes no other request. It will not he necessary for us, therefore, to pass upon plaintiff’s hill of exceptions to certain evidence introduced to establish the reconventional demand.

The plaintiff, on the trial, showed title by act of sale from R. T. Brooks, passed April 15,1852.

The defendant claimed under an act of sale from Jones and others, passed September 14,1863; who, in turn, claimed under what is termed a tax sale, made August 31, 1860.

The tax sale, so called, was made by one Battle, describing himself as agent (though not proved to be so) of Jones and others, who appear to have been sureties of Scogin, a defaulting tax collector; and purported to convey the property in question as property of Brooks, the plaintiff.

It seems to be conceded that this sale by Battle, agent of the sureties, to Battle, the agent of the same sureties, is on its face a nullity— the plaintiff claiming it to be an absolute, the defendant, a relative nullity. It does not, however, seem necessary to decide as between these two views, for the case may be fully disposed of upon other points.

The defendant contends that the act of sale from Battle to Jones and others, of August 31,1860, is one of those referred to in the clause of article 118 of the constitution of 1868, which provides that, “all deeds of sale made, or that may be made, by collectors of taxes, shall be received in courts in evidence as prima fade valid sales,” and that, therefore, his defense was established, prima facie, by the production of the act in question, together with the deed from those vendees to himself, and possession for upwards of five years.

We can not assent to the proposition on which this argument is based. The act of sale by Battle was not a deed made by a collector of taxes. While, therefore, we desire to give full effect to the new provision quoted, we do not feel called upon to extend it beyond its obvious meaning and intent.

The plaintiff has fully established a title to the land; and the defendant has not established one in his vendors that is, even prima fade, valid. But, as he holds under a title translative of property, and regular in form, and we are not prepared to say that, when he bought, he was aware that his title was vicious and defective, we can not decide that he was a possessor in bad faith. C. C. 3414, 3415.

The plea of prescription of five years, set up by defendant, must bo overruled. This prescription is intended merely to cure informalities in the execution of a decree or other sufficient mandate to sell, and can not be held to supply the manifest fundamental defects of the title of the defendant’s vendors.’ 14 An. 597 ; 21 An. 585.

The defendant insists that the amount of his judgment in reconvention should be increased. It appears, however, that the jury gave him the entire sum he claimed in his petition to have expended for improvements, and for which he asked judgment. As plaintiff in reconvention, he would seem, therefore, to fall under the rule established by C. P. 156, that, if one demand less than is due him, and do not amend his petition, in order to augment his demand, he shall lose the overplus. The numerous decisions cited by defendant do not take his case out of the scope of this just rule.

Judgment affirmed.


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    No. 142.
    J. D. Blair & Co. v. William C. Peyton.
    In a case like this, where the verdict of the jury is found to "be contrary to law and the evidence in the record, the cause w'U he remanded to be proceeded with according to law.
    APPEAL from tlie Tenth District, parish of DeSoto. Levisee, J.

      H. Mwnclay, and Ijllam & Wemple, for plaintiffs and appellants. 8. L. Taylor and J. L. Logan, for defendant and appellee.
   Ludeling, C. J.

This suit was brought on a balance of an account. The defendant denied the correctness of the account of their factors, and alleged that they had damaged him. to the amount of three thous- and dollars “by their carelessness and neglect in selling'his cotton at rates greatly below the market prices,” and by making false returns of the weight of the cotton, and he plead this sum in reconvention.

The case was tried by a jury, who rendered the following verdict:

“We, the jury, find that the plaintiffs’ claim be dismissed at his costs, and the defendant have judgment for three hundred dollars on his reconventional demand.” Judgment was rendered in accordance with the verdict, and the plaintiff has appealed.

The evidence establishes the correctness of the plaintiffs’ account. In regard to the reconventional demand, the evidence is contradictory and unsatisfactory — it preponderates, however, in favor of the plaintiffs. The verdict is contrary to the law and the evidence, and should he set aside.

We think, however, that justice will he better subserved by remanding the case to be tried again.

It is, therefore, ordered and adjudged that the verdict of the jury be set aside, that tbe judgment of the district court be reversed, and that the case he remanded to he tried according to law. It is further ordered, that the appellee pay the costs of this appeal.


author: Wyly, J. Ludeling, C. J.

text:
    No. 186.
    I. U. Ball v. G. M. Bender.
    An agent can not contract a loan, acknowledge a debt, alienate or mortgage the property of his principal, or do any other act of ownership, without express and special authority. But if the agent, under a general authority, sells property, the produce of the plantation under his charge, the principal must notify the purchaser, as soon as he is informed of the fact* that he rejects and repudiates the. acts of his agent as unauthorized.
    The contract of mandate may be tacit, as well as express, and the acts of the principal must be fairly and liberally construed towards those who contract with the agent, as well as towards •the agent.
    APPEAL from Tenth District Court, parish of Caddo. Weems, J.

      Jones & Harris, for plaintiff and appellee. T. T. Land, for defendant and appellant.
    This case was tried by a jury in the district court. .
   Wyly, J.

This suit is based on the following contract, viz:

“Shreveport, La., July 19, 1865.

“For and in consideration of forty-five bales of cotton, the property of Dr. I. U. Ball, which I acknowledge to have appropriated to the use of G. M. Bender, whose lawful agent I am, I hereby obligate the said Griffin M. Bender, as well as myself, to deliver to William Ball, agent for Dr. I. U. Ball, within • ninety days from this date, a like forty-five bales of cotton, in Shreveport, in good shipping order, to weigh twenty-four thousand eight hundred and ninety pounds.

“ (Signed) JAMES F. AINSLEY,

Agent for G. M. Bender.

“ (Witness) W. E. CHURCH,

“ Captain A. A. G. U. S. Volunteers.”

On the twenty-third of December, 1865, plaintiff, sued James F. Ainsley and Griffin M. Bender on said contract, attaching certain lands and personal property alleged to belong to the former, who was an absentee, and praying for judgment against them in solido for said cotton or its value.

On the eleventh of January, 1866, S. J. and E. E. Futch intervened, claiming that they had purchased the land and personal property attached from the defendant, G. M. Bender, in Jasper county, Mississippi, on the twenty-nintli of November, 1865, which was prior to* the attachment.

The defendant, G. M. Bender, pleaded the general issue, and specially denied that James F. Ainsley was his agent or attorney in fact, for the sale of the cotton mentioned in plaintiff’s petition, or for any other purpose, but averred that said Ainsley had no authority what, ever to sell said cotton or contract an obligation for him; that, during his absence from the State, and after his overseer had been conscripted into the military service of the Confederate States, the said Ainsley, without his knowledge or permission, illegally took possession and control of his plantation and other property. •

The court gave judgment, on the verdict of the jury, in favor of plaintiff and against the defendants in solido, for $2000, and sustained the attachment.

The defendant, Bender, has appealed.

It appears that the defendant, Griffin M. Bender, a resident of the State of Mississippi, owned a plantation in the parish of Caddo, which was managed and controlled during the last years of the war, to wit: 1863, 1864 and 1865, by James F. Ainsley, who was employed as agent and overseer for his father, by the son of said Bender.

That, during this period, Ainsley sold a lot of cotton bales on the plantation, to Joshua Dreyfouse, for Confederate bonds, giving an obligation to deliver the cotton at a future day. Subsequently, Dreyfouso sold, for Confederate money, forty-five bales of this lot, which still remained on the plantation, to the plaintiff, Ainsley being notified thereof.

At the close of the war, Ainsley again sold the entire lot which he had previously sold to Dreyfouse (including' the forty-five bales transferred to plaintiff), receiving in payment lawful money, and delivering it to the purchaser, Cundiff, who removed it from the premises. There was, however, other cotton, in the seed, on the premises, at the close of the war, and in the contract sued on, Ainsley, as agent for Bender, promised, within ninety days from the date thereof, to deliver forty-five bales to plaintiff, in place of those he had sold to Cundiff.

We will consider, first, the authority of Ainsley to contract an obligation for G. M. Bender, or to dispose of his property. We do not find in the record that any express or special power was ever given him. He was simply the overseer or agent, with only administrative power over the property of Bender, and we do not think he had authority to contract the obligation sued on, or to alienate the property of his principal. C. C. 2965. Power to contract a loan or acknowledge a debt, or to alienate or mortgage property, or do any other act of ownership, must be express and special. C. C. 2965, 2966; 16 La. 175 9 R. 293; 12 R. 221; 11 An. 46.

We do not find sufficient evidence in the recorcf to establish a ratification of the sale to Dreyfouse for Confederate bonds. On the contrary, it appears that Bender was very much displeased. But whether he ratified it or not, the consideration for the- sale was unlawful, and no subsequent ratification could make it less so. 19 An. 459. The cotton remained all the time on Bender’s plantation, in his possession, and if the overseer had not sold it the second time, neither the plaintiff nor his vendor, Dreyfouse, could have enforced the contract of sale, because of its immorality. C. C. 2450 ; 19 An. 460.

There is no evidence that Bender ever ratified, or was oven aware of the contract sued on till this suit was instituted.

On the whole, we are satisfied that the judgment of the court below is contrary to the law and the evidence, and should be reversed.

It is therefore ordered that the judgment appealed from be reversed and annulled; and it is now ordered that plaintiff’s demand be rejected, with costs in both courts.

On Rehearing.

Ludeling, C. J.

A rehearing was granted in this case, on the reconventional demand of the defendant for the value of four bales of cotton sold by Ainsley, and delivered to the plaintiff.

The demand of the plaintiff was rejected because it was an attempt to enforce an unexecuted contract based on Confederate treasury notes; and the reconventional demand was not acted upon.

A careful examination of the evidence in the record convinces us that the opinion expressed by us last year, in this case, in regard to the authority of Ainsley to sell the cotton, was erroneous; but that question was not important; except in order to enable us to dispose oí the reconventional demand, which was then overlooked.

We think the record shows that Ainsley was authorized by Bender to sell the cotton, and that he ratified the sale by his silence and ■conduct.

The evidence establishes the following facts: that Bender, a nonresident, had left a large plantation and negroes in charge of Ainsley, as his agent; that Ainsley managed the entire business connected with the plantation — bought what "was necessary for its use, employed physician's, etc., and paid the accounts thus made in the name of Bender, ■out of the proceeds of the sale of corn, fodder, potatoes, etc.; that Ainsley signed notes as the agent of Bender, and gave a draft in his name, which was paid, and generally held himself out to the world as the agent of Bender. It further shows that he was instructed bjr Bender to run the negroes to Texas, if his neighbors moved theirs; and that lie had no funds, except what he could raise by the sale of the products of the place. Ainsley, while denying that he had exprese authority to sell, states that he informed Bender of the sale of his cotton, by letter, and that Bender answered his letter; that he expressed dissatisfaction at the sale for Confederate notes, because the money was worthless. 8. J. Futch swears that, in the fall of 1865, “ Bender told him that he had got Ainsley to act as agent for him about the commencement ■of the war; that he told witness that he had understood that Ainsley had sold all of his cotton, about two hundred bales, for "Confederate money, and that he would have a great deal rather have heard of his burning it, than have sold it for Confederate money. Bender told witness that he had instructed Ainsley to keep his negroes out of the way Of the Yankees, and that he did not know that there was any money here to run the negroes off, and thought it a very lame thing in Ainsley to sell all of his cotton to get money enough to run the negroes off.”

It was the duty of Bender to have notified the plaintiff, Ball, that he repudiated the act of Ainsley, . as unauthorized, so soon as ho was informed of the fact, even if Ainsley had not been authorized to sell. This he failed to do. C. C. 1811; 18 La. 517; 6 An. 539.

The contract of mandate may be tacit, as well as express; and the acts of the principal must be fairly and liberally construed toward those who contract with the agent, as well as toward the agent; and where the law does not require the contract to be in writing, the power to execute it pray be in the simplest form, and the intention of the parties may be gathered, as much from their acts as from their agreements. 8 E. 236; 14 An. 302.

It is therefore ordered that the reconventional demand be rejected.


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    No. 98.
    In the Matter of the Tutorship of the Minor Mattie E. Davis.—Opposition of Soniat’s Executor to account of Tutorship.
    The surviving widow of her deceased husband is entitled to the usufruct of all the community property until the second marriage. Act of March 25, 1844. The natural fruits or such as are the produce of industry, hanging by branches or by roots, at the time when the usufruct is open, belong to the usufructuary. C. 0. 538, Therefore the surviving wife and usufructuary is not chargeable with, nor accountable to tbe heir3 for the growing crop in the held and not gathered at the opening of the succession, hi or is she responsible in her capacity of natural tutrix to the minor heirs, for the rents and revenues arising from the use of tho lands, stock and forming utensils, from tho date of the opening of the succession up to the time that she contracts a second marriage.
    The surviving widow having lost the usufruct by contracting a second marriage, is only accountable to the heirs for the value of the personal property belonging to the community at the time of the second marriage, unless it be shown that she has made an improper use of it. She is entitled to the deduction arising from the deterioration of the property while in her possession as usufructuary.
    The surviving widow and natural tutrix having lost the usufruct by contracting a second marriage, becomes accountable to the heirs for the rent of lands occupied by her and belonging to the community. But if it be shown by evidence that, owing to the existence of a state of war in the country, the lands could not be worked, and therefore they were not cultivated for a period of three years, she is not accountable for the rent nor interest on the same for that period of time.
    APPEAL from the Parish Court of Morehouse parish. James JBussey,

    Parish Judge. Bewton <& Ball, for the minor M. E. Davis, appellee. Thomas 0. Burton, for tutrix, appellee. D. 0. Morgan, for opponent and appellant.
   Taliaferro, J.

This suit grows out of an opposition to the account of tutorship furnished an emancipated minor by her mother and natural tutrix. The opponent, in his caxiacity of executor of his father, shows that he is a judgment creditor of Mrs. Prances A. Davis, the tutrix, in the sum of forty-five hundred dollars; that he caused execution to issue upon the judgment; that certain lands, comprising all the real •estate of the defendant, were seized and sold at sheriff’s sale on the fourth of September, 1869, when he became the purchaser. He charges that the rendition of this account of tutorship is made in fraud and collusion between the tutrix and the emancipated minor, by which they aim to establish a large indebtedness of the tutrix wholly fictitious, in order to obtain a decree of legal mortgage on tho property of the tutrix, that shall antedate the opponent’s judgment and deprive Mm •of the lands purchased in satisfaction of his just claims against the tutrix in her individual capacity. He opposes all the items charged as indebtedness, and prays that the credit side of the account be increased by charges against the minor for hoard, clotMng, etc., taxes, law charges and medical services.

The account was filed on the sixth of September, 1869, and presents a balance due the minor of $16,971 50.

An ox>position was also filed on the part of the minor, claiming interest on her revenues as they accrued .and were received by the tutrix, and objecting to the charges against her for board, education, clothing, etc., as extravagant and unjust.

After the introduction of much evidence and a full investigation of the account the opposition of the executor was, to a considerable extent, sustained, and the account was reduced, by the decree of tiro court, to $7050 21, and judment was rendered against the tutrix and in favor of the minor for that sum, with five per cent, interest from date of the judgment, with recognition of legal mortgage on all the property of tlio tutrix as security for its payment. From this judgment the executor and opponent has appealed.

The facts elicited by this controversy seem to ho that Stephen C. Davis, the minor’s father, died in the year 1858, leaving as Ms sole heirs John A. Davis and Mattie E. Davis, the minor who figures in this controversy. The widow and mother of these heirs was confirmed natural tutrix of the daughter on the twenty-fifth of September, 1858. John A. Davis died in October, 1861, leaving his mother and his minor sister as his heirs. An inventory of the property of the community between Stephen C. Davis and his wife, was made in the latter part of the month of September, 185S. There was no separate property of either of the parties. No inventory or proceedings seems to have been taken in regard to the estate of John A. Davis, which consisted very nearly, if not entirely of his interest in his father’s part of the community.

Early in January, 1862j the widow, Mrs. Frances A. Davis, contracted a second marriage. The property of the succession, as shown by the inventory, consists of a tract of land containing four hundred arpents, and of two other tracts, one of one hundred and thirty-six acres, and the other of one hundred and seventy-two acres. The four hundred arpent tract embraces a plantation containing, at the time of the inventory, two hundred acres in cultivation, which seems to have been afterwards enlarged to two hundred and fifty acres. Nineteen slaves were appraised, the crop of corn and cotton of 1858, ton head of horses and mules, three pair oxen, cattle, hogs, farming utensils, etc., the whole valued at forty-two thousand seven hundred and tweutvsix dollars.

There are two hills of exceptions in the record, taken by the counsel for the opponent, one relating to a rule of evidence, the other to rules of practice. In the decision of this case we think it not important to examine them.

In a review of the judgment of the lower court we find that, in our opinion, it should he altered in several important respects. The judgment makes the tutrix account for seven-sixteenths of the estimated value of tire corn and cotton crop of 1858, the year in which Stephen C. Davis died. The date of his death is no where found in the record, hut we find the usual mortuary proceedings, consequent upon his decease, were commenced in the probate court of Morehouse parish on the'twenty-fifth of September, of that year. It is fair to suppose that he died about the middle of the month.

In the usual course of planting operations in this country the crops of corn and cotton are not gathered in at that time of the year, or at least only partially so. No notice, as appears by the inventory taken on the twenty-ninth of September, is made of any portion of either corn or cotton being gathered. The corn is referred to as “the crop on the plantation,” and the cotton crop as estimated in its present state.” In the absence of any evidence to the contrary we conclude that the crop of cotton and corn was standing in the field at the time of the opening o- the succession. This being the case, the crop belonged to the surviving widow in community, who was entitled to the usufruct of the community property until the second marriage. Act of March 25, 1844. Article 538 of the Civil Code provides that, “ The natural fruits, or such as are the produce of industry, hanging by branches or by roots, at the time when the usufruct is open, belong to the usufructuary.”

The next item we think should be reduced. The decree awards to the minor seven-sixteenths of the inventoried value of the personal property. The widow was entitled to the usufruct of the personal property during the three years of her widowhood, to wit: During the years Í859, 1860 and 1861. The deterioration of the personal property during its use for ’throe years, lessoned its value very considerably. For this she is not accountable, as it is not shown she made an improper use of :it. It is shown by the testimony of an experienced planter, that the value of the work animals depreciated during that period forty per cent., and the reduced value of all the other personal property is shown.

At the time of the second marriage the widow, having lost the usufruct of the property, should have caused it to be sold according to law. Civil Code, article 333. Not having complied with the law in this respect, the tutrix should account for seven-sixteenths of the value of the personal property at the time of her second marriage, which, from the evidence, we assume to have been $987, seven-sixteenths of which is $431 90.

The succeeding items, after the one just examined, running to No. 9, inclusive, should be stricken out. They are made up of annual charges for rent of land, and hire of slaves for the years 1862 and 1863; and for rent of land for the years 1864 and 1865, and calculations of interest accruing annually upon balances due the minor after deducting her annual expenses. -Charges for the hire of slaves are not recoverable.

The testimony does not, in our opinion, warrant the charges allowed for rent of land during the four years last mentioned. One witness thinks lands in order for cultivation during that period, were worth a dollar an acre rent; another that lands during that time could not have been rented at all for gold or legal currency, and a third, that for rent they were worth nothing. A state of war prevailed. The usual labor for cultivation could not be obtained, and the fields were in a great measure, during a large part of the time, idle and uncultivated. No revenues consequently were derived from the lands from the beginning of the year 1862 to the year 1866, the war having ended during 1865. Taking the annual expenses of the minor at $300, as found by the judge, and as we think correctly, there would be no balance due the minor upon which incerest would run until the end of 1867. The amounts allowed by the lower court for rent of land for the years 1866, 1867, 1868 and 1869, we think sustained by the evidence. The charge against the tutrix for three-fourths of two years wages, claimed qs due John Davis for overseeing and interest on the amount ($900), should not have been allowed. No such charge appears, upon the account opposed, and the evidence shows that John Davis managed the affairs of the plantation, disposed of the crops, received the proceeds, bought slaves for himself, and distributed the money received. There is no evidence whatever that there was anything owing him for overseer’s wages. The last item allowed by the court, “ commissions on amount of annual revenues,’’ being cast upon an erroneous amount must be rejected.

It is ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the emancipated minor, Mattie E. Davis, recover from her mother and late tutrix the sum of $1909 85, with five per cent, interest thereon-from the day of the rendition of her account of tutorship, with recognition of legal mortgage upon all her real estate to date, and to take effect from the day of her appointment as tutrix; the costs of these proceedings to be sustained by the emancipated minor. This judgment being rendered on the following basis:

The tutrix is charged with seven-sixteenths of the value of the personal property on the first January, 1862......... $431 90

Amount rent of land for the year 1866...................... 1050 00

Interest on $732 for two years, being excess of revenues over expenses at the end of the year 1867, five per cent, per annum............................................... 73 20

Rent of land for the year 1867.............................. 1050 00

Interest for one year on $435, at five per cent., being excess of revenue over expenses end of year 1868 .............. 21 75

Rent of land for the year 1868.............................. 735 00

Rent of land for the year 1869.............................. 735 00

$4096 85

The tutrix is credited as follows :

Expenses of the minor, eiglityears, at $300 per year..$2400 OO

Ten per cent, commissions on amount of annual revenue..................................... 3570 00

-- $2757 00

Balance due the minor........................... $1339 85

The court amends its decree by awarding the minor the additional amount of five hundred and seventy dollars, the value of the stock of cattle and hogs,-not accounted for by the tutrix...... 570 00

$1909 85

Behearing refused.


text:
    No. 140.
    Succession of William Arick.—Opposition to Tableau of Debts.
    The filing of a tableau of debts by an. administrator is an acknowledgment of their existence which interrupts prescription.
    An item upon such tableau for hire of slaves, will, under the existing jurisprudence of the State, be disallowed.
    Though a purchase be made by a member of a commercial firm outside of its ordinary operations, yet if it be made for the benefit of the firm and brought to the knowledge of the other partner, who does not repudiate it, but promises to pay the note given in the firm name for the price, he will be bound insólido.

    Sucha promise to payis not a promise to pay the debt of a third person, and maybe established by parol.
    Where the nature of the evidence and the condition of the transcript renders it impossible to determine with accuracy the credits to which the succession is probably entitled, the court will remand the caused
    APPEAL from the Parish Court, parish of Bossier. L. W. Baker, Parish Judge.

      Griffin & Snider and Bichará W. Turner for administrator, aud B. T. Stinson, for iuterveuor, appellants. T. M. Fort aud T. T. Land, for opponents, appellees.
   Howe, J.

Prior to March, 1858, A. B. Hughes, B. D. Speight and B. F. Looney were engaged in business as merchants in Bossier parish, under the firm name of A. B. Hughes & Co. On the eighth March, 1858, the deceased, William Arick, and B. F. Looney purchased the stock of goods of A. B. Hughes & Co. and gave therefor their due hill for $13,733 10 in their individual names. On the same day they formed a commercial partnership under the firm name of Arick & Looney, aud proceeded to do business as merchants. On the twenty-sixth of April, 1858, B. F. Looney, on behalf of Arick & Looney, purchased from A. B. Hughes & Co. a number of accounts and debts due the latter firm, and gave therefor a due hill signed with the firm name of “Arick & Looney.” It appears that Arick knew of the negotiations pending for these assets; that the object of buying them was that the new firm might hold them so that their customers against whom these claims existed should not be disturbed ¿ and that although he, Arick, was not present when the last named due bill was executed, yet that he repeatedly recognized its existence, made no attempt to disavow the authority of Looney to execute it for the firm, and finally promised explicitly to pay it as a partnership debt.

William Arick died in 1861 — B. F. Looney had already died in 1859. On the twenty-fifth March, 1862, the administrator of the former filed a tableau of debts, of which three items have been opposed by the attorney of absent heii;s, namely: No. 26, an item of $306 50, for hire of slaves j No. 7, the due bill lastly above named for $6,779 26 •, and No. 8, the other due bill, placed on the tableau, with a credit, reducing its amount to $7,790 11. R. T. Stinson intervened, claiming to be owner of these duo bills, and asking to be recognized as such. Josephine Frith, widow of B. F. Looney, intervened, claiming that William Arick had converted to his own use all the succession of her late husband, and that the succession of Arick was therefore indebted to her and her minor child, being in necessitous circumstances, in the sum of one thousand dollars. R. J. Looney intervened as administrator of'B. F. Looney, claiming $6,003 08, on the partnership account. Pleas of prescription were filed by the attorney of absent heirs to all the debts on the tableau, of one, three, five and ten years.

First — It is conceded that the interventions and oppositions of Mrs. Frith and of R. J. Looney, administrator, were properly dismissed.

Second — The plea of prescription is untenable. We presume it is the prescription of five years, if any, that is relied on as against the due bills. But a reference to the dates above set forth shows that the tableau was filed about four years after the date of these instruments, and the litigation is still pending. Prescription was thus interrupted and the pendency of the proceedings must operate as a continuing acknowledgment of the debt.

Third — The item of $306 50, for hire of slaves must be disallowed under the settled jurisprudence of the State.

Fourth — The item No. 7, being the due bill of April 26, 1858, for $6,779 26, appears to us to be a debt justly due in full by the succession- It is opposed on the ground only of want of authority in the partner, Looney, to execute it in the firm name. It is true that the purchase for which it was given, would be, as a general rule, outside the ordinary operations of a commercial partnership, but the facts we have detailed above show that Arick was a party to the negotiation for the assets thus bought, that he did not disavow the act of his partner when brought to his knowledge, and that he ratified the act by promises to pay. The judge a quo' thought, and counsel now urge, that, (under the law of 1858 providing that an agreement to pay the debt of a third person can not be established by parol), parol evidence, in connection with the due bill itself, could not be considered. We can not assent to the correctness of this point. The parol evidence was introduced to show that, in the first place, the due bill was given for a purchase made by the partnership with the knowledge of Arick, and for the advantage of his firm; and secondly, that he promised, as commercial partner, to pay the debt. Such a promise can hardly be called a promise to pay the debt of a third person.

Fifth — The item No. 8, a due bill for $13,733 10, reduced by credit to $7,790 11, was properly decided to be a joint obligation, and the succession is liable for one-half only of the balance due. It is likely that it is entitled to further credits, but we find ourselves unable, from the evidence as presented and the transcript as made up, to determine with precision, what the amounts of such credits should be. Upon this item, and this alone, the cause must be remanded.

Sixth — It is urged that the due bills in question have been lost, and that proper steps have not been taken by Stinson, their present owner, to prove their loss and advertise them. In the first place, it is to be observed, that they were acknowledged and placed on the tableau long before their loss, by this action of the representative of the debtor, their amounts, their dates, and their validity judicially admitted; and, in the second place, it appears sufficiently from the evidence that they have been really lost from the records of the court, and have been duly advertised.

Seventh — It is contended that, since Looney was a partner, with an interest of one-third, in the firm of A. B. Hughes & Co., the due bills, given by Arick & Looney, as partners, and William Arick and B. 1?. Looney jointly, were “paid by confusion” to the extent of one-third on the day they were respectively made. We do not so understand the rules of law governing the extinguishment of obligations by confusion. The partnership of A. B. Hughes & Co. and the partnershid of Arick and Looney, were each distinct from the individuals composing them.

We will render final judgment in this case so far as possible; and will remand it upon the point which the evidence leaves in obscurity.

It is therefore ordered that the judgment appealed from be avoided and reversed, except so far as it dismisses the oppositions of Josephine Frith and B. J. Looney, administrator, to which extent it is affirmed; that the item No. 26 of said tableau of debts, being the sum of $306 50 placed thereon, as due to E. J. Cook, for hire of slaves, be stricken off; that the opposition of the attorney of absent heirs to the item No. 7, bo dismissed, and the said item, being a due bill for $6,779 26, now owned by B. T. Stinson, be homologated; that the remaining items of the said tableau, save No. 8, be also homologated; and that, as to the said item No. 8, being a joint obligation of the deceased and B. E. Looney, tlie cause he remanded for the purpose of ascertaining what amount, if any, should he credited thereon in addition to the sum of $5,942 99, already indorsed as a credit, and to he-further proceeded with according to law. It is further ordered that, the appellees pay the costs of appeal.

Rehearing refused


text:
    No. 141.
    F. W. Fickling, Trustee, v. John J. Marshall, Executor.
    A bond was executed for borrowed money from a trustee, secured by a mortgage on slaves, and the mortgagor sold the slaves to a third person, who, as apart of the price, executed his bond to the trustee, and the trustee thereupon released the original obligor. Held, That the consideration of the latter obligation, as between the trustee and the purchaser, was not a sale of slaves, and was therefore valid.
    The Supreme Court of the United States is the proper tribunal to decide finally upon the validity and effect of the acts of Congress, and the State courts should follow its decisions. Therefore, it having been decided by that tribunal that the legal tender act of February, 1862, does not apply to contracts made before its passage, the courts of Louisiana will render judgment thereon in gold.
    APPEAL from the District Court, parish of Caddo. James W- Duncan (attorney at law), Special Judge, vice Levisee, J., recused.

      8.. D. Taylor, for plaintiff and appellee. George Williamson, and Nutt &■ Leonard, for defendant and appellant.
   Howe, J.

This suit was instituted upon the following obligation .

“ The State oe Alabama,

Montgomery County.

Whereas D. H. Trezevant, of Richland district, in the State of South Carolina, did by his deed, under his hand and seal, hearing date the thirteenth day of July, A. D. 1849, * * * assign, transfer and deliver to Francis W. Fielding, Esq., certain securities for certain moneys, in trust for certain purposes and uses, and under certain limitations and restrictions, and with certain provisos and conditions in said deed expressed and declared; and whereas, the said Trezevant, by virtue of a power to him reserved in said deed, did on the first day of October, 1852, lend unto Edward F. Taylor the sum of six thousand dollars, being money arising from said securities, and which debt of the said Edward F. Taylor was secured by Ms bond of said last date, and by his deed, commonly called a mortgage, also of that date, recorded in the office of the probate court of Montgomery county, and State of Alabama, in hook No. 4, pages 15, 16,17 and 18; and also by another deed made by said Edward F. Taylor, of date of the ninth of May, 1855, and also recorded in the office of said probate court in hook No. 7, on pages 84, 85; and whereas, said bond was made to the said Francis W. Fickling, as trustee, for the purposes cmd uses aforesaid? and which debt now amounts to the sum of six thousand six hundred and thirty-five dollars and thirty-five cents, and for wMch last said. swni I? Henry Marshall, have become bound to pay the saicl Francis W. Fickling, trustee as aforesaid, for a valuable consideration, upon the terms hereafter mentioned.

“Now, therefore, know all men by these presents that I, the said Henry Marshall, am held and firmly bound unto the said Francis (in trust, nevertheless, and to and for the uses and purposes, and under and subject to the restrictions, limitations, provisos and conditions' expressed and declared in and by the above recited deed of said Trezevant), in the full and just sum of thirteen thousand two hundred and seventy dollars and seventy cents, to be paid to the said Francis W. Fickling-, his executors, administrators or assigns, to which payment, well and truly to be-made and done, I do hereby bind myself, my heirs, executors and administrators, jointly and severally by these presents.

In witness whereof I have hereto set my hand and seal this thirteenth day of January, 1858.

The condition of the above obligation is such that if the above bounden Henry Marshall shall and do well and truly pay or cause to be paid unto the above named Francis W. Fickling (or to the said D. H. Trezevant, or to such person or persons as shall or may be duly substituted by the said D. H. Trezevant, as trustee to the above recited deed, made by him), his or their certain attorney, executors, administrators or assigns, the full and just sum of six thousand six hundred thirty-five dollars and thirty-five cents, in two equal annual installments, that is to say, the sum of three thousand three hundred and seventeen dollars and sixty-seven and a half cents, on the-thirtieth day of January, 1859, and the same sum on the thirtieth day of January, 1860, with interest on the whole, to be paid annually at the rate of eight per cent, per annum from the date of these presents, then the above obligation to be void and of no effect, or else to remain in full force and virtue. I-Ieney Marshall.”

' The plaintiff claims the amount due upon this instrument in specie.

The defendant filed his answer and amended answer, and the principal issue raised by the pleadings is, whether the sale of slaves was the consideration of the contract on which the suit is brought.

It appears from the evidenee that the bond given by Taylor was for money loaned by the plaintiff, a trustee of a wife and minor children that the mortgages referred to in the instrument above quoted, were given by Taylor to secure this bond, and were upon certain lands and certain slaves; that in January, 1858, Taylor was in embarrassed circumstances, and the plaintiff deemed it his duty, as trustee, to collect or secure the debt; and that for this purpose he employed John A. Elmore, Esq., a lawyer of Montgomery, Alabama. His first letter to Elmore, which is in evidence, contains language which may throw some light on his intentions. He says ;

“A Mr. Henry Marshall (whether of your State or this, I don’t know), proposes to purchase the negroes, and in order to aid Taylor, we are willing to let him (Marshall) have the loan of the entire principal, on his paying the interest and securing the debt beyond a possibility of loss. He can have a credit of throe, four or even five years, if he wishes it. * * * As this money belongs to a woman, with a swarm of children, I want to save them all I can.”

In a subsequent letter he writes as if he had in contemplation the •seizure of the slaves and their sale by himself as mortgagee, but he does not abandon the plan suggested in his- first letter, for he says to .Elmore : “I leave the entire matter in your hands, to do for mo as you would for yourself, with full authority to give such credit as you may think proper, and to take such securities as you may deem neces.sary for the protection of the fund.” He also appears to have learned that Marshall resided in Louisiana, and as the slaves would be removed to this State, suggests that any mortgage taken from Marshall should •be recorded in Louisiana.

The business was finally settled under the supervision and advice of Elmore, as follows: Taylor sold the slaves to Marshall, and the latter .agreed with Taylor, as part of the price, to assume the debt due by Taylor to plaintiff. Elmore, on behalf of plaintiff, consented to this substitution; surrendered the bond of Taylor; took the one in suit, and released the mortgage given by Taylor on the slaves. And here we must consider the real effect of a deed executed at this point by Elmore, .as attorney of plaintiff. It is in form, to a certain extent, an act of sale from plaintiff to Marshall, of the slaves in question. It recites the mortgage on them given by Taylor, which had in form (and form only) conveyed them to plaintiff. It further recites that the plaintiff had taken possession of the said slaves under the powers conferred by the mortgage, and had sold them to Marshall in consideration of a sum identical with that due by the terms of the obligation in suit. It then proceeds to declare that Fickling bargains, sells and delivers to Mar■shall the said negroes — conveying, however, only the right, title and interest of the said Taylor, and such as was vested in the plaintiff by the mortgage. But we are justified by the relations of the parties .and the facts of the case, in looking beyond the form and shadow of this deed, and considering its substance. The facts are, that plaintiff never owned the slaves; never took possession of them, and never sold them. The witness, Elmore, says that the deed was made at the instance of Marshall, and to protect and secure his title to the slaves, as against subsequent mortgages. With that the present controversy has nothing to do. The important fact is, that, as the witness, Elmore, ■suggests, this pretended sale was not the consideration of the bond in ■suit.

The consideration of that bond is directly set forth on its face. The debt due by Taylor was for money borrowed from a sacred fund. Marshall, for a consideration moving from Taylor, but with which the plaintiff had no relation, assumed this debt — “which debt,” says the bond, “now amounts to $0635 35;” “for which sum,” continues the bond, “ I, Henry Marshall, have become bound to pay the said Francis W. Fielding, trustee, for a valuable consideration.” By this assumption the character of the debt was in no way changed. It was still a debt for borrowed money, as the investment declares, the only change being that Marshall was to pay it, instead of Taylor. And, as between the plaintiff and Marshall there was a consideration which would support the promise of the latter, even though as between Taylor and Marshall, a consideration was wanting, or had failed, or was unlawful. For, upon the faith of Marshall’s promise, Taylor was released by plaintiff, and the mortgage upon lands, as well as slaves, extinguished. Pothier on Obligations, 111, C., art. 1; Violett v. Patton, 5 Cranch 142; Stebbins v. Smith, 4 Pick. 97; N. O. v. Chapman 8 An. 98.

What, then, was the debt evidenced by the bond in suit ? A claim or borrowed money. What was the consideration for its assumption by Marshall, as between plaintiff and Marshall? The release Taylor and the extinguishment thereby of his accessory obligations ot mortgage.

The plaintiff has prayed for an amendment of the judgment, demanding that it be for the amount of the claim in specie, inasmuch as the bond was executed before the act of Congress of February, 1862, sometimes called the Legal Tender Act.

The Supreme Court of the United States is the proper tribunal to decide finally upon the validity and effect of the acts of Congress, and the State courts should follow its decisions ; in the same manner as in matters of local jurisprudence, the courts of the United States are bound to follow the decisions of the State courts. Since, therefore, in the case of Hepburn v. Griswold, lately decided, it has been held by the Supreme Court of the United States that the act of Congress in question does not apply to contracts made before its passage, we feel bound to amend the judgment as prayed for.

The defendant, since the case was argued and submitted in this court, has filed a plea of prescription, but we cau rust pass upon it. The right to file a plea in this court must be exercised, as in the lower court, before the case is tried and submitted.

For the reasons given, it is ordered that the judgment appealed from be amended so as to decree to the plaintiff the sum accorded by said judment, in gold coin of the United States; that as thus amended the judgment be affirmed, and that the appellant pay the costs of appeal.

Rehearing refused.