text:
    R. D. Shepherd v. Leeds & Co.
    The registry of a draft on the owner of a saw-mill expressed on its face to be for the value of machinery furnished for the saw-mill* but which was not accepted at the time of its registry, is not a registry under Art. 8289 of the Civil Code against the owner which will affect the property in the hands of an innocent purchaser, although the machinery may have increased the value of the immovable by having become a part of it.
    Appeal from the District Court of Jefferson, Bwthe, J.

      Dwant & Horner, for plaintiff and appellant.

      Thomas Hunton, for defendant.
   Merrick, C. J.

Nicholas O. Hall having a judgment against Jesse Fulton issued a ft. fa. thereon, seized the Carrollton saw-mills, the property in controversy, as the property of Fulton, and at the Sheriff’s sale on the 11th day of July, 1851, purchased the same. Hall's title was recorded.

Leeds & Go.- on the first day of October, 1851, received from Jesse Fulton two drafts (so called) payable in three and six months, drawn by himself on Nicholas G. Hall. They axe in the following form:

“New Orleans, October 1st, 1851, three months after dateplease pay to the order of Messrs. Leeds & Go., seven hundred and sixty dollars and nineteen cents, with eight per cent, per annum interest from date until paid, for value received in machinery furnished for saw-mill at Carrollton, in the parish of Jefferson, and place the same to account of said mill.”
(Signed) JESSE PULTON.
“ To N. O. Hall, Esq., New Orleans.”

'Before Hall accepted the drafts, if they may be so considered, viz: October 7th, 1851, they were recorded in the Recorder’s office of the parish of Jefferson. It does not appear how they were noted on the index, whether against Hall or Fulton.

On the 11th day of March, 1852, JST. O. Hall sold the property to Wood & Ba/i'row.

L. F. G'enéris having a judgment against Wood é Barrote seized the sawmills, and caused the same to be sold at'Sheriff’s sale on the 2d day of May, 1853.

At this sale the plaintiff, if. B. Shepherd, became the purchaser. In March, 1855, Leeds S Go. obtained judgment against Fulton for the amount of their two drafts, and their privilege upon the property was recognized. Neither Hall, Wood <& Bcvrrow, nor Shepherd were parties to the suit.

Leeds <b Go., disregarding the various conveyances, issued an execution and seized the property and advertised the same for sale. At the time of the seizure Fulton was living on the property, but he informed the Sheriff that he was not the owner. It is not pretended that these sales were simulated, and the question on behalf of Leeds & Go. has been argued on the ground that the privilege gives them a right to seize and sell the property.

The plaintiff relies mainly upon two grounds to sustain his injunction, viz:

1st. The recording of the drafts could only affect Fulton, for he was the only party to them when recorded. But he was not the owner of the property. It could not, therefore, bind the property in the hands of Hall, the owner, so as to affect innocent purchasers.

2d. Conceding that Leeds & Go. had a privilege upon the property, they could not disregard the ownership of the plaintiff, a third' possessor, and treat the property as belonging to Fulton.

As it will have the effect to end this controversy we will consider the first of these questions presented by the plaintiff.

By Article 3229 of the Civil Code, i't is provided that contractors and those who have supplied the owner materials for the construction or repair of his buildings or other works, preserve their privilege only in so far as they have recorded with the Register of Mortgages the act containing the bargain they have made, or the amount or acknowledgment of what is due them, in all cases where the amount of the bargain or agreement, or the amount of the account or acknowledgment exceeds the sum of five hundred dollars.

The registry made by Leeds & Go. of their draft is not a registry against the owner of the property, and cannot prejudice third parties acquiring rights from the owner. The purchasers were only bound to examine the office of the Recorder in the name of Hall in order to ascertain whether any privileges had been created upon the property during the period that Hall was the owner of it.

The draft, until accepted, is no agreement or bargain of Hall’s, neither can it be called an account against or acknowledgment by him. The registry of the draft, therefore, against one not otoner, cannot affect the immovable as against innocent purchasers, although the machinery may have increased the value of the immovable by having become a part thereof.

As the contract of Leeds & Go. has not boon recorded so as to operate as a privilege upon the property in controversy; the injunction sued out in this case must bo perpetuated.

It is, therefore, ordered, adjudged, and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is further ordered that the injunction sued out in this case be made perpetual. ; said Leeds & Go. and said Sheriff be perpetually injoinod from selling said steam engine used for running said steam saw-mill, and it is further ordered that the said defendants, Leeds & Go., pay the costs of both courts.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Mrs Ann W. Jeter v. Mary E. Heard.
    A continuance was properly refused when the party desiring the testimony of a witness absent in a distant parish, instead of taking out a commission to examine him, dispatched a special messenger to bring the witness; by doing so he took upon himself the risk of the witness being in court on the trial.
    The affidavit of the jurors who tried the case, as to what they understood at the time of rendering their verdict would be its effect, is inadmissable. The effect of the verdict is a matter of legal construction, and the jurors have no capacity to serve as its interpreters.
    APPEAL from the Sixth District Court of Now Orleans, Gotton, J.

      A. T. Steele, for plaintiff.

      A. Lothrop' and G. A. Johnson, for defendant and appellant.
   Buchanan, J.

(Spoepord, J., absent.) Plaintiff sues for arrears of rent due her upon a contract of lease of a house.

Defendant pleads that plaintiff has violated a contract to finish certain repairs to the house by the 1st of October, 1854, by means whereof defendant was greatly damaged. She claims damages in reconvention.

The jury who tried the case rendered a verdict in favor of the plaintiff for the amount claimed in the petition; and that the suit in roconvention be dismissed. Erom a judgment, rendered in conformity to this verdict, the defendant has appealed.

Defendant and appellant urges that the District Court erred in refusing a new trial, applied for upon two grounds supported by affidavits. The first of those grounds is the absence of a material witness, named Pitts, whose absence had been the subject of an application for a continuance, and involves the correctness of the refusal of said continuance.

The District Court did not err in refusing the continuance. The defendant had not taken proper steps to secure the benefit of Pitt's testimony. He was in the parish of Avoyelles, and defendant, instead of taking out a commission to examine him there, had dispatched a special messenger to bring him to New Orleans; and had thereby taken upon herself the risk of his being in court on the trial.

The defendant also appended to her application for a new trial an affidavit, signed and sworn to by afll the twelve jurors who tried the cause, that they had understood, in rendering a verdict dismissing defendant’s reconvention, that the defendant was not to be barred by such verdict from instituting another suit for the same matters embraced in her reeonventional demand.

The District Judge properly disregarded this affidavit. Even in the much stronger case of misconduct of the jury, it has been repeatedly decided that the affidavit of a juror i¡i incompetent to impeach the verdict. 1 N. S. 514; 11 L. R. 141; 11 L. R. 191; 8 An. 435; 9 Rob. 387.

Here then is no question of misconduct in the jury, but of a misunderstanding on their part of the legal effect of the verdict to which they all agreed. Such an inquiry is entirely inadmissable. It was the duty of the Judge to instruct the jury upon the form of their verdict, and we are bound to presume that he did so. The verdict was returned into court by the jury, and read and recorded in the presence of both parties represented by counsel. Its effect is matter of legal construction of its terms, and the jurors who rendered it have no capacity to serve as its interpreters.

Upon the merits, we think that the defendant has made out a case of damage occasioned by the fault of plaintiff. There appears to have been two contracts between these parties. The original one, a lease by Jacob L. Florance to Marry F. Heard, of a large boarding house called the “Florance House,” for three years from October 15th, 1852, for the yearly rent of three thousand dollars, payable monthly; which contract was assigned to plaintiff bjr Florance in February, 1853.

This original lease was modified and altered by contract between the plaintiff (by John T. Jeter, her husband,) and Mrs. Heard, on the 17th July, 1854

The essential clauses of the second or modified contract of lease are as follows:

Mrs. Marry F. Heard hereby agrees and binds herself to release and deliver to John T. Jeter the two rooms of the basement of said Florance House, situate on the corner of Camp and South streets, for the purpose of a dry goods store, or for any other purpose that the said John T. Jeter may think proper to appropriate the same, due regard being had to the safety and convenience of Mrs. Heard, tenant of the remainder of said Florance House. The said release and delivery of said two rooms shall take effect whenever the repairs and alterations hereinafter particularly mentioned and described shall have been completed: that is to say, from 1st September to 1st October next, 1854 For and in consideration of the foregoing release and delivery of the above named two rooms, the said John T. Jeter hereby agrees and binds himself to make the following-repairs and alterations of the remainder of said Florance House, occupied as a boarding house, to wit: to put gas fixtures in the parlors, dining room and halls, and also to put up a genteel iron verandah in front on South street, the entire size of the building, say fifty feet front on said street, the verandah to extend in front of each story on South street; to repair and otherwise fit up the gallery on Camp street, which is now in bad condition, and to put the same in good order and condition in every respect; and to paint and repair thoroughly the said building, both inside and out, so as to render it a good and substantial tenement, and adapted to the purposes of a genteel boarding house in every respect; all of said repairs to be made at the cost and expense of the said John T. Jeter, in a good, substantial and workmanlike manner. It is hereby expressly agreed between the parties that the original lease hereinbefore referred to shall remain in full force and Virtue in every particular, as to the monthly payment of rent, and all other rights and obligations of either of said parties arising therefrom.”

The evidence shows that the repairs which the plaintiff by this contract obliged herself to complete by the 1st October were not in fact completed until the 1st January, three months later, and that this delay interfered very materially with defendant’s business, and caused her to lose many boarders. It may in fact be said, under the proof adduced, to have broken up the defendant’s business for that season. Now, although the general rule of law is (0. O. Art. 2670) that if, during- the lease, the thing leased should be in want of repairs, the tenant is obliged to submit to any inconvenience that he may be put to by suob repairs, yet even that general rule provides for a diminution of the rent if the repairs occupy more than a month; and in this particular case the repairs were made the object of a special agreement fixing not only their extent but the time to bo occupied in making- them, and, what is particularly to bo noticed, stipulating the release by the tenant to the landlord of a valuable portion of the premises leased, without any reduction of rent, to take effect from the 1st October, as a remuneration or indemnification to the landlord for making the repairs.

Now, it is in proof that plaintiff let the two rooms in tho basement thus released for one hundred dollars a month, so that he appears to have received during the last year of defendant’s lease three hundred and fifty dollars a month for those premises which, by the original lease, defendant hired for two hundred and fifty dollars a month. As the plaintiff, although she has reaped this, considerable advantage .from the contract of the 17th July, 1854, has violated her engagements under that contract towards the defendant, and has thereby caused the latter a loss, which, although not precisely ascertained by the evidence, yet was certainly very considerable, it has seemed to us equitable and «even moderate to award to defendant the restitution of the additional rent, say •twelve hundred dollars, which plaintiff has received for the Elorance House during the last year of the defendant’s lease.

It is to be observed that there is nothing before us but the reconventional demand; the claim and judgment of plaintiff having been satisfied in full, as appears by the record.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the claim of plaintiff remain undisturbed; that as regards the reconventional claim of defendant, the judgment be reversed; and judgment is hereby rendered in fayor of defendant and appellant, against plaintiff' and appellee, upon tho reconvontion, in the sum of twelve hundred dollars, with legal interest from the 11th of April, 1855, and costs of appeal.


author: Merrick, C. J.

text:
    Thomas S. Griffon et al. v. Evariste Blanc.
    The rule of practice which, in an action of slander of title, imposes on the defendant who reconvenes and sets up title to the property the burden of proof which rests on the plaintiff in a petitory action, applies only to the case where the defendant is out of possession. Where the defendant is himself in actual possession, the iilaintiff cannot so change his position by the form of action to which he resorts, as to escape the burden imposed on him by law of establishing his title. In such an action, if the title relied on by defendant is not a valid one, he cannot be permitted to controvert a confirmation of the plaintiff’s title by the government, nor to require that the plaintiff’s title should be traced from the original claimant to the confirmee.
    The universal legatee cannot set up the will of the testator as a just title and make it the basis of the prescription of ten years.
    Appeal from the Tenth District Court of New Orleans, Strcmbriclge, J.

      L. Janin, for plaintiffs and appellants. S. A. Bullcml, for defendant.
   Merrick, C. J.

This is an action of jactitation. The plaintiffs allege that they are the joint owners and possessors of a tract of land in the immediate vicinity of the city of New Orleans, having two árpente front on the south side of Canal Oarondelot, being bounded on side nearest the city by lands lately belonging to General Lafayette, and now to John Hagan, and on the opposite side by lands, the title to which is in dispute, and which belong either to the petitioner, John Moore, and to the estate of Theodore Nieolet, or to Madame De Pontalha, and runs between parallel lines to Common street, (then) in the Second Municipality.

The defendant also set up title and averred possession in himself, and pleads prescription. The proof shows that defendant was in possession of the land at one end of the tract, and the plaintiffs are in possession at the other. The Judge of the lower court, after an elaborate examination of the long and complicated lists of titles produced by the parties, found for the defendant, and rendered judgment in his favor, and the plaintiffs appealed.

The first question the parties present for our consideration is, on whom is the burden of proof, whether on plaintiffs or defendant ? The plaintiffs cite the cases of Millaudon v. McDonogh, 18 L. R. 102, and Caldwell v. Hennen, 5 Rob. 20, to show that the defendant who reconvenes in the action of slander of title is the plaintiff in a petitory action. We think these authorities apply more properly to an action of slander of title purely; one where the defendant is out of possession. But where the defendant is himself actually in possession, the plaintiff cannot be permitted to change his position with the form of action and escape the burden imposed upon him by Art. 44 of the Code of Practice. In order to recover and turn his adversary out of possession, he must establish his title.

Since the pendency of this suit, the defendant’s title has received the examination 'of this court and the Supreme Court of the United States, and been declared invalid. Lafayette's Heirs v. Blanc, 3 Ann. 59; Blane v. Lafayette et al., 11 Howard, 102. There is nothing in this case which presents defendant’s title in a different light from the cases just cited, and that construction must govern us in the present case.

The plaintiffs’ confirmation under the government of the United States, cannot be controverted by the defendants, neither are the plaintiffs obliged to trace up their title from the original claimant to the confirmee. Jourdan v. Barrett, 4 Howard, 169, and Purvis v. Harmanson, 4 Ann. 422.

The remaining defence and that most insisted upon, is the plea of prescription.

The defendant’s possession is shown to have extended back more than ten years prior to the commencement of this suit, and he invokes Article 3442 C. O. as a possessor in good faith. But when we examine his title we find that ho holds as universal legatee under the will of Mile. LAotaud, who inherited the pretensions of LAotaud, the original grantee of the title set up by the defendant.

The question is therefore presented, whether the universal legatee can set up the will as a just title, and make it the basis of the prescription of ten years. It was held, that a legatee by particular title, could not be presumed to be cognizant of any defect in the title of the testator, and must be regarded as a possessor in good faith. 4 Rob. 170, Sicles v. Nettles.

But it is evident that there is a material distinction between the legatee by universal title and the heir who holds by particular title. The one takes no greater right than the'testator had, whom he represents. He is bound for his debts and takes the estate with all its defects and burdens. Suceedit in vitia et virtutes. O. C. 1606, 5 Ann. 200 ; Trop. No. 495. Vitia possessionum a ma/joribus eontraeta perdurant et sueeessorem cmetoris sui oulpa eomitatur. O. Const. 11, book 7, p. 82.

The other, the legatee by particular title, by receiving a gift of a particular thing from one who takes upon himself the character of owner, in no manner charges himself with the duties and obligations of his author and can well be supposed to receive in good faith under what appears to him to be a just title. O. C. 1379.

Marcadé enumerates among the just titles, sales, exchanges, donations, constitutions of dower, giving in payment and legacies. As to legacies and donations, he says : “We speak only of legacies or donations by particular title, since, as to successions by universal title, the question cannot be raised. It is known in fact, that these, according to Art. 2285, have always the same possession as their author, in such a manner that in spite of their personal good faith, they are possessors in bad faith, if their author was in bad faith, and vice versa. They have no new title.” See further Marcadé, 6 vol. p. 194, No. ii, also note 2, just cited.

Article 2235 of the Napoleon Code corresponds with Article 3459 of our Code, which is in these words: “ The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him, whether by an universal or particular, a lucrative or an onerous title.”

This article, we think, was intended to convey to the heir or universal legatee only, such possession as his author had, and not to change at once the possession of the author, whether in bad faith or by precarious title, into a possession in good faith in the heir or legatee. O. C. 3404, 3408.

The plea, of prescription cannot avail the defendant.

It is therefore ordered, adjudged and decreed by the cSurt, that the'judgment of the lower court be avoided and reversed; and that the plaintiffs recover and have possession of said tract of land herein described, and that they be quieted in their ownership and possession of the same, and that the present defendants, the testatrix widow in community, and heirs of said Evas'iste Blame, deceased, pay the costs of both courts.


text:
    Moore et al. v. E. Blanc.
    The principles of this case decided in case of Griffon v. Blame.

    Appeal from the Fourth District Court of New Orleans, Stráwbridffe, J.

      L. Jawin, for plaintiff and appellant. T Ourry, for intervenors..
   Merrick, C. J.

This case was submitted in the lower court as well as in this, as depending upon the same testimony and legal principles as the case of Thomas S. Griffon et al. v. Evariste Blanc, just decided, and it must share the same. fate.

For the reasons given in that case, it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed, that the plaintiffs be hereby declared to be the proprietors of the land described in their petition, and that the present defendants, as executrix widow in community, and heirs of said E. Blanc, pay the costs of both courts.


text:
    Mme. De Pontalba v. Evariste Blanc.
    Principles of this case decided in Griffon v. ff. Blcmc.

    Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      L. Jimin, for plaintiff and appellant. T. Owrry, for intervenors.
   Merrick, C. J.

This case cannot be distinguished from the cases of Gfriffion et al. and Moore et al. against this defendant. It depends upon the same principles and testimony.

For the reasons given in the first of those cases, it is ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed by the court, that the said plaintiff be recognized and declared to be the legal proprietor of the tract of land described in her petition; and it is further ordered that the present defendants, as executrix widow in community, and heirs of Evariste Blanc, pay the costs of both courts.


text:
    A. D. Grieff & Co. v. Steamboat D. S. Stacy, Captain and Owners—Rule on Frellsen & Ferguson, sureties on the appeal bond.
    The seizure of property by the Sheriff under a writ of fieri and his subsequent carelessness or neglect by which the benefit of the seizure is lost to the seizing creditor, in consequence of the destruction of the property seized, furnishes no ground to the sureties on an appeal bond, to resist the payment of the judgment.
    The Sheriff, in such a case, may, by his neglect, become responsible to the defendant whose property was lost by his neglect, or to the plaintiff whose debt he lias jeopardized; but the sureties on the appeal bond would only be subrogated to the defendants’ rights on payment of the judgment, and not until then could they exercise any right of action against the Sheriff.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Durant & Horner, for plaintiffs. Wolfe & Singleton, for appellants.
   Merrick, C. J.

The present proceeding is a rule taken upon Frellsen & Ferguson, the sureties on the appeal bond, to show cause why they should not pay the judgment heretofore affirmed by us in this case.

The defendants’ counsel presents only questions of law on .which he expects the reversal of the judgment of the lower court.

I. He contends that the lower court erred in dismissing the call in warranty against the Sheriff, on an exception filed by the Sheriff.

The allegations upon which the call in warranty is based, are that the steamboat D. S. Stacy was given up by the defendants to satisfy the writ of cxeeution; that plaintiffs had a lien and privilege upon the boat; that it was sufficient to satisfy the plaintiffs’ demand, but that through the negligence and carelessness of the Sheriff, his deputies and agents, and his neglect to insure the steamboat and his illegally postponing the sale, the steamboat was destoyod by fire, and thereby the defendants in the rule discharged from the plaintiffs’ demand, but if not discharged, that the Sheriff John M. Bell be required to hold them harmless, and that they have judgment over against said Sheriff.

The court did not err in sustaining the exception. Nothing short of pmjment was a discharge of the judgment against the original defendants. The seizure of property had not that effect. The sale of the property and the conversion of its proceeds into money in the hands of the Sheriff, would be equivalent to payment, and discharge the judgment, because the execution would be satisfied by the receipt of the money by the Sheriff, an agent competent to receive the payment. But the mere seizure of property can never produce the effect of discharging the judgment, nor can the careless or wilful destruction of the property seized by the Sheriff release the sureties, for the Sheriff is authorized to return the writ satisfied, only when he has in his hands-gold and silver, or its equivalent, to deliver the plaintiffs in pursuance of the commands of the writ.

The Sheriff by his negligent acts may become responsible to the original parties ; to the defendants whose property he has lost, or to the plaintiff whose debt he has jeopardized; but the surety does not become subrogated to this right (if at all) until he himself has paid the debt. The sureties therefore on the appeal bond in the present suit, upon their own showing, had no immediate cause of action against the Sheriff, and consequently the exception was properly sustained.

II. The remaining question is raised by a bill of exception taken to the opinion of the Judge of the lower court in refusing to admit testimony of wit-' nesses, to prove that the steamboat D. S. Stacy was destroyed by fire by reason of the carelessness and negligence of the Sheriff and his employees, on the ground that it contradicted the return of the Sheriff, and that it could not be admitted as the Sheriff was not a party to the rule.

It is not necessary to consider the question whether a party or his surety may contradict the return of a Sheriff, as it is apparent that if the testimony had been received, it could not have changed the result.

We do not think the question, raised upon the call in warranty, entirely frivolous, and the damages prayed for in the answer of the appellees are refused.

Judgment affirmed.


author: Buciianan, J.

text:
      W. H. Harris v. E. B. Harris
    Where the sale of succession property is ordered to pay debts, an heir cannot be allowed to retain the price of property adjudicated to him.
    It is not necessary that the executor should make a tender of a transfer to the purchaser at public sale, in order to put the latter in default.
    The proceeding of folie encMre may be resorted to in succession sales, and anew order of sale is not necessary.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      B. E. Bonford and J. B. Eustis, for plaintiff and appellant.

      Ghilton & Sm'rison, for defendant.
   Buciianan, J.

Plaintiff appeals from a judgment of the District Court, setting aside an injunction obtained by him against a resale for his account and risk of certain succession property purchased by him, he not having complied with the terms of the first adjudication, which were cash.

The grounds alleged by plaintiff for an injunction, appear to be :

1st. That he is one of the heirs of the succession for account of which the sale was made, at which he became purchaser.

2d. That a rule to show case why the property should not be resold for his account and risk, was made absolute without notiee to him, although he is a resident of the State. The notice is alleged to have been given to a curator ad hoc appointed to represent him.

3d. No sufficient averment of putting in dcfa/utt was made in the rule taken upon petitioner, for the resale at his risk.

We agree with the district Judge, that the allegations of the petition do not present a sufficient legal cause for injunction.

The original sale is presumed to have been ordered by the court, for the purpose of paying the debts of the succession. O. C. 1661. Indeed the district Judge, in his reasons for judgment, declares that such was the fact. Supposing the plaintiff to be one of the heirs, he could not, on that account, be allowed to retain the price of adjudication in his hands; for upon the showing of debts by the executor to authorize a sale, the heir would have nothing to receive from the succession, until the debts were paid. Again, plaintiff does not state how many heirs there are, nor that his proportion of the inheritance was equal to the amount of his bid. His words are, “ that the succession of said John L. Ea/rrii is largely solvent, and that petitioner, as one of the heirs and distributees, is entitled to receive and will receive, a considerable sum on the partition thereof.”

The petition alleges the rule for resale was made absolute without notice to him; yet his allegations, which are very circumstantial, show him to be thoroughly informed, at the time of filing his petition, of all the proceedings upon the rule; and no valid reason is stated why the rule should not have been made absolute. The petitioner does not allege that he has ever been ready and willing to pay the amount of his bid; on the contrary, as we have seen, he pretends to be dispensed, in his quality of heir, from paying his bid.

The executor was not obliged to tender to plaintiff a transfer of the stock, in order to put the latter in mora. O. O. 2463.

In argument, the counsel of plaintiff have urged a ground for injunction, not stated in the petition, viz, that a purchaser at a succession sale, made by order court, is not subject to the proceeding of folie endúre.

The contrary is settled by two decisions, Landry v. Conelly, 4th Rob. 127, and Duncan v. Armant, 3d Ann. 84. In the latter case, which comments the former one, it is even decided that no new order of sale is necessary.

Judgment affirmed, with costs.


author: Lea, J.

text:
    S. W. Oakey v. David Aiken.
    When the value of the object in controversy is sufficient, according to the allegations of the petition, to give the court jurisdiction, the fact that the price paid for it by the plaintiff is below the amount required to give the court jurisdiction is not sufficient of itself to destroy the allegation as to the true value. The allegation in the petition as to the value of the object in controversy determines the question of jurisdiction when the claim is not evidently fictitious.
    When the plaintiff in a suit for a partition sets up title to an undivided half of property in defendant’s possession, claiming to have derived title thereto under a Marshall’s sale, the defendant not claiming title to the interest of the seized debtor in the object thus sold, cannot contest the validity of the Marshall’s sale for the want of formalities which were intended by law for the protection of the judgment debtor alone.
    When neither the judgment debtor nor any third party claims an adverse interest in property thus sold, the want of an appraisement of the property is not such an informality as will avoid the
    Appeal from the Fifth District Court of New Orleans, Augustin J.

      S. JB. Dggleston, for plaintiff.

      J. Livingston, for defendant and appellant.
   Lea, J.

John 8. Turnee1 and Dlihu Woodn'uff being partners in business under the name and style of Turnen• & Woodn-uff, the latter availed himself of the benefit of the bankrupt law, and surrendered the firm assets of Tun'ner & Woodruff. At the sale of these assets the defendant became the purchaser. The plaintiff; who was a judgment creditor of John 8. Turner, the other partner, caused to be seized in execution — 1st, All the rights, credits, money and property belonging to Tun'ner in the hands of Ailcen. 2d, All the right, title and interest of Turnen\ as one of the partners of the firm of Turner & Woodruff, in and to the books, accounts and bills receivable of the late firm in the hands of Ailcen. 3d. All the right, title and interest of Turner in and to the books, accounts, notes, and other assets adjudicated to Ailcen at a sale made by the United States Marshal on the 20th March, 1844. It is in virtue of the sale made under this seizure that Oalcey became the purchaser of Turner's share of the assets of which his representatives now ask a partition. An exception was taken to the jurisdiction of the District Court, on the ground that the value of the property sought to be divided was not sufficient to give jurisdiction to the District Court. It is alleged in the plaintiff’s petition that his interest in the property sought to be divided is worth the sum of $500 and upwan'ds, and it is not shown that they are worth less; their nominal value far exceeds that amount, and the fact that they were purchased by Oalcey for $6 at a bankrupt sale by no means proves that the claim is fictitious, especially when the large nominal value of these assets is considered; moreover, if the interest be really less than $50 in value, this court would have no jurisdiction of the appeal.

■ The defendant has suggested and alleged informalities in the sale made by the City Marshal, of which we do not think he is at liberty to avail himself under the circumstences.

Whether there was or was not an appraisement of the assets prior to the sale to Oakey is a matter wholly immaterial to Aiken. The want of the formality assuming it to exist, is one which Turner alone could set up as a defence, as it was intended solely for the protection of the judgment debtor; and the same remark may, under the circumstances, be made with reference to the supposed invalidity of the seizure for want of an actual taking possession of the assets sold to Oulcey — due notice of seizure was given to Turner himself — the assets for the most part are intangible. Neither the judgment debtor nor any third party asserts an interest in the assets thus sold, and the defendant himself is certainly secure against an adverse possession of any third party, as he pretends to have possession himself. We think it was incompetent for the defendant to urge informalities which, assuming their existence, could work no injury to himself, and of which the parties in interest have made no complaint.

Judgment affirmed.


text:
    Joseph Elliott v. Steamboat James Robb, Captain and Owners.
    Where the plaintiff sued to recover the value of horses shipped on defendants’ boat, and alleged to-have died of a disease contracted in consequence of the negligence and want of skill of those in charge of the boat in removing the horses from one part of the boat to another, under the general denial it is competent for the defendants to give in evidence all circumstances going to relieve the act of removal, of the character of a tortious violation of the contract between the parties, by assigning a reasonable necessity for such removal.
    Appeal from the Sixth District Court of New Orleans, Ootton, J.

      J. W. Price, for plaintiff and appellant. W. 8. Upton, for defendant.
   Buchanan, J.

Thirty-five horses belonging to plaintiff were brought down the river from St. Louis to New Orleans, on boad the “ James Robb” steamboat, on freight, in the latter part of September, 1864. They were all delivered at the stock landing, and freight was paid upon them. Plaintiff himself accompanied his horses down, and had charge of them during the passage. He now claims of the captain and owners of the boat the value of two horses which died after their arrival in the city, on the ground that their death was caused by the fault of the defendants.

It appears that the captain allotted, by special agreement with plaintiff, the whole of the after guards to the plaintiff’s horses ; but, that, one night the mate took the horses which were upon the larboard guard into the deck-room, for the purpose of trimming boat, as the wind was high and the boat listed considerably to larboard. The next morning the horses were moved back to the guards. There was a considerable difference of temperature between the deck-room and the guards, and the transition from cold to heat and from heat to cold is alleged to have given the horses a fever of the lungs, from which they died.

The necessity of the temporary removal of the horses from the guards for the purpose of trimming boat is shown by several witnesses whose depositions, although excluded hy the District Judge, have come up in the transcript with a hill of exceptions to their exclusion, taken by defendants. We think the evidence should not have been excluded. Under the general denial it was competent for defendants to give in evidence all the circumstances which would go to relieve the removal of plaintiff’s horses of the character of a tortious violation of the contract between the parties, by assigning a reasonable necessity for such removal.

Apart from this evidence, tending to justify the temporary removal of plaintiff’s horses from the guards to the centre of the boat, we are by no means satisfied of the plaintiff’s right to recover. The plaintiff, who is himself a horse doctor, is proved to have physicked and bled his horses before the removal in question. It is proven that the change of climate from the upper Mississippi and Ohio to New Orleans is very apt to produce fevers in horses, and to cause their death.

Some of the witnesses prove that all of plaintiff’s horses were landed in good order, and when the freight bill was presented to plaintiff he made no objection on the score of injury to the horses by reason of the acts of the officers of the boat. The freight bill was paid by an agent of the plaintiff, out of his presence; but no effort has been made to show that this payment was without his knowledge and authority. Lastly, the proof of the cause of the death of plaintiff’s horses is vague and unsatisfactory — resting too much upon opinion and conjecture to render it a safe guide for a judgment in plaintiff’s favor.

It is, therefore, adjudged and decreed that the judgment of the District Court be reversed, and that there be judgment for defendants, as in case of non-suit, with costs in both courts.


author: Spoffokd, J.

text:
    E. Waddell and Husband v. Mills Judson.
    A judgment rendered against a married woman in a suit regularly prosecuted by attachment, is not open and cannot be questioned as to the original indebtedness, without any action of rescission having been brought or any appeal taken from the judgment within two years.
    The Sheriff’s return that property sold by him was duly appraised is sufficient in the absence of any rebutting evidence.
    Appeal from the Eifth District Court of New Orleans, Sto-mobridge, J.

      Walker & Pierce, for plaintiffs and appellants.

      S. D. Ogden, for defendant.
   Spoffokd, J.

In March, 1840, the plaintiff, Eleanor O. Waddell, authorized by her husband, mortgaged the slaves Anthony and Louisa (declaring them to be her lawful property) to the defendant Mills Juclson, to secure the sum of $500 then loaned her. The mortgage was by authentic act passed in New Orleans, where the plaintiffs then resided.

In December, 1848, the note given for this loan being long past due and the plaintiffs having left this State, Judson proceeded by attachment against Mrs. Waddell to foreclose the mortgage.' The slaves Anthony and Louisa were attached, and a personal citation was afterwards served upon J. P. Waddell, her husband, together with a copy of the petition filed in the fourth District Court of New Orleans.

An answer was filed by an attorney-at-law on behalf of both Mrs. Waddell and her husband, and the proceedings resulted in a judgment against her, with privilege on the slaves attached.

Under this judgment, they were seized in execution, together with her interest in her mother’s succession, and, at the Sheriff’s sale, Judson became the purchaser of the property seized, and went into possession of both slaves in May, 1849.

In May, 1854, Mrs. Waddell, with the assistance of her husband, brought this suit against Judson for the said slaves or their value and hire since May, 1849.

She alleges that the slaves were hers by inheritance from her mother; that Judson got possession of them wrongfully, under color of certain judicial proceedings, meaning the attachment suit aforesaid; that' she was absent at the time of these proceedings, and never cited and made no appearance; that the proceeds of the note on which the attachment suit was based did not enure to her benefit, but to her husband’s; that her husband had paid usurious interest therefor, and that the Sheriff’s sale of the slaves, under the judgment, was void, because they were adjudicated for a bid not exceeding the anterior mortgages, because there was no appraisement, because “ other forms and requisites of law were not complied with,” and because Juclson slandered her title to the property at the time of the sale, and thereby depressed the price.

The defendant maintains that the judgment in the attachment suit is not now open to be questioned by the plaintiffs, and in this he is clearly right.

A personal citation addressed to Mrs. Waddell,-together with a copy of the petition, having been served upon her husband,.from whom she was not separated, she was thereby brought into court. O. P., 192.

Moreover, her property was attached, which of itself gave jurisdiction to the court. Her remedy, if aggrieved by the judgment, was either by an action of rescission or by appeal, both of which were barred by the lapse of two years from the 12th February, 1849, when the judgment was signed.

“ The absent debtor, against whom judgment has been so rendered, may, within two years after such judgment, obtain the reversal of the same, if he proves that the distance at which he lived from the place where the attachment was obtained, has prevented his being apprised of the proceedings had against him, and that the plaintiff has availed himself of his absence to obtain payment of a debt, either already paid in totality or partly discharged, or which did not exist.” C. P., 267.

“ A judgment may be reversed if it has been rendered on an attachment obtained against a person absent, and who had no knowledge of the action having been brought against him; if such person show that he was not indebted either for the whole, or for part of the sum for which the judgment was obtained and his property sold. But this action shall be prescribed after two years have elapsed from the date of the judgment.” C. P., 614.

“ No appeal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered, if the party claiming the same reside in the State, and after two years if he be absent therefrom.” O. P., 593.

The plaintiff, therefore, when she brought this action, was concluded by the judgment of the. Fourth District Court as to her original indebtedness to Judson.

She then appears in the attitude of a party whose property has been sold under a valid judgment for a debt of her own, seeking to set aside the adjudication and to get back her property, solely on the ground of certain specified informalities and irregularities in the sale.

But every specific allegation she makes of irregularities in the Sheriff’s sale, is unsustained by the-evidence. The price bid exceeded the amount of mortgages and privileges preferred to the judgment creditor; the Sheriff’s return recites that the property was duly appraised, a recital which no evidence was offered to rebut, as required by the rule in Hewitt v. Stephens, 6 An., 640. There is no proof whatever of a slander of her title on the part of Judson for the purpose of deterring competition in bidding; and the allegation of other informalities is too vague to require notice, the petition merely asserting, “nor were the other forms and requirements of the.law for Sheriff’s sales complied with.”

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


author: ’Spofford, J.

text:
    J. F. Wilde v. City of New Orleans.
    The city is responsible for damages occasioned by the tortious acts of municipal officers, done within the scope of their employment and ratified by their superiors.
    In such a case, when the evidence is unsatisfactory as to the amount of damages, and the property of the use of which the plaintiff had been deprived, is of trifling value, only nominal damages will be awarded.
    Appeal from the Sixth District Court of New Orleans, Ootton, J.

      Durant & Horner, for plaintiff and appellant.

      J. J. Miohel, for defendant.
   ’Spofford, J.

The city of New Orleans is sued for damages done to the plaintiff by the illegal seizure and the detention of his horse and drjy for several months.

The defence is that the city is not liable, because these acts were done by the police officers and a Recorder, for whose trespasses- the city is not responsible.

This defence might prevail had the officers alluded to gone out of the scope of their employment and done acts which the city had never authorized or ratified.

But it seems that the present plaintiff brought a' former suit against the city for the recovery of his horse and dray; to that suit, the city filed an answer which involved a ratification of the acts of the officers in question, and an admission that they were the acts of the city. The city was cast in that suit.

This brings the case within the rule laid down in McGary v. Lafayette, 4 An., 440.

As to the amount of damages, the evidence is quite unsatisfactory. We cannot be governed by the mere conjectures of witnesses in such a case. The horse and dray were of very trifling value.

Under the facts disclosed, we think only nominal damages should be awarded.

It is, therefore, ordered that the judgment appealed from be reversed; it is further ordered, adjudged and decreed, that the plaintiff recover of the defendant the sum of ten dollars as damages, and the costs of suit in both courts.


text:
    Josiah Cole v. C. J. Lovenskiold.
    When the price of property was paid in cash, with money borrowed by the purchaser, but at the same time the purchaser executed his note for the amount to the order of the vendor, and consented, in the act of sale, to a mortgage upon the property, in favor of the vendor, or any dona fide holder of the note, the transaction cannot be considered simulated, and the lender of the money, as holder of the note, will be protected in his right of mortgage.
    APPEAL from the District Court of Jefferson, Burthe, J.

      JI. G. Mill&r, for plaintiff. A. W. Jordan, for defendant and appellant.
   Lea, J.

The plaintiff, who is a judgment creditor of O. G. Lovenslciold, with a right of mortgage upon certain property in the parish of Jefferson, caused the same to be seized and sold under execution, at a credit of twelve months, for $790. Mrs. Weiclce, being the holder of a note secured by a mortgage upon the same property, of a prior date and registry, has been made a defendant in a rule taken herein upon her by the plaintiff to show cause why the twelve months’ bond should not be executed in favor of the plaintiff for the full amount of his claims, on the gx-ound that the moi'tgago stipulated in her favor by the act referred to was simulated and false, never having any real existence.

All objections to the form of the proceeding having been waived, there was judgment decreeing that the rule be made absolute, in accordance with the prayer of the plaintiff.

It appears from the evidence that Lovenslciold, being anxious to purchase the property which is subject to the conflicting- mortgages in this case, box-x-owed the money from one Frederick Weiclce, with the undex-staxiding- that its reimbui-semoxxt slioxxld be secured by a mox-tg-age upon the pi-opex-ty pux-chased. As between the purchaser and Kuntz, the vendor-, it was agreed that the price should be paid in cash, (as in fact it was, with the money furnished by Weicke,) but the form given to the transaction was intended to subserve the double purpose of a sale and a mortgage. The coxxsidex-ation of the sale was, therefore, represented by a note payable in one yeax-, secured by mortgage upon the property sold, in favor of the vendor or of any bona fide holder of the note.

The act of sale thus drawn was signed by Kuntz, the vendor, with a full knowledge of its contents. The giving of the note, the signing of the act, and the payment of the money, were all done at one time, Kuntz, Lovenskiold and Weiclce being all present. Under the circumstances, we do not think the transaction can be considex-ed as simulated. Thex-e was an actual loan made by Weicke, for which a note was given.

It was the intention of the pax-ties that the loan so made should be secured by a mortgage. The note thus secured was identified with the act of sale. Kuntz himself accepted of the mortgage, being, it is tx-ue, the nominal mortgagee; but the transaction itself was really what it purported to be, so far as the mortgage is concerned, and although Kuntz did not make a manual transfer of the note to Weicke, he must, under the circumstances, be coxxsidered as having assented thereto. The mortgage is made in favor of any bona fide holder of the note. It cannot be disputed that Weicke was a holder in good faith, as he advanced the money which was paid as the price of the property.

The defendant, in our opinion, presents an equitable claim based upon a real transaction, entered into in good faith, carried out in duo form of law, and having all the essential ingredients of a valid contract of mortgage.

We think the defendant is entitled to a judgment in her favor.

It is ordered, that the judgment appealed from bo reversed; that upon the rule taken herein there be judgment for the defendant, Mrs, Weiolce, in her capacity of administratrix of the succession of her deceased husband, F. Weiolce, and that the proceeds of the sale of the property referred to in the rule be appropriated to the payment of the note hold by her and secured by mortgage upon the said property; it is further ordered that the appellee pay costs in both courts.


author: Spofford, J.

text:
    J. F. Rohrbacker v. Joseph Schilling.
    The defendant, in his answer to a suit for money loaned to him, averred that the money was not loaned but given to him, partly in payment of an antecedent indebtedness, and partly as a remunerative donation for services rendered. Held' That this was not an admission that the defendant was ever indebted to the plaintiff, and that the burden of proof rested on the plaintiff to establish that the transaction was a loan.
    The bare fact that A. handed a certain sum of money to JB. unexplained will not authorize A. to recover it back, on the allegation that it was a loan; it is the presumptive evidence of either the payment of an -antecedent debt or of a gift.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      A. Mo Gariy and & Myers, for plaintiff

      J. M. Di/rrhcmmer, for defen' dant and appellant.
   Spofford, J.

The plaintiff, administrator of the succession of Glumdes Wunseh, deceased, sued the defendant, Sohilling, for the sum of §1000, alleging that the deceased had “loaned that sum to the said Schilling for the purpose of assisting him in his business.”

The defendant answered that the deceased did not loan but gave the sum in question to him, partly in payment of an antecedent indebtedness and partly as a remunerative donation for services rendered.

The first question is, upon whom does the burden of proof rest under this state of the pleadings ? Clearly upon the plaintiff, for there is no admission in the answer that the defendant ever owed the plaintiff anything. If the cause had been submitted upon the pleadings alone, the plaintiff must inevitably have become non-suited.

In Barry v. Kimball, 10 An. 787, we declared the rule to be, both upon principle and authority, that a consistent answer, which does not admit that the defendant over incurred a legal liability to the plaintiff, could not relieve the latter from the necessity of proving- his demand; but that an answer which admitted the former existence of such an obligation, and averred its extinguishment or discharge, would dispense the plaintiff from any preliminary proof'of the obligation and impose upon the defendant the burden of proving the matters pleaded in discharge.

The question then arises, has the plaintiff proved that the deceased loaned $1000 to the defendant?

There is no written evidence of such a- contract.

Pour witnesses only were examined: one of them as to what took place at the time of the alleged loan, two as to certain admissions of the defendant, and one who said he knew nothing about the matter.

There being no literal proof, the testimony of the single witness who saw the money handed by the deceased to the defendant becomes very important. He says that Mr. BohrhacTcer was the only other person present, but he was not examined. Now all that this witness says, which has any material bearing, is that he saw Wunsch give Schilling a bank note for $1000. They had a conversation at the time, but the conversation was in the German tongue, and the witness did not understand a word of it.

The other two witnesses, who say anything, say only that they heard Mr. Schilling admit that he had received $1000 from Mr. Wunsch, but he did not say for what purpose he got it. One of them declares that he said he had paid bills for Wunsch, and then the money that was left he paid out'when there was a family meeting.

Upon this evidence we are compelled to decide whether proof of the bare fact that A. handed a certain sum of money to B. unexplained will authorize A. to recover it back on the allegation that it was a loan.

The highest authorities have decided this question in the negative. “The mere delivery of money by one to another, or of a bank check, or the transfer of stock unexplained, is presumptive evidence of the payment of an antecedent debt and not of a loan.” 1 Green. Ev. § 38.

“Prresumitur quisque solvisse quod erat debitum, ac indebitum a se solutum asserens probare debet.” Yoet ad Pandectas, lib. xxii, tit. iii, § 15.

Again, if Wunsch handed Schilling this money, Tcnowing that he did, not owe it, and if there is no proof of his intention, the presumption of law is that it was a gift, and he could not succeed in a suit for its repetition without disproving the presumption. Ita Paulus: “Cujus per error em dati repetitio est, ejus consulto dati donatio est.” L. 53, Dig. De regulis et cet.

“He who pays through error what he does not owe has an action for the repetition of what he has thus paid, unless there was a natural obligation to make such payment; hut he must prove that he paid through error, otherwise it shall he presumed that he intended to give.” O. P. 18.

The fatal defect of the proof in this case is, that the common intent of the parties, when Wunsch handed the bank note to Schilling, is left entirely in the dark. We are called upon to presume a loan, when the presumption of the law is that it was either a payment or a gift. If we were informed what was said at the time, we could then affix a legal character to the contract from the evidence. In the absence of all evidence, we are not permitted to presume that a loan was intended, and if it was not, the plaintiff must fail in his action.

As it is possible that Mr. BoTvrbaclcer, who was present, may be able to state the conversation of the parties at the time the money passed from the deceased to the defendant, we will not conclude the plaintiff by our judgment.

It is ordered, that the judgment of the District Court be avoided and reversed, and that there be judgment against the plaintiff, as in case of non-suit, he paying costs in both courts.


author: Vooehies, J.

text:
    Keys, Maltby & Co. et al. v. J. C. Riley et al.
    "Where property is under seizure at the suit of several attaching creditors, and judgment is rendered in favor of the plaintiff in the prior attachment, the others have a right of appeal from such judgment under Art. 571 of the Code of Practice, notwithstanding there had been no issue joined and no curator ad hoc appointed to represent the defendant in the subsequent attachment.
    The prescription of one year, under Art. 8499 of the Civil Code, as to workmen, laborers and servants, only applies where the employment has been by the day or by the month ; it does not apply to claims for the value of work done by the job, and of materials furnished for such.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Thomas Hunton, for plaintiff and appellee. Mott & Frazer, for appellants.
   Vooehies, J.

The steamer Dick Keys and barge Pythias were seized under a writ of attachment sued out by the plaintiffs, Keys, Maltby & Go., against John G. Filey, Frcmh Stein and Thomas Trunnell. Twenty-four other writs of attachment were subsequently sued out by other creditors against the defendants, and levied upon the same property. There was, besides, a number of oppositions filed by other creditors in this suit, in which privileges on the property attached were claimed. During the pendency of this suit the property attached was sold by the Sheriff, and the proceeds thereof ordered to be distributed in accordance to a judgment rendered by the court below.

Alexander Horton & Go., John F. Hyde & Go., Fdwcwd Hollister and Win. H. Hurall are the only appellants from that judgment.

The record shows that they sued out separate writs of attachment, which were levied on the property already attached by the plaintiffs.

A plea of prescription was filed by them as a bar to the plaintiffs’ claim against the defendants.

It does not appear that issue was ever joined in any of the cases instituted by them against the defendants by attachment, either by answer or default, nor that a curator ad hoc was appointed to represent the defendants as absentees. This is urged as an objection to their right of appeal in this instance.

In their petition praying for the appeal, they allege that there is error to their prejudice in the judgment rendered in this and other cases in the distribution of the funds arising from the sale of the steamboat Dick Keys.

We think this is sufficient, under Article 571 of the Code of Practice, to entitle them to the right of appeal.

On the merits, the plaintiffs’ demand against the defendants appears to us to be sufficiently sustained by the evidence.

The prescription interposed by the appellants as a bar to the plaintiffs’ claim against the defendants, is, in our opinion, inapplicable. It only applies to the wages of workmen, laborers and servants who are employed by the day or by the month, and not to claims for the value of work done by the job, and of materials furnished for such work, whether it be under a specific agreement, or on a quantum meruit. O. C. 3499; 5 A. 571; 19 L. 413.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.


text:
    Henry Keane v. W. L. Branden and Robert Semple.
    Since the Statute of 1844, money paid for usurious interest can be reclaimed if suit is brought within one year after the payment.
    Where an account has been rendered and a balance struck and acquiesced in by the debtor, the imputed credits are to be considered as payments, but the credits must first be imputed to the payment of such charges as the debtor was legally bound to pay and not to such as he was under no obligation to pay.
    An acquiescence in an account containing illegal charges, will not estop the debtor from pleading their illegality — the only effect of such acknowledgment is to dispense the creditor from any affirmative proof. A mere charge in an account of interest beyond the legal rate which has not been acknowledged or acquiesced in, will not preclude the creditor from the recovery of legal interest.
    Interest may be charged on the balance of an account rendered and acquiesced in, although the account was made up in part of interest, provided the interest so charged was not usurious.
    An agent who has been instructed to insure, cannot take the risk upon himself as insurer; he cannot, if he does, recover from his principal premiums for insurance, but in case of loss he would be bound to indemnify his principal not as insurer but on the ground of having failed to comply with his instructions.
    Where the factor has made advances to the planter from his own resources, all charges for negotiations, discounts and commissions, if charged in addition to eight per cent, per annum, are file-gal.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Face <$> Foster and Durant & Horner, for plaintiff.

      J. H. Chilton and Beiyjamin, Bradford & Finney, for defendants and appellants.
   Lea, J.

The plaintiff sues for an alleged balance duo upon an account current for supplies and advances made to the defendants, as shown by accounts annexed to the petition. In a supplemental petition a claim is made for commissions upon the defendants’ crop, which the plaintiff alleges he would have earned, had the defendant complied with his contract to ship the same to him after having been furnished by the plaintiff with supplies for his plantation, with the understanding that the petitioner should have the commissions for selling- the crops.

The defendants pleaded the general issue, and further they alleged that the plaintiff, being the factor and commission merchant of Brandon, received his crops in that capacity, and from time to time since the year 1847, rendered him accounts which they aver are incorrect and fraudulent, “ containing overcharges, false entries, miscalculations and errors, also illegal and unauthorized charges for interest, and discount for moneys raised by said plaintiff for his own use, and without the consent or authority of the defendants.

A special jury of merchants was empannelled to try the issues involved in the case, who found a verdict in favor of the plaintiff for the sum of $6,184 89, with interest at five per cent, per annum from the 9th of March, 1854.

From a judgment based upon this verdict, the defendants have appealed.

On the trial of the case the court was asked to instruct the jury:

1st. That an agreement to pay usurious interest, or any other charges at a higher rate of commission, discount, or insurance, &c., than the law allows, is a natural obligation, and money paid under it could not be recovered back, until since the passage of the Act of the Legislature of this State in 1844, p. IS, and that now under said Act, money paid, or accounts acknowledged to be correct, cannot be reopened and inquired into by the party who pleads xisury, except to the extent of one year, dating from the time such plea was filed in court, and that said law applies equally to a defendant who resists payment of a balance on account, as to a plaintiff who brings a direct action to recover back any such charges.

2d. That where no objections are made to the rate of interest, commissions, discount, exchange, insurance, &c., for a long time after the account current was rendered, and the balance finally settled, or acquiesced in by the debtor, or planter, he will be estopped from objecting to any usurious charges contained in said accounts thus rendered.

3d. That if the jury find that there was, in the spring of 1853, or at any other time, an acknowledgment of, and an acquiescence in the accounts current rendered up to that time; in that event, their inquiry into any and all usurious charges will be restricted to one year from the date of the defendants’ filing their answer in this suit, setting up usury, &e.

4th. That if the jury find from the evidence, and particularly from the act of sale, that the “Arcóle” plantation was sold to Colonel Robert Semple, and that General W. L. Brandon managed said plantation as the agent of said Semple — in that event, any acknowledgment of the correctness of said accounts by Brandon, during the continuance of his agency, are binding upon Semple, his principal.

5th. That when an account current, showing the balance, has been rendered and acknowledged, it is not then necessary to Show any of the items thereof.

6th. That where a factor renders his account current showing a balance due, which balance is made up in part by interest charges, which have been acquiesced in, interest may be chai’ged on such balance.

7th. That a factor, by charging ixx his account curroxxt usurious interest, &c., does not thereby forfeit his right to recover legal interest.

8th. That if the jury find from the evidence, that sxxpplies were furnished by the plaintiff to defendants, under a promise or agreement that the crop of 1853 should be consigned to him for sale; and that said crop was not shipped to him, but to the house of Payne & Harrison, then said plaintiff is entitled to full commissions upon the whole of said crop.

9th. That fraud is never to be presumed, but must be pi’oved by the party who alleges it.

10th. That if the jury should disagree with counsel for plaintiff, andnotfind a sufficient acknowledgment of, or acquiescence in said accounts currant by said defendants or either of them, to restrict their investigation to one year, then it will be their duty to correct all errors against plaintiff, as well as those in his favor.

The district Judge charged the jury on all the foregoing points in accordance with the prayer of the plaintiff’s counsel, making a verbal but immaterial change in the form of the charge on the first point.

"We think there was error in the charge of the court so far as it relates to the right of the defendaxit to recover the sums paid for usurious interest, and other illegal charges.

Formerly, money paid for usurious interest could ixot be recovered; but since the Statute of 1844, money so paid can be reclaimed if suit is brought for its recovery within one year subsequent to the date of the paymoxxt; and when oxxce an account has boon rendered and the balance struck, and acquiesced in by the debtor-, the imputed cx-edits in the account will be considered as payments ; but in such case, the credits must be imputed, first, to the payment of such portion of the charges as the debtor was legally bound to pay; not to such, as he was under'no obligation to pay, as for instance usurious interest. The prescription for the recovery of usurious interest which has been paid, does not extend to any other charges for which the debtor was not bound and which he may have paid. An acquiescence in an account containing such charges will not estop the party making it from his action for a recovery.

2d. When an account current showing a balance has been rendered and acknowledged, the creditor is dispensed from any further affirmative proof beyond the acknowledgment of the several items of the accounts; but such acknowledgment is not conclusive, its effect being merely to throw the burthen of proof of the inaccuracy of the account upon the debtor who alleges it.

3d. A mere charge in an account, of interest beyond the legal rate, which has not been acknowledged or acquiesced in, will not preclude the creditor from the the recovery of legal interest; and where an account has been rendered and a balance struck which has been acquiesced in by the debtor, interest may be charged subsequently on such'balance, though formed in part of anterior interest, provided such anterior interest be not usurious.

Our attention has also been called to the bills of exception taken to the charge of the court to the jury, as given upon the request of the defendants’ counsel.

The counsel of defendants asked the court to charge as follows:

1st. If the jury believe from the evidence before them, that no insurance was actually paid by the plaintiff, as charged in the accounts on file, but that the plaintiff assumed the risk of insurance himself, and charged for the risk so assumed, then all the charges for insurance so made are illegal and must be stricken from the accounts on file, unless the jury find that the plaintiff assumed the risk of insurance, and charged for the risk so assumed with the knowledge of and by agreement with the defendants.

2d. That if the jury believe from the evidence on file that the negotiations charged in the accounts on file were not actually made, but that the funds advanced to the defendants were raised by the plaintiff from his own resources, then that all charges of commission, discount, &c., for such negotiations are illegal and must be disallowed.

3d. That all charges for the commission upon funds advanced by the plaintiff are illegal and must be disallowed, if claimed and charged in addition to interest at the rate of eight per cent, per annum.

4th. That the rate of legal interest is five per cent, per annum. That the highest rate of conventional interest is eight per cent, per annum. That conventional interest cannot be charged in any case without an agreement in writing to authorize it; and that no greater compensation for the use of money than eight per cent, per annum, can be lawfully charged in any case, whether disguised as commissions for advancing, commissions for negotiating, discount upon exchange or otherwise.

6th. That if an account current contain charges for interest beyond the highest conventional rate of eight per cent, per annum, whether disguised as commissions for advancing, commissions for negotiating, discount upon exchange or otherwise, or if the said account current contains any other illegal charges, and the account current is closed by striking a balance and bringing down the balance to the debit of the account, but without any special imputation of the credits in the account to any particular items of dehit, then the credits must be imputed to the sums legally due, and not to the illegal charges for interest or otherwise — and that all the illegal charges aforesaid must be treated by the jury as contained in the balance so brought down.

Cth. That if an account current showing a balance due to the plaintiff, but which balance results from illegal charges for interest or otherwise, be transmitted to the debtor and received without objection, yet that such acquiescence and consent to the account cannot preclude the debtor from subsequently contesting it.

7th. That if there has been fraud or undue concealment amounting to fraud practiced by a factor in his account cui’rent or in his dealings with a planter, for one or more years, prescription cannot be pleaded or set up in bar to the planter’s right to inquire into and demand a correction and relief from such fraud, except from the date of the discovery of such fraud by the planter.

8th. That if there are gross errors in fact, or mistakes as to the legal rights of the parties in accounts between factor and planter, the planter will not be barred by acquiescence or lapse of time from inquiring into and correction of said errors and mistakes, except from the date of the discovery by the planter of such gross error or mistake.

9th. That if the jury are of opinion from the evidence on file that the defendants had just cause for withdrawing his business ifom the plaintiff, then he, the plaintiff, is not entitled for commissions on the crop of 1853.

10th. That the jury are at liberty to give a general verdict by pronouncing on the law and the facts, in the case submitted to them.

We think there was no error in the charge which the court was called upon to give to the jury, except as respects the fifth item, which should have been in some respects modified. The court refused to charge as requested upon the first, fourth and sixth points specified.

1st. An agent who is instructed to insure cannot take the risk upon himself as an insurer, without the previous consent of his principal. He cannot contract with himself, and if he could, the rule is as consonant with public policy as with a sound morality, that he should not be permitted to do so. He cannot, therefore, recover the premiums for insurance which he has charged, for there has been no contract of insurance; but in case of loss, he would not the less have been bound to indemnify his principal, not as an insurer, but as an agent who had failed to comply with his instructions.

2d. Conventional interest cannot be charged without an agreement in writing to authorize it, and by no evasion in the form of the contract, can the creditor lawfully obtain more than eight per cent, for the use of his money.

3d. We have already considered the question presented in the sixth point upon which the court was requested to instruct the jury.

Upon the question of imputation of payments we have already stated, that where an account had been presented, and a balance struck, which had been acquiesced in by the debtor, that the imputed credits in the account would be considered as payments; but in the absence of any special imputation of the credits to any particular items of debit, they were to be imputed, fi)‘st, to the payment of such portion of the charges as the debtor was legally bound to pay, and not to such as he was not bound to pay; but should the payments, or the amount imputed as such, be in excess of -the amount aatmaThj due, the surplus, under such circumstances, may fairly be considered as imputed to the usurious interest, or other illegal charges specified in the account; and after such imputation shall have been made, we think so far as relates to the recovery of the usurious interest thus paid, that the prescription of one year would be applicable.

We think that a restatement of the several accounts rendered by the plaintiff in accordance with the foregoing principles, would make a material change in the result. The district Judge was of the opinion that substantial justice had been done by the verdict of the jury; but we must presume that the jury acted upon the instructions of the court, and that had the instructions been different, there would have been a corresponding difference in the verdict of the jury.

If the record were complete, we might refer the accounts to an auditor to be restated in accordance with the foregoing views, but portions of the record are wanting, which can only be supplied by evidence offered on a new trial, and though such portions may have no very important bearing upon the merits of the case, we think it unsafe, under the circumstances, to adjudicate upon an incomplete record.

It is proper to add, that we think the bill of exceptions to the admission of the account marked (W. X) was well taken. There should have been other evidence, besides the affidavit of the plaintiff, that the original account had been transmitted to the defendants ; and that the copy offered in evidence was a correct copy of said original. Under the circumstances, the affidavit did not furnish a sufficient basis for the introduction of the copy in evidence.

It is ordered, that the judgment appealed from bo reversed, and that the case be remanded for further proceedings to be had in accordance with the principles announced in this opinion, and in other respects according to law. It is further ordered, that the plaintiff and appellee pay the costs of this appeal.

Merrick, O. J., took no part in the decision of this case.


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    Succession of William D. Smith.
    Where the defence set up to a recovery upon a contract is the insanity of the obligor, it must be shown that the mental derangement was notorious when the contract was entered into, where there had been no interdiction of the party sought to be charged. C. 0., 1781.
    Appeal from the Second District Court of New'Orleans, Morgan, J.
    IF. II. Hunt, for executrix and appellant.

      J. W. Duncan, Horner, Eggleston and McConnell, for opponents and appellees.
   Buchanan, J.

Various persons claim to be creditors of this succession, whose claims are not recognized by the executrix as just. Their oppositions to a provisional account of administration having been sustained by the District Court, the executrix has appealed in relation to two of the claims thus allowed.

1st. Battersl/y and Watson claim 4 56, amount (including costs of protest) of a bond subscribed by the deceased William B. Smith at Liverpool, on the 10th August, 1854. This claim is evidenced by the production of the bond, the signature of which is not disputed, and by correspondence of Smith.

2d. Sybrandt and Uevins claim $437 83 by book account against one Gale, which the deceased Smith assumed and promised to pay — as proved by two witnesses, Ilopldns and Andrews.

The defence set up by the executrix is insanity of Smith. But the evidence does not make out this defence. It is clear that the mental derangement which some of the witnesses attribute to him was not notorious, as required by.the 3d rule of Article 1781 of the Code, in cases where there has been no interdiction. Neither is it shown that the persons who contracted with Smith were aware of a derangement of his intolocts when they so contracted.

The contracts in themselves contain no indication of insanity on the pai u of Smith. That of Battersly and Watson, at least, was much more than thirty days previous to the death of Smith, and no application was ever made for Smith's interdiction. O. 0., Art. 396 ; Art. 1781, rules 5 and 6.

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


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    P. E. Trastour v. B. Fallon et als.
    The defendants were appointed a “ Permanent Committee ” to forward a scheme proposed at a public meeting of the citizens of New Orleans, of establishing a railway across the Isthmus of Tehuantepec, and in that capacity contracted with the plaintiff. It was held that the burden of proof, as to the terms of the contract, rested upon the plaintiff, and that to hold the defendants liable, he must show that he contracted with them personally, or that they misled him by assuming to act for others without sufficient authority.
    In cases of this character, the controlling question is, .whom did the employee trust? If no artifice or deception was used in making the contract, and the employee knew the capacity in which his immediate employer acted and looked to a special fund or to a projected company to reward him, he cannot hold the honest agent personally liable.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J. Tried by a jury.

      J. Seghers, J. L. Tissot and W. D. Hennen, for plaintiff and appellant.

      J. P. Benjamin, for .defendants.
   Spofford, J.

In the fall of 1849, the attention of this section of the United States, and especially of the city of New Orleans, was directed to the project of establishing a communication between the Atlantic States and our new possessions on the Pacific coast, by means of a railway across the Isthmus of Tehuantepec. A privilege conceded by the Government of Mexico to Señor Pon José de Ga/ray, was supposed by many to afford greater facilities for the contemplated work than could be obtained in any other mode.

A public meeting of the citizens of New Orleans was held to devise ways and means for furthering this project, which was supposed to promise great advantages to the city, by bringing to it a new tide of commerce and travel. The meeting appointed a “Permanent Committee” of twenty-one citizens of New Orleans to take charge of the business and to forward the scheme.

This committee held frequent meetings, of which they kept a record open to public inspection; entered into correspondence with parties interested in the Garay grant, and procured subscriptions to defray preliminary expenses incurred for the purpose of informing themselves and the public as to the advantages of the proposed line of transit

Their own services appear to have been gratuitously given, and the object of their appointment by the citizens, as interpreted by the whole course of their procedure, was to awaken interest in the subject of a Tehuantepec railroad, to demonstrate its facility, to procure the advantages of the Garay grant for New Orleans, and to lead to the organization of a company in Louisiana, which, availing itself of the privileges of the grant for which negotiations were to be made, should finally achieve the great enterprise of connecting the two oceans by this route.

It appears by the journal of the Permanent Committee that, early in 1850, they succeeded in making a conditional arrangement with Mr. P. A. JIargous, of New York, (who had become the assignee of the Garay grant,) by which the latter agreed to transfer the grant with all its privileges to a few citizens of New Orleans, to be by them held in trust for a company to be organized as soon as it should become practicable, with a capital of nine millions of dollars, one-third of which was to belong to Mr. Jlcm'gous as the consideration of the transfer; two years were given from the date of the agreement, within which the railroad company was to be organized, and in default of such organization, the grant was to revert to Ucm'gous.

A sub-committee called the “Managing Committee,” was appointed by the “Permanent Committee,” who constantly reported to the latter their proceedings for approval.

Early in 1850, steps were also taken by the Permanent Committee to have an authentic survey of the Isthmus of Tehuantepec made with reference to the future location of a railroad. The committee were anxious to procure a government engineer of general reputation to take charge of this survey, in order to inspire confidence in his report. At length, they succeeded in securing a promise of the services of Magor Bcmiard, of the United States Engineer Corps. His mission was to make a thorough survey of the whole route, and he was to be provided with the requisite assistance and materials; but his departure was postponed to the end of the rainy season in the fall.

Meanwhile, it was proposed to employ the plaintiff Trastour, an engineer by profession, to make a preliminary survey for certain special objects. Trastour had previously been upon the Isthmus and had prepared certain maps which, at their instance, he exhibited and explained before the Permanent Committee. Being a resident of New Orleans, he had also, at the solicitation of the Permanent Committee, been appointed by the Governor of Louisiana a delegate to a general convention held in the spring of 1850 at Memphis to promote the cause of internal improvements, with reference to a more complete intercourse with our possessions on the Pacific — an appointment which he accepted.

The only contemporaneous evidence of the engagement of the committee with Trastou/r, is contained in the following minutes of their proceedings, at a meeting held upon the 6th June, 1850.

“Mr. Benjamin communicated the object of the calling of this meeting, which was to report that the Managing Committee, of which he is Chairman, had concluded that it would be interesting and highly advantageous to send a mission immediately to the Isthmus to obtain all information about the Pacific coast, the point most disattended and hardly commented upon in the surveys, memoirs and sources of information that have been attainable, and yet a point most necessary to be known for the prosecution of the undertaking. Mr. Ben-gamin represented that the acquisition of this knowledge would be very valúable before expediting or organizing a survey for fuller service, or taking any other material action in the matter. Also, that Mr. Trastow' had engaged to accomplish the desired object, making all arrangements himself, and at a cost of about §5000, to the committee, and four months time.

“ On this point being' referred by the Chairman to the committee, it was unanimously decided that Mr. Trastour should be engaged for the service professed by him, and that the funds raised by subscription among our citizens, and existing in the Treasurer’s hands, should be applied for that purpose.

11 Mr, Benjamin further stated that Mr. Trastour had informed him of the desire of Dr. Kovaleslci, a scientific and worthy gentleman, well known to Mr. Trastour, to accompany the latter in his expedition, provided expenses only were defrayed by him, and estimating them at $800 to $500.

“ The Chairman having asked the sense of the committee, consent was unanimously given, with full consideration of the advantages that might be obtained by the accompaniment of the Doctor to the expedition of Mr. Trastour.”

By the report of the Treasurer of the committee, of date 15th October, 1850, it appears that, out of $9455 subscribed by liberal individuals as a preliminary fund to forward the purposes for which the citizens of Now Orleans had appointed this committee, $5000 had been paid to Trastour, $500 to his wife and $300 to Dr. Koraleshi.

To pay for the expenses of Majoi' Banmard’s survey, which was to be more costly and complete, a projet of an organization in the form of a company, as agreed upon with ITargous, was, at a later day, drawn up ; and the subscribers to its stock entered into the express stipulation to pay in cash five dollars per share at the time of their subscription, the money to be devoted to the purposes of Major Bcarnard's expedition.

Meanwhile, on the 13th June, 1850, Trastour had departed from New Orleans to make his preliminary survey of the Isthmus. He was gone nearly twelve months, instead of four, and expended an amount considerably above that expressed in the conditions of his undertaking, as recorded in the minutes of the Permanent Committee. This occasioned trouble to the committee, who complained to Trastov/r, but at the same time they acknowledged the very meritorious nature of his services, and gave directions to Major BaA'na/rd who went out in the winter of 1850, to assume his contracts so far as practicable, and to relievo him from the embarrassments occasioned by his having gone in debt beyond the funds placed at his disposal. He was also offered a place in the committee’s service, under Major Barnard, which he seems to have declined, preferring to return with the notes and materials provided in his explorations, in order to construct the requisite maps and charts in New Orleans. His principal services upon the Isthmus consisted in the soundings of the Boca Barra, in ascertaining that La Ventosa, on the Pacific coast, was a safe and commodious port, and in surveying that coast from the Boca Barra to the village of Huamelulo.

In his journey he was exposed to many hardships, and he displayed throughout great fortitude, perseverance and scientific skill.

Immediately upon his return to New Orleans, he commenced the necessary work upon his maps and charts, and the expenses of assistants, as well as an office for the purpose, were, from time to time, advanced by the committee out of funds received by them in their official capacity.

Major Barnard and his party had not completed their survey when the Mexican Government, having' taken an unexpected step in opposition to the validity of the Garay grant, drove them from the Isthmus.

A diplomatic correspóndete between the Governments of Mexico and of the U. States ensued, the committee still having hopes that the Garay grant would be finally sustained, until late in 1852, when every prospect of prosecuting the original scheme of a railroad under the grant appears to have failed, and they abandoned it to JTargous, and turned their attention to the subject of procuring an indemnity from the Mexican Government for past outlays by the citizens of New Orleans. In this also they iailed. In August, 1852, Mr. Trastour was notified that as the proposed Tehuantepec Company had been subjected entirely to political negotiations, the issue of which it was necessary to wait, and as the funds were exhausted, he must suspend work in the service of the committee.

In March, 1854, Trastour brought the present suit against the members of the Permanent Committee and their Secretary B. Fallon personally, claiming of them in solido $110,546 72, as a balance due for his services aforesaid.

The case of Fallon was tried first and separately before a jury. It resulted in a verdict and judgment in his favor, and the plaintiff waiving the jury as to the other defendants, there was judgment in their favor, and the plaintiff has appealed from both judgments.

He declared upon an express contract, but he seeks to recover upon a quanbu/m meruit.

The burden of proof, as to the terms of the contract, is upon the plaintiff. To hold the defendants liable, he must show that he contracted with them personally, or that they misled him by assuming to act for others without sufficient authority.

We find no evidence whatever of an engagement on the part of the defendants in their personal capacities, to pay the plaintiff anything. Indeed, the argument of his counsel seems to waive this point and to rest wholly upon the assumption that their personal liability flows as a legal consequence from their having assumed to act for an irresponsible principal.

The extract we have already made from the minutes of the Permanent Committee, is the written evidence of their original contract introduced by Trastour himself. This repels every inference of a personal obligation assumed by the members of the committee. It recites the estimated cost of the work for which Trastou/r was employed, and designates the special fund which was to meet the cost. If the committee had appropriated that fund otherwise, they would then have become liable themselves to Trastour for the amount thus diverted from his use. But they did more for him than they engaged to do. He not only received the fund on hand at the time of his engagement, but he and his employh were paid large sums besides, collected from other subscriptions. Between May, 1850, and August, 1852, his own account shows that he received $15,578 85. He states that of this sum he disbursed for necessary expenses $12,615 55, and used privately only $2,963 28.

But the question is not whether the plaintiff’s time and services were worth a more liberal compensation, but whether the committee have complied with the contract they made with him.

After judgment in the court below, upon a motion for a new trial, the plaintiff seems to have taken a position somewhat inconsistent with his petition, to wit: that he made two distinct contracts at different times with the defendants, one to survey the Isthmus, and another to supply the maps and charts. But his petition refers to hut one contract, and speaks of the maps and charts as necessary to show the result of the survey. And his allegation is that the committee agreed not only to defray the expenses of the survey and supply his family with $100 per month while he was engaged in it, but to pay him besides for the survey and the charts necessary to embody its results, “ such sums as they should be liberally worth, and also what should be a very high and extraordinary reward if he should succeed in discovering a good harbor for the terminus on the Pacific coast.”

It is as to this latter portion of the alleged contract, the liberal compensation promised by the committee individually, and the extraordinary reward for discovering the port, that the evidence is entirely lacking.

Does the law imply such a promise from the contract which is proved ?

That the plaintiff hoped to get a liberal reward in case of his own success, and that he would have obtained it if the grant had been sustained and the contemplated company successfully organized under it, we think is extremely probable. But he would have obtained it from the company so organized, not from the committee individually. Did the committee deceive or mislead him ? We see no evidence of it.

All them proceedings were public and notorious. The representative capacity in which they acted was known to the plaintiff. Notwithstanding they were, individually, men of wealth, the plaintiff never seems to have applied to one of them to pay any portion of the claims out' of his own pocket. If they had been contracting on their own aefcount the “high and extraordinary reward” in case of his success, would have been stipulated at a fixed sum in the ordinary course of business dealings. The fact that it was left open in this loose manner shows that they were not binding themselves, hut that the plaintiff was looking to the generosity of a future company, which every one was confident would be formed, hut for which the committee could not promise. His whole intercourse with the committee confirms this view. IJYe think it results from the evidence that he always looked to the fund and to the liberality of the future company to he benefited by his services, and that he never looked to the individual members of the committee until the whole scheme had exploded.

And in cases of this character, the controlling question is, whom did the employ á trust? See Story’s Agency, § 288. If no artifice or deception was used in making the contract, and the employ 'e knew the capacity in which his immediate employers acted, and looked to a special fund or to a projected company to reward him, he cannot hold the honest agent personally liable. The minutes of the Permanent Committee, and the letters of the defendants Fallon and Benjamin, relied upon by the plaintiff as proofs of his contract, all show that he had no right to look to the members of the committee personally for a reward. His own letters advance no such pretension, even at a time when he had gone in debt beyond the sum appropriated to him, and he was most pressed for money. And the hopes held out to him occasionally by Fallon and Benjamin, as testified to by some of his witnesses, are evidently predicated upon the presumed success of the project of a company, or at least upon the expectation that an indemnity would he procured by our Government from the Government of Mexico, for what was supposed by the committee to he a breach of national faith and a violation of vested rights ; and that some portion of this indemnity would be appropriated to the plaintiff as a recompense for his skill and enterprise devoted to the furtherance of a brilliant but unsuccessful project.

Leaving out of view the testimony of Fallon, to the admission of which a bill of exceptions was reserved by the plaintiff, we do not find that a case of personal liability is made out'against any of the defendants. Upon the competency of Fallon to testify for the other defendants, after a verdict in his own favor, we need not express an opinion.

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