text:
    No. 11A691.
    John Kasich, Governor of Ohio, et al., Applicants v. Charles Lorraine.
    565 U.S. 1186, 132 S. Ct. 1306,
    2012 U.S. LEXIS 1065.
    181 L. Ed. 2d 1034,
    February 8, 2012.
   Application to vacate the stay of execution of sentence of death entered by the United States District Court for the Southern District of Ohio on January 11, 2012, presented to Justice Kagan, and by her referred to the Court, denied.

Same case below, 840 F. Supp. 2d 1044.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11-8610 (11A734).
    Edwin Hart Turner, Petitioner v. Mississippi.
    565 U.S. 1187, 132 S. Ct. 1306,
    2012 U.S. LEXIS 1066.
    181 L. Ed. 2d 1034,
    February 8, 2012.
   Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Petition for writ of certiorari to the Supreme Court of Mississippi denied.


text:
    No. 11-8705 (11A758).
    Edwin Hart Turner, Petitioner v. Christopher B. Epps, Commissioner, Mississippi Department of Corrections, et al.
    565 U.S. 1187, 132 S. Ct. 1306,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1067.
    February 8, 2012.
   Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied.

Same case below, 460 Fed. Appx. 322.


text:
    No. 10-1032 (R46-008).
    Steve Magner, et al., Petitioners v. Thomas J. Gallagher, et al.
    565 U.S. 1187, 132 S. Ct. 1306,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1069.
    February 14, 2012.
   The writ of certiorari to the United States Court of Appeals for the Eighth Circuit in the above-entitled case was dismissed today pursuant to Rule 46.1 of the Rules of this Court.

Same case below, 619 F.3d 823.


text:
    No. 11-8714 (11A761).
    Robert Brian Waterhouse, Petitioner v. Florida.
    565 U.S. 1187, 132 S. Ct. 1306,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1068.
    February 15, 2012.
   Application for stay of execution of sentence of death, presented to Justice Thomas, and by him referred to the Court, denied. Petition for writ of certiorari to the Supreme Court of Florida denied.

Same case below, 82 So. 3d 84.


text:
    No. 11-8860 (11A785).
    Robert Brian Waterhouse, Petitioner v. Kenneth S. Tucker, Secretary, Florida Department of Corrections, et al.
    565 U.S. 1187, 132 S. Ct. 1306,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1070.
    February 15, 2012.
   Application for stay of execution of sentence of death, presented to Justice Thomas, and by him referred to the Court, denied. Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.


text:
    No. 10-1320.
    Alex Blueford, Petitioner v. Arkansas.
    565 U.S. 1188, 132 S. Ct. 1307,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1073.
    February 17, 2012.
   Motion of Michigan, et al. for leave to participate in oral argument as amici curiae and for divided argument denied.


text:
    No. 10-1491.
    Esther Kiobel, Individually and on Behalf of Her Late Husband, Dr. Barinem Kiobel, et al., Petitioners v. Royal Dutch Petroleum Co., et al.
    565 U.S. 1188, 132 S. Ct. 1307,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1074.
    February 17, 2012.
   Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 10-9995.
    Patrick Wood, Petitioner v. Kevin Milyard, Warden, et al.
    565 U.S. 1188, 132 S. Ct. 1307,
    181 L. Ed. 2d 1035,
    2012 U.S. LEXIS 1071.
    February 17, 2012.
   Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 11-88.
    Asid Mohamad, Individually and for the Estate of Azzam Rahim, Deceased, et al., Petitioners v. Palestinian Authority, et al.
    565 U.S. 1188, 132 S. Ct. 1307,
    2012 U.S. LEXIS 1072.
    181 L. Ed. 2d 1036,
    February 17, 2012.
   Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 11A762.
    American Tradition Partnership, Inc., fka Western Tradition Partnership, Inc., et al., Applicants v. Steve Bullock, Attorney General of Montana, et al.
    565 U.S. 1187, 132 S. Ct. 1307,
    2012 U.S. LEXIS 1075.
    181 L. Ed. 2d 1036,
    February 17, 2012.
   Application for stay, presented to Justice Kennedy, and by him referred to the Court, granted, and the Montana Supreme Court’s December 30, 2011, decision in case No. DA 11-0081, is stayed pending timely filing and disposition of a petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for writ of certiorari is granted, the stay shall terminate upon issuance of the mandate of this Court.

Same case below, 363 Mont. 220, 271 P.3d 1.

Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting grant of the application for stay.

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753. A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson /American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989), I vote to grant the stay.


author: Eusxis, C. J.

text:
    Cockerell v. Smith, Syndic.
    The purchaser of a steamer who alleges that he has been evicted by order of a court of competent jurisdiction for debts secured by lien aud privilege contracted by his vendor previous to the sale, cannot claim restitution of the portion of the price paid by him, nor retain the balance, where he had at his disposal adequate proof to repel the claims on which the alleged eviction was effected, but which was not heard solely because the only judge present, who had authority to grant an injunction applied for by the purchaser, had been counsel for one of the parties and would not act on the application, and where tho vendor was not a party to the proceedings, nor notified of them. A vendor is not auswer* able, under his warranty, for a failure of justice resulting from such an accident. C. C. 3494.
    In an action by one who has been evicted by a judgment of a court of competent jurisdiction, against his vendor, who wss not a party to the suit, nor notified of it, the return made by tbe sheriff on they?, fa., under which the property was sold, is only primá facie evidence of the facts of which the sheriff could lawfully make return.
    Where a party does not produce the best evidence of which the nature of his case admits, nor accounts for its absence, it will be presumed that such evidence would not be favor* able to his claims.
    Appeal from the Parish Court of New Orleans, Maurian* J.

      JBenjcLiidib and Micou, for the appellant, R. jVM and A. IV. Ogden* contrá.
   The judgment of the court was delivered by

Eusxis, C. J.

The questions to be determined in this case relate to th© payment of the price of the steamer Mound City, which was sold in February, 1844, in New Orleans, at the instance of Smith, the syndic of an insolvent’s estate, and purchased by Cockerell, the appellant. .

He charges that he was evicted from the possession of the steamer at St. Louis, by virtue of an order of a court of competent jurisdiction, for debts due on her by lien and privilege, and contracted by her owners previous to the sale; and that, by reason thereof, he is entitled to recover back so much of the price as he has paid, and is not bound to pay that portion of it which was on a credit.

I. It is shown by the evidence offered by this appellant, that there were at }iis disposal adequate proofs to repel the claims on which the alleged eviction was effected: the testimony of his counsel, Mr. Blamerhasset, is conclusive on this point. The matters of defence are well stated in a bill in chancery, sworn to by this appellant, in which an injunction was prayed for against the judicial proceedings under which the steamer was seized. These matters the witness, Blannerhasset, states he believes to be true, and gives the grounds of his belief, and his means of information, which carry great weight with them.

The injunction was not granted solely because the only judge present, who had authority to grant it, had been counsel for one of the parties, and would not act upon the application.

An accident, therefore, was the cause of no defence being made ; and for this we do not hold the vendor to be answerable under his warranty. We understand that to make a vendor liable on his warranty, in case of eviction, it is incumbent on the purchaser to prove that it was occasioned by some lawful cause, which existed, or had its origin, previous to the sale. The vendor in this case was no party to the proceedings in Missouri, and was not notified of them. There was a failure of justice from mere chance. At the same time there was evidence on the spot which would have prevented the eviction, had it been heard judicially. Civil Code, art. 2494. Pothier, Contrat de Vente, § 94. 6 Martin N. S. 559.

The Roman Law has placed this principle beyond all controversy. Doctrina Pandectorum, by Muhlenbruch, § 399. Manual of the Roman Law, by Mack-eldey, § 370.

Thus, we think, that, under the hypothesis that the relations of vendor and vendee exist between these parties, which is the most favorable one which can be presented for the appellant, Cockerel, the law is against him.

II. It must be understood that we do not decide that these relations, in their full extent, result from the judicial sale of this steamer, made at the instance of the syndic of the insolvent proprietor. On this subject we express no opinion.

From cases of this kind arise questions of extreme delicacy. Some of them involve principles of great importance in relation to the powers of our own courts, and the effect to be given to the judicial proceedings of other States. We conceive none of these questions arise in the case before U3.

III. If there are any liens existing on a moveable previously to its sale by a syndic, our laws provide for their payment out of the proceeds of the thing sold.

If the debts in question were Iona, fide and privileged on the steamer, the creditors would preserve their privilege on the proceeds in the hands of the syndic.

Any person interested, paying those debts, would be subrogated to the rights of the creditors.

These matters have not been brought before us, and we have only to decide on the legal effect of the alleged eviction, under the circumstances presented to us in evidence.

IV. The fact of die eviction, as alleged in thepetition, is far from being established to our satisfaction.

The only evidence of it to which our attention has been directed, is the returns of the sheriff, which, between the present parties are only prima facia evidence of the facts of which the sheriff could lawfully make return.

The returns to the writs under which the sale is said to have been made are: “Satisfied by sale of steam-boat Mound City, 4 June, 1844. William Mil-burn, Sheriff.” This is the return on each writ, of which there are four for different amounts.

On two of them there are memoranda of the costs having been paid by the defendant, as he is called.

There is no written sale of the steamer in evidence. The appellant has given no account of the proceeds of the sale, nor of their amount, and we find the steamer still in his possession without any documentary evidence, which always accompanies the transfer of property of this description.

On the evidence which has been adduced, and on that which the party was bound to produce in a case of this kind, and which has not been produced, we are at liberty to form but one conclusion, which the law imposes on all those who seek relief in a court of justice, and who do not furnish the best evidence which the nature of the case admits of — which is, -that this evidence would not be favorable to their claims.

In relation to the alleged rescue of the steamer at New Madrid, previous to the sale, it is sufficient to observe that in any action of the plaintiffs against the steamer or her owners, founded on the fact of the rescue, they would be thrown back upon then' original cause of action, in the case in which the rescue took place. The bill in chancery, and the evidence of Mr. Blannerhasset, furnish abundant means of defence to s,uch an action.

We find no want of formality in the protests and notices to the endorsers.

Judgment affirmed.


text:
    Dunbar, Assignee, v. Hobbs.
    THIS THIS was an appeal from a judgment of the Commercial Court of New Orleans, Watts, J. The case was remanded for a new trial, with leave to the plaintiff to amend his petition. There was no decision on any of the questions involved in the controversy.

      L. C. Duncan for the appellant. Hoffman, Benjamin and Micou for the defendant.


author: Rost, J.

text:
    Cottle v. Wilson.
    Where in an action to recover the price of a slave, alleged to have died since the sale of an incurable disease which existed at the time of the sale to the knowledge of the vendor, it is shown that from the time when the slave was taken seriously ill he grew gradually worse till his death, no tender of the slave need he alleged or proved. • Per Cmiarn: No tender could he made during his illness, and it became impossible after his death.
    APPEAL from the District Court of the First District, Buchanan, J.

      El-wyn, for the plaintiff. Frazer and Josephs, for the defendant,
    contended that plaintiff cannot recover without proof of a tender of the slave to the vendor. • Ja-rán v. Franklin, 4 La. 190.
   The judgment of the court was delivered by

Rost, J.

The plaintiff purchased a slave from the defendant for the sum of six hundred dollars, under the usual warranty. He alleges that, five weeks after the purchase, the slave was taken ill, and notwithstanding the best attendance of physicians and nurses, languished, and finally died of an incurable disease of many years duration; that the defendant was aware of the existence of the disease, and concealed it from him; that the expenses of doctors, medicines, nurses and attention to said slave, and of his sepulture, amount to one hundred dollar's. He prays that the sale be annulled, and the defendant adjudged to pay him seven hundred dollars and costs. The defendant admits the sale, and denies all the other allegations in the petition. The court below gave judgment in favor of the plaintiff, and the defendant appealed.

His counsel prays for a reversal of the judgment, on the following grounds:

1.That the defendant was not put in default, by a tender of the slave to him.

2.That the slave was sound at the time of the sale and during five weeks thereafter; and that, in the incipient stage of his illness, the defendant did not take such care of him as would, under any circumstances, entitle him to recover.

3.That the testimony does not show what the disease was, nor that it was incurable at the time of the sale.

4.That there is no evidence to sustain the damages allowed by the District Court.

It is in evidence that from the time the slave was taken seriously ill, he grew gradually worse till his death; a tender of hinpcould not be made during his illness, and became impossible after he died.

The uncontradicted testimony of John Clarkson proves, that while in the possession of the defendant the slave was sickly, complained of a pain in his side, and was at timos unable to do a man’s work; that the defendant gave him medicine, and was hoard by the witness to say that it would be a great loss if he died. The evidence of Dr. 'Ridgely as to the humanity of the plaintiff, and the care taken of the slave, is explicit and satisfactory.

Clarkson proves that a disease existed before the sale to the knowledge of the defendant; and Dr. Ridgely states that the disease of which the slave died must have been of two years standing. The fact that, under proper care, death ensued, sufficiently proves that it was incurable.

The amount actually expended by the plaintiff for the last illness and sepulture of the slave is not proved, but Dr. Ridgely states that one hundred dollars would be a moderate allowance. The District Court was of that opinion, and we see no reason to interfere. Judgmenl affirmed.


author: Slidell, J.

text:
    Gottschalk v. Jennings et al.
    Defendants employed plaintiff, a broker, to sell certain property. Plaintiff communicated to them the name of a person who offered to purchase, but at aprice less than defendants asked. The latter rejected the offer and discharged the broker; but, shortly after, through another .agent, sold the property to the person whose name was communicated by plaintiff, and for .the price originally offered by him. Held, that defendants could not, by discharging the plaintiff and consummating the negotiation through another, deprive him of his right to compensation for services which eventually enured to their benefit.
    As a general rule, the whole service or duty must be performed, before an agent can claim any commissions; but cases may occur in which he will be entitled to a remuneration for his services in proportion to what he has done, although the business be not concluded, as .where its completion was prevented by the act of the principal.
    APPEAL from the Commercial Court of New Orleans, Watts, L Plaintiff claimed of defendants 1396, alleging that he was employed by them as a .broker to sell certain real estate; that he found a purchaser, who offered 140,000 for the property, but that defendants would not, at that time, accept the offer; that, shortly after, they accepted the offer which had been originally obtained .through plaintiff’s exertions, and sold tire property to Mercer, the purchaser thus obtained, for the sum of 140,000, less the discount; that plaintiff’s services were well worth the amount claimed, to wit, .one per cent on the price; and that one per cent is the brokerage usually paid for such services. The defendants answered by a general denial.
    The sale of the property to Mercer, for 140,000, was proved. George Gotts-<challc, a witness for plaintiff, proved that the latter had been employed to sell the property ; that defendants, two or three weeks before the sale, had declined to accept an offer of 140,000, alleging that they could obtain more. Hewes deposed that Mercer had called at his office to obtain information about the property, which had once been owned by witness; that they went together to see Lame, one of the defendants; that witness told Lame that he thought he was to give him. the selling of the property, when Lame replied that he had authorized plaintiff to sell it, but that ho would get the plan of the property from him, and give it to witness; that some time after, he did so, and, on the 1st April, witness sold it to Mercer for 140,000, and received a commission of one per cent for the sale. Witness understood from Lame that he would satisfy plaintiff, as he had declined to act least he should interfere with him. Defendants asked 145,000. They stated, at the time of placing the plan in witness’ hands, this to be the least they would take. Witness was engaged during two or three weeks in negotiating with Mercer. Lame stated to witness that plaintiff had named Mercer as the person who would give 140,000 for the property. Lame said •that he would satisfy the plaintiff, but that his services would be at an end as soon as he should take the plan from him. Saul, a witness for defendants, deposed that his services had been solicited by Jennings in effecting a sale to Mercer, ■and that he had received from Jennings a commission of one per cent for his ■ assistance. Mercer testified that he purchased the property; that it was first offered to him by plaintiff, but that, after some negotiations, he declined to buy. He made no distinct offer — plaintiff asked 150,000. He found the price too high, and considered the negotiation at an end. He does not recollect having suade any offer; may have mentioned 140,000 as aprice beyond which he would not go. He purcliased at that price. Plaintiff was the first person who came to him about the property; he called two or three times, and showed him ~ the plan of it. After the negotiation was considered by him as at an end, he met Saul, who suggested a mode by which the notes, secured by mortgage on tho property, might be discounted, which was an inducement to make the purchase. Pending the negotiation with plaintiff, witness called to see Hewes, who formerly owned tho property. Ilewes said that ho also was authorized to sell it, but, understanding that an offer had been first made to the iilaintiff, he said that he would have nothing to do with the business. After the conversation with Saul, Hewes wrote to witness, offering the property for the price which ho had mentioned to plaintiff as the maximum he would give. Witness afterwards purcliasod the property for that price.
    The court below gave- judgment for the plaintiff. Tho defendants appealed.

      Elwyn, for the piaintiff. Vason, for the defendants, cited Blanc v. Improvement Bank, 2 Robinson, 63. Bidion v. Buraldc, Ibid. 163.
   The judgment of the court was delivered by

Slidell, J.

The defendants were owners of certain real estate. They desired to sell it,and employed the plaintiff, a broker, to procure a purchaser. The plaintiff offered the property to Mercer at -150,000; Mercer made an offer of $40,000, or stated that amount as his maximum. They had several interviews, ■ the broker'explaining the character of the property by exhibiting the plans, etc.; but no bargain was concluded by Gottschalk. Ponding tho negotiation between plaintiff and Mercer, Mercer called on Ilewes, who had once owned the properly. Hewes stated that he also was charged with the sale of tiro property; but on being informed that Gottschalk had offered it to Mercer, Ilewes said he would not interfere. [‘Subsequently, however, the defendants withdrew the plan from Goltschalk's hands, and sent Ilewes to Mercer, and by negotiations through Ilewes and Saul, who, it seems, represented a mortgage creditor upon the property, the sale was soon after closed with Mercer, at the same price which Mercer originally offered, or stated as his maximum, to Gottschalk.

It is argued by the counsel for defendants that Gottschalk is not cntillcd to his commission, because tho sale was not concluded by him ; that tho negotiation through Gottschalk terminated unsuccessfully; and that tho bargain was accomplished through the efforts of Hewes and Saul.

Tho cases of Blanc and of Bidion, reported in 2 Robinson, are cited by the defendants. The former Supreme Court then decided that a broker can claim no compensation unless a bargain bo effected. In tho case of Blanc, it appears that he was employed to obtain for the Improvement Bank the negotiation of a loan of three millions of francs in Europe, and was, by the terms of a written agreement, to receive a certain commission, if the loan should bo effected. The negotiation was never effected. • So, in the case of Bidion, the piaintiff was employed to soil a piece of land. The sale was never effected. In both cases, the court held that no compensation could be allowed.

These decisions do not cover the present case. Here tho bargain, to which the attention of Mercar had been first drawn by Gottschalk, was soon after consummated at the vexy price at which Mercer made an offer to him.

An examination of the testimony satisfies us that the judge of the Commercial Court coiToctly considered Gottschalk as an efficient instrument in bringing about the sale.

After he had thus rendered services, which eventually enured to the advantage of the defendants, they could not. deprive him of all compensation by withdraw-iag the plan from his hands, discharging him, and consummating the negotiation through other agents. Hemes, one of these agents, very properly took this view of the case, manifested a delicacy as to taking the business out of Gottschallc’s hands, and appears to have been induced to do so by the declaration of one of the defendants, that plaiutiff should be satisfied.

The defendants have received advantage from the services of Goltschalk, and they ought to pay for them. The general rule of law as to commissions is, that the whole service or duty must-be performed, before the right to any commission attaches; for an agent must complete the thing required of him before he is entitled to charge for it. But cases may occur, in which an agent may be entitled to a remuneration for his services, in proportion to what he has done, although he has not completed the business. See Story on Agency, 338. Hammond v. Holiday, 1 Carrington & Payne, 429. We consider this such a case,. Here the entire performance by plaintiff was prevented by the act of the defendants. They took the business out of his hands, entrusted it to others, and soon after the bargain with Mercer was closed.

As to the quantum of remuneration, we see no error in the decree of the court below.

Judgment affirmed.


author: Eustis, C. J.

text:
    Marsh et al. v. Laforest.
    Payment to a person, to whom it was understood by tbe vendor at the time of the sale that the price was to be paid, made before the authority of the agent is revoked, will discharge the purchaser.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Eggles-ton, for the appellants, N. L. Johnson, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action to recover nine hundred and forty-seven dollars seventy-three cents, the price of goods sold by plaintiffs to defendant’s house, A. Laforest & Co., in New York, in May, 1839.

The defendant’s house was in Thibodauxville; the plaintiffs are merchants in New York.

The purchase was made in New York by D. M. Lyons. It was made under an authority from his brother Harris-Lyons, who was in business in New Orleans. The letter ordering the purchase says: “ Laforest wants you to buy him two boxes,” &c. It then describes the goods wanted, and has this significant expression: “ You may depend that I will notuse the funds this time.” It urges the immediate forwarding of the goods, and states that nothing was said about time, and concludes: “ So, I presume, cash as soon as received. I send this by express on account of the above order — nothing new or strange, except times hard — no money — almost discouraged,” &c.

The witness who wrote this letter, swore that when the goods were ordered by Laforest, he promised to pay for them on their arrival. The payment was to be made io the witness.

The condition on which these goods were ordered by the defendant from New York was, that Lyons in New Orleans was to receive payment for them on their arrival.

A written order was sent by Lyons in New Orleans to his brother in New York, on which the purchase was made.

Goods had, previously to this purchase, been bought by Lyons in New York of the plaintiffs, and paid for through him by Laforest Sf Co.

Lyons in New York, in his testimony, says : *• The letter of H. Lyons ordering the goods referred to, was shown to the plaintiffs by me within a few days after its receipt."

In another place this witness says: I applied to the plaintiffs for the purchase of these goods. I made the application in the name of A. Laforest Sf Co., and for their use and on their credit. I exhibited a letter from my brother to the plaintiffs,1' &c.

The witness states that the goods were purchased on the credit of Laforest & Co. solely, and that the application was made in their name and for their use. The goods were charged in the books of the plaintiffs to A. Laforest & Co.

The ship by which the goods were forwarded had a long passage. She was nearly two months on her voyage to New Orleans.

On her arrival, the goods were received and paid for. The payment wa? made, as agreed upon by A. Laforest & Co., to Harris Lyons.

Now, if the plaintiffs, having before them the order of the defendant, with its conditions, thought it for their interest to allow Lyons in New Orleans to receive the money for their goods, how can they make the defendant liable for the price, after having paid it once to the person to whom by the original contract the payment was to be made ?

That they had the order before them is proved by their own witness. Even admitting it was shown to them after the sale was made, they ought to have apprized Laforest & Co., if they did not intend that Lyons in New Orleans should receive the money; and, for this, they had abundant time before the arrival of the goods in New Orleans.

The difficulty arises in this case from Laforest being a punctual, cash man, and the brothers Lyons quite otherwise.

The plaintiffs only received a partial payment for their goods; but Ihe fault is their own. Had they dealt directly with the defendant, or his house, they would have been paid in full; and the loss is attributable to the selection of their own agents. Judgment affirmed.


text:
    French et al., Commissioners v. Stanton et al.
    One who has received money for the use of the commissioners of a bank in liquidation under the statute of 9 March, 1842, connot plead in compensation a debt due to him as a depositor by the bank before its failure.
    APPEAL from the District Court of the First District, Buchanan, J. The defendants appealed from a judgment in favor of the plaintiffs for an amount admitted to have been received by them for the use of the plaintiffs, the payment of which was resisted on a plea of compensation. The judgment reserved te defendants the right to claim the amount alleged to be due to them in the concurso.

      Hoffman, for the plaintiffs. Bradford, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

Under the bank law ofthe 9thMarch, 1842, (Laws of 1842, p. 234,) at the instance of the State, the charter of the Atchafalaya Railroad and Banking Company was decreed to be forfeited, for their neglect and refusal to pay specie during more than ninety days consecutively.

This forfeiture was pronounced by the Supreme Court, in May, 1843. 5 Robinson, 65.

The commissioners of the bank charge that the defendants are indebted to them in the sum of $553,91, for so much money advanced and received by them for the use of the plaintiffs, from the correspondents of the commissioners in New York.

The defendants admit that they are in receipt of this sum from the correspondents of the plaintiffs in New York, but they plead that they have a right to retain the amount, by reason of the bank being indebted to them in a like sum— .being the balance of their deposit account with the bank, due in February, 1842.

There is no controversy about the facts, and the case turns on the right of the defendants to retain the amount, by reason of the compensation which they allege has taken place between these two debts.

The deposit debt was due by the bank before its failure: the debt claimed by the plaintiffs is due to the commissioners.

It is obvious that no liquidation of the affairs of a bank, in a situation like this, could ever be effected, if the money collected by the commissioners was convertible into the obligations of the bank, at the will of any party in whose hands it might be accidentally placed.

The rights of debtors to pay their debts to certain banks in the obligations of those corporations, which are provided for by the statutes in relation to banks, relate to debts contracted before the forfeiture of their charters.

In the present instance, the money was received to be paid to the commissioners of the bank. It had no connection with the business of the bank, previous to its failure; and we cannot perceive on what principle the defendants entrusted with the payment of this sum, can connect in any manner with their own claims on the bank.

So far as relates to the present inquiry, we are bound to consider this bank as insolvent; and its affairs, except so far as is otherwise expressly provided by .statute, must be settled according to the principles which govern the administration of insolvent estates. Laws of 1842, p. 246, §. 24. Judgment affirmed.


text:
    Labranche v. Landreaux.
    THIS case was remanded to the District Court of the First District, with directions to the judge to cause a survey to be made, to enable the court .te decide the question of title presented by the pleadings.

      Canon, for the appellant. Blache, for the defendant.


author: King, J.

text:
    Passebon v. Prieur, Recorder of Mortgages.
    Where the formalities prescribed by law have been observed in the sale of property under execution, and nothing remains after paying the suing creditor to discharge the subsequent mortgages existing on the property, the sheriff is bound to release such mortgages, and the recorder of mortgages to erase them. C. P. 708. They have no discretion; nor is it necessary that any order of court directing the erasure should be made contradictorily with the creditors whose mortgages are to be cancelled. Aliter, where the forms prescribed for forced alienations have not been complied with.
    from a judgment of the District Court of the First District, Buchanan, J.

      Denis and Pitot, for the plaintiff,
    cited Code of Pract., art. 708. Laws of 1817, 31, p. 141; of 1843, pp. 52,105. Casanova v. Avegno, 3 La. 212. Pepper v. Dunlap, 16 La. 170. Hart v. Foley, 1 Robinson, 382.

      Roselius, for the appellant,
    relied on the case of Gasquet v. Dimitry, 6 La. 454.
   The judgment of the court was pronounced by

King, J.

P. Passebon, the purchaser of real estate at a sheriff’s sale of the property of Buisson, made at the suit of the Citizen’s Bank, united with the sheriff of the District Court of the First District, in a rule upon the recorder of mortgages of the city of New Orleans, to show cause why a mandamus should not issue, ordering the latter io erase from his books all mortgages upon the property adjudicated subsequent to those of the seizing creditor.

The recorder answered to the rule, that the mortgages could not be raised without an order of the court rendered contradictorily with the mortgage creditors, whose mortgages were to be cancelled. The rule was made absolute; and from this judgment the recorder has appealed.

The defendant in this proceeding relies in support of his position upon|the decision in the case of Gasquet v. Dimitry, 6 La. 454. The facts of that case, however, differ materially from those of the present. The parties had waived the observance of the forms prescribed in forced alienations, and the court properly held, under those circumstances, that the posterior mortgages could only be can-celled contradictorily with the subsequent mortgages. The court in that case say: “ The record shows that the sale had been made with the consent of the creditor and debtor, at six and twelve months; who agreed that the purchaser’s notes should be discounted at a rate not exceeding twelve per cent a year. Many are the objections which subsequent mortgagees can successfully make to the extin-guishment of then- mortgages, or the release of them by the sheriff, when a sale at the instance of the first mortgagee leaves nothing for them. The subsequent mortgagees may think they may resist this extinguishment or release, on the score of the terms of sale agreed upon between the first mortgagee and the common debtor, as binding on those two individuals alone.”

But where the prescribed formalities for sheriff’s sales have been observed, the sheriff and recorder of mortgages have no discretion left them; the former is required in unequivocal terms to give the release, in pursuance of which it becomes the duty of the recorder to erase the subsequent mortgages.

The language of the 708th article of the Code of Practice is free from doubt; “ The purchaser is bound for nothing beyond the price of his adjudication; and if, after paying the suing creditor, as directed in the preceding article, there remains nothing more due to discharge the mortgages subsequent to that of the suing creditor, the sheriff shall give him a release from those mortgages.” Fortier v. Slidell, 7 Robinson, 398, and Lagourgue v. Summers et al., 8 Robinson.

The practical effect of this article may be to operate occasional wrongs. This would be a sufficient motive for its revision by the legislature; we must give effect to its obvious meaning, as it stands. Judgment affirmed.


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    McMasters v. The Commissioners of the Atchafalaya railroad and Banking Company.
    In consequence of a dispute as to the person to whom the adjudication was made of property offered for sale at auction, the auctioneer offered it again for sale. The person to whom the first adjudication was made protested against the proceeding, but hid at the second sale, and a third person, not privy to what had occurred on the first exposure, purchased the property. Held, that by bidding at the second sale, the first purchaser deprived himself of the right to question a purchase made by a bona fide bidder, to whom the property was fairly adjudicated on the second exposure. C. C. 1810. 1811, 1812.
    from the District Court of the First District, Buchanan, J.

      Cohen, for the plaintiff,
    cited Civ. Code, art. 2585. 1 Story’s Equity Jurisprudence, § 385, and note 4. Ibid, § 388. Benjamin and Micou, on the same side.

      Dwell, for the appellant Sheafe,

    contended that he was entitled to the property, citing Civil Code, arts. 2583, 2585, 2586, 2601. 2 La. 506. 5 La. 360. 6 La. 550. 2 Kent 424. 3 Term Rep. 148. Babington on Auctions, pp. 30, 90, 118. 6 Mart. N. S. 678. 7 Ib. N. S. 227. Code of Pract. arts. 680, 681, 689, 690, 691. 8 Mart. 221. 7 Vesey, Jr. 276. c
   The judgment of the court was pronounced by

Eustis, C. J.

This case involves a question important in some respects in the law of saies at auction. Sheafe and McMasters are the parties litigant, and each claims, as being adjudged to him, a judgment for $7,900 against White, which was sold at auction among the assetts of the Atchafalaya Bank, under the authority of the commissioners.

Sheafe says the judgment was sold to him for $210 ; McMasters that he bought it for $540.

We think the weight of evidence shows that the judgment was knocked down to Sheafe. His right was on the spot contested by another bidder, Calvert, who had undoubtedly bid about the same time as Sheafe. As both claimed the bid, the commissioners directed the auctioneer to ciy the judgment of White again. Sheafe protested against it, but the judgment was again put up for sale.

There was a great crowd present; an animated contest ensued; both Sheafe and Calvert lid again, and a stranger who was not privy to the previous doings, stepped in and took the prize for $540 ; more than double the amount originally bid.

Admitting the allegations of the petition to be true concerning the adjudication of the judgment against White to Sheafe, there is a fact in this case, to which on the hearing we directed the attention of his counsel in the argument, and which we consider as conclusive of the case. It is this — that Sheafe himself was a bidder when the judgment was put up a second time for sale. What was the necessary consequence of his bidding again, so far as third persons wore concerned 1 What were the bystanders to infer from seeing both Sheaf e aut* Calvert bidding again against each other 1 Could they believe any thing the auctioneer or the commissioners for what had passed, concurred in subjecting the judgment to the test of a sale at auction ? Suppose from this competition, which they themselves probably created, the thing offered had been knocked down to a stranger at a price beyond its value, should we have heard any complaints from the parties about their previous pretensions 1 We consider that by bidding at the second sale, Sheafe is estopped from questioning the purchase of a bona fide bidder, to whom the judgment has been fairly adjudged by the auctioneer; and we look upon this attempt to wrest this purchase from McMasters as unreasonable and unjust.

The facts bring this case completely within the principles maintained in argument by the counsel of McMasters, and on which courts are always ready to act whenever a proper case is made out for their application.

Actions without words are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to the contract. Civil Code, art. 1810.

Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation. Civil Code, art. 1811.

The implication of consent from certain acts is left to the discretion of the judge. Civil Code, art. 1812.

Whore one by his words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the samo time. Opinion of Lord Denman in Pickard v. Years, 6 Adolphus & Ellis, 474. Story on Equity, notes § to 385.

The judgment of the District Court was in favor of McMasters, and it is affirmed, with costs in both courts.


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    McFarlane v. Richardson
    A sequestration may be obtained from the court of the first instance in the oases in which it i» allowed by law, though the suit bo pending, on appeal, in the Supreme Court. C. 3?. 275,276.
    jLL P.PEAL from the Parish Court of New Orleans, Maurian, J.

      Peñn, for the appellant,
    relied on tho case of FinTc v. Martin, 10 Robinson, 147.

      Benjamin, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff had instituted in the Parish Court an action of mortgage to obtain the seizure and sale of certain slaves in the possession of the defendant. Judgment was rendered in the first instance in favor of said defendant, and the plaintiff appealed. On the very day on which the Supreme Court rendered their docision on the appeal, reversing the judgment of the Parish Court and remanding the cause for a new trial, the plaintiff filed in said court a supplemental petition in the same suit, slating the foregoing facts, and also his apprehension that the defendant would remove the slaves out of the State, before he could have the benefit of his mortgage, and praying for a sequestration of said slaves. . At the foot of this petition he made oath that all and singular the allegations set forth and charged therein, were true, except as to the' information derived from others, which he believed to be true. Bond was given, and a writ of sequestration issued.

On motion of the defendant the sequestration was'set aside on the ground that the case was on appeal before the Supreme Court, and the plaintiff appealed.

Under arts. 275, 276 of the Code of Practice, the plaintiff was entitled to a writ of sequestration, notwithstanding the appeal'pending'at that time before the Supreme Court, on making a proper showing. We deem his affidavit sufficient. As none of the facts alleged in his petition are stated to have been derived from the information of others, they are all positively sworn to.

The judgment of the Parish Court is therefore reversed,"and it is ordered that the writ of sequestration be reinstated, and that the defendant pay the costs of this appeal.


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    Baldwin v. The Bank of Louisiana.
    Where a bank in which a note has been deposited fov collection, in case of non-payment, places it, for protest, in the hands of the notaiy to whom its own business is uniformly intrusted, it will not be responsible for the failure of the notaiy to protest the note, or to notify the proper parties. Having shown the same care and attention in the management of the business intrusted to it which inon of common prudence bestow on their own affairs, it is not answerable for the neglect of the notaiy.
    from tho District Court of the First District, Buchanan, J.
    Hoffman, for the appellant.
    The liability of the bank is established by a series of decisions. See Durnford v. Patterson, 7 Mart. 463. Crawford v. Louisiana State Bank, 1 Mart. N. S. 216. Montilet v. Bank of the United States, Ibid. 367. Canonge v. Louisiana State Bank, 7 Mart. N. S. 585. Pritchard v. Louisiana State Bank, 2 La. 416. Miranda v. City Bank of New Orleans, 6 La. 741. In McCulloch v. The Commercial Bank, the plaintiff failed for want of proof of any contract of agency between himself and defendant. The case of Hyde v. The Planters' Bank (17 La. 560), and that of Frazier v. The Gas Bank (2 Robinson, 295), turned upon the laws of Mississippi. The case of Hum v. The Union Bank, was put upon the ground that the employment of a sub-agent was an act of necessity.

      L. Peirce, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff seeks to make the defendants, an incorporated bank, liable to him for the sum of $533 21, with interest and damages, upon the ground that he deposited with the defendants, for collection, a promissory note, drawn by Davis, and endorsed by Harper. That it had long been the usage of banks in New Orleans to cause notes so deposited to be protested, in case of non-payment by a notary public, and to give notice to endorsers. That the bank, at the maturity of the note, placed it in tho hands of their agent, William Christy, a notaiy public, to make the usual demand and protest, and to give the usual notice to the endorser. That Christy undertook accordingly to give said notice of protest; but did not serve upon, or deliver such notice of protest to said Harper,, in the manner required by law. Thai he has obtained judgment against the maker, and issued execution unsuccessfully against him, and that the maker is insolvent. That he has brought suit against Harper also; but that judgment has been ren-^6re<^ ™ Harper’s favor, on the ground that he was not duly notified of the maker’s default.

The. court below gave judgment in favor of the bank, and the plaintiff appealed.

The counsel for the defendants has addressed to us arguments on several points of law and fact, which we do not consider it necessary to examine. We will assume, for the purpose of the present inquiry, that Harper did not receive legal notice, that the plaintiff has expended, in an unavailing suit against him, the amount alleged in his petition, and that the maker of the note is utterly insolvent.

The bank having undertaken for its depositor the collection of the note, became thereby bound to have every thing done according to the laws of the State, that should be necessary, in case of non-payment, to fix the full liability of the drawer and endorser. In ascertaining whether this duty has been, in legal contemplation, sufficiently performed, we shall inquire—

1. Whom was it the duty of the bank to employ to demand payment, make protest, and give notice of protest of this note ?

2. How far is the bank liable for the negligence of the person thus employed?

I. Our laws provide for the appointment by the chief magistrate of certain public officers, called notaries public. These officers keep public records of their official acts. These records are clothed by the law with such solemnity, that the originals or certified copies are received in our courts as authentic evidence.

Our laws clothe these officers with the authority to make demand and protest of bills of exchange and promissory notes; and declare also, that all notaries, or persons acting as such, are authorized “in their protests of bills of exchange, promissory notes, or orders for the payment of money, to make mention of the demand made upon the drawer, acceptor, or person on whom such note or bill of exchange is drawn or given, and of the manner and circumstances of such demand, and, by certificate added to such protest, to state the manner in which any notices of protest to drawers, endorsers, or other persons interested, were served or forwarded; and whenever they shall have so done, a certified copy of such protest and certificate shall be evidence of all the matters therein stated.” And by another statute it is declared that “ the bearers of bills of exchange and promissory notes, payable in this State, and subscribed after the passage of the statute, shall be entitled to an interest on the amount of said bills or notes from the day they were regularly protested for non-payment.” Act of 1821.

It thus appears, that an agent who entrusts to a notary public the duty of protesting and giving notice of protest, selects a public officer, who acts under the solemnity of an oath, and the authority of the executive commission and the laws of the land; whose official character implies a certain degree of skill and experience ; whose protest fixes instantly and certainly the liability for interest; whose official records of the protest and notice remain though he should depart, survive not only his recollection but his life, and stand in perpetual remembrance of his official acts.

Under such circumstances it cannot be doubted what course a prudent and faithful agent should pursue. Knowing the law and the advantage which an observance of the law gives to the holder of a note thus protested and notified, it is the agent’s duty to employ a notary public.

This duty the defendants fulfilled ; for the petition and testimony both show that the note was placed, on the day of its maturity, in the hands of William Christy, a notary public, being the same officer to whom the bank uniformly entrusted its own business.

II. How far is the bank liable for the negligence of the person thus employed?

In the language of the former Supreme Court, in the Planters' Bank case, the defendants have exhibited that care, attention and diligence which men of common prudence bestow on their own affairs; they have done for the plaintiff all that he would have done for himself, had he been present here, and retained the note, till its maturity, in his own possession. The daily and necessarily important transactions arising from the use of its own large capital, receive, in this particular, the same care and attention which the plaintiffs claim has received, and no more. Greater diligence and greater prudence than is here exhibited, it would be unreasonable and unjust to require.

The decision of this case rests on a familiar- doctrine of the law of agency. ’ In many cases of agency, says Judge Story, it becomes necessary and is usual for the agent to employ a sub-agent, as, for example, a broker, to transact the business. In such a case, the agent will not ordinarily be responsible for the negligence or misconduct of the sub-agent, if he has used reasonable diligence in his choice as to the skill and ability of the agent. But the sub-agent will, in such cases, be responsible to the principal for his own negligence or misconduct. Story on Agency, p. 190.

This doctrine fully applies to the case before us, for we have already shown that it was the duty of the bank to employ a notary. Moreover, a doctrine which is sound in the case of an ordinary individual, seems to apply with peculiar emphasis to the case of a corporation, an artificial being, which must necessarily act by substitution.

In further illustration of the rights and relations of the parties, let us present a single analogous case. Let us suppose that the note in question had been so protested, and the notice to Harper so given, as undeniably to fix his liability. That, thereafter, Baldwin should address, from his residence in New Jersey, a letter to .the bank, requesting it to proceed by suit to collect the note; that, in the execution of this mandate, and it being necessaiy to employ an attorney at law, the bank should hand the note for suit to a sworn attorney at law, of long standing and experience at the bar-, and enjoying a good character as to diligence, integrity and professional skill; that the attorney should accordingly institute suit, but that by his mismanagement and negligence, the suit should fail, an undoubted opportunity of collecting the note be lost, and the endorser soon after die in utter insolvency. The analogy with the case before us, seems to us complete ; yet, in such a case, neither in reason nor on authority, would the bank be responsible for the attorney’s fault. The bank might weh say that, it had pm-sued the necessary course of business in such cases, and had done for its correspondent precisely what he would have done for himself, if present. See Paley on Agency. 18 Law Library, pp. 9, 45. Livermore on Agency, vol. 1, p. 354. Also, 1 Miles, 173.

We consider ourselves as reiterating, in this case, the decision of the former Supreme Court, in the case of Hyde & Goodrich v. The Planters' Bank (17 La. 566), and in the case of Frazier v. The Gas Bank, 2 Robinson, 296.

The plaintiff attempts to distinguish the present from those cases, because there the agency was governed by the la.w of Mississippi; and he urges that in that State a notary gives a bond to the State, which is available to any party injured. It is true that this provision of the law of that State was adverted to in the Planters' Bank case p but after a careful perusal of the opinion of the court, we do not consider it as put upon that narrow ground, nor that the circumstance of the official bond was an essential element in the decision.

It is also argued that the defendants have exhibited their own conviction of their responsibility by taking a bond from Christy, with sureties for the faithful performance of his duties, conditioned also to save the bank harmless, from or on account of any negligence or misconduct of him, the said Christy, etc. The duties of a notary of a bank are multifarious, and the taking of a bond is a salutary precaution; but certainly a contact of this sort between Christy and the bank has no connection with the contract of deposit between the plaintiff and defendants, and cannot diminish nor enlarge the obligations arising from it.

It is said that if we affirm the judgment in favor of the defendants, we, in doing so, overrule numerous decisions of the former Supreme Court. In our opinion the cases referred to were substantially overruled in the case of Hyde & Goodrich, already cited.

Judgment affirmed-


author: Kino, J.

text:
    Theard et al. v. Prieur, Recorder of Mortgages, et al.
    The purchaser at a judicial sale is hound for nothing beyond the price of the adjudication, and the sheriff is bound, after applying the price as the law directs, to give him a release from subsequent mortgages of every description. In this respect there is no difference between general and special mortgages. C. P. 708.
    from the Parish Court of New Orleans, Maurian, J.

      Le Gardeur, for the appellant,
    relied on the cases of Fortier v. Slidell (7 Robinson, 398), and Lagourgue v. Summers (8 Ibid.), and on arts. 707, 708 of the Code of Pract. He Courmont on the same side.

      A. Bodin, for Allard. Roselius for the Recorder of Mortgages.
   The judgment of the court was pronounced by

Kino, J.

This appeal is from a judgment of the Parish Court, rendered upon a rule taken by Theard, Eseoffier and Me Carty, purchasers each of property at a sheriff's sale, and H. Augustin, sheriff of the Parish of Orleans, upon the Recorder of Mortgages and others, to show cause why the mortgages upon the adjudicated property, posterior to those of the suing creditor, should not be cancelled and erased.

After the proceeds of the property sold had been applied, first to the extinction of the mortgage of the suing creditor, and secondly in part payment of the special mortgage next in rank, there remained unsatisfied a special mortgage hi favor of Eseoffier, and a general mortgage resulting from a judgment in favor of Allard. But these mortgagees were made parties to the rule.

The court below directed that the special mortgage should be erased, but refused a similar order with respect to the general mortgage. Of the latter part of this judgment the appellants, Theard and Eseoffier, complain.

With reference to the duty of the sheriff to release mortgages subsequent to that under which the property has been sold, the law establishes no distinction between those which are special and those which are general. The purchaser is bound for nothing beyond the price of his adjudication, and the sheriff is required, after applying that price as the law directs, to give him a release from subsequent mortgages of every description. Code of Pract. art. 708. Fortier v. Slidell. 7 Robinson, 398. Lagourgue vs. Summers 8 Ibid.

It is, therefore, ordered that the judgment of the Parish Court be affirmed so far as it directs the special mortgage in favor of Fscoffier on the property adjudicated to be released and erased, and that in other respects said judgment be annulled and reversed. It is further ordered, that the general mortgage of Allarcl upon said property be cancelled and erased; and thattho Recorder of Mortgages pay the costs of both courts.


text:
    Theard et al. v. Prieur, Recorder of Mortgages, et al.
    THIS case presented the same question as the last, and was decided in the same way.


author: SniDEim, J.

text:
    Geheebe et al. v. Stanby.
    Where, in answer to an action by the members of a partnership to recover possession of property retained by defendant after the expiration of his lease, the latter admits that he leased the premises of the plaintiffs, as set forth in their petition, it is a waiver of the right to take advantage of any variance between the names of the persons stated in the petition as composing the partnership, and those stated in the lease.
    Plaintiffs leased a shop to a commercial partnership for a twelve-month, granting to the latter the privilege of renewing the lease for another year. It was stipulated that the premises should not be sub-let without the consent of the lessors. The partnership having been dissolved before the expiration of the lease, defendant, one of the partners, occupied the shop uutil the end of the year, when he notified plaintiffs of his wish to renew the lease for the second year. The latter having refused to renew the lease,,sued defendant to recover possession of the premises. There was no proof of any transfer to defendant of the rights of his partners, or of the partnership, in the agreement to renew. Defendant having urged that the lease created a joint obligation, and that the other partner should have been made a party to the action: Held, that the lessees, being commercial partners, were bound m solido-, that, independently of this, it would have boon useless to join in the action one who had ceased to occupy the premises, and set up no claim to a renewal of the lease; that after the dissolution defendant could not renew the lease on account of the partnership; and that, assuming that one partner could, after the dissolution, transfer to the other his rights under the lease, so as to enable the latter to claim the renewal for his individual benefit, yet where no sach transfer is shown, neither partner can claim the renewal for his individual benefit.
    Where the lessor of a house tacitly permits his lessee to continue in possession for more than a week after the expiration of the year for which the original lease was made, the lease will be presumed to have been renewed for the current month; but the landlord may put an end to it, at the expiration of the month, by giving the notice of fifteen days prescribed by article 26o6 of the Civil Code.
    APPEAL from the City Court of New Orleans, Collens, J. The defendant appealed from a judgment ordering the plaintiff to be put in possession of a shop.

      McHenryi for the plaintiffs. Frazer, for the appellant.
   The judgment of the court was pronounced by

SniDEim, J.

The plaintiffs, who say they are a commercial firm, composed of C. Geheebe, W. T. Tompkins, and C.A. Townsend, bring suit against Stanby to expel him from a store, of which they allege that the defendant has been their sub-tenant, and whose lease expired on the first day of May, 1845. They allege that they gave Stanby the notice required by law to surrender to them the store, and that he unlawfully retains possession. The suit was brought on the 10th of June, 1845.

Stanby pleaded to the jurisdiction of the City Cqurt. This plea is not insisted upon before us, and requires no notice.

His answer contains the following admission and plea: “ Defendant, for answer to the plaintiffs’ demand, admits the leasing of the house, as set forth by plaintiffs in their petition; but alleges that it was expressly agreed that defendant should have the privilege of another year, and that, at the expiration of the past year, ho notified, in writing, the said plaintiffs of his determination to continue for another year. He further pleads a general denial, and prays to be sustained in his possession of the premises.”

The plaintiffs proved a notice to quit, as served on the defendant on the 14lh May, 1845. The notice required possession on the 1st June.

The defendant offered in evidence alease signed by Geheebe S¡-Co., as lessors, and by Schmidt & Stanby, as lessees. In this lease Charles Geheebe 8f Co. are described as a commercial firm, composed of C. Geheebe and _D. Scherer. The lessors agree to lease to Messrs. Schmidt & Stanby the premises in question from the 1st May, 1844, until 1st May, 1845, at the rate of thirty dollars, payable monthly, with the privilege of renewing for one year. They also stipulate that the lessees shall make no sub-lease of the premises without the consent of the lessors.

It is proved that Schmidt Sf Stanby occupied two stores for the account of the partnership. That some months before the time fixed for the expiration of the lease, the' partnership was dissolved. That, after the dissolution, Schmidt continued to occupy one of the stores, and Stanby the other, being the premises in question. Receipts for rent, dated in November-and December, 1844, and in March, April, May, and June, 1845, were offered by defendant. All these receipts express to be for so much money received for rent of Philip Stanby. Defendant also offered in- evidence a notice dated and served on plaintiffs on the 2d May, 1845, signed bjStanby, in which he informs Geheebe & Co. that he intends to occupy the store for the ensuing year, commencing on the 1st May, the preceding day. It is also proved that, in the latter part of May, Stanby went with a witness to the store of plaintiffs, and demanded of Geheebe a renewal of the lease, and told him he intended to remain another year. Geheebe refused the renewal.

Such being the pleadings and evidence, the defendant has presented for our consideration several points of defence, which we now proceed to examine.

He contends that there is a variance between the names of the persons stated in the lease, as composing the firm, and those stated in the petition. This variance has been completely waived by his answer, in which, as we have seen, he expressly admits the leasing of the house, as set forth by plaintiffs in their petition.

He contends, also, that the lease created a joint obligation, and that Schmidt should have been made a parly to this suit. Independently of the consideration that Schmidt & Stanby were commercial partners, and, consequently, were liable in solido, it is to be observed that this is an action solely to obtain possession of the premises by the expulsion of the defendant. Now, it is very clearly shown that Schmidt had ceased to be an occupant for several months, and made no claim for renewal or possesion. It was entirely useless, and would have been unjust, to make him a party to the suit.

But the main ground of defence rests on the alleged right of renewal.

The right of renewal was given to the firm of Schmidt Sf Stanby. Even assuming that this right could be exercised, without a notice, or demand of renewal, before the expiration of the term, and that Schmidt, after the dissolution of the firm of Schmidt & Stanby, could so transfer to Stanby his rights under the lease as to enable Stanby, after the partnership was dissolved, to claim the renewal for his individual benefit, certain it is that Stanby has not shown any transfer to himself of the rights of the partnership, or of his partner, in the agreement to renew. -All that he has shown is, that the partnership of Schmidt & Stanby was dissolved some moths before the expiration .of the term; that he remained in possession of the store; that the plaintiffs receipted for the rent as received from him; and that, in their petition, they have recognised him, the defendant, as then- sub-tenant. The mere form of the receipts cannot be considered as changing the original contract; nor does the possession of Stanby, nor the alleged relation of sub-tenant, involve a transfer to Stanby of the right of renewal stipulated in favor of the partnership, even supposing that the right of renewal could be exercised by the two partners after the dissolution of the partnership, and after the expiration of the term stipulated in the lease.

It is proper to remark that, though the plaintiffs have called Stanby then- subtenant, yet evidence adduced without exception, and relied on by both parties, shows this expression to be erroneous. Stanby, as a commercial partner, became bound in solido to the plaintiffs for the rent. So also was the other partner, Schmidt. Neither of them could change this liability without the clear consent of the lessors. The dissolution of the partnership, and the continuation of Stanby alone in the occupation of the premises, were not sufficient to extinguish this solidary liability for the term stipulated in the lease; although the dissolution certainly incapacitated Stanby, as regards the partnership, from exercising the right of renewal, for the renewal would create a new obligation. But whether we regard Stanby as a sub-tenant, or as an original co-lessee, the result as to the question of renewal is same. He was not, under the evidence, entitled to it in either character.

Lastly, Stanby not having shown in himself any right of renewal for one year, stood on the 14th May, 1845, in the position of an ordinary tenant. The tacit recon-duction which arose from his holding over subseqently to the 1st May, 1845, was a reconduction for the current month, at the previous monthly rate of rent, subject to the landlord’s right to put an end to the lease, by giving the notice of fifteen days prescribed by our Code. See Bowles v. Lyon, 6 Robinson, 264, in which doctrine of tacit reconduction is carefully considered.

This notice the plaintiffs gave in due season. The holding over by defendant after the first Juno, 1845, was, consequently, unlawful.

Judgment affirmed.


author: Existís, C. J.

text:
    Succession of De Flechier.
    Where an administrator fails to give the security required by law, he may be removed on the petition of any one interested.
    •On the removal of an administrator the judge may, if it be necessary, appoint a person to take charge of tho effects of the succession until another administrator can be appointed according to the forms prescribed by law.
    APPEAL from the Court of Probates of New Orleans, Bermudez, J. On the 13th of May, O. Be Flechier, styling himself one of the heirs of the deceased, presented a petition to the Probate Court alleging that Bo-mingon, the appellant, had been appointed administrator of the succession, on complying with the requirements of law; that Bomingon never complied with such requirements, and never gave the security required by law; that, about a month before, he was ordered by the Court of Probates to furnish the security required, but that he has neglected or refused to obey the order. The petitioner prayed that Bomingon might be removed, and another administrator appointed. On the 26th of May, Bomingon excepted to the demand, alleging: 1, That the petitioner was not authorized by law to institute such a demand, and that no cause of action is shown ; 2, That he was never notified of any such order or judgment as-that alluded to by the petitioner, and that said judgment was illegally rendered, no citation having been served on him, nor on any attorney authorized to represent him. He prayed that the petition might be dismissed.
    On the day on which this exception was filed, Bomingon presented a petition to the Court of Probates, representing that he had administered upon the succession of the deceased, having filed a tableau of distribution which had been homologated, and paid all of its debts and filed his vouchers in support of the same; .that there remains about $700 belonging to the succession, which is still in his hands to be administered upon, to which amount, he alleges, that he is entitled in virtue of a claim which his wife or his children have against the succession. He avers that he has never been informed that it was necessary for him to give security for his administration; that he has paid away to the creditors of the succession, by order of the court, all the funds which have come into his possession, except the said sum of $700, for which he is ready to give the security required by law. He prays that he may be authorized to give the security required by law for that sum, &c. The judge refused to grant the prayer of the petitioner, “ on the ground that it could not be done without prejudice to tho action instituted for his removal from office.”
    On the trial, Bomingon introduced in evidence a rule taken on the 1st of April preceding, by the petitioner and .the tutor of the minor heirs of the deceased, on him, to show cause why he should not, as administrator, give new or additional security, or be dismissed from office. The sheriff’s return on this rule showed, that “after diligent search Bomingon could not be found.” An .attorney appeared for Bomingon on the trial of the rule. The rule was made .absolute, .and three day’s allowed to Bomingon to furnish security. The record does not show that .the order making the rule absolute was ever notified to Bomingon. The account rendered by him, tho vouchers in support of it, and the inventory of the succession of the deceased, were also offered in evidence by Bomingon. The Probate Judge, being satisfied that the allegations of tho ■petition wore fully established, ordered Domingon to be dismissed from office, and forthwith appointed O. Do Flechier administrator in his place. Domingon appealed.

      Train, for the appellant.
    The judgment below should be reversed. The rule to show cause why security should not be given, taken on the 1st of April, was never personally served on Domingon; nor was he ever notified of the judgment making it absolute and ordering security to be given within three days. Code of Practice, arts. 186 to 190,201,206. Brown v. Trent, 12 La. 600. No public notice was given of tho application of O. De Flechier to be appointed administrator. 18 La. 401. Succession of Henderson, 2 Robinson, 391. Succession of White, 9 Rob. 353-4.

      J. F. Pepin, contó.
    The proceedings against Domingon were in conformity to law. Code Practice, art. 1018. Civil Code, arts. 1034, 1119, 1125, 1150 Act of 13th March, 1837, §.7. O. DeFlechier, who was one of the beneficiary heirs of age, was properly appointed administrator. Civil Code, arts. 1034, 1035. Act of 16th March, 1842, 5.
   The judgment of the court was delivered by

Existís, C. J.

We have examined with care the several points of practice which the counsel for the appellant has submitted to us, and we have come to the conclusion that the proceedings for the removal of the appellant from the office of administrator are correct and legal.

The suit was commenced by one of the beneficiary heirs in the usual form, and in conformity with articles 1017 and 1018 of the Code of Practice, and on the issues made by the appellant’s answer, the judge could hardly do otherwise than supersede the appellant.

"We cannot notice the petition of appellant filed on the same day with his answer, because the appellee was no party to it.

The appellee was one of the beneficiary heirs of the deceased, and was a person to be preferred by the judge in selecting an administrator in place of the one removed. Civil Code, art. 1035.

On the removal of the administrator it was necessary to appoint some one to take charge of the effects of the succession. The selection made by the judge, we think, a proper one. He appointed the appellee, and his appointment can stand, provisionally, until an application be made for the appointment of a regular administrator under the forms required by law, which, in a succession like this, we trust, will not bo necessary.

Judgment affirmed.


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    Pandelly v. His Creditors.
    Tho syndics of an insolvent estate may bo entitled to an allowance for tho liiro of a cleric employed by them, where they allego and prove that extraordinary skill as an accountant was required to unravel complicated accounts, left in confusion by the insolvent. In the absence of such allegations and proof, the hire of a clerk employed by them must be paid for by the syndics themselves.
    The compensation allowed to counsel appointed to represent tho absent creditors, in cases of insolvency, is to be paid out of the amount due to the absent creditors. It cannot bo charged to tlie mass of creditors. Sec. 38 of the act of 20th February, 1817, which provides that such compensation shall in no case be paid by the mass of creditors, is not repealed by art. 3164 of the Civil Code.
    The syndics of an insolvent estate arc not entitled to credit for compensation allowed to an attorney of absent creditors, though paid, under an order of court, whore the amountwas paid out of funds belonging to the mass of creditors, and the order was made ex parte. The provision of sec. 3 of the stat. of 13th March, 1837, which declares that a syndic shall on no account withdraw any deposits made by him in bank, “ until a tableau of distribution is homo-logated, or unless ordered by a competent court, and then only to pay such debts as may be ordered to be paid,” does notrendor such a payment legal. Per Cwriam: The act of 1837 was intended to place additional safeguards around the rights of creditors; not to repeal any pre-existing regulation on the subject of a tableau of distribution.
    The commission allowed by sec. 4 of the stat. of 29th March, 1S26, to the syndics of an insolvent estate, where no commission lias been fixed by the creditors, “ of five per cent upon a sum not exceeding fifty thousand dollars, of three per cent upon sums above fifty thousand dollars, and not exceeding one hundred thousand dollars, and of two per cent upon all sums exceeding one hundred thousand dollars,” must bo calculated upon the whole amount of money actually received or disbursed by them, and not upon the amount of each separate distribution.
    Appeal by the attorney of the syndics from a jadgment reducing the fee allowed to him in a tableau filed by the syndics. The appeal was taken before the adoption of the constitution of 1845. Held, that the constitution of 1845 having provided, art. 71, that “ no court or judge shall mako any allowance by way of fee or compensation, in any suit or proceedings, except for the payment of such fees to ministerial officers as may bo established by law,” tlie court is without jurisdiction to affirm, increase, or reduce the allowance, and that tlie appeal must be dismissed.
    The syndics of an insolvent estate cannot appeal from a judgment amending a tableau of distribution, by directing a sum allowed to tlie mortgage creditors to be classed as a moveable, and subjected to tlie payment of law charges, tlie amendment being beneficial to tlie mass of creditors.
    from the District Court of the First District, Buchanan, J.

      Bodin for the appellants. Graihel, contrá.
   The judgment of the court was pronouned by

Slidell, J.

This case comes before us on two appeals, one taken by tho •syndics, and one by A. Bodin.

A tableau of distribution having been filed by the syndics, Grailhe filed several oppositions. A portion of these oppositions were sustained.

We proceed to consider them in the order in which they were discussed at the bar.

I. The first opposition was to a charge on the tableau, under the head of “new charges of the estate,” in these words: “Clerk of syndics, $200.” The counsel for the syndics, as appears by a bill of exceptions, offered a witness -to prove “at what time, and on what occasion, the services were rendered, and the necessity, as well as the value of the services rendered by (die clerk employed by them.” This testimony tho court refused to receive, on the ground that the law does not authorise syndics to compensate persons employed by thorn as clerks, and that the testimony was therofore irrelevant.

Under the vague and general allegation of tho tableau' — “ Clerk of syndics, $200” — we think the evidence was properly rejected. The syndics receive a compensation for their services in the shape of a commission. Among the services which the law expects them to render, is the keeping of proper official accounts. Cases may occur in which extraordinary skill as an accountant might bo required to unravel complicated accounts, left in confusion by the insolvent; and, in such cases, upon n distinct and explicit allegation by the syndics of the difficulties and necessities of the case, we are not prepared to say that testimony in support of such allegations would be inadmissible. Such was not the allegation of this tableau; and, moreover, it is shown by the smallness of the fund now proposed to be distributed, and other circumstances, that the business of the syndics since the former tableau was made, and in reference to which this charge, expressly classed under the head of new chai-ges, was incurred, could not have been of so onerous and complicated a character as to require services of this nature at the charge of the fund. We concur- with the judge of the court below that the hire of the clerk should be borne by the syndics themselves. It was urged as a reason for sanctioning this charge, that the syndics have displayed great zeal and intelligence in the management of this estate. However praiseworthy such qualities, the law gives no extra allowance for them. Diligence and reasonable skill are always expected; and it is as a compensation for them that the commission is granted by the statute.

The charge was properly erased from the tableau.

II. The next item opposed was that of $250, an allowance to the attorney appointed to represent the absent creditors, which the syndics had paid to him before filing the tableau. It was opposed on tire ground that the fees of an attorney appointed in behalf of the absent creditors should, in no case, be paid by the mass of creditors, but should be levied on the amount of the sums recovered for the account of the absent creditors. Such is the very language of the statute; and this provision of law has been already enforced by the former Supreme Court, in the case of Bijotat v. His Creditors, 1 Rob., 272. In that case, the court also considered and refuted the argument, then, as now, advanced, founded upon art. 3164 of our Civil Code.

It is also urged that the syndics paid this charge under an express authorization of the court.

There appears in the record an ex parte order, rendered some years since, on motion of counsel, (in whose behalf it is not stated, but we presume of the attorney thus appointed,) by which it is ordered that a fee of $250 be taxed as part of the costs in this case, as a compensation for his professional services rendered to the absent creditors. It is said, also, that the syndics paid the amount on presentation of a copy of this order. It is argued that by the act of 1837 (Session Acts, p. 95,)syndics are commanded to deposit their collections in bank, to keep a bank book, and on no account to remove or withdraw said deposits, or any part thereof, until a tableau of distribution shall be homologated, or unless ordered by a competent court, and then only to pay such debts as may be ordered for payment. The law imposes, also, for the violation of its provisions, a heavy penalty in the form of twenty per cent interest, and dismissal from office. Here, it is said, there was an order of court directing the payment.

This law was intended to place additional safeguards around the rights of creditors; and we cannot consider it as abrogating the pre-existing salutary provisions with regard to a tableau of distribution, at which all creditors may appear and exercise the right of opposition, and as substituting in its stead the duty of payment upon an ex parte order, rendered at the instance of the person to whom the payment is to be made.

The item was properly erased from the tableau.

III. The next item opposed, was a charge by the syndics of five per cent commission on an amount stated as new collections. The opponent contends that, as the syndics had received a commission, under a previous tableau, of more than $4,000, at the rate of five per cent on tlie first $50,000, three per centón the next $50,000, and two per cent on the residue, as prescribed by the statute of 1826, (2 Moreau’s Digest, p. 437,) and as the new collections which figure on the present tableau form part of the same mass or estate, the commission should only now be charged at two per cent. The syndics, on the contrary, contend that, on every new distribution, they have a right to charge independently of the previous tableau.

This claim of the syndics we do not consider justified, either by the letter, or the spirit of the statute. Both funds were parts of the same mass, and the commission should be graduated according to the total product of the estate, and not according to each separate distribution. A contrary interpretation might lead to abuse, by holding out an inducement to syndics to file several tableaux, from time to time, for tho purpose of securing the five per cent commission on each.

The reduction of this item was properly made by the court below.

IY. The item of disbursement to a surveyor for a plan of certain real estate, it is conceded by both parties, should have been placed to the debit of the particular asset, for the benefit of which it was incurred. It would soem that the court below was of this opinion, and that the omission to do so was a mere oversight. It should be corrected accordingly.

Y. The next item opposed was the fee proposed to be allowed to the attorney and counsel of the syndics, which was put down at $700, and reduced by the judge to $400, from which decision the counsel, in his individual character, has appealed.

With regard to this appeal, an obstacle presents itself, which, although not suggested by the appellee,, we are bound to notice.

At the time when tho appeal was taken, the now existing constitution, although framed, was not yet adopted by the people. Since that time the constitution has been adopted, and has been ordained and established as the constitution of the State of Louisiana. The constitution contains the following provision: “ No court or judge shall make any allowance by way of fee or compensation in any suit or proceedings, exccpt^for the payment of such fees to ministerial officers as may be established by law.” Art. 71. This prohibition is universal in its terms, except as therein excepted. It applies to all courts and to all allowances of fees, except the fees of ministerial officers. We are without jurisdiction either to affirm, increase or reduce the allowance in question. This appeal must, therefore, be dismissed.

VI. The next opposition relates to a sum of $227 93, which is stated in the tableau thus: “Amount of interest received from tho Consolidated Bank, $227 93.” As we have been unable to identify this interest with any particular funds, the proceeds of sale of real estate, we aro obliged to consider it as moveable, in accordance with the opinion of the court below. It was rightfully subjected, therefore, to law charges, under article 3158 of the Civil Code.

YII. The next opposition relates to a sum of $241.44, which is thus stated in the tableau: “ Interest received of Pepin, on his notes for the price of a portion of said last mentioned lots.” It was given by the tableau to the mortgage creditors. On the opposition of Grailhe, the court declared it to be a moveable and subject to tho law charges, and amended the tableau accordingly.

This amendment was beneficial to the mass of creditors, and detrimental to tho mortgage creditors. Tho mortgage creditors have not appealed, and upon the appeal of the syndics we ought not to reverse the decree of the court below; for, in accordance with the decision in the case of Ferguson v. Hall, 19 La. 278, we consider the syndics as incompetent to take' an appeal a's to the decree upon this item. The principle would indeed apply to some other disputed items considered above, in which cases, however, its application was unimportant, since we concurred as to them with the court below.-

Lastly, the rights of Grailhe to the reimbursement of the sum of $497, paid by him as contribution to law charges, is not disputed, so far as there may be funds left on hand for that purpose., i

It is, therefore, decreed, that the appeal of A. Bodin be dismissed, the said A. Bodin paying one-half of the costs of the said two appeals. And it is further decreed, that, as to the judgment from which said syndics have appealed, (and exclusive of the judgment as to the fee of A. Bodin, which will remain as though no appeal had been taken), so much thereof be affirmed as is consistent with the opinions above expressed, and that in other respects the same (exclusively as aforesaid) be reversed. And this case is now remanded to the court below, with instructions to said court to amend the tableau of distribution according to the principles above set forth, and for further proceedings according to law; one-half of the costs of the said two appeals, to be borne by the insolvent estate.


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    Powell v. Kellar.
    Ho appeal will lie from an order of a court, to which a caso had been transferred for the piiP-pose of being cumulated with other proceedings, directing its rc-transfcr, on tho ground of the illegality of thd original removal. The order is an intorlocutory one, and works nó irreparable injury.
    APPEAL from the District Court of the First District, Buchanan, J.

      F. B. Conrad, for the plaintiff,
    moved to dismiss the appeal on the ground that the judgment was one from which no appeal could lie, being interlocutory, and working no irreparable injury.

      Hoffman, for- the appellant,
    contended that the appeal should be sustained, having been taken from a judgment declining to take jurisdiction of the case.
   The opinion of the court was delivered by

Slidell, J.

Powell brought suit against Kellar in the Commercial Court. Kellar denied PoiuclVs claim, and filed a plea in reconvention against Powell. The cause having been tided, and a verdict rendered in favor of Powell, Kellar took an appeal. Pending this appeal, Powell transferred all his rights and interest in tho judgment against Kellar, to the New Orleans Canal and Banking Company; and, on the 5th of August, 1841, an order was entered of record in the cause, upon filing and suggesting the notarial act of transfer, subrogating the bank to the judgment, and to all tho rights, privileges, etc., which Powell possessed against Kellar, in virtue of said judgment. On the appeal this court reversed the judgment, and remanded the cause for a new trial.

Soon after tho cause was remanded, Powell made a cession of his property to his croditors, in tho. First Judicial District Court, and the usual order, slaying proceedings, etc., was grunted.

Subsequently, the attorney of Kellar appeared for him In the Commercial Court, contradictorily with tho counsel of plaintiff, and upon suggestion of the failure of Powell in the District Court, it was moved and thereupon ordered by the Commercial Court, that the cause be transferred to the District Court. The order cfoos not state what was lo be done with the cause in the District Court; but we presume the intention was, that it should bo cumulated with the proceedings in the matter ol'the cession of Powell.

After tho record was thus transferred to tho District Court, the barfk filed an exception to the jurisdiction of the District Court, pleading the nudity of tho order of tranfer„aud praying that tho cause be re-transferred to the Commercial Court.

Tho District Court sustained the plea, and ordered the re-transfer.

Prom this decree of tho District Court, Kellar has appealed.

The counsel for tho appellee contends that the decree of the District Court was not appealable, being an interlocutory decree, and not working an irreparable injury. Wo think the objection-well taken, and accordingly must dismiss the appeal. Had the Commercial Court refused to resume the consideration of the cause, we would, on an application in proper form to this court, have granted a mandamus, commanding the Commercial Court to proceed to try and adjudge the cause. C. P. 837.

Appeal dismissed.


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    Hand v. Taliaferro. Hill v. Taliaferro.
    Tho Dth sec. of the statute of SSthiMareh, 3840, which declares that no citizen of another State shall 1)0 arrested at tho suit of a non-resident creditor unless it be made to appear that tho debtor has absconded from his residence, authorizes an arrest only whore tho debtor has absconded from his last place of residence. A debtor alleged to have absconded from a State' in which he resided at the time tho debt was contracted, bat who is shown to have since resided lor several years in another State, cannot be arrested.
    Sec. 10 of tho statute of 28tli March, 1840, declaring certain acts presumptive evidence of fraud, applies only to debtors residing within tho State.
    APPEALS from the District Court of the First District, Buchanan, J„

      Stockton and Steele, for the appellants.

      Holland, and Preston, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The defendant in these cases was discharged by one of the judges of this court at our last sitting. The cases wore then argued before a full bench, and the judges were unanimously of opinion, that the defendanthad been unlawfully arrested and held in custody.

lie bad been arrested under the 9th and 10th sections of the aet of 1840, to abolish imprisonment for debt. The judge of the District Court had ordered his discharge, and the casos were heard on an appeal from that order.

The 9th section provides, “ that no citizen of another State shall hereafter be arrested in this State at the suit of a non-resident creditor, except in casos where it shall be made to appear that the d.obtor has absconded from 1ns residence»’1" Laws of 18-10, p. 333.

The defendant is a citizen of tho State of Texas, and has resided there for' four years. It is not alleged that he has absconded from that State, but it is charged that lie had previously absconded from the State of Mississippi.

Our opinion is, that the words of the statute, absconded from, Ms residence, mean his present place of residence. In the French text, the corresponding words are s’est enfui de son lieu de residence.

The 10th section relates evidently to debtors who have resided in this State. It is made exclusively with a view to our own laws. It considers many acts fraudulent which are lawful by the laws of other States.

There may be cases which will present difficulties under this 9th section; hut, it being conceded that the defendant has publicly and openly had: his residence in Texas for four years, and no allegation being made which in any manner weakens that fact, we fool bound to affirm the order of the district judge.

Judgment qflirmed.

       The petitions allege that tho defendant “for the purpose of evading the payment of liis just debts, since the creation of the debt above claimed, absconded from the State of Mississippi, then his residence, and fled to the Ilcpublic of Texas, and to parts thereof then unknown to your petitioner-and his other creditors."


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    De Lizardi et al. v. Blanchard.
    THIS case was remanded to the Commercial Court to lie tided, on the application of either party, by a special jury of merchants. There was no decision on any question presented by tho case.

      L. Janin, for the plaintiffs. W, S- Upton, for tho appellant.


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    Fuentes v. Caballero.
    Proof of an offer "by-the purchaser to return a slavo “bought hy him, and that the offer was rejected hy the vendor, is sufficient evidence of a tender to entitle him to recover in a redhi„ hitory action. It is not necessary that the person of the slave should have been actually produced and tendered to the vendor.
    Where the vendor is ignorant of the vicos of the thing sold, he is only hound to restore the price, and reimburse the expenses occasioned by tbn sale and those incurred for the preservation of the thing. C. C. 2509. Jfuneral expenses, when tho slave has died, and the costs of suit and fees of counsel employed in the redhibitory action instituted by the purchaser, are not included among the charges to which tho vendor is, in such cases, subjected. It is only where the vendor knows the vico of the thing sold and omits to declare it, that he is answerable in damages. C- O- 2D23.
    from the District court of the First District, Buchanan, J*
   The judgment of the court was pronounced by

King, J.

The plaintiff, F, Fuentes, instituted this suit to recover from tho defendant, Caballero, the price of a female slave, sold by tho latter to the former, alleging that, at the time of the salo, she was afflicted with a redhibitory disease, of which she subsequently died. The defendant called Barnada Lian- dro and Antonio Gavañac, in warranty. The cause was submitted to .a jury, w^° 1,endored a ’verdict in favor of the plaintiff, for the price of the slave, and $200 for expenses incurred, and in favor of defendant against his warrantors for the price of the slave, and $200 for expenses. A judgment was rendered in the court below in conformity with, this verdict, from which the warrantors, after an unsuccessful application for a now trial, have appealed. The plaintiff and defendant .acquiesce in the judgment, take no appeal, and, as between them, no question arises.

The grounds relied upon in the court below, and urged in this, in support of the application for a new trial are :

1st. That tire verdict is contrary to law and evidence.

2d. That the sum of $200, awarded as expenses, was not proved.

3d. That the court erred in allowing receipts of the Charity Hospital, for care given to Mary Ann, which was not tire name of the slave whose price was in .contest, to go to the jury.

These will be considered, inverting their order;

I. In the petition it is specially averred, that the plaintiff, “ as soon as he dis? covered that the slave was afflicted with a chronic and incurable malady, applied to the defendant to take her back, and -return the purchase money” ; and the allegation is fully supported by the testimony of _E. Briggs, the attorney originally employed to institute the suit. It is true that the person of the slave was not actually produced and tendered to the defendant. This, however, has been not to be necessary, where the offer to return has been ¡rnad.e and rejected. 18. La. 599. •

II. ‘The judge did not err in permitting the receipts of the Charity Hospital, for services rendered to Mary Ann, accompanied, as they were, with other .evidence that the sums had been paid, to go to the jury. The objection could only bo to their effect, leaving the identity of the pers.on named in the receipts with the slave described in the act of sale to be subsequently established; and this appears to have been done satisfactorily to the jury.

III. The finding of the jury is in the following words: “Verdict in favor of tho plaintiff, with medical attendance and funeral expenses, with costs of the court. Price of .slave $750 ; expenses $200=$95.0. Verdict in favor of defendant against the warrantors, with professional and funeral expenses, and costs of the court. Price of the slave $680 ; expenses incurred $200=$880.”

When tho seller is ignorant of the vices of the thing sold, he is only bound tq ■restoro tho price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing. Civil Code, art. 2509.

The costs of suit, fees of counsel, and funeral expenses, are not included among the charges to which the seller is, in such cas.es, subjected. It is only where he knows the vice, and omits to declare it, that he is answerable in damages. Civil Code, art, 2523. In the present instance no such previous knowledge is allogod in the pleadings, and we think none was proved on the trial.

It becomes necessary to correct the verdict, as far as relates to the sum awarded to reimburse expenses incurred. The evidence shows, that the slave was ip the hospital sixty-thi-.ee days, at ono dollar a day.

Jt was urged in the court below, upon the motion for a new trial, that the slave had been sold to Caballero by Liandro alone, the wife of Gavañac, whereas a judgment has been rendered against both these parties. The answer of the district judge to .this objection is conclusive. The defendant in his answer avers, that ho purchased from both tho warrantors, and the latter, In their answer, say, that their slave, when they sold her to Caballero, was sound and healthy. Their joint ownership is no where denied in the pleadings.

Schmidt, for the plaintiff. Bodin, for the defendant.' Canon, for the appellants.

With the exception of tile error already noticed, we think that the evidence supports the verdict of the jury; and the means being furnished in tho record of malting the correction, justice does not require that the cause be remanded.

It is, therefore, ordered, adjudged and decreed, that so much of tho judgment of tiie District Court, as awards the sum of $200 to the defendant, to be paid by the warrantors for expenses, be annulled and reversed. It is further ordered, that the defendant recover of the warrantors $63, the amount of expenses incurred for the medical treatment of the slave Mary. In other respects said judgment is affirmed as between the defendant and warrantors ; the defendant, Caballero, paying tho costs of this appeal.