author: Merrick, 0. J.

text:
    Francis E. Lawrence v. J. Burris.
    A rnlo on the Rscorder to produce the original of an act under private signature recorded in his office •with the oath of the party, to obtain the order, and the answer of the Recorder to the rule, that the original had probably beed delivered to some of the parties interested, are not sufficient to justify the introduction of secondary evidence. It should be shown by the oath of the party that an effort had been made to obtain the original by inquiry of those through whom title is claimed.
    In an action of houndary, where the titles of both parties are derived from the same original vendor, the calls of the titles of the parties as understood at the time they were made, and according to the usage of the country at that time, cannot he disregarded on account of more recent surveys made hy the Government which would change their boundaries.
    APPEAL from tlie District Court of the Parish of St. Mary, Voorkies, J.

      J. O. Olivier, for plaintiff.

      H. C. Wilson, J. M. McClarty and T. II. Lewis, for defendant and appellant.
   Merrick, 0. J.

The present is an action of boundary.

It appears that in 1823, Congress confirmed by Act approved February 28, 1823, in favor of Robert Martin, among others, two contiguous tracts of land on each side of Bayou Boeuf, in the parish of St. Mary, the one tract having forty árpente front, by forty árpente depth on each side of the bayou, the other a front of thirty árpente by a like depth of forty árpente. The first of these tracts is called the Pilboro tract, the other the Monteran tract. The plaintiff claims by prescription a part of the Pilboro tract. She produces no title from the original confirmee. The defendant, on the other hand, produces a title from Robert Martin of both grants to W. C. C. C. Martin, and a sale from W. C. C. C. Martin in Jan. 1848, of thirty arpents front on the south side of the bayou, with the depth of forty arpents, described as being bounded above by /. C. H. Swing and Thos. Tucker, and below by land of the vendor. A survey was made by Brette, as agent of Martin, and a line was run at his instance in the usual manner of malting surveys at that time, giving to the defendant for his boundary on the side where the plaintiff now resides, a line nearly perpendicular to the bayou. This line was in conformity to some approved surveys in the office of the Surveyor General. Those under whom the plaintiffs hold respected this boundary, and placed a fence upon the same, extending as far back as they had cleared. The defendant possessed up to this fence, by joining his fence to the same, and cultivating a part with cane, and occupying the residue as a pasture.

Things remained in this condition until--, when the Land Department undertook to survey the Robert Martin tracts of land. It appears that in order to prevent a conflict with other settlers, it became necessary to depart from the nearly rectangular lines of the unapproved surveys, and cross the bayou obliquely. By this proceeding, the quantity on each side of the bayou was not preserved, and a line was run as the boundary of the Monteran tract, crossing the bayou near the line designated by W. C. C. C. Martin to defendant as his boundary, but diverging from it at an angle of 38.33 degrees, and cutting off from defendant’s tract at the lower side, as delivered him, 287 acres, and diminishing his whole tract from 1200 arpents to 881 acres, notwithstanding some increase by a similar line on the upper boundary.

It has been already remarked, that plaintiff claims by prescription, and it becomes necessary to consider the extent of her possession. The calls of all of plaintiff’s titles, with one exception, are for twenty-eight arpents front, by a depth of forty arpents. The construction of the calls of her titles, in accordance with the decision of this court in the case of Bourguignon v. Boudousquiè, 7 N. S. 700, gives her the boundary which has been recognized by the parties up to the time of the recent survey made by the Land Department. In a single act of sale, under private signature, of one undivided half of the tract claimed by plaintiff, a reference is made to the side line of one Thomas Banks, and the tract bounded on that side by it. To the introduction of a copy from the Recorder’s office, it was objected that it was but a copy of a copy. We are of the opinion that the rule on the Recorder to produce the original, and his answer that it had probably been delivered to some of the parties interested, with the oath of the plaintiff’s husband to obtain the order on the notary, were not sufficient to justify the introduction of the secondary evidence. It should have been shown by the oath of the parties, that an effort had been made to obtain the original by inquiries of her vendors and those through whom she claims title. Sufficient circumstances, therefore, have not been shown by the oath of the party, to render the loss probable within the meaning of Article 2249 of the Civil Code, and the act ought to have been excluded. It is, therefore, unnecessary to decide whether this supposed act under private signature has a controlling effect over the calls of plaintiff’s immediate title and the Sheriff’s deeds under which also she claims.

It is clear, that as against W. C. C. C. Martin, plaintiff could recover nothing outside of the boundaries by which she has possessed.

If W. C. C, C. Martin were to institute an action against the defendant to recover the land lying between the line of the recent surveys, and the line to which defendant has possessed, he would be repelled by the calls of the title and the survey he caused to be made, by which defendant was put in possession. He would be considered the owner of both tracts, and bound to maintain defendant in possession of the land sold in accordance with the calls of the title. O. C. 840. The plaintiff in no event can have a greater right than Martin, the true owner. If plaintiff’s pretensions are maintained, instead of having twenty-eight arpents front on the bayou, according to the calls of her title, as commonly understood, she will have forty arpents front upon a portion of the bayou which presents nearly a straight line in front of plaintiff’s land, and in fact, of the entire Pilboro tract.

We are, therefore, of the opinion, that the calls of the titles of both plaintiff and defendant, as understood at the time they were passed, and according to the usage of the country at that time, must control. The recent surveys made by the Government of Martin’s lands, cannot change the boundaries of his g-rant to defendant, which was absolute at the time it was made, nor of the calls of the Sheriff’s deeds and other acts under which the plaintiff claims. Neither can a reference to the source of title of the vendor, in some of the acts of sale, control the boundaries which he has assigned and fixed to his grant. And as it concerns Martin, he was able to maintain defendant in possession to the extent of the calls of his title.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that there now be judgment in favor of the defendant and against the plaintiff, that the line marked as A B on the plat of survey made by A. L. Fields be held as the boundary line between plaintiff and defendant, and that the demand in warranty be dismissed, and that the plaintiff pay the costs of both courts.


source: Caselaw Access Project

license: Public Domain

text:
    Succession of Rosemond Doucet.
    Where in a marriage contract it was stipulated, that in case of the death of either party, the property should return to the estate of the person to whom it had belonged—Held: That there is nothing in such a contract to provent a widow in necessitous circumstances from claiming her marital fourth under Article 2359 of the Civil Code.
    APPEAL from the District Oourt of the Parish of St. Landry, Martel, J.

      Dupré & Garland, for administrator and appellant.

      J. E. King, for opponent.
   Merrick, 0. J.

This appeal is taken from a decree of the lower court allowing the opponent the marital fourth in the succession of her late husband, Rosemmd Doucet, deceased.

Appellant’s counsel thus state their case :

Clement Hollier, the administrator of the estate of the late Rosémond Doucet, having filed a final account of his administration, with a distribution of the estate among the heirs, his surviving wife opposed the same, claiming the marital fourth under the Article 2359 0. 0. Not disputing the facts proved, which establish that this would be a proper case for the application of this Article, we contend on the part of the appellant, that the opponent is debarred from claiming the marital portion out of the estate of her deceased husband, because she has renounced the same in the third clause of their marriage contract, which is in ° these words : En cas de mort sans cnfants, les biens retourneront a la source d’ou ils proviennent.”

The marriage contract of the parties is but a little more than a contract adopting the system of the community which would have governed without the contract. The first article of the marriage contract adopts the community of acquets and gains. The second provides, that each of the spouses shall pay the debts contracted before the marriage out of their respective separate estate. The third is recited above in full. The fourth authorizes the wife to accept or renounce the community. The fifth and last enumerates the separate estate of the husband brought into the marriage. We think that this contract was not intended to cover all possible contingencies which might happen, and that in adopting certain general provisions of the law, the parties did not intend to exclude all other provisions of the law relative to their reciprocal rights growing-out of the relation of husband and wife. O. 0.1959, 1962. By the marriage contract, the parties have contracted that in the event of death, the property should return to the survivor and to the estate of the person to whom it respectively belonged. The law provided for the same. And as the widow could only claim the marital fourth after the settlement of the estate of her husband, it must follow that she was bound- in the one case as much as the other, to make such return to the estate, in order that it might be settled, and it might he known whether or not the husband died rich, leaving her in necessitous circumstances. The widow appears to have made the return stipulated in the contract, and nothing prevents her irom claiming- her marital fourth under another provision of law applying to a case not provided for by the contract.

As we are clearly of the opinion that' the case before us was not contemplated by the contract, we deem it unnecessary to inquire whether the wife can, by her marriage contract, derogate from her right to claim the marital fourth in the event of her husband’s death, by which she is left in necessitous circumstances.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed as to the parties to the present appeal, and that the appellants pay the costs of the appeal.


text:
    Thomas M. Tucker v. J. Burris—J. Burris v. J. Tucker—J. Burris v. T. M. Tucker—Consolidated.
    "Whore tlie proper officers of the land department have ordered the survey of a confirmed grant, after holding up the claim for many years, on the ground of a suspicion of its "being fraudulent and forged, such objection to the title cannot he raised afterwards by an adverse claimant.
    It is not necessary to trace such a title to the original claimant j if it is traoed to tbo confirmee, whoso existence is not contested, it suffices.
    PPEAL from the District Court of the Parish of St. Mail's, Voorhies, J.

      J. A. McClartij and Wilson, for plaintiff and appellant.

      J. E. King, for defendant.
   Merrick, 0. J.

The history of these consolidated cases will he found in the 12th An. 871, they having been before the court last year, and having been remanded for a new trial. The second trial also resulted in favor of the defendant, Tucker, and the plaintiff, Burris, appealed.

Burris claims under an Act of Congress confirming the title of Robert Martin, to thirty arpents front by forty deep on each side of Bayou Bceuf in the parish of St. Marys, then described as the interior of Lafourche. See American State Papers, vol. 3, p. 509, No. 36, and Act of Congress, approved February 28th, 1823, chap, xv, sec. 1. Robert Martin conveyed to W. C. C. Martin, 27th December, 1823, and the latter conveyed to the plaintiff, John Burris, 20th January, 1848, and the Martin tract appears to have been surveyed and located in 1851.

The defendant claims 228 81-100 acres of the land claimed by Burris and within the Martin survey.

Defendant also claims by a confirmation to William. Knight, and a sale from the latter to Davis, 28th August, 1808, and from Davis to Garrett the ¿ame day, and from the heirs of Garrett to defendant, Tucker, July 7th, 1854, after the institution of these suits.

~We have had occasion to examine the Martin title to the Monteran- tract, in the case of Lawrence v. Burris, just decided. ■ But it is now objected that this title is fraudulent, and that there never was such a man as Jacques Monteran, and the pretended Galvez grant was a forgery. This matter was considered by the Secretary of the Interior and the Commissioner of the General Land Office, notwithstanding which, the survey was ordered to be made. It was, perhaps, in the power of the United States Governmont, by a judicial proceeding against Robert Martin, to have caused these confirmations to be annulled for fraud and forgery. This was never done ; but on the contrary, the department, after holding up the claims on the ground of suspicion for many years, at length directed the survey to be made. This case is unlike the case of Phelps v. Hughey, 1 An. 320, where the confirmation was made to one having no existence, and consequently the titles purporting to eminato from him, must have been forgeries.

In. this case, the existence of Robert Martin, the confirmee, is not contradicted. Hence it is not necessary for the plaintiff to trace title to Monteran. See 4 An. 100; Ibid, 422, Purvis v. Harmanson; Thomas v. Philips, 7 An. 546; 8 An. 106, Riddle v. Ratliff; 12 Peters, 458; 4 Howard, 461; 19 Howard, 209.

It is sufficient that he produces a regular title from Robert Martin, the original confirmee.

It becomes now necessary to consider defendant’s title. The pretended confirmation to William Knight cannot avail the defendant, for the reason that the Commissioners reported against the claim, (American State Papers, vol. 2, p. 366, No. 462,) and it does not appear that Knight was entitled to a confirmation under the Acts of 1805 and 1813 ; 2d vol. Statutes at Largo, p. 325, sec. 2 vol. 3, p. 121,122. Had he or his vendees been entitled to a confirmation, they would doubtless have obtained an order of survey from the Commissioners of the Land Office, and have caused their claim to be surveyed.

In the absence of any action of the land office on William Knight’s claim, we must presume it had not the requirements of the Acts of Congress in order to entitle him to a confirmation of 640 acres.

On the question of possession, it is clear that, until 1823, no one could possess the land adversely to the Government of the United States. It is not, therefore, necessary to consider the very conflicting testimony as to whether Garrett ever had possession. Tuclcer’s possession, such as it was, commenced in 1847 or 1848, but he never acquired Garret’s title, under which he now claims, until 1854, and these suits were instituted in 1848,1850 and 1851. Garrett, it is certain, was never in possession after 1816. Tho plea of prescription cannot, therefore, avail the defendant Tucker.

On the question of improvements the testimony is vague, but wc think the revenues ought to be considered as compensated by the land which has been cleared, leaving to the defendant the right to remove his buildings.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that the said John Burris do recover and have judgment against the said Thomas M. Tucker, for said 228 81-100 acres of land in controversy, and being allof the land in the possession of the defendant, Tucker, within the lines of the survey of A. L. Field, as represented by the lines shaded in blue and the bayou on the plat of said surveyor, the upper of said lines crossing the bayou at a post indicated on the plat as the post marked D. And it is further ordered, that the said Thomas M. Tucker pay the costs of both courts, reserving to him the right to remove his dwelling house and other buildings, unless said Burris shall choose to keep the same, and reimburse the said Tucker their value and the price of the workmanship ; and to this end, it is ordered, that said Burris elect by writing, deposited with the Clerk of the lower court, within twenty days after the mandate in this case is filed in the lower court.


text:
    Sandoz v. Ozenne et al.
    The dictum In Williams v. Close, 12 An. 877, that the confirmation of a Spanish, grant inures to tho benefit of the original owner, was said, arguendo ; the decisions in Pui'vis v. Ilarmanson, 4 An. 422 ; Thomas v. Phillips, 7 An 546 ; and. Farmer's Heirs v. Fletcher, 11 An. 142, affirmed.
    The title to public lands being in the government of tho United States at the time certificates of confirmation are issued, the land department at that time is vested with the exclusive jurisdiction to settle and fix tho boundaries between the claimants.
    When the department has acted and fixed tho boundaries, in the absence of fraud on the part of the party claiming under such action, or any particular equity in favor of any other party, effect must be given to the action of the department.
    Boforo patents are issued for public lands, the judgment in a suit between parties involvingt he validity of their respective confirmations, can only maintain the party in whose favor the judgment is rendered, in provisional possession of the land in dispute.
    APPEAL from tile District Court of the Parish of St. Martin, Voorhies, J.

      Simon & Gary, for plaintiff.

      DeBlanc & Fuselier, for defendants and appellants.
   Merrick, 0. J.

This suit, although commenced as an action of trespass, is treated by both the plaintiff and the defendants as an action of homage.

Francois Jacques Ozenne was originally in possession of the land in controversy. On the 10th day of November, 1807, he sold to Maria Vincent L’Abbé, a tract of land described as une terre de sept arpens et demi de face, a prendre face sulla grande crevasse de la terre qu’occupe presentment Mr. Ozenne sur le Bayou Tortue, avec toute la profondeur qui trouvera au de la díte terre situé sur Tile appellée lTsle du Large, bien entendu que le 'bois de la díte isle sera partagé en égale portion entre le vendeur et l’aequéur pour prix et somme de sept cent cinquante piastres.” At this time, Francois Jacques Ozenne had not acquired title from the government to the lands in Ms possession.

la 1813, a certificate of confirmation issued to Maria Vincent Ozenne, for seven and a half arpents front, by about three in depth, in virtue of the sale from Frangois Jacques Ozenne to M. V. Ozenne, being certificate No. 2160. At the same time certificate of confirmation No. 2161, issued for three hundred superficial arpents immediately in the rear of the preceding, and having the same width with the depth of forty arpents.

The first of these tracts appears to have been ordered to be surveyed from the front tract bordering on the Bayou Tortee, and diminishing the depth of that tract.

The same day that these two certificates were issued, the Commissioners issued a certificate of confirmation in favor of Frangois Jacques Ozenne, for fifteen arpents front on the bayou by a depth of forty arpents.

The lands were surveyed in pursuance of the certificates of confirmation, and the surveys appear to have been approved by the Surveyor General.

Instead of following the channel of the so called “ crevasse,” the survey commences at a point where the “ crevasse” touches the northern side line of the tracts of land held by plaintiff and defendants, diverging from the course of the “ crevasse” at a considerable angle. The survey of the other of defendant’s tracts cuts the “ crevasse” near the middle of the tract, crossing it about the same angle.

The plaintiff contends that the true boundary is the center of the channel of the “ crevassethe defendants, that it is given by the survey made by the government of the United States.

The plaintiff maintains that the true construction of the deed from Frangois Jacques Ozenne is to give the defendants a front upon the “ crevasse,” and the Commissioners erred in confirming the tract to Maria Vincent Ozenne, in the form in which it was done, and that the confirmation must, therefore, inure to the benefit of the original owner. To support this position, counsel refer to the case of Sackett v. Hooper, 3 La. 101; and a dictum in Williams v. Close, 12 An. 877.

The court did not place the latter case upon the ground contended for in this case, and we say as our predecessors said in the case of Purvis v. Harmanson, that “ what we said arguendo cannot be considered as precedent.”

The cases of Purvis v. Harmanson, 4 An. 422; Thomas v. Phillips, 1 An. 546; and Otho Farmer’s Heirs v. John Fletcher, 11 An. 142, in harmony with the decisions of the Supreme Court of the United States, and are still adhered to by this court.

The title was in the government of the United States when the certificates of confirmation issued, and the land department was vested with exclusive jurisdiction to settle and fix the boundaries between the different claimants. The proper officers have acted in this instance. In the absence of all fraud on the part of the defendants, or any particular equity in favor of the plaintiff, effect must be given to their proceedings. Thus it is evident that the titles produced are favorable to defendants pretensions, and that it is unnecessary to put a construction upon the deed of 1801. But as patents have not yet issued, we shall maintain defendants only provisionally in possession of the tract of land in dispute.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that the plaintiff’s demand, as now presented, be rejected ; and that the defendants recover possession of the land in controversy, and that the boundary line between the plaintiff and defendant be fixed at a straight line drawn between the points B and F, as shown by the survey and plat of Abner S. Miner, on file, and in confinnity to the approved surveys of certificates Nos. 2160 and 2161, under which defendants claim, subject, however, to any future action of the proper officers of the United States Land Office. And it is further ordered, that the plaintiff pay the costs of both courts.


author: Buchanan, J. Gole, J. Merrick, C. J. Spofford, J.,

text:
    Louisa Marshall v. Mrs. Charles Watrigant et als.
    ■Where the appellee has not been cited, and the fault is not imputable to the appellant, further time for service of the citation of appeal will be granted under the Act of the 20th of March, 1839.—Buchanan, J.
    Where a suit was brought by a slave, who caused herself to be sequestered, and when an appeal was taken from a judgment rendered in her favor, she could not be found to be served with the citation of appeal—Held: That service of the citation upon her counsel must be considered as good as if she had departed from the State.—Cole, J.

    A person to whom a statu liber owes service, has the right, on moving from one State to another, to take such statu liber with him, and thus change the domicil of the statu liber.

    The status of a slave, or statu liber, is governed by the law of his domicil.
    Where a statu libera domiciliated with the person to whom she owed service in Louisiana, fled from such service to the State of Kentucky, from whence she had been removed while a statu libera, and there obtained a judgment in a court of Kentucky (by whom counsel was appointed to represent the absent defendant) against her owner in Louisiana, recognizing her right to her froedom—Held: That in a suit afterwards brought by her, on her return to Louisiana, against the owner from whom she had fled, the judgment so obtained would not be recognized as binding on the defendant. The domicil of both plaintiff and defendant being in Louisiana, the courts in Kentucky could not assume jurisdiction over the status of plaintiff, nor render a judgment binding on defendant, without notice to him.
    Where the statutes of another State are not offered in evidence, the law there will he presumed to be the same as our own.
    Since the Act of the Legislature of 1857, prohibiting the emancipation of slaves in Louisiana, the right of a statu liber to freedom cannot be recognized.
    PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      G. L. Bright and Egan & Bupuy, for plaintiff.

      G. LeGardeur, for defendant and appellant.
    On motion to dismiss appeal.
   Buchanan, J.

The ground of this motion is, that neither the appellee, Louisa Marshall, nor her counsel, ivas cited to answer the appeal.

There are two appellees, Louisa Marshall, the plaintiff, and Madam Courtois, the warrantor. The citation of appeal for the latter was served in person ; that for Louisa Marshall is returned as follows :

“ Deceived, April 13th, 1857, and after due and diligent search and inquiry, Louisa Marshall could not be found.”

The Article 582 of the Code of Practice provides as follows :

“ The Sheriff shall serve the petition and citation on the appellee, if he reside in the State, or his advocate, if he do not, by delivering a copy of the same to such appellee, or to his advocate, or by leaving it at the place of their usual domicil.”

In the construction of this Article, it has been ruled that, when the appellee cannot be found, service of citation should be made on the attorney of record of such appellee. Hennen’s Digest, p. 02, No. 20.

The counsel of appellee, in support of his motion, has referred us to a case of Ratliff v. His Creditors, in 14th L. R., p. 292, where an appeal was dismissed npon a return of the Sheriff that “ the appellees were not found in Ms parish.” In the reasons for judgment in that case, we find Judge Martin, the organ of the court, declaring that the irregularity in the service (or rather the want of service) was clearly imputable to the counsel of the appellant, and therefore, that the court was without power to give relief under the Act of 20th March, 1839.

But the present case appears to present different facts. The plaintiff and appellee appears to be a person held in slavery by the defendant and appellant, and who institutes this suit for her freedom. In her petition, she prays that the court will ex officio order a writ of sequestration to issue, commanding the Sheriff to take into his custody the body of petitioner; and on the same day that the petition was filed, we find in the record an order signed by the Judge of the court below, “ that the Sheriff of the parish of Orleans sequester and take into his custody the petitioner, Louisa Marshall, and her safely keep in his possession and under his control, until the further order of this court.” We infer that this order was executed, and there is nothing in the record showing that the order of sequestration was ever rescinded, or that the plaintiff was ever taken out of the custody of the Sheriff upon a bond. We find her appearing before a magistrate, two months afterwards, to make an affidavit for the purpose of obtaining a commission to take the testimony of witnesses residing out of the State. From these facts, we are bound to presume that the Sheriff has had the legal possession and custody, as sequestrator, of the person of the plaintiff, to the present time; and if he has not been able to find her, for the purpose of serving the citation of appeal upon her, most clearly the fault is not imputable to the appellant, but to the Sheriff himself; and the appellant is entitled to relief under the Act of 20th March, 1839, p. 170, and of 14th March, 1855, p. 315, sec. 14.

It is, therefore, adjudged and decreed, that this rule be dismissed, and that fifteen days from the rendition of this decree be allowed for service of the citation of appeal upon the plaintiff, or upon George L. Bright, Esq., her attorney, (in case the plaintiff cannot be found). It is further ordered, that the costs of this rule abide the final decision of the cause.

On second motion to dismiss appeal :

Gole, J.

A rule was heretofore taken to dismiss this appeal, on the ground that appellee had not been cited, whereupon, on account of some particular circumstances and the want of laches on the part of appellee, this court ordered that appellant have fifteen days to cite the appellee, and the citation be served on Louisa Marshall, and if she cannot be found, that service be made on her counsel.

A citation issued, and the return of the Sheriff shows that “ after diligent searches and inquiries, he learned that Mrs. Louisa Marshall resides in the town of Franklin, in the parish of St. Mary,” and then served the papers on her attorney, who refused to accept service.

The general rule is, that neither admission of service of citation of appeal by the attorney, nor service on him is good, unless the absence of the client from the State be legally proved.

This case is an exception to the general rule ; plaintiff, a colored woman, brings suit for her freedom against defendant, who claims to bo her owner, and calls upon the court for a writ of sequestration, and causes herself to be placed in the possession and custody of the Sheriff.

There she was hound to remain until the final termination of the suit, whether released upon bond or not. Code of Practice, Art. 280.

As she has removed from the jurisdiction of the court in violation of law, appellant is not obliged to search for her beyond that pale, and service upon her counsel must be considered in this case as good as if she had departed from the State.

It is, therefore, ordered, adjudged and decreed, thas the rule be dismissed, at the costs of the mover.

On the merits :

Merrick, C. J.

This suit is brought by the plaintiff to recover her freedom.

If her identity be conceded, it will appear that the plaintiff was born about the year 1822 the slave of George Belcher, of Mercer County, Kentucky; that Belcher died in 1824, leaving a will which was admitted to probate, by which he declared that the plaintiff was to have her freedom at the age of thirty years; that when she was about thirteen years of age she was removed to the State of Missouri, by one Wood, who had married the grand-daughter of Belcher, and probably the legatee of Louisa, that she was subsequently removed to New Orleans, where she was sold as a slave for life, and after having remained several years and passed through several hands, was finally purchased by the defendant, Mrs. Watrigant, in good faith on the 21st day of January, 1854. Not long after, to use the language of her petition, “ She fled from bondage and the service of the aforesaid Anna Husson, (Mrs. Watrigant,) to Mercer County Kentucky,” where she instituted a suit in the Circuit Court of Mercer County, on the chancery side, and obtained a judgment decreeing her to be free, and awarding her execution against the defendants, for costs, although they had in no manner been notified of the proceedings and were only represented by counsel acting under instructions from the court, who filed an answer in their behalf as absentees. She then retened to Louisiana, armed with her Kentucky judgment.

The judgment of the lower court was in favor of the plaintiff; it also dismissed the defendant’s demand in warranty.

The defendant has appealed.

The first question which the record presents is the effect which must be given to the Kentucky decree. Does it bind the defendant ?

We are of the opinion it does not, for two reasons, viz : 1st, the domicil of Louisa Marshall was Louisiana, and the laws and courts of Louisiana alone had jurisdiction over her status, and, 2d, because the domicil of the defendant was also in Louisiana, and a foreign court could not assume jurisdiction over them in such a manner as to bind them in the absence of notice.

The question of the domicil of the plaintiff will appear sufficiently plain by a moment’s reflection as to the condition of statu liberi in the Southern States. Take the case of the plaintiff. When she was two years of age she was given by Belcher to his grand-daughter, then unmarried. The legatee of the plaintiff married, and it became the interest of the married couple to remove to Missouri. Was there anything in the law of Kentucky which prevented their removal? Could they not take with them those who owed them service ? These questions must be answered, the first in the negative and the latter in the affirmative, for it cannot for a moment bo maintained that these Southern States do not stand upon precisely the same footing as it regards the institution of slavery, and that the condition of the slave is not the same in all. There was then no fraud committed towards the laws of Kentucky when Woods moved to Missouri, or subsequently to Louisiana, if such were the case, Woods was not required to sell the statu libera who belonged to his family, but might lawfully take her with him. 4 N. S. 102.

And when he so removed, the plaintiff had acquired no permanent domicil in Kentucky. Her domicil was with those to whom she owed service. First, with Belcher, afterwards with Woods and subsequently his vendees. See Story’s Conflict of Laws, sec. 46; Mary v. Brown, 5 An. 269; Conant v. Gesnard, ib. 696.

When Woods moved with her to Missouri, that became her domicil. When he, or those holding under him, removed her to Louisiana, which was previous to the year 1841, Louisiana became her domicil; and so it remained at the time she became a fugitive therefrom and obtained her decree from the courts of Kentucky.

The decree of the court of Mercer County and State of Kentucky could not then bind the defendants, because it was not vested with jurisdiction over the subject-matter, (the status depending upon the domicil of the slave,) nor over the person of the pretended parties to the decree. See Dred Scott’s case, 19 Howard, 452; Dupuy v. Hunt, 2 An. 562; Broughton v. King, ib. 569; Stephens v. Graves, 9 An. 239, and Succession of Duncan and Mary Shaw, recently decided.

The decree which the plaintiff presents, (obtained whilst she was a fugitive,) must, therefore, be looked upon as in fraud of defendant’s rights and obtained under the supposition that it would confer upon the plaintiff some undue advantage. It cannot be enforced here.

But it is said that the plaintiff was free, independent of the decree of the Mercer County court. When plaintiff was removed to Louisiana there was no law of the State which prevented her emancipation any more than in Kentucky. Her removal here does not appear to have been made to prejudice her rights, nor is there anything to show that it was not done in good faith. She was, therefore, as liable in one State as the other to become subject to future legislative restrictions upon her emancipation. Hence her removal to Louisiana does not strengthen her case, for it was not in the eye of the law then a wrongful act.

Then the question arises, whether the plaintiff was free at the inception of this suit?

It is said she was, under the law of Kentucky, where Belcher made his will, and that this court has so adjudged in 10 An. 555.

The statutes of Kentucky have not been offered in evidence, and in their absence the law there must be presumed to be the same as our own. If so, the will of Belcher did not make the plaintiff free twenty-eight years after it was made. Something more was required, viz : a recognition of the status of the plaintiff on the part of those holding her as well as the public or public authorities. Angelina v. Whitehead, 3 An. 556, 11 An. 454. She was not free when the will was made but she was to become free twenty-eight years afterwards, subject to all natural or legal contingencies which might happen to interrupt, or to such forms of proceeding as the. lawgiver might provide for, the recognition of such emancipation. Being within the jurisdiction of the laws of Louisiana, she becomes subject to the forms prescribed by the same. Maria v. Edwards, 1 Rob. 361. She is in no better condition by the production of a will made in Kentucky than she would bo, if the will under which she claims had been made in Louisiana. And we have recently held that such a will, for the present at least, will be un ■ availing. See case of Delphine v. Guillet, 11 An. 424, and the cases recently decided between same parties, in which effect was given to the late Act of the Legislature prohibiting the emancipation of slaves. Act 1857, p. 55.

We do not think the case of Matilda v. Audrey, 10 An. 555, at all in conflict with these views. In that case the will was made in Kentucky, and the plaintiff, Matilda, became free in Alabama. The defendants, it seems, improperly possessed themselves of her after the death of her mistress, the only person who had a right to her services, and at whose death she was to be free, and hurried her away to Louisiana.

There being at that time no statute prohibiting the emancipation of slaves in Louisiana, this court properly held that the plaintiff must be considered free as against the defendants, who “ pretended to no title whatever,” and who were unable to show any “ legal obstacle to the recognition of plaintiff’s freedom.”

That case is manifestly very different from the one under consideration ; for here there are persons claiming to be owners in good faith ; the age at which the plaintiff was to be emancipated arrived while she was residing and had her domicil in Louisiana, where her freedom could only be recognized by public authority, and where, since she became a fugitive, a statute of the State has been passed which is a bar, for the present, to her emancipation.

If the plaintiff fails in obtaining her freedom, it is perhaps owing to her having-absconded and losing time abroad, instead of applying to the courts of her domicil, which then had power to grant her demand if she had not forfeited her rights by her bad conduct.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant, as in case of nonsuit, the plaintiff paying the costs of both courts.

Spofford, J.,

dissenting. This is not the suit of a slave to procure an emancipation ; it is a suit brought by a person alleging herself to be already free in law, but tortiously restrained of her liberty by the defendant.

If the averments of the petition are true, the action can now be maintained, notwithstanding the statute of 1857 forbidding emancipation in this State. The suit of Delphine v. Guillet, recently decided, was a suit to procure an emancipation by one acknowledged to be in law still a slave. That case, therefore, bears no analogy to this.

It would also be a mistake to suppose that the plaintiff’s action is grounded merely upon the decree of the Chancery Court in Kentucky. That decree did not emancipate the plaintiff; it simply recognized her as a free woman by virtue of an anterior right, to wit, the will of her former master. It did not create her status; it only acknowledged it.

The question to be decided now is, not whether Louisa Marshall shall be emancipated in this State, for it is conceded, on all hands, that she cannot be, under the subsisting law; but the question is, was she really a free woman at the date of the institution of her suit ? If so, we are bound to recognize her freedom.

She was born in Kentucky. By her master's will absolute freedom was bequeathed to her upon her attaining the age of thirty years, which she had reached long before this suit was brought. That bequest was legal and valid by the laws of Kentucky, where it was made, and where her master was domiciliated up to the date of his death. Upon his death, by virtue of that will duly admitted to probate, Louisa became a statu libera, with a vested right to freedom at the age of thirty years. The mere lapse of that time transformed her into a free person, without any further formality, under the Kentucky law.

The wrongful act of a usurper in carrying her out of Kentucky and selling her as a slave for life, could not destroy her vested rights. She would still be free at-the age of thirty years, leaving purchasers to their recourse against their warrantors.

We recognized and enforced these principles in the case of Matilda v. Autrey, 10 An. 555, and I think they should govern this case.

Our statutes guard us sufficiently against any injury from this class of persons. It was provided in 1842, when this statu libera was in the State, that “ all statu liberi now in the State shall, when they become free, be transported out of the State at the expense of the last owner, by proceeding before the parish Judge at the suit of any citizen, and such statu liberi, when transported out of the State, shall, on returning into the State, be liable to all the penalties provided by law against free negroes or persons of color coming into the State.” Act of March 16'th, 1842, sec. 14 ; Session Acts, 1842, p. 316.

I, therefore, think the judgment should be affirmed.


author: Spofford, J.

text:
    Davis, Martin & Co. v. The City of New Orleans.
    ■Where the contract between the plaintiffs and the defendant was u todo and perform, during the space of five years from the 22d of July, 1850, all the worb necessary for building wharves and repairing and beeping in good orderthe levee and the wharves in front of Municipality No. 1,” etc.—Held: That the plaintiffs were bound to do, at all times, the work necessary to repair and keep in good order, the wharves and levee, and to leave them in good order at the expiration of the period named,
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      McCay <& Edwards and C. Roselius, for plaintiffs and appellants.

      Livingston and Benjamin, Bradford <& Finney, for defendant.
   Spofford, J.

The plaintiffs demand of the city the sum of $22,150, as a balance alleged to be due them under a contract for repairing wharves, &c.

The defendant pleads that the plaintiffs have forfeited all claims to this balance, by reason of neglect and violations of their contract in various particulars.

The contract was to do and perform, during the space of five years from the 22d July, 1850, all the work necessary for building wharves, and repairing and keeping in good order the levee and the wharves in front of Municipality No. 1, between Canal street and the Ferry landing, inclusively, in front of St. Ann street, for the sum of $45,000 per annum.”

The money was to be paid quarter yearly, upon the certificate of the Surveyor of the Municipality that the work had been done according to contract, reserving, however, one-third of each payment as a guarantee, until the end of the year.

The plaintiffs failed to procure the certificate of the surveyor for the last quarter of the last year of their contract, ending the 22d July, 1855.

The present claim is for the installment which would have been due for the last quarter, and the reserved third which would have been due for the three previous quarters, had the plaintiffs faithfully discharged their duties.

The District Court gave judgment for the defendant, and the plaintiffs have appealed.

It is abundantly established, that on the 22d July, 1855, the wharves, which the plaintiffs had undertaken to keep in good order, were in a wretched condition, and that it would have cost more than the sum sued for to put them in good order and repair.

But the plaintiffs seem to think they were not bound by their contract to leave the wharves in good condition, but only to put them in such condition once a year. They contend that, as substantial repairs could only be made in low water, and usual low water season ranges from July to November, they have done enough by making thorough repairs in the summer of 1854, and had a right to leave the wharves rotten at the expiration of their contract in the summer of 1855, al- though the water was low during the spring and summer of that year.

There was no such privilege accorded to them in the contract. Their obligations were continuous and incessant. They agreed to do, at all times, the work necessary to repair and Iceep in good order the wharves and levees. They were bound to leave them in good order.

The amended specification referred to in their contract, upon which they rely to show that they were only bound to do a thorough job once a year, does not refer to the keeping in good repair, but to only “ new wharves and changes that might be ordered by the council,” which they were required to begin on the 1st of July of each year, and to have completed on the 31st October.

They also seem to think that the Surveyor’s certificates are conclusive, that all the work was well done up to the 22d of April, 1855, and that the city cannot go behind that period to inquire whether they, fulfilled their engagements faithfully. The reservation of one-third of the installment due each quarter until the end of the year, for which the city stipulated, shows that such was not the intention of the parties. The Surveyor’s certificate was not made the sole criterion of the excellence of the work done by the contractors. It was only a necessary prerequisite to the payment of any portion of the quarterly installments.

The appellants rely upon the testimony of the City Surveyor, to show that they complied with their contract. The District Judge observed that his official action and reports did not seem to tally with his' testimony at a later period. The testimony of other witnesses, who had critically examined the wharves, outweighed the loose opinions of superficial observers in' favor of the claim of the plaintiffs. It seems that the City Surveyor, even while reporting the contractors as unfaithful to their obligations, nevertheless recommended that the last installment be granted, to avoid litigation ; assigning, as a reason, that, in most cases, the city had been mulcted in damages and costs.

Every case must stand or fall upon its own merits. If the mere opinion and advice of a City Surveyor, although in contradiction to his official acts and reports, and to the testimony of observant and painstaking witnesses, is to conclude the City Council and the courts, upon the merits of a contractor’s claims the city treasury might be given over to spoliation.

No such binding efficacy is to be attached to the opinions of a single officer ; no such lure has been held out to contractors to secure his favor ; but those who contract with the city, as those who contract with a private party, should be held to a faithful compliance with their engagements ; and those members of the council who demand that contracts with the city should be executed, in letter and spirit, as private contracts are executed, and vvho devote a portion of their time to a careful inspection of works done for the public, are only fulfilling a public duty.

Judgment affirmed, with costs.

Re-hearing refused.


author: Merrick, O. J.

text:
    Powell & Hopkins v. Matilda Hopson.
    Under a special contract to thatefFect, a commercial partnership will continue after tlie deatli of one of tlie partners, for the purpose of administration and liquidation, if not for all purposes.
    The proceeding hy attachment to collect a debt due to the firm, is one of administration only.
    Where it is sought to make the wife personally liable for an account, no presumption of its correct ness canbe formed from the mere fact of its rendition to the husband, in whose name the account was kept, and no objection having been made on the part of the wife ; she cannot be charged except for such items as are shown to have inured to the benefit of her separate estate, or sucli expenses as under Art. 2409 G. C., she is bound to support alone. •
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Mathews & McFee, for plaintiffs.

      McGwire & Ray, for defendant and appellant.
   Merrick, O. J.

This suit, which was commenced by attachment, was brought after the death of R. W. Powell, by the surviving partner, Hopkins, in the name of the firm. He claims the right so to do under the following clause in the articles of partnership, viz:

" In case of the death of either partner during the commercial year, that is to say, between the 1st of September and the 1st of September of two consecutive years, the business of the concern shall continue until the close of the then commercial year, and the interest of the deceased partner shall be chargeable on the books of the concern a reasonable and just charge, not exceeding two thousand dollars per annum, until the end of the commercial year, viz, 1st of September ; at and after that time, the representatives of the deceased partner shall have all the privileges and powers of the deceased partner in regard to access to the books, papers, money, debts, effects and property of the concern; to settle and liquidate, finally and provisionally, with the surviving partner, the interest of the deceased in the concern, and dissolve the partnership, but shall not interfere with the movement of the business, until the 1st of September next ensuing the death of the partner whose interest he represents.”

The power of attorney to the attorneys Mathews & McFee, to sign the attachment bond, was executed 20th November, 1855, by Hopkins, on behalf of the firm. On the 15th December following, Bourlce, applied for letters of administration on Powell’s estate. They were granted.in March, 1856, and this suit was commenced by the surviving partner in May, 1856. The proceeding to collect the debt by suit being one of administration only, we find less difficulty in coming to the conclusion that it ought to be maintained, than we should perhaps if it were some new business operation attempted under the articles of partnership. The Civil Code certainly contemplates the continuance of the partnership under a special contract, to that effect, for purposes of administration and liquidation, if not for all purposes. O. 0. 2852, 2853,1095, 1115, 1131, 1132.

If the power of attorney was executed before the death of Powell, as it appears to have been, it was sustained by the Articles of copartnership, and when the suit was instituted, there was an administrator to Powell’s succession, and the suit may be deemed to have been commenced by the surviving partner as agent, on behalf of himself and the administrator. The motion to dissolve the attachment was, therefore, properly overruled.

The exception to the petition, that it was not sufficiently explicit in this, that it did not give the items of the account, was well taken and the objection has not been cured by the production of the invoices or the account of Powell, showing in what manner the balance of $263 93 was found. _ The account was kept in the name of defendant’s husband and was rendered to him in that form. No presumption can, therefore, be formed of its correctness from the mere fact of its rendition without objection on the part of the wife. She cannot be charged, except for such items as are shown by the proof to have inured to the benefit of her separate estate, or such expenses, as under Article 2409 O. 0., she is bound to support alone. In order to Judge of this, the invoices must be produced and the purposes for which the drafts were drawn, must be shown. We think justice requires that the case should be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, as to said defendant, Matilda Hopson, be avoided and reversed; and that this cause be remanded to the lower court for a new trial, as to the said Matilda Hopson, leave being granted to plaintiffs to amend their petition in conformity to the views herein expressed. And it is further ordered, that the plaintiffs pay the costs of the appeal.


author: Spoffokd, J.

text:
    Powell & Hopkins v. John Lawhead & Co.
    An action is maintainable upon tbo allegation that the defendant, without funds in the hands of the plaintiffs, drew their bill, which the plaintiffs accepted and paid for the accomodation and benefit of the drawer.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Mathews & McFee, and Todd <& Brigham, for plaintiffs and appellants.

      S. G. Parsons, for defendants.
   Spoffokd, J.

The plaintiffs sued the defendants for $1250 and interest, upon ■ the allegation that the latter, without funds in the hands of the former, drew their bill upon the plaintiffs for said sum, which plaintiffs accepted and paid for the accomodation and benefit'of said drawers, whereby the latter became indebted to them for the amount thereof. . .

The defendants excepted, that the petition discloses no cause of action. We think it does. The suit is for money paid out for the benefit of the defendants, by reason of the drawing of the bill without funds in the hands of the drawees.

Upon the trial, evidence was received, without objection by defendants, going to show that they gave the draft alluded to in renewal of another which they had given to the plaintiffs in closing their account with them as factors. It was.also proven, without objection, that defendants had acknowledged their indebtedness to plaintiffs for the amount demanded, and proposed to transfer claims enough to the plaintiffs to pay it.

The technical difficulties relied upon in the argument of counsel for the appellees have thus been waived, and under the prayer for general relief, the plaintiffs are entitled to a judgment.

It does not appear that any issue was joined between the defendant, Sharp, and his co-defendants, called in warranty.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiffe recover of the defendants, in solido, the sum of twelve hundred and fifty dollars, with five per cent, interest thereon from the date of judicial demand until paid, and the costs of suit in both courts.


author: Merrick, C. J. Merrick, C. J.

text:
    Succession of Robert Richardson.
    AVhoro tlie widow has caused, an inventory to ho taken of her deceased husband's estate, slie has the privilege of renouncing the community, as long as the creditors have taken no steps to compel her to accept or renounce.
    She cannot he charged as partner in the community as long as she has the right to renounce.
    The wife has no privilege on the movables of the husband's estate for the restitution of her parapher-nal funds.
    "Where the husband applied for and obtained insurance on his life, accompanying the application with a transfer of the policy, when issuod, to his wife, to whom he was indebted for her paraphernal funds received by him — Held: That the wife was entitled to the amount of the policy on the death of her husband.
    APPEAL from tlie Second District Court of New Orleans, Morgan, J.
    /. A. Rozier, for opponent and appellant. L. Costera, for appellee.
   Merrick, C. J.

The widow of the deceased has filed an account and tableau of distribution, in which she has set herself down as privilege creditor to the amount of $9,907 62, for paraphernal funds received by her husband, subject to a credit of $5,000, the amount collected by her upon an insurance upon the life of the deceased.

The opponent denies that the intestate received and appropriated to his own use, the amount of paraphernal funds claimed. On this part of the case, the proof shows that the deceased received only $7,907 62, instead of the amount claimed by the administratrix.

It is next contended, that inasmuch as the widow has not renounced the community, she is presumed to be a partner in it, and is not permitted to apply the partnership assets to her individual claims, to the prejudice of creditors. In support of this position, appellant’s counsel relies on the decision in the case of De-jean, 5 An. 594.

In the present case, it appears that the widow caused an inventory to be taken, and as the creditors have taken no steps to compel her to accept or renounce, we think she still has the privilege of renouncing the community. But this privilege would be of no value, unless she had the right of enforcing her paraphernal claims against the estate of her husband in the interim. So long as she has a right to renounce, she cannot be charged as a partner. C. C. 1043, 1048, 2383; 0. P. 980, 982.

It is further contended by appellant, that the wife has no privilege on the movables for the restitution of her paraphernal funds. This position .is undoubtedly correct. 3 Rob. 272 ; 2 An. 789, Friend v. Fenner ; C. C. 2355, 2367.

It is further urged, as a ground of reversal, that the transfer of the policy of insurance to the wife was invalid.

The policy of insurance was filled up as of the 18th day of April, 1853, for $5,000, payable to Robert Richardson, his executors, administrators and assigns, and was to continue for seven years, on the payment of the annual sum of $90 25. The domicil of the company, the Mutual Life Insurance Company of New York, appears to be the city of New York, and the policy purports to be signed by the President and Secretary of the company.

The policy bears the following endorsement, viz :

“ For value received, I hereby transfer and set over all my right, title and interest, in and to the within policy of insurance on my life, to my well beloved wife, Emma Richardson, daughter of Alexander Lesseps, and Manette Tremé, his wife.

New Orleans, 17th May, 1853.

(Signed) Robert Richardson.

Witness: W. A. Bartlett,

J. Mbteye.”

It has been much discussed whether the husband and wife could enter into a contract in this form, by which a policy of insurance could be transferred.

It does not appear to us important to decide the question, and we will concede the benefit of it to the opposing creditor. O. 0.1784, 2421.

It may be fairly presumed, that a policy of insurance was negotiated in this city, and that it was filled up as of the date of the application by the agent here, and that some time was taken up in the correspondence. Kennedy v. New York Life Insurance Company, 10 An. 809.

Now the witness, who acted as the sub-agent here, and who consequently has the best means of knowing, and testifies in regard to a matter he would be most likely to recollect, swears, after examining the copy of the policy, as follows, viz :

“ I received the application from Mr. Richardson for an insurance on his life in the month of April, 1853. He wished the policy for $5,000. I forwarded the the application to the parent office in New York, and the policy was issued. Accompanying this application was the transfer of the policy to the wife of Robert Richardson, Mrs. Emma Richardson. The transfer was approved and entered in the office. The first and second annual payments were made on the policy. The policy remained in the name of Mrs. Richardson, at the time ofjier husband’s death,”

It thus appears, that the policy was issued originally in the name of the wife, for it was forwarded to the office in New York, accompanied by the transfer, and there issued in this form. It was then precisely the same it would have been, if her name had been inserted in the policy with the written approbation of her husband. For her incapacity to contract with the insurance company, may be considered as removed by the written transfer of the husband.

The interest of the wife was manifest. Her husband had her estate, and she was dependent on him for support. Reynolds Life Insurance, 51, 54. The insurance company paid over the sum agreed upon without question.

It is contended, also, that the wife is concluded by the inventory, which is an authentic act, and embraces the amount due upon the policy as a part of the assets of the estate. It cannot conclude the wife, because it copies her title at full length, and it may be presumed that she relied upon her title as evidence of her claim, when she signed the inventory.

1 It is, therefore, ordered, that the judgment of the lower court be so amended as to reduce the claim of the administratrix from $4,907 62 to 2,907 62, and from a privilege debt to a debt secured by a tacit mortgage, to be paid out of the proceeds of the slaves after the payment of the general privileges, and to receive its pro rata for the residue as an ordinary debt, if any thing shall come into the hands of the administratrix to distribute among the same. And it is further ordered, that the judgment of the lower court be in all other respects affirmed; the administratrix and appellee paying the costs of the appeal.

Same Case — On Re-hearing.

Merrick, C. J.

A petition for re-hearing has been filed in this case. The main ground relied on is the alleged error of this court in giving too much weight to the testimony of the witness, Bartlett. We have reexamined the testimony. We do not find the testimony of the other witnesses necessarily irreconcilable with that of this witness. The testimony of the latter being direct, positive and unimpeached, must prevail.

Re-hearing refused.


author: Merrick, C. J.

text:
    M. D. Marvel v. A. G. Manouvrier.
    A judgment will he annulled, which was rendered against a party on whom no service of the petition and citation was made, hut for whom an answer was filed by an attorney at law without authority. By our law, which differs from the common law, the attorney in such a case is responsible to the plaintiff for having undertaken without authority to represent him in a court of justice.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      R. Waples, for plaintiff. A. W. Jourdan, for defendant and appellant.
   Merrick, C. J.

Thereupon, the defendant filed his petition in the Sixth District Court of New Orleans, against the maker and indorser to recover judgment and enforce payment of the note.

Citations were made out by the Clerk, and also copies of the petition. These, instead of being’ served, appear to have been handed to Engman. Engman took the two copies of the petition to a member of the bar, (who supposed he had authority for that purpose,) and employed him to defend the action both for himself and the indorser. In pursuance of this retainer, the attorney filed an answer for both defendants. The case was tried upon the issue thus formed, and judgment rendered in favor of Manouvrier, the plaintiff in that action.

The first intimation Marvel had of the proceedings, as it appears by the record, was the seizure of his property upon execution. lie thereupon injoined the execution and instituted the present action of nullity'against the judgment, on the ground that he was never cited and that ho had never authorized the attorney to represent him in the suit. His petition is accompanied by the proper affidavit, and its allegations, as to the absence of authority in the attorney, are supported by the testimony of the lawyer who filed the answer, the same being received without objection.

No improper motives are imputed to the attorney. The production by Engman of the two copies of the petition, coupled with the fact that it is usual for the makers of accomodation notes to employ counsel to defend the indorsers as well as themselves, was well calculated to deceive the most cautious.

From a judgment perpetuating the injunction and annulling the decree against Marvel, Manouvrier prosecutes this appeal.

The ground on which he expects a reversal of the judgment, is thus stated by his counsel: “ The question is not, whether the citation and petition were served on Marvel, for it is not contended that such was the case ; but, that the service was waived by the answer; that if the answer wore signed by Marvel, he could not allege a want of service, nor can he now, that an attorney of this court has answered for him, unless he can show that he did not authorize him to appear, coupled with the further fact that he had a good defence, or that fraud was practiced ivpon him.”

In support of this position, sundry decisions of the common law courts are cited, some dicta of this court in cases supposed to be analogous, and the case of Walworth v. Henderson, 9 An. 339. This last case supports fully the doctrine contended for by defendant, but then, the reasoning of the court is all in reference to a judgment rendered in the State of Mississippi, upon the appearance entered by an attorney there, and the court was only considering the effect of such appearance at common law. It can have no application to a case arising in our own courts. Such a case must be settled by the laws of Louisiana.

In this case, judgment has been rendered against a party, without service of petition and citation, and without any authorized ajjpearance by any one on his behalf. Whilst the proceedings were all fresh in the minds of the parties, and in less than three months from the date of filing the petition, the month following the rendition of the judgment, and immediately on the service of the notice of seizure, this suit was instituted, thus placing it in the power of the defendant to show the authority, if any existed.

The case is, therefore, free from the suspicion which necessarily attaches to the disavowal of the acts of an attorney many years after they were performed, and after the proof of the authority has been rendered difficult. It presents under the proof the simple question, whether, in the absence of service of petition and citation, a party can he hound hy an appearance entered and answer filed by an attor. ney at law, without authority. We think it is clear under our law, that he cannot he so bound.

It is the attorney of the defendant, that is, some one whom he has retained and employed, who is by Art. Ill'of the Code of Practice authorized to acknowledge that the petition has been duly served. No other person is by law authorized to perform this act for defendant. See 8 N. S., 234; 1 An. 398 ; 2 An. 840.

In this, as in the case of the returns of Sheriffs, our law appears to differ from the common law. At common law, the return of the Sheriff cannot be contradicted by the parties to the suit. 9 An. 340. Under our law, such return, even in regard to citations on which judgments have been rendered, may be shown to be false. Sloan v. Menard, 5 An., 219 ; Delogny v. Smith, 3 L. R. 422 ; 3 L. R. 476, 1 An. 297, 2 An. 846, 16 L. R. 441.

At common law, it seems the unauthorized entry of appearance by an attorney will bind the party, provided the attorney is able to respond in damages to the extent of the injury suffered by the defendant. Under our law, the plaintiff is left to his remedy against the attorney who, without authority, undertakes to appear for and represent another in a court of justice, (Pothier, Cour de Mandat., 1130, vol. 5, p. 274,) and the proceeding- is treated as voidable, if not void. 5 An. 219, Sloan v. Menard, already cited. The party is not bound to show that he had a defence to the action. He may do that when he is cited.

The judgment appealed from must, therefore, be affirmed.

Judgment accordingly.


author: Laud, J.

text:
    J. Cuillé et al. v. J. B. Gassen et al.
    Whon the widow in tho community, and natural tutrix of her minor children, having the possession and administration of the property of her deceased husbands succession during her life, enters into a partnership with the heirs who are of full age, and slaves and other property of the succession are employed and used by the partnership — Held: that tho minor heirs wore not, and could not be made by their natural tutrix, members of the partnership, and consequently, after her death, have the right to sue for, and recover from tho surviving partners, a debt due them by tho partnership, before a final settlement and liquidation of tho partnership aftairs. Held also : that the hire of tho slaves was a debt due the succession by the partnership, and that tho minor heirs aro ontitlod to recover from the surviving partners tho portion of the hire of the slaves due them, loss tho portion which was extinguished at the death of their mother by confusion, on their becoming her beneficiary heirs.
    RPEAL from the District Court of the Parish of Jefferson, Burthe, J.

    A J. Magne, for plaintiffs. Michel £f Kountz, for defendants and appellants.
   Laud, J.

Antoine Gassen died in July, 1848, leaving a widow in community, five children, and a succession inventoried at over $19,000, including- several slaves.

One of his children, J. B. Gassen, was of age, another, Cothilde, was emancipated by marriage to Louis Gordon, and the other three, Jeannette, Adelaide and Antoine, were minors.

In August, 1848, tho widow, the natural tutrix of the minors, retaining the possession and administration of the property of the succession, entered into a partnership with her son, J. B. Gassen, and her son-in-law, Louis Gordon, for the purposes of keeping a ferry, running a schooner, and carrying on respectively the business of a cigar manufactory, grocery, and the keeping' of horses at livery.

Three of the slaves belonging to the succession were constantly employed by the partnership in keeping the ferry, up to the time of the death of the widow, in July, 1852.

This suit is' brought by the minor heirs, to recover from the surviving partners, J. B. Gassen and Louis Gordon, the value of the services of these slaves and the fruits and revenues of other property belonging to the succession, during the continuance of the partnership, so far as they were entitled to the same, as heirs at law of Antoine Gassen, deceased.

The defendants excepted to the plaintiffs’ demands, on the ground that the matters and facts contained in their petition, pertain to a partnership formerly existing between themselves and the widow of Antoine Gassen, and can only be adjudicated upon, on a settlement of the partnership affairs.

The exception was overruled, and the defendants pleaded a general denial, admitting however the partnership.

The question therefore presented, is, whether the plaintiffs, heirs at law at the time of the institution of this suit, of both Antoine Gassen and his widow, can recover a debt due by the partnership, from the surviving partners, before a final settlement and liquidation of its affairs.

The plaintiffs were not members of the partnership, nor had their natural tutrix the right to make them such, and subject their interests in the succession of their father to the hazards of trade or speculation. The widow was a partner in her individual capacity, and on her personal responsibility, and not as the tutrix or representative of the minors. And the partnership could as validly have become the debtors of the minors, by the use and appropriation of their property, as they could have become the debtors of other parties.

The minors were third persons as to this partnership, and have a right to sue for a debt due them, before a final settlement and liquidation of its affairs.

The plaintiffs are the beneficiary heirs to the succession of their mother, and are only liable for her debts, to the amount of assets that may come from her succession into their hands, These assets are subject to the demands of the defendants, if, on a final settlement of the partnership affairs, the widow should be indebted to them; but beyond the amount of these assets, the defendants can have no recourse against her heirs, and are bound to pay the debts sued for, although the succession of the widow Gassen should be insolvent.

The debt sued for is not an asset of the mother’s succession.

It is, therefore, clear, that there can be no legal reason for the suspension of the plaintiffs’ demand until a settlement of the partnership affairs.

The remaining question, therefore is, what interest had the minors in these slaves, and what amount the surviving partners owe for their services during the continuance of the partnership.

The widow was the owner of an undivided half interest, by virtue of her community rights; /. B. Gassen and the wife of Louis Gordon were owners of two-fifths of the other half, and the plaintiffs the remaining three-fifths.

The evidence sufficiently shows, that the services of the slaves were worth $600 per annum, and that the partnership enjoyed the benefit of their labor for four years. Of this amount, the widow was entitled to $1200 ; /. B. Gassen and Mrs. Gordon were entitled each to $240, leaving due to the plaintiffs, from the partnership, $720.

This debt was due by the partners in solido ; but the plaintiffs having become heirs at law to the widow Gassen, one-third of this debt became extinguished by confusion, to the benefit of which her co-partners are entitled. 0. 0., Art. 2215 ; Potliier on Obligations, p. 332.

It, therefore, appears, that the defendants are indebted to the plaintiffs, as heirs of Antoine Gassen, for a partnership debt, in the sum of $480.

The plaintiffs also claim of the defendants the value of the services of the same slaves, and the fruits and revenues of other property, after the dissolution of the partnership. The evidence is, however, insufficient to enable the court to render a judgment on this part of their demand. Their rights, however, will be reserved.

The plaintiffs failed to prove that the partnership enjoyed the fruits and revenues of any other property belonging to the succession of Antoine Gassen, except the labor and services of the three slaves.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that the plaintiffs, as heirs at law of Antoine Gassen, recover of the defendants in solido, the sum of four hundred and eighty dollars, with legal interest from judicial demand; and that defendants pay the costs of the lower court, and the plaintiffs pay the costs of this appeal. And it is further ordered and decreed, that' the rights of the plaintiffs, as heirs of Antoine Gassen, against the defendants, accruing subsequently to the dissolution of the partnership between the widow Gassen and said defendants, be reserved ; and that the rights of plaintiffs as heirs of the widow Gassen, be reserved generally against the defendants, so far as they have not been determined in this suit.


author: Buchanan, J. Buchanan, J.

text:
    James B. Williams and Joseph Shepherd v. Asa Payson et al.
    No pre-existing commission of Branch. Pilot for the port of Now Orleans, is vacated hy the Act of the 15th of March, 1857, entitled c< an Act relative to Pilots,” until the Governor has complied with the provision of the second section of the Act, and fixed, by proclamation, the number of Pilots for the port of New Orleans, and appointed the number so fixed, from among the commissioned Branch Pilots, as required by the Act.
    Section 15th of this Act is declared unconstitutional, as it relates to an object not expressed in the title.
    When the title of an Act is simple, all those sections which are covered by it, fulfill the requirements of Article 115 of the Constitution ; and only those portions are held to be void for unconstitutionality, which are not covered by the title.
    PPEAL from the District Court of the Parish of Plaquemines, Foulkouze, J.

      G. L. Bright and Mdise Randolph, for plaintiffs. C. Roselius and Col-lens & Wooldridge, for defendants and appellants.
   Buchanan, J.

The plaintiffs aver in their petition that they have been commissioned as Pilots for the port of New Orleans, under the Act of March 13th, 1851, entitled an Act relative to Pilots.” That the defendants, who have not been appointed Pilots under that law, are performing the duties and receiving the emoluments of Pilots, to the prejudice of petitioners. They pray for an injunction to restrain defendants from piloting vessels over the bar at the different mouths of the Mississippi river.

The defendants, in their answer, styling themselves Branch Pilots of the port of New Orleans, plead a general denial; and further plead, that the petition discloses no cause of action.

There can be no doubt that an injunction is a proper remedy to prevent a person from doing an act which may be injurious to another, or which impairs a right claimed by that other. 0. P. 296.

The occupation of a Pilot for the port of New Orleans, is lucrative, and is restricted by law to persons specially designated by the Governor of the State. It is, therefore, evident, that the exercise of this business by a person not legally appointed, may be prejudicial to each and every one who is so appointed. The petition, therefore, discloses a sufficient cause of action.

Upon the merits, we are of opinion that the plaintiffs have failed.to make out their caso. Por a proper understanding of the subject, it is necessary to take a connected view of the several Acts of the Legislature in relation to Pilots.

By the Act of the 13th of March, 1837, (Session Acts, p. 101,) the Governor was authorized to appoint as many persons to be Branch Pilots for the port of New Orleans, as he may deem necessary, not exceeding fifty in number, including those already appointed.

By the Act of 15th of March, 1855, “relative to Pilots,” (Session Acts, page 372,) the number of Branch Pilots for the port of New Orleans, was increased; the Governor being directed to appoint not less than sixty-five, nor more than seventy-five such Branch Pilots.

The last Act on the subject is that of the 13th of March, 1857. Session Acts, pa'ge 88.

,- The first section of that Act repeals the Act relative to Pilots,” approved March 15th, 1855.

The second section enacts that it shall be the duty of the Governor to appoint from among the present Branch Pilots of the port of New Orleans, such a number of Pilots as the interest of commerce may demand, and from time to time hereafter increase the same, should an increase be deemed by him important.” All of the defendants were Branch Pilots of the port of New Orleans at the time this Act of the Legislature was passed. The plaintiffs were also Branch Pilots at the same time ; and it is shown that they (the plaintiffs) have received from the Governor new commissions since the passage of the law. It is also admitted that defendants and appellants have not received such new appointments. From this state of facts, it is argued that the defendants are out of office. But this does not appear necessarily to follow from the terms of the Act under the evidence before us.

The repeal of the Statute of 1855, expressed in the first section, if unexplained by the context, would probably have abolished the office of Branch Pilot in toto, with all its emoluments and responsibilities, and consequently have vacated all the commissions of the Branch Pilots in office, under that Act. But the second section qualifies the first, and distinctly recognizes the continued existence of the office, until the Governor shall have performed the “ duty” imposed upon him by the said second section. See State Const. 125 ; Acts 1855, p. 350, sec. 2 ; Rev. Stat. p. 395 ; Holmes v. Wiltz, 11 An. 439.

What was that duty ?

To appoint (from among the present Branch Pilots of the port of New Orleans) such a number of Pilots as the interest of commerce may demand. Has the Governor yet performed that duty ? There is no proof before us that he has done so. It is proved, indeed, that the two plaintiffs, Williams and Shepherd, have been commissioned since the Act of 1857 went into operation; and we may infer from the testimony, that an indefinite number of other ■ persons, whose names are not given, have been similarly commissioned. But this showing' is immaterial to the issue, which is, whether or not the defendants are out of office. The Act of 1837, as we have seen, fixed the number of Branch Pilots at fifty. The Act of 1855 increased that number to a minimum of sixty-five and a maximum of seventy-five. The Act of 1857 left it to the Governor to fix the number of Pilots according to his views of the exigencies of the commerce of this port; and after so fixing the number, the Governor was further authorized to increase (not to diminish) that number, from time to time, should an increase be deemed by him important. There is no evidence in the record, direct or indirect, that the Governor has ever determined, under this law, what number of Pilots for the port of New Orleans, is required by the interests of commerce.. Whenever he shall do so, should the number determined to be necessary fall short of the number of Branch Pilots in commission, when the Act of 1857 was passed, the now appointments made, which fill up the number thus determined, will necessarily have the effect of vacating all old commissions beyond that number. But until the Governor has performed his duty of fixing the number of Pilots under the new law, which we think should be done by proclamation, it cannot be said that any preexisting commission of Branch Pilot is vacated ; because it cannot be known, that there is any reduction in the number of Pilots for the port, below that fixed by the law of 1855 ; and because the Governor was bound by the law to make the new appointments within the existing corps of Branch Pilots.

The learned counsel of defendants has argued, that the law of March 13,1857, violates the Article 115 of the State Constitution, because the section 15th of the law relates to an object not expressed in the title.' The title of the law is “ an Act relative to Pilots.” The 15th section relates to salvage on cables and anchors taken up by any person in the river Mississippi. This seems, in fact, entirely foreign to the object specified in the title of the Act. But the whole Act is not thereby rendered void.

When the title of the Act is simple, as in this case, all those sections which are covered by the title, fulfill the Article of the Constitution, and only those portions are held to be void for unconstitutionality which are not covered by the title. State v. Harrison, 11 An. 722.

Judgment reversed; injunction' dissolved ; and judgment against plaintiffs, as in case of nonsuit; plaintiffs and appellees to pay costs in both courts.

Same Case — Un Re-hearing.

Buchanan, J.

In refusing the re-hearing in this case, it has been deemed by the court proper to give an explanation of a matter of fact.

It is incorrectly stated in the petition for re-hearing, that there is no proof in the record that Falcony and George Chism were ever Branch Pilots. See particularly testimony of Francis Williams, Hinton and Arroyo.

Besides, the brief of plaintiffs’ counsel, filed in argument, admitted (p. 2) that all the defendants had been commissioned Branch Pilots previous to the Act of of 1857.

Re-hearing refused.


text:
    Etiénne Major v. J. & J. Tardos.
    When a party in settlement of a debt pays, through error, compound interest in addition to the amount and interest really due — Held: That he is entitled to recover the difference between the amount really due and the debt at compound interest as collected.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      C. Dufour, for plaintiff. J. Magne, for defendants and appellants.
   Merrick, C. J.

The defendants, residents of New Orleans, held a judgment against the plaintiff, in the District Court for the parish of Poínte Coupée, for $627 31, bearing ten per cent, interest from April 1st, 1844. In March, 1855, they sent up a statement of debt and interest compounded, to Mr. Mahondeau, their attorney, for a settlement with the plaintiff. The debt, as calculated to March, 1856, amounted to $1916 25. The plaintiff having inquired of Mr. Mahondeau whether the account and calculations were correct, and, being answered in the affirmative, gave his draft, payable one year after date, for the amount.

The present suit is brought to recover of the defendants the difference between the amount really due upon 'the judgment and the debt at compound interest as collected.

There was judgment in the court below in plaintiff’s favor, and defendants appeal. They contend that the taking of compound interest is not malum in se, but is merely malum prohibitum. That, by the very terms of Art. 1934 O. C., the debtor cannot be compelled to pay compound interest, but, if he do consent to pay it, it is well paid, and if it be included in a new contract the debtor is bound to pay it; and, inasmuch as there was a natural obligation to pay the compound interest, when once paid it cannot be recovered back.

The error in this reasoning appears to us to lie in the postulate, that there was a natural obligation resting on the plaintiff to pay compound interest. From what did such obligation arise ? The use of _ the money. It might as well be assumed that there was a natural obligation to pay interest at the rate of 500 or 1000 per cent, as to pay ten per cent, compound interest. There being no other promise proven than that contained in plaintiffs original obligation novated by the judgment, his natural and cival obligations were the same, viz : to pay the amount promised, as liquidated by the judgment. The proof satisfies us that the plaintiff paid the excess over the simple interest in error. It is well known with what confidence suitors rely upon statements of counsel, even where charged with the collection of debts against them, and the instances in which such confidence has been misplaced are extremely rare. In the case before us, we have not heard improper motives imputed to the counsel who made the settlement, still, we think, his statement led the plaintiff into error, and that the plaintiff is entitled to recover. C. C. 1934, 2280, 2281, 2282, 2129 ; C. P. 18.

Judgment affirmed.


author: Cole, J.

text:
    John W. Price v. Succession of Leonard Mathews.—G. C. Lawrason, Administrator.
    Tho private memoranda or projets of an agreement, unsigned and retained by tlie writer of them are not evidence of a contract obligatory upon him or his representatives, unless corroborated by other testimony.
    The heirs of a deceased partner are notbound by the rigid rules as to notice of dissolution of the partnership applicable to the withdrawal of a partner from the firm, who would still be liable if he permitted his name to remain in the partnership.
    The continuance of the deceased partner’s name, as part of the firm name, is not of itself a cause of continuing liability on the part of the heirs.
    APPEAL from the Seeond District Court of New Orleans, Morgan, J.

      L. M. Day, for plaintiff. P. E. Bonford, for defendant and appellant.
   Cole, J.

Plaintiff seeks to render the estate of Mathews liable for the amount of a balance due on a deposit account kept by him with the banking-house of Mathews, Finley & Co.

It is admitted that the deposits on which the aboye balance arises were made subsequent to Mathews’ death.

The defendant is sought to be made liable in Ms representative capacity, upon the allegation that the partnership was not dissolved by the decease of Leonard Mathews, but continued, notwithstanding that event, between the surviving partners and the heirs of the decedent, under an express clause to that effect in the original contract of partnership.

In support of this allegation plaintiff introduced in evidence two documents, produced from the custody of the defendant under a subpoena duces tecum.

Each of these contains a sketch, in the handwriting of the decedent, of partnership articles ; the two sketches varying from each other in some slight particulars. They are not signed by any one, and the record contains no evidence that they ever passed out of the possession of the decedent, among whose papers they were found after his death.

Their introduction as evidence was resisted, and a bill of exceptions was reserved to the ruling of the District Court admitting them.

These private memoranda or projets of an agreement, unsigned and retained by the drawer of them are not evidence of a contract obligatory upon him or his representatives, unless corroborated by other testimony.

Plaintiff sought to give efficacy to these memoranda by the following notice, published in the “Picayune” of New Orleans :

“ Saturday, January 14th, 1854, Notice — The death of our senior, Mr. Leonard Mathews, will cause no interruption to our business. The articles of copartnership provide for its continuance to a period (yet remote) therein stated.

Mathews, Finley & Co.”

It is not shown that this notice was given by the direction of any one authorized to act in the name of Mr. Mathews’ succession, nor that the notice was brought to the knowledge of any of the parties interested in the estate, except the two surviving partners of the firm of Mathews, Finley & Co. who may be supposed to have caused the notice to be inserted in the gazette. On the contrary, it appears that Mrs. Mathews spent the summer of 1854 at Pass Christian, and went there, as one of the witnesses thinks, in January, 1854.

Pauline Mathews, one of the heirs, was a minor at the time of the decease of her father, L. Mathews.

The other heirs were William, Wilson Mathews, a member of the firm, Mary Mathews, wife of Hugh Wilson, and Lydia Mathews, wife of L. A. Finley, a member of the firm.

Even if Mrs. Mathews and the other heirs, not parties to the copartnership, had seen the notice,-this could not alone render them liable, for there is no legal presumption that they were cognizant of all of the provisions of the act of copartnership existing between L. Mathews and the other members thereof, and they may well have presumed from the allusion in the notice to the articles of copartnership, that they really provided for the continuance of the copartnership after the decease of one of its members.

It may also be observed that the reference to the articles of copartnership in the published notice was sufficient to awaken the attention of those who might deal with the firm subsequent to the death of Mr. L. Mathews, and they could have required an exhibition of the act of copartnership before having any more business with the firm.

Not having done so must be deemed a laches on their part, and does not justify a departure 1'rom the rigid rules of evidence in order to decree that the partnership was’continued by a clause in the act of copartnership, although presumed to have been terminated by the decease of one of its members.

As the memoranda create no obligation against the estate, the acts of the surviving partners who are third persons, so far as relates to the succession, cannot produce any legal obligation against it.

It is also averred that the name of the decedent was left on the door of the office, and his name was permitted to continue in the firm. When it is remembered that the heirs of Mr. L. Mathews are all females with the exception of the son, who was one of the firm, and the liability of whose share after the payment of the debts is not disputed, these omissions, if they be such, do not appear to be of much weight, and we would here observe that it is by the omissions on the part of the heirs, and not by their acts, that the unsigned memoranda are sought to be corroborated.

The heirs of a deceased partner are not bound by all the rigid rules as to notice which apply to the dissolution of a copartnership, by the mere withdrawal of a partner, or by limitation; in which case the retiring partner may render himself liable, by permitting his name to remain in the partnership, thus imparting to it a credit it might not otherwise have obtained. The death of one of the partners is presumed to have dissolved the partnership. Those who deal with it are not supposed to do so on the credit of the name of the deceased partner, unless there is legal and satisfactory proof that the partnership was to continue, notwithstanding the decease of one of the partners.

We would also observe, that the continuance of the name of a deceased partner, as a part of the name of the firm, is of frequent occurrence, and, also, that a particular business, when once established and flourishing under a particular firm name, has been conducted under the same designation, after the original parties have abandoned the firm, and when the name of no one of those actually interested figures in the style of the firm. Such continuance of the decedent’s name, as a part of the firm name, is not of itself considered a cause of continuing liability on the part of the heirs.

Judge Story says, that a curious question has arisen, whether the right to use the firm name is a part of the goodwill belonging to the partnership, or whether, in case of the dissolution, by the death of the partner, it belongs to the survivors. He further remarks, that it has been thought that this right does not fall within the nature of good-will, but belongs to the surviving partner. Story on Partnership, sec. 100, p. 142, (Ed. 1841.)

The same remarks will apply to the omission of the heirs to take immediate steps to have a liquidation and partition of the partnership effects. Their action would not have been prescribed for some time, and' as nothing indicated the necessity of more urgent action, their inaction cannot be considered a convincing proof of the continuance of the partnership, notwithstanding the death of Mr. L. Mathews.

Plaintiff has called our attention to a bill of exceptions taken by him to the ruling of the District Judge.

He offered one of the surviving members to prove that it was stipulated by and between all the partners that the partnership was to continue for five years, and was not to be dissolved by reason of the death of one or more of the partners.

The Judge did not err in excluding the testimony of the partner on this point. He has an interest to divide his liability by increasing the number of his co-debtors.

Our view of the testimony renders it unnecessary to express any opinion upon the point raised by defendant, that, assuming there was an agreement, the partnership should continue, notwithstanding the death of one or more of the copart-ners, how far is such an agreement binding upon the heirs, representatives or surviving- widow in community of the deceased, without express ratification on their part of the contract so intended to bind them. Louisiana Bank v. Kenner’s Succession, 1st La. 385. ‘

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and there be judgment for defendant against the claim of plaintiff, and that plaintiff pay the costs of both courts, and that his right of action be reserved against other parties who may be legally liable to him for his claim or any part thereof.


text:
    J. P. Todd v. F. M. Fisk.
    Ael injunction cannot issue to stay an execution on grounds which might have been pleaded in defence before judgment.
    from the Fourth District Court of New Orleans, Brice, J.

      Race & Foster, for plaintiff and appellant. Clarke & Bayne, for defendant.
   The plaintiff has enjoined an execution issued upon a final judgment affirmed by this court on appeal.

The plaintiff in injunction claims to be the holder of a promissory note against the judgment creditor, exceeding the amount of the judgment, and that the samp is therefore extinguished by compensation by operation of law.

A motion to dissolve on the face of the papers, on the ground that the petition did not show that the note pleaded in compensation had been acquired by Todd since the rendition of the judgment, was sustained,, and plaintiff appears before us as appellant. He contends, that the judgment of the lower-court is erroneous, because defendant contested Fisk’s right to recover, and could not therefore be held to admit the same by pleading compensation in the original suit, even if he were owner of the note at that time ; and furthermore, that he is not too late after judgment to set up the note by way of compensation.

The case of Ridell v. Gormley, 4 An. 140, is cited in support of this position.

The Reporter’s note to this decision does indeed countenance the doctrine contended for; but we have looked into the record, and find some facts which distinguish it from the present. The purchase at the probate sale of Schager, was made by William Gormley, December 4,1832. The suit brought on Schager’s indorsement was brought by William Gormley and John P. Miller against John H. Holland, the dative tutor to Schager’s minor heir, and judgment rendered* in their favor generally, in October, 1836.

Miller’s half of the judgment having been paid, the execution was taken out against the plaintiff, then representing Schager’s succession, by the widow of William Gormley, for the remainder.

It is clear, therefore, that compensation’by operation of law did not take place at the time the judgment was rendered in favor of Miller <& Gormley against John PI. Holland, tutor; for Gormley was never the debtor of Schager, but of the representative of his succession, and compensation could only take place when such representative had consented that the sum so due should be used to extinguish a like amount of indebtedness from Schager’s estate to Gormley. If the court presumed from the circumstances of the case, that such consent had been given after the judgment was rendered and Gormley s interest in it ascertained, the case then is not in conflict with the other decisions of the court. At all events, it must not be considered as overturning- the well settled principle of law, that an injunction cannot issue to stay an execution, on grounds which might have been pleaded in defence before judgment: See 2 N. S., 135 ; Benton v. Roberts, 3 Rob. 226 ; Kennard v. Henderson, 9 Rob. 166 ; Morgan v. Driggs 3 An. 125 ; Crow v. Watkin’s Heirs, 12 An. 845 ; Donnell v. Parrott, 13 An. 251.

We do not think the supposed incompatibility of the plea of compensation with the defence to the note sued on in the original suit, au exception to the general rule so well established. Parties must select their defences to an action while it is pending-. After judgment, it is too late to remedy defects from a failure of proof upon the original pleas.

Judgment affirmed.