text:
    RHODES & PETERS vs. BEAMAN & WATERS.
    WESTERN DlST.

      October, 1836.
    APPEAL PROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE ' OP THE PIPTH PRESIDING.
    The article 1979 of the Louisiana Code, declaring contracts fraudulent as to creditors, which are made with the knowledge of the Obligee, that the obligor was in failing and insolvent circumstances, and when they give the former an advantage over other creditors, merely establishes a presumption against such contract. But it does hot exclude other evidence of fraud, or control the principle that every contract may be the object of the revocatory action which is made in fraud, of the rights of creditors.
    IVhere a party is interrogated on oath, to state what he gave for the purchase of a certain stock of goods; how much he paid in cash, and to whom; and to state all about it, he cannot avail himself of the plea of newly discovered evidence, with a view to prove payment on a second trial; as he might have proved it in his answers to the interrogatories.
    A defendant cannot obtain a new trial, on the ground that he could prove a particular transaction, or contract, by witnesses, which would make it appear different from the written contract itself.
    A new trial will not be granted on the ground of newly discovered evidence, when all the facts' which are expected to be proved on the second trial, must have been within the knowledge of the parties on the first.
    This is an action to rescind the sale and recover the value of certain property, as having been made in fraud of creditors.
    The plaintiffs allege they are creditors of the firm of E. M. Lowe & Co., in the sum of two thousand two hundred and fifteen dollars, with interest, and that said firm have failed to pay said debt, and being in insolvent circumstances in 1831, one of the partners in the name of the firm, sold and delivered to C. Beaman, all their stock of goods, without appraisement or inventory, for the price of three thousand dollars, when they were worth six or seven thousand dollars, which sale they allege was fraudulent and void, and ought to be rescinded.
    . They further allege, that this sale was made to benefit one set creditors, to the injury of others, and amongst the former who were paid by said sale, was one W. Waters; that the sale was made under color to said Beaman, for the benefit of Waters, who was a creditor of the firm to a considerable amount; that the sale purported to be made for cash, when in truth, the consideration was debts due by the firm of Lowe & Co; that so far as Beaman was interested, although the sale was made to him in the first instance, he had become a creditor of the firm. They further allege that Waters has since sold said stock of goods, and by reason of the premises, both him and Beaman have become liable for their value. They pray that said sale be cancelled, and that they have judgment in solido against them for the amount of their claim.
    Interrogatories were propounded to the defendants, on oath, touching the purchase of said goods.
    Other creditors were allowed to intervene, and join the plaintiffs against the defendants.
    The defendants pleaded the general issue.
    Beaman, one of the defendants, being interrogated: First, If he had made the purchase of goods from Lowe &■ Co.? says he did for the sum of three thousand dollars.

      Second, If he was a creditor of Lowe & Co. at the time of the sale; to what amount and in what manner 1 Says he was never a creditor.

      Third, If not a creditor, did you or not make the purchase as agent of Wm. Waters and other creditors, believing at the time that Lowe & Co. were insolvent; and that Waters and others were to be paid from said sale ? Answers he did not make the purchase as agent for Waters, or any other person; that he knew nothing of the circumstances of Lowe & Co., and had no right to believe them insolvent; that at the time, they owed Dr. Hale five hundred dollars, which he became responsible for, on their account.

      Fourth, If he had any personal interest in said purchase1? How much money did yon pay? to whom and by whom was it advanced ? says he had a personal interest in the purchase; at first he had no expectation of purchasing, and would not have done so if Waters had not agreed to advance the funds; still owes Waters, and has bound himself to pay Dr. Hale.

      Fifth, Asked if he knew the creditors who were to be paid from said sale, and the amount of their claims ? Answers, that he understood Lowe & Co. owed Waters something, which would be retained out of the sale; has no direct knowledge of it; agreed to pay Hale as above stated; knows nothing of other creditors at the time.

      Sixth, Asked if he did not leave Waters in possession of the goods; and if the latter did not become the owner of them, and in what manner? Answers, No; that he employed a man who took possession for him, and several days after he told Waters that he was apprehensive he could not raise so much, and that he (Waters,) might have half of the goods, which he agreed to.

      Seventh, Asked if he and Waters did not intend to evade the law, by having the sale made to him, instead of Waters; thereby securing the claim of the latter indirectly ? Says, No.

      Eighth, Was not the sale made for much less than the value of the goods, and to secure some advantage, and whom was it to secure ? Says he considered the purchase a good one at the time, and that the goods were worth more than he gave, or he would not have purchased. The purchase was not made to secure the advantage of any one, but exclusively on speculation.

      Ninth, Asked what interest he had; what had Waters, or both of you, either jointly or severally in said, purchase; how and in what manner were the goods to be paid for; what claims against the firm of Lowe & Co. were paid as a consideration for said purchase by you, or either of you, jointly or severally, and in what manner? Answers that this interrogatory had been answered fully already in his former answers.

      The other testimony showed that Lowe & Co. were in insolvent circumstances at the time of the sale to Beaman, and that they failed soon after; that Waters was a credi-for, and got his debt paid by the sale of the goods, and" said he gave three thousand dollars for them. It further appeared that Beaman paid no money, although the act of sale to him was made on its face for cash. There was other testimony to this point. The goods were inventoried at five thousand one hundred dollars, and sold by Beaman and Waters soon after this purchase, for four thousand nine hundred dollars.
    The jury returned a verdict that the sale be rescinded; and that the plainti'ffs and intervenors recover from Wm. Waters and Carter Beaman', the sum -of four thousand nine hundred and thirty-two dollars, to be divided amongst all the creditors of Lowe & Co.
    The defendants moved for a new trial, on the ground of newly discovered evidence since the trial.
    The nature of this evidence as set forth in the affidavits, is fully stated in the opinion of the court.
    From judgment rendered confirming the verdict, the defendants appealed.

      Dunbar and Barbour, for the plaintiffs.
    1. This is an action to set aside a sale made by Lowe & Co. to the defendants, in fraud of the plaintiffs as creditors of the firm of Lowe & Co. The law gives to creditors an action to annul any contract made in fraud of their rights. Louisiana Code, 1965, et seq. and 1979.

      2. The evidence in this case shows conclusively that there was fraud and collusion, on the part of Beaman & Waters, to obtain an advantage in favor of Waters, as a creditor of Lowe & Co., and secure his debt in preference to the other creditors. The jury has found this fraud, and by their verdict annulled the sale, in favor of the plaintiffs. This verdict and the judgment thereon, must stand. It is based on law and conclusive evidence. 8 Louisiana Reports, 168. 10 Martin, 605.

      3.It was incumbent on the party averring, that the sale was bona fide, and for a price certain, to show it. They should have shown what was the consideration, and the price or money actually paid; to whom and by whom paid. This they have not done, although every opportunity was afforded them. Beaman in his answrers to interrogatories, might have stated- it fully, as he was expressly interrogated to this point.

      Judge Boyce, for the defendants,
    contended that the sale to Beaman was a fair and bona fide one. He was no creditor of Lowe & Co. The act of sale expresses on its face a price, as the consideration which is good and lawful, and that the sum of three thousand dollars for which it was made, was paid in cash. The answers of Beaman supports this sale, and negatives all fraud and collusion.

      2. Beaman was in no way connected with Waters in this purchase. He did not buy the goods as agent of Waters; nor was he endeavoring to procure indirectly for Waters, what he could not get directly. He was himself no creditor of the seller. His answers fully show this; and no direct evidence or circumstances from which presumptions of any weight can be drawn, has been produced to contradict these answers.
    3. If Beaman then is to be believed, he bought the goods for himself; was not a creditor and did not know of the seller’s insolvency. His contract was fair, and should be protected in law. Louisiana Code, 1981.
    4. It is not necessary that a sale under article 1981, should be for cash. It may be made for a draft, or any other mode of payment in the course of business. And no expectation which Waters, or any other creditor might have • of being paid out of the price, or any conduct of theirs could invalidate the contract. See case of M‘Manus’s Syndic vs. Jewett. 9 Louisiana Reports, 170.
    5. Even under these circumstances, if the value of the property exceeded by one fifth the price given for it, the creditors might annul it; but in doing so they would be k0und to restore the price. Louisiana Code, 1976.

      Winn, also, for defendants,
    suggested that the charge of the judge a quo, was erroneous, in laying down the rule; that “ if the circumstances in which Beaman stood at the time of the sale, were such as to induce a prudent man to make further inquiry, as to the insolvency of Lowe & Co., the jury might presume, and find that he had notice,” &c. This charge clearly directs the jury to regard as disproved, the positive answer of Beaman to interrogatories, that he had no knowledge of their insolvency at the time of the sale.

      2. This charge further directs the jury to disregard the positive declaration of Beaman, made on oath, upon evidence of the slightest character; mere presumptions which should not weigh a feather in the scale, and upon such evidence as is unknown to the law. Louisiana Code, 1976.
    3. The verdict of the jury is clearly contrary to the evidence, as shown by Beaman’s answers, which form a controlling feature in this case. The sale must be shown to have been made to a creditor, and with the view to give him an unjust preference, before it can be annulled as fraudulent with respect to other creditors. 6 Louisiana Reports, 538.
    4. The burthen of proof of fraud, or knowledge of the insolvency of the vendor in the vendee, at the time of sale, devolves on the plaintiffs, which they, are bound to show by positive evidence. This is not done here. 4 Louisiana Reports, 253.

   Bullard,,/.,

delivered the opinion of the court.

This is an action to annul a sale made by the debtors of the plaintiffs, and intervenors, to the defendants, or one of them acting for both, of a stock of goods, which contract is alleged to be in fraud of their rights. The case was submitted to a jury, whose verdict was in favor of the plaintiffs, and being followed by a judgment annulling the contract, and condemning the defendants to pay the value of the goods, the latter appealed.

The article 1979 of the Louisiana Code, declaring contracts fraudulent as to creditors, which are made with the knowledge of the obligee, that the obligor was in failing and insolvent circumstances, and when they give the former an advantage o~ ver other creditors, merely establishes a presumption against such contract $ but it does not exclude other evidence of fraud, or control the principle that every contract may be the object of the revo-catory action, which is made in fraud of the rights of creditors.

Questions, sucli as this case presents, are so peculiarly of the province of juries, that this court will not disturb a verdict, unless manifestly without or against evidence, when the trirtl has been fairly conducted, and the jury does not appear to have been misguided by an erroneous exposition of the law.

Much reliance has been placed by the counsel for the appellants, on article 1979, of the Code, which declares that every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors. It is contended that the defendant, Beaman, was not a creditor, and that he is not shown to have had a knowledge of the failing circumstances of the vendors. We consider this article as merely establishing a presumption against the contract, whenever it is first shown, that the obligee knew of the discomfiture of the obligor, and when being a creditor he gains an advantage over other creditors. But it does not exclude other evidence of fraud and collusion, and does not control the broad principle established by the Code, that every contract may be an object of the revo-catory action, which was made in fraud of the rights of creditors.

The evidence in the record is sufficient, in our opinion, to justify the jury in finding that the two defendants were concerned in the transaction, from the beginning, and that no such contract was in reality ever entered into, as would appear to have been evidenced by the written bill of sale, set up in the defence, and that the sum of three thousand dollars therein recited, was in fact never paid. It is not necessary to inquire on which party the law imposed the burthen of proof. The evidence in the record is quite satisfactory, that the bill of sale was simulated, and that the contract, whatever it may have been, w'as not such as by the written evidence adduced, it purported to be.

The charge of the court, to the jury on the trial, was excepted to, and our attention has been called to the bill of exceptions. We have attentively examined the charge, and consider it fair, and even favorable to the defendants. The-judge says, “ as to knowledge of Beaman of the insolvency under the decisions of the Supreme Court, I feel bound to say, that it was and is necessary to charge him. Is that fact proved 1 You will decide on all the evidence. On this I would lay down this rule; if the circumstances in which Beaman stood at the time of the sale, were such as to induce a prudent man to make further inquiry as to the insolvency of Lowe & Co., you may presume and find he had notice.” The whole of this clause taken together, presented the question fairly to the jury, although the latter part of it has the appearance of laying down the rule too broadly.. But in what position does the .evidence place the defendant! He appears to have been acting for or jointly with an avowed creditor of Lowe & Co., and seeking to avail himself of the advantages of a contract, different from the one alleged, and the effect of which, was to secure payment to at least two creditors of Lowe & Co., and manifestly to the prejudice of the plaintiffs. All these circumstances were left to the jury to decide upon the fairness of the transaction.

It is, lastly, urged by the defendants’ counsel, that the court erred in refusing to grant a new trial, on the ground of newly discovered evidence. Both the defendants -filed affidavits. That of the defendant, Beaman, sets forth, substantially, that he can prove by W. H. Kitchen, that Lowe & Co. offered to sell the stock of goods in question, to several persons, and especially to Kitchen, eight or ten days before the purchase, for three thousand five hundred dollars, which was refused by him after examining the goods. That he can prove by Z. Dowty, the payment of the money to Lowe & Co. He further states, that when he answered the interrogatories,'he had not paid Dr. Hale, but that he has since paid liim, in compliance with his obligation ; and that the payment was made before the trial of the case. That he had paid W. Waters, his co-defendant, before the institution of this suit, one thousand dollars, in part payment of the cash advanced by him, to enable the affiant to make the purchase.

-where a par-h's “tarogf-state what he cíllse^of'*a cer-goods .St°ckho°v much he paid in whom, and to himself of the plea of newly discovered evidence, with a view to prove payment on a second trial, as he might have proved it in his answers to the interrogatories.

eantot^obtairTa new trial, on the ground that he could prove a actio™* or ^con-traot Jv witneS; ses, which would make it appear the written con-traotltself;

wiHnotbegrant-ed on the ground vered evidence, facts which are the second trial must have been within the knowledge afthefirsuaitieS

With respect to tbe testimony of Mr. Kitchen, we think it would avail the defendant nothing, even if admitted, and as to the payment, he had an opportunity of proving that, by answering the interrogatories propounded to him, touching the payment of the price set forth in the bill of sale. That part of the fourth interrogatory, in which he is called on to say, “how much money he had paid in cash, and to whom it was paid,” is not answered at all. The affidavit of Dowty, by whom the defendant expects to prove the payment of the money to Lowe & Co., is also in the record, and he is silent as to any payment of money by Beaman, to his vendors.

The defendant, Waters, makes oath that W. H. Kitchen, the same witness mentioned above, is material and important, on the same ground as stated in the affidavit of his co-defendant. He stages that he was unavoidably absent at the time of the trial, and he gives an account of the transaction, from which it would appear that he suggested to Beaman the idea of making the purchase, and that he afterwards became interested, and secured a debt due to him by Lowe & Co. He does not state by what witnesses he could prove these facts on a new trial, and if he had, such evidence would be wholly inconsistent with the terms of the bill of sale.

All’ the facts which the parties allege, they expect to prove on the new trial, except what relates to the offer of r 3 r ^ Lowe & Co., to sell to Kitchen and others, which we consider immaterial, must have been within their personal knowledge before the first trial; and this court held, in the case of Smith vs. Crawford, that in such case, an application for a new trial ought not to be granted. 10 Martin, 81.

It is assigned as error apparent, on the record, that the judgment does not conform to the verdict. The verdict is in favor of the plaintiffs and intervenors, and that they recover the sum of four thousand nine hundred and thirty-two dollars , , , , ni ■»• . and thirty-six cents, to be divided among all the creditors of Lowe & Co. The judgment is, that the verdict of the jury, and the law-and evidence being in favor of the plaintiffs and intervenors, it is ordered, adjudged and decreed, that the plaintiffs recover said amount. It appears to us that there is no substantial discrepancy. The intervenors became parties plaintiff, and joined the original plaintiffs in the pursuit of their rights.

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


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    CHEW ET AL vs. FLINT, CURATOR.
    WiiSTEitN Bist.

      October, 1836.
    APPEAR FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    Whenever any change is made in a judgment of the Supreme Court, before it becomes final, even in correcting its phraseology, either of the, parties have three judicial days within which to present a petition for a re-hearing.
    After a change or correction is made in a judgment, not already final, it does not become so until the lapse of three judicial days afterwards, and until then no mandate can issue.
    This case was before the court at the October term, 1834. 7 Louisiana Reports, 395.
    When the mandate was sent down to the Court of Probates, the defendant made opposition to its being entered as the judgment of the court, on the following grounds:

      First. The judgment of the Supreme Court, as set forth in said mandate, is not final, because a motion for a re-hearing was regularly filed by the defendant within the three days prescribed by law, which has not been acted on by the Supreme Court.

      Second. The judgment of the Supreme Court, as set forth iu the mandate, is not legal and valid, another and a different judgment having been regularly rendered by said court, and entered on its records, prior in dale to the one set forth in the mandate, which said first judgment has never been legally or properly altered, and it is the only legal and valid judgment ever rendered by the Supreme Court in the cause,
    Wheneverany lÍTjudsment of *e ' Supreme Court, before it becomes final, even in correcting its phraseology, either of the parties have three judicial days ■within which to present a petition for a re-hearing.

      The defendant and opponent then prays, that said mandate be rejected and not acted on by the court.
    . The plaintiff’s counsel denied the right of the defendant to file a petition, as three judicial days had elapsed from the time judgment was first rendered and the adjournment of the court; that the judgment was final and should be carried into execution.
    The probate judge was of opinion, that by the alteration or correction made in the judgment, it only dated from that time; and the court having adjourned that day, it was not final, and that the petition for a re-hearing was in time. From judgment, rejecting the mandate, the plaintiffs appealed.

      Winn, for the plaintiffs.

      Dunbar and Flint, contra.

   Martin, J.

delivered the opinion of the court.

This is a case of a mandate issued by the clerk of this court, and sent to be entered as the judgment of the Court of Probates.

The facts show, that judgment was rendered in this court against the defendant, as curator of an estate, on the 20th of October, 1834, and that a trifling amendment was made thereto, on the application of the adverse party, on the 23d of the same month. Court having adjourned soon after-wards, this was the third and last judicial day after the rendition of the judgment. On the 24th of October, and the day after the adjournment of the court, the defendant filed with the clerk his petition for a re-hearing. Notwithstanding this, the opposite party obtained from the clerk a mandate for the execution of the judgment.

The curator resisted the mandate, and made a successful . . , . . . _ , opposition to the execution of the judgment, on the ground that it was not final, three judicial days not having elapsed since its vendition. Prom the judgment of the Court of Probates, sustaining this _ opposition, the plaintiffs have appealed.

After a change or correction is made in a judgment, not already final, it does not become so ijntil the lapse of three judicial days afterwards, and until then no mandate can issue.

It appears to us, that the Court, of Probates correctly refused its aid to the execution of the judgment of this court, under the circumstances of the case. „

Whenever any, even the least change, is made in a judgment of this court, either of the parties thereto has the privilege, until three judicial days have elapsed since the alteration was made, to show, by a petition for a re-hearing, that he is injured thereby. Until the expiration of these three judicial days the judgment does not become final. The mandate, in this case, was consequently, prematurely issued.

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


author: Bullard, J.,

text:
    SMITH vs. GORTON.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE FIFTH PRESIDING.
    Where a person, not a party to a bill or note, endorses his name on the back of it, he is presumed to have done so as a surety, and not as an endorser.
    If a party endorsing his name on a note or bill, supposed he was binding himself as an endorser and not as a surety, it is an error of law, which will not avail him, when he is not led into it by the other party.
    This suit is instituted against the defendant, as surety on the following promissory note :
    “$307 43. . On or before the first day of August next, I promise to pay Mr. Ralph Smith, or order, the sum of three hundred and seven dollars and forty-three cents, for value received, in merchandise, with ten per cent, interest, per annum, from the date, if not punctually paid.
    “LEWIS GORTON.”
    (Endorsed) “George Gorton.”
    “Alexandria, February 27, 1830.”
    The plaintiff alleges that the drawer of the note, is insolvent, and that the defendant, George Gorton, signed said note as surety, and is liable to pay the same, wherefore he prays for judgment accordingly.
    The defendant denied the allegations in the petition, and required strict proof thereof. He further averred, that an extension of time was allowed the maker of the note sued on, without his knowledge, and that he is not liable as surety, and has had no legal notice of non-payment, &c.
    The defendant’s counsel offered the deposition of Lewis Gorton, taken by commission, as evidence to show that the defendant signed his name on the back of the note, as endorser and not as surety, to which the plaintiff’s counsel objected, because the witness whose testimony was offered, was the drawer of the note sued on, and incompetent to testify, which objection was sustained by the court, and a bill of exceptions taken. The testimony was excluded.
    Evidence of the insolvency of the drawer was produced ; but the district jndge considering the defendant bound as surety, gave judgment for the amount of the note. The defendant appealed.

      Winn, for the plaintiff.
    1. This case involves the question, whether the defendant is bound as surety or endorser. He is sued in the former capacity, and his plea of want of demand and protest, cannot avail him as in a case of endorsement. 3 Martin, JV. S., 659.

      2. The maker of a note is an incompetent witness, to testify in a suit of the holder or payee against the surety, or to testify in favor of an endorser. The deposition of Lewis Gorton, the drawer, was therefore properly rejected.

      Where a person, not a party to a bill or note, endorses his bacTof it" he is EavcTdone so as a surety, and not asanendoisei.
    If a party, endorsing his name on a note or bill, supposed he was binding himself as an endorser, and not as a surety, it is an. error of law, which will not avail him, when he is not led into it by the other party.

      Judge Boyce, for defendant.
    l. This case differs from the one” cited by the plaintiff’s counsel. The court will look beyond the face of the paper, to ascertain the intention and liability of a party to a written contract. The evidence shows that the defendant refused to become surety, but endorsed the note, and expected only to be bound as such, on receiving notice of demand, and failure of the principal to pay. This has not been given.
    2. The decision in the third new series, should be revised. It is evidently erroneous ; even if it applied to this case, it is not law, for it measures all the responsibilities of the parties, by the same, rule.
   Bullard, J.,

delivered the opinion of the court.

This case cannot be distinguished from that of Guidry vs. Vives 3 Martin, N. S. 659, and does not differ materially 7 . J from that of Cooly vs. Lawrence, previously decided, 4 Martin, 639. We consider it now well settled, that when a person not a Patty to a bill or note, puts his name upon it, he is presumed to have done so as surety.

The defendant admits that he endorsed the note in question, which was made payable to the plaintiff’s order ; but his counsel has endeavored ,to show, that his intention was to bind himself as endorser and not as surety, and therefore, was entitled to notice of demand on the maker, and non-payment.

, We have not thought it necessary to inquire whether Lewis Gorton, the drawer of the note, was a competent witness, because his testimony taken on commission is before us, and would not in our opinion, if admitted,, sustain the defence. If the defendant supposed that he was binding himself only as endorser, it was an error of law on his part, and nothing shows that lie was led into the error by the plaintiff.

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


text:
    WARREN vs. HALL’S EXECUTOR.
    ■Western Dist.
    October, 1836.
    APPEAL PROM TUE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    A judgment obtained in another state, when it appears the party against whom it was rendered was never cited or served with process, and did not otherwise appear, is not to be deemed va,lid in this.
    Even when the record recites that the parties appeared by their attorneys in a suit in chancery in another state, the record and decree are insufficient evidence of the demand in this, when it is shown there were other parties; and when the decree expressly states, the defendant (who is a non-resident,) had wholly failed to enter his appearance agreeably to law and the rules of court, notwithstanding publication of notice to do so, and the complainant’s bills were, therefore, taken as confessed.

    This court is not prepared to say that a judgment rendered against the heirs for a debt of the ancestor, is conclusive upon the executor.
    This is an action founded on a judgment or decree of a Court of Chancery in the state of Kentucky, for' the sum of one thousand five hundred and thirty-five dolíais and fifty-two cents, rendered against the executor of John Hall, deceased, who was at the time exercising his functions in, and was a resident of Louisiana.
    The plaintiff expressly alleges, that the succession of said Hall owes him the sum claimed, which is evidenced by a judgment of the Circuit Court of Scott County, Kentucky, and that the executor thereof has filed a tableau of distribution in the Probate -Court for the parish of Rapides, and has failed to place his claim on it as a debt due by the succession; wherefore he makes opposition to the homologation of said tableau, and prays judgment amending it, and for the amount of his claim.
    The defendant pleaded a general denial, and averred, that the record and judgment produced as the basis of the plaintiff’s claim, has not the force of the thing adjudged against the succession he administers.
    He further showed, that the obligation on which the judgment purports to be founded, was given by the deceased to the estate Of his father, John Hall, senior, of whom he was heir at law; that this obligation cannot be enforced until a partition of the estate of John Hall, deceased, is made, as one heir cannot be compelled to pay a balance to another, until a final settlement and partition is had.
    Upon these pleadings and issues the parties went to trial.
    The record of the suit and decree in chancery was offered and received as evidence of the plaintiff’s demand, notwithstanding the defendant’s objections taken thereto. It appeared that when the chancery suit was instituted in Kentucky, in 1828, John Hall, now deceased, was there, and served with a subpoena in chancery. He appeared by counsel, and filed an answer and cross bill. In 1829 the plaintiff filed an amended bill in chancery, and in which he alleges John Hall is a transient person, residing sometimes in Kentucky, and at others in Louisiana, and prays for an injunction against his co-defendant, M‘Gruder. The subpoena in chancery was returned executed as to M'Gruder and Hall “not found.” In 1830 it was suggested, that John Hall died in Louisiana, and ordered by the court that “this cause abate as to him.” A bill of revivor was then filed, reviving the suit against Charles Mulhollan, executor of John Hall, deceased, &c., and it appearing to the satisfaction of the court that C. Mulhollan is'no inhabitant of the state, (Kentucky,) and having failed to enter his appearance herein, agreeable to law and the rules of the court, ordered, that unless he appear here on or before the first day of the next term, and answer the complainant’s bill herein, the same shall be taken as confessed, &c. This order was advertised according to the laws of Kentucky. The heirs of John Hall were made defendants, and residing in Kentucky, were served with process.

      On the 10th June, 1831, the minutes of the court state: “ this day came the parties by their counsel, and by consent the cause was submitted for a decree, &c.”
    “ June 18, 1831.” “ This day came, on the above cause, to be heard on the bill, amended bill, bill Uf revivor, answer of the guardian ad litem of J. Hall, junior, and the exhibits,” and the court rendered the following decree: It appearing to the satisfaction of the court that the order of publication herein against the defendant, Mulhollan, as executor of John Hall, deceased, has been duly executed, and that although process has been served upon all of the defendants, they all, except John Hall, junior, as also said Mulhollan, executor as aforesaid, have wholly failed to enter their appearance herein, agreeably to law and the rules of this court; it is, therefore, ordered, adjudged and decreed, that said bills be taken for confessed, &c. Decree entered against executor for the sum claimed, to be paid out of any assets of the estate of John Hall, deceased, in his hands, &c. .
    Upon this evidence the cause was mainly decided.
    The plaintiff had judgment for the amount of his claim, against the executor, to be paid out of Hall’s estate. The executor appealed.

      Dunbar and Winn, for the plaintiff,
    contended, that the record and decree of the Chancery Court of Kentucky was conclusive evidence of the plaintiff’s demand, and the judgment of the Court of Probates was correct'in receiving it as such.
    2. It is urged that it is not conclusive, because the executor of John Hall, deceased, was not served with process, and could not be, as be resided in this state. The proceeding in chancery appears to have been commenced before the death of Hall, and afterwards revived against his executor. The decree states, and i t is so entered on the record, that the parties appeared by their attorneys ; consequently the defendant was represented, and appeared by counsel.
    3. If the forms of law in Kentucky have been pursued, and counsel appeared for all the parties, the judgment or decree obtained there against Hall’s executor, cannot be inquired into here, unless it be impeached as fraudulent, &c. 1 Starkie on Evidence, 215-16, and the notes.

    4. It is. unnecessary that counsel should have appeared by actually filing pleas, &c. It is sufficient, if it appears from the minutes of the court, that the party was represented by counsel. The mode of pleading differs in the different states, and, in some cases, a plea is put in ore tenus. Starkie on Evidence, 215.

      Judge Boyce, for the defendant.
    1. The record and decree from Kentucky can have no effect here. It shows on its face, that John Hall, deceased, had first appeared and> filed a cross bill, but that all proceedings had been discontinued as to him, and this is an attempt to revive it against his executor, who never did appear, either in person or by counsel.
    2. The executor deriving his authority as such here, could not be sued in a foreign jurisdiction. But even if he could, he never was cited or appeared. It is admitted, and shown in the record, that the only notice ever given was publications in a newspaper in Kentucky, calling on him to appear and answer. This he never saw; and the first intelligence he had, was the record and decree now sued on.
    3. It is a universal rule, that a judgment rendered in another state must be considered as a foreign judgment, except as to the manner of proving it, and is only prima facie evidence of the debt. But this principle is predicated on the fact that the party was cited, had notice, or had actually appeared; for it is expressly decided, that a judgment by attachment in another state, or a proceeding inrem, when the party is out of its jurisdiction, is not even prima facie evidence. Such a judgment or decree is per se of no effect. 13 Johnson, 192, 205 et seq.

    4. Judgment was erroneously given for the plaintiff in this case, as there was no other evidence to support the demand, but the decree of the Chancery Court of Kentucky. It ought., therefore, to be reversed.

      obteinecHifano-!hei' state> w*\en it appears the party against rendered1 was “1®^^ cess, and did not pear,'"is notato ^mcd valuI
   Bullard, J.,

delivered the opinion of the court.

The appellee in this case filed an opposition to the tableau of distribution presented by the defendant and appellant, as executor of the last will of John Hall, deceased, on the . ground that the executor had omitted to .place him on the tableau as a creditor of the estate. The opposition filed, sets forth other grounds not necessary now to notice. He alleges that he is a creditor of the estate, as evidenced by a judgment rendered in his favor against the executor, in the Circuit Court of Scott County, in the commonwealth of Kentucky.

The defendant, after setting up an exception to the mode of proceedings, by way of opposition to the tableau, which has not been noticed in the argument, answered, by denying that the judgment in question has the authority of the thing adjudged against him, or against the estate administered by him. He further alleges, that if any such obligation as that declared on in the Court of Kentucky ever existed, it was extinguished by confusion, John Hall, the obligor, being heir of John Hall, senior, for the benefit of whose estate it was contracted; that the payment of no part of that obligation could be coerced, until after a partition of the estate of John Hall, senior; and, finally, that if any sum was ever due, the action is barred by prescription.

The principal question which has been discussed in this court, is, whether the judgment in the court of Kentucky be conclusive upon the defendant as a party to those proceedings. This court has recently recognized the well settled doctrine, that a judgment rendered in another state is not 3 J ° conclusive evidence against the defendant, unless it appear that he had been served with process, or had otherwise appeared. Without such service or appearance the judgment is not to be deemed valid. Patterson vs. Mayfield’s curator, ante 220. 1 Kent’s Commentaries, 261, and Notes.

This question must be settled by inspection of the transcript adduced as evidence in the cause. From this record it appears that the defendant is a citizen of Louisiana; that no personal service of process was ever made on him, and that he filed no answer to the'bill in chancery. Publications appear to have been made in a newspaper published in Kentucky, but, it is not shown, that the defendant had any knowledge of them.

Even when the record recites that the parties appeared by their attorneys in a suit in chancery of another state, the record . and decree are insufficient evidence of the demand in this, when it is shown there were other parties, and when the decree expressly states the defendant (who is a non-resident) had wholly failed to enter his appearance agreeably to law and the rules of court, notwithstanding publication of notice to do so, and the complainant’s bills were therefore taken as confessed.

This court is not prepared to say, that a judgment rendered against the heirs for a debt of the ancestor, is conclusive upon the executor. '

It has been contended, that the statement on the records of the court, that the parties appeared by their attorneys, is sufficient to show that the defendant appeared. Whatever weight we might think such a recital entitled to, if there were no other parties but the one now before the court, we are of opinion that it is entitled to little consideration, when it appears by the record, that there were other parties who had answered to the bill, and were regularly before the court. But the decree pronounced in the case repels any presumption which arises from the above statement. The court say, that notwithstanding the publication of notices, the defendant, MulhoIIan, executor of J. Hall, deceased, had wholly failed to enter his appearance, agreeably to law and the rules of the court. The bill, amended bill, and bill of revivors, were therefore taken as confessed against all the parties who had failed to appear and answer.

It has been further contended by the appellee, that the judgment recovered in Kentucky against the heirs of the defendant’s testator, who were duly cited, was against them for a debt of the ancestor, and therefore was a good and valid claim against his succession, and could not be opposed by the executor.

We are not prepared to'say, that a judgment rendered against the heirs for a debt of the ancestor, is conclusive upon the executor. If this were true, without restriction, it would be in the power of heirs, by collusion with pretended creditors, to defeat the payment of debts justly due, and the distribution of the assets, according to a tableau which the Court of Probates alone has authority to sanction. In presenting a tableau, the executor represents all the creditors named in it, and it will not be pretended that such a judgment is conclusive against other creditors. But even if a final judgment, pronounced by a court having jurisdiction, were conclusive against the executor and other creditors, it appears to us, that the judgment or decree pronounced in the court of Kentucky is not shown on the face of the record to be final, even against the parties. In' the concluding part of the decree, the court says: “ but by consent of the complainant, leave is given the defendants, at the next term of this court, to show cause, if any they can, to set aside this decree, and the court reserves to itself full power, upon cause being shown at next term, to set aside this decree.” The decree appears to have been pronounced on the 18th of June, 1831, and on the 28th of the same month, ten days after its rendition, the transcript in the record was made out and certified by the clerk. It is clear, that at the time the copy was furnished, something more was required to be done, before the decree could have any effect, and it was still under the control of the court as'a judgment nisi.

We are therefore of opinion, that the Court of Probates erred, in sustaining the opposition, and directing the claim of the plaintiff to be placed on the tableau.

It is, therefore, ordered, adjudged and décreed, that the judgment of the Court of Probates be annulled, avoided and reversed, the opposition rejected, and that the opponent and appellee pay the costs of both courts.


text:
    WOLFE ET AL vs. JEWETT.
    Western Disx.

      October, 1836.
    APPEAL FROM THE COURT OF THE SJXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The party sought to be charged, may show that he acted as agent in drawing the bill sued on, and in this respect is to be considered in the same light as showing a want of consideration, and in either case he is not liable.
    A person may draw as agent upon his principal for a debt not personal to himself, but due by the principal to the payees, without expressing the agency on the face of the bill.

      A bill or note must be presented for aeooptanee, at the place specified on its face, and duly protested for non-aeceptance, in case no one appears or aeeopts it, and notice thereof given to the drawer.
    If the drawee of a bill cannot be found at the place where the bill states him to reside, and it appears that hé never resided there, or has absconded, the bill is to be considered as dishonored.
    This is an action instituted on two bills of exchange, of the following tenor and amount each, to render the defendant liable as drawer, and to recover the amount thereof.
    “Fitchburg, Oct. 14, 1832.”

      u Exchange for JJ1507 77.”

      “ Three months after date, of this my first exchange, (second of the same tenor and date unpaid,) pay tó Messrs. Wolfe, Spies and Clark, or order, fifteen hundred and seven dollars and seventy-seven cents, value received; and charge the same, with or without further advice, to your humble servant.” “ IVERS JEWETT.”
    “ To Messrs. Merriam & Broaddus,
    Merchants, New-Orleans.”
    (Endorsed) “ Wolfe, Spies, and Clark.”
    The following direction was written on the face of the bill:

      “ Notice of acceptance and payment, to be left at the counting room of E. Hays, Esq., New-Orleans.”
    The second bill was for the sum of one thousand five hundred dollars, of the same tenor and date, and payable at four months.
    The plaintiff alleges, that said bills were protested for nonacceptance, and due and legal notice given to the defendant. They pray for judgment in the sum of three thousand and seven dollars and seventy-seven cents, with interest, and eight dollars for protesting fees, &c.
    The defendant pleaded a general denial, and further states, that the plaintiff held a note of Merriam & Broaddus, due the 17th October, 1832, for two thousand nine hundred and nine dollars and ninety-seven cents, payable in Boston; that being the agent of Merriam & Broadus, at the north, and having no funds of theirs in his hands at the maturity of said note, he proposed to the holders, to draw on Merriam & Broaddus, at New-Orleaus, as their agent, at three and four months, for the amount of said note, which proposition was accepted, and he gave the plaintiffs the drafts in question, and took a statement from them, that when said drafts were paid, it should be in full of said note; that he acted in this matter wholly as the agent of said Merriam & Broaddus, a fact well known to the plaintiffs at the time, and is not personally liable, &c.; if he ever was personally liable, he is released by the neglect of plaintiffs to have said drafts presented, acceptance and payment made in proper form, and at the proper time and place, as well as his neglect to have them protested for non-acceptance and non-payment, and further that he never received any consideration for said drafts.
    Upon these pleadings and issues the parties went to trial.
    The two drafts sued on, were protested for non-acceptance ■ at Alexandria, the 5th November, 1832. The notary states, that at the request of R. C. Hynson, holder of said drafts, he went to J. W. Broaddus, one of the firm of Merriam & Broaddus, in Alexandria, and presented them to him, and demanded of him to accept them, to which he replied he would not, &c.
    The following letter from the plaintiffs to their attorneys in Alexandria, was produced in evidence :
    “ New-York, Nov. 24, 1832.”
    “ By recommendation of our freind, we enclose you two notes of Messrs. Merriam & Broaddus, of your place, for collection, viz

      “ One note, dated, Oct. 14, 1831, at 12 months, payable in Boston, in our favor, for
    ) 5
    rtjgggg ^g
    “ One note, datéd, Oct. 15, 1831, at 12 months, in favor of Clark & Doubleday, for

      )

    1914 04 5_
    $4824 01

      “ These notes you will perceive are both past due, and were protested for non-payment. A few days before the above notes became due, Gen. Ivers Jewett, of Fitchburg, Massachusetts, agent of Merriam & Broaddus, proposed to give his drafts on those gentlemen, at four months, for the above notes, as he said they had not provided funds for them, and they would not be paid at maturity, Not having heard any thing from Merriam & Broaddus, and Gen. Jewett being reputed worth some property, we agreed to receive the drafts, but took care not to give up the original notes of Merriam & Broaddus, herein enclosed.

      “ We received two drafts, one at three, and the other at four months. These drafts were all remitted to J. H. Field & Co., New-Orleans, for acceptance by Merriam & Broaddus, or their agent. Mr. Merriam was lying ill of a fever on their arrival, and died a day or two afterwards. Their agent refused to accept them, on which Field & Co. forwarded the drafts to Alexandria, for acceptance by Mr. Broaddus, since which we have not heard from them, but presume of course they have not been accepted, as we understood Mr. Broaddus was absent in Virginia, or there at the Springs on account of ill health. Within a few clays Gen. Jewett, the drawer of these drafts, has failed, and made an assignment of his property, and has passed through this city on his way to Alexandria, as is reported here, to get possession of Merriam & Broaddus’s property ; and in case he succeeds we • shall fare badly, as Jewett’s failure is said to be a bad one. You will perceive that those drafts were received on the proposition of Gen. Jewett, and that Merriam & Broaddus had no agency in the transaction, of course there was no extension of time granted to them, and the drafts not having been accepted, the recovery of them will not, we presume, be any obstacle to your enforcing immediate payment of the original notes, now enclosed to you.
    “ We have been thus particular, that you may fully understand the whole transaction. We hope these notes will reach you before the arrival of Gen. Jewett, and that you will be able to attach the property of Merriam & Broad-dus, &c. You will see the case is desperate, and requires immediate attention and prompt action. We depend on your exertions.55 »
    “ WOLFE, SPIES & CLARK.55

      “ P. S. When we receive the drafts we will forward them to you.”
    “ Messrs. Rigg and Winn, Alexandria, Louisiana.”
    It was admitted that Merriam & Broaddus resided at Alexandria, doing business as merchants at the time of their death. That the notes for which these drafts were given were presented with an oppositon by the plaintiffs, to the tableau of distribution of the estate of Merriam & Broaddus.
    The district judge was of opinion, the defendant was liable for the amount of the drafts sued on. From judgment rendered against him, the defendant appealed.

      Winn, for the plaintiffs.
    1. This is a suit instituted on two bills of exchange, drawn by the defendant in his individual capacity, and which were duly protested for non-acceptance, by the drawees. The defendant is therefore liable to the plaintiffs for the amount of said bills, interest, and damages.

      %. The defendant agreed with the plaintiffs to give him these bills, for the purpose of meeting the notes of Merriam & Broaddus, then due. The agreement is therefore valid, and binding, and for a good and legal consideration.
    3. The further time of three and four months was given to the defendant to pay off these notes, in consequence of his engagement, resulting from the drafts sued on.
    4. These drafts were regularly protested for non-acceptance, at Alexandria, where the drawees "resided. The memorandum on their face, to be presented at the counting house of E. Hays, in New-Orleans, was a mere direction, and not of the essence of the contract resulting from the written instruments, it was consequently, unnecessary to present them there for payment. Chitly on Bills, 325. 3 Jcthnson’s Cases, 71.

      5. There was no necessity for protest and notice of non-payment, when the bills were regularly protested for non-acceptance. This would have been nugatory. Chitty on Bills, 299. 4 Johnson’s Reports, 148, 300, 394.
    6. If tbe drawee cannot be found, or has absconded, tbe bill is considered as dishonored, and no inquiry or demand is necessary. But in this case, the drawees never resided in New-Orleans, and no demand was necessary to be made there. Chitty, 212.

      Dunbar, for the defendant,
    contended, that he was not bound personally, as drawer of the bills sued on. The evidence and facts of the case, fully showed that he drew as agent of Merriam & Broaddus, and with a view to protect their interests and credit.
    2. A party who appeal’s as drawer to a bill, may show by legal evidence, that he drew as agent, and not as principal. This may be shown in the same manner, and on the same principle, as want of consideration. See the case of Krwmbaar vs. Lude'ling, 3 Martin, 641.
    3. There was no legal demand, and protest for non-acceptance. When it was ascertained that Merriam & Broaddus had no agency or establishment in New-Orleans, and when no acceptance could be had there, or was refused, the' drafs in question should have been duly protested for non-acceptance, and notice given to the drawer. 3 Kent’s Commentaries, 82.
   Bullard, J.,

delivered tbe opinion of the court.

This is an action by the payees against the drawers of two bills of exchange, on the usual allegations of protest for non-acceptance, and due notice to the defendant.

The defence set up is : First, That the defendant drew the bills as the agent of Merriam & Broaddus, on whom they were drawn, and who were at the time indebted to the plaintiffs in the same amount by notes, and that the plaintiffs well knew (hat, he was agent, and dealt with him in that character; Second, That the bills were not presented in due time and at the proper place, for acceptance, and that due notice of their dishonor, was not given to the defendant as drawer.

It is not contested, that the consideration for which the bills in question were drawn, was a pre-existing debt of Merriam & Broaddus due to the plaintiffs, and that the drawing of the bills was not to be considered as a novation of that debt. It is equally clear, that Jewett was known to the plaintiffs as the agent of that house, and it is not pretended that he personally owed the plaintiffs any thing at that time. The only question therefore, under this part of the case, is whether both parties understood at the time, that Jewett, by drawing the bills, wnthout expressing his capacity as agent, intended to render himself personally liable to the plaintiffs, in the event of their dishonor. In a letter of the plaintiffs to their attorney, remitting the original notes of Merriam & Broaddus for collection, they say, a few days before the above notes became due, Gen. Ivers Jewett, of Fitchburg, Massachusetts, agent of Merriam & Broaddus, proposed to give his drafts on those gentlemen, at four months, for the above notes, as he said they had not provided funds for them, and they would not be paid at maturity. Not having heard any thing from Merriam & Broaddus, and Gen. Jewett being reputed worth some property, we agreed to receive the drafts, but took care not to give up the original notes, &c.” The counsel for the plaintiffs contends, that although they knew Jewett as the agent of Merriam & Broaddus, yet the expressions in this letter clearly evince their intention to hold him personally liable on these bills of exchange. In cases of this kind the inquiry should be, what had the plaintiffs reason to believe was the intention and understanding of the defendant, rather than what was their intention, which was not disclosed at the time. He was the avowed and acknowledged agent of their debtors, and proposed to draw on his principals for the amount of a debt of theirs, then about to fail due. That proposition was accepted by the plaintiffs, and it is now contended, that the defendant having signed the bills, without expressing on their face his capacity as agent, intended to make himself personally responsible.

The party sought to be charged may show that he acted as agent in drawing the bill sued on, and in this respect is to be considered in the same light as showing a want of consideration, and in either case he is not liable.

A person may draw, as agent, upon his principal, for a debt not personal to himself, but due by the principal to the payees, without expressing the agency on the face of the bill.

A bill or note must be presented for acceptance at the place specified on its face, and duly protested for non-acceptance, in case no one appears or accepts it, and notice thereof given to the drawer.

If the drawee of a bill cannot be found at the place where the bill states him to reside, and it appears that be never resided there, or has absconded, the bill is to be considered as dishonored.

We find it difficult if not impossible to distinguish this case from that of Krumbaar vs. Ludeling, 3 Martin, 640. In that case the court said, “ the attempt of Ludeling to show, that he acted merely as agent for the Amelungs, in drawing the bill on which this suit is commenced, can be considered properly in no other light, than an offer to show a want of consideration in a written agreement, and that for this reason he is not bound to fulfil any obligation which might otherwise have resulted from it.” In both cases, the agents drew upon their principals, for a debt not personal to themselves, but due by their principals to the payees, without expressing their agency on the face of the bills.

In relation to the second ground of defence, to wit: that even supposing the bills to have been drawn by the defendant on his personal responsibility, they were not presented at the proper place, and in due time, and that due notice was not given of their dishonor. It appears to us clear, that the bills ought to have been presented at New-Orleans, where they were made payable, and if not accepted, protested, and notice given to the drawer. It is true the drawees did not reside there, but at Alexandria; but it is a general rule, that if the drawee of a bill cannot be found at the place where the bill states him to reside, and it appears that he never resided there, or has absconded, the bill is to be considered as dishonored. Chitty, 213.

In the same letter of the plaintiffs, above referred to, they say, u these drafts were all remitted to James H. Field & Co. New-Orleans, for acceptance, by Metriam & Broaddus, or their agent. Mr. Merriam was lying ill of a fever on their arrival, and died a day or two afterwards. Their agent, Mr. -, refused to accept them, on which, Messrs. Field & Co. forwarded the drafts to Alexandria, for acceptance by Mr. Broaddus.”

This is a distinct admission, on the part of the plaintiffs, that one of the partners was in New-Orleans at the time the bills arrived, and that they had an agent there, to whom they were presented, and yet no protest was., made, and no notice was given of their dishonor, but they were forwarded to Alexandria, where they were not made payable, and where the drawer never engaged they would be accepted.

We are therefore of opinion, that the defence is sustained on both grounds, and it is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and ours is for the defendant, with costs in both courts.


text:
    BRANDER ET AL. vs. FLINT, CURATOR, &c.
    w esters Dist.

      October, 1836.
    APPEAL FROM THE COURT OF TROBATES FOR THE PARISH OF RAPIDES.
    The plaintiffs, on an affidavit of one of their attorneys, applied for a continuance, on the ground that lie was advised the testimony of a certain witness was material, whose evidence could not be procured in time by reasonable diligence; that he was in hopes to sustain the charge of malversation in office against the defendant, by this witness and others, &e.: Held, that the affidavit was insufficient, as the attorney did not swear to his belief of the materiality of the evidence, nor that he expects to prove the facts alleged, or satisfy the court that the testimony of the absent witnesses will be produced at the next term, or by whom he is advised of these matters, and that he hopes, but does not swear, that he expects or will be able to prove his allegations.
    This is an opposition, on the part of the plaintiffs, to the re-appointment of a curator of a vacant estate.
    The defendant, as curator of the vacant succession of Merriam & Boaddus, filed a provisional tableau of his administration, and prayed for the prolongation of his term for another year.

      The plaintiffs opposed the tableau, on various grounds, and especially the re-appointment of the curator. They allege, that they are creditors of the succession he administers to a large amount, and that he has been guilty of malversation in office, in appropriating the funds of the estate to his private use; that he has kept no bank book, to show that the funds are deposited in bank, as is required by law. They pray that his application be overruled, and that he be removed from office, &c.
    On the day fixed for the trial of the cause, the counsel for the plaintiffs moved for a continuance on the affidavit of one of their attorneys, stating “that he is advised that Thomas Barrett, of New-Orleans, is a material and competent witness for the plaintiffs; that his testimony could not be procured at this term, since the filing of the opposition, by any reasonable diligence; that he hopes to sustain the charge of Mr. Flint having appropriated the funds of the estate of Merriam & Broaddus to his own private uses, by the testimony of the said Barrett, and other evidence. The other evidence, as affiant is advised, would not be material without the evidence of Barrett,” &c.
    This application was overruled, and the continuance disallowed by the court.
    The defendant was then permitted to file an amended and supplemental tableau and account of his administration, in obedience to an - order of court, and on a renewal of his request, he was re-appointed curator for another year. From this judgment of the Court of Probates the plaintiffs appealed.

      Winn and Barry, for the plaintiffs.

      Dunbar, contra.

   Bullard, J.,

delivered the opinion of the court.

The only question which this case properly presents for our solution is, whether a continuance was properly refused in the court below.

The plaintiffs, on an.affidavit of one of their* attorneys, applied for a Continuance, on the ground, that he was advised the testimony of a certain witness was material, whose evidence could not be procured in time by reasonable diligence; that he was in hopes to sustain the charge of mal-versation in office against the defendant, by this witness and others, &c. i Jffeldy that the affidavit was insufficient, as the attorney did not swear to his belief of the materiality of the evidence, nor that he expects to prove the facts alleged, or satisfy the court that the testimony of the absent witnesses will be produced at the next term, or by ■whom he is advised of these matters, and that lie hopes, but does not swear, that lie expects or will be able to prove his allegations.

The appellee having filed his account of administration, which appeared satisfactory to the Court of Probates, prayed for a prolongation of his term for another year, on the ground that he had not fully administered, aud that the interest of the estate required an extension of his term. The appellants, creditors of the estate, opposed his prayer, on the allegation, principally, that he had appropriated the'funds of the estate to his private use, and pray that he may be dismissed from the curatorship.

One of the attorneys of the opposing creditors made oath, that he was advised that Thomas Barrett, of New-Orleans, was a material and competent witness on the part of the opponents; that his evidence could not have been procured since the filing of the opposition by any reasonable diligence; that he hopes to sustain the charge of Mr. Flint having appropriated the funds of the estate to his private uses, by said Barrett and other evidence. The other evidence, the affiant is advised, would not be material without the evidence of Barrett; that the affidavit is not made for delay, but to effect the ends of justice, and that the opponents are absent from the parish.

We are of opinion that this affidavit did not set forth sufficient legal grounds for a continuance; the attorney does not swear to his belief of the materiality of the evidence, nor that he expects to prove the facts alleged; nor does he satisfy the court that the testimony of the absent witness will be produced at the next term of the court; nor does he state by whom he is informed or advised of these matters; and lie hopes to sustain the charge of malversation, but does not swear that he expects or believes he will be able to do so. 1 Martin, N. S., 343. 4 Ibid., 127. 3 Ibid., 293.

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


author: Martin, J.,

text:
    BABCOCK, GARDINER & CO. vs. WILLIAMS ET AL.
    WESTERN DlST.
    October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    The proceedings in a cause will be stopped, and a continuance granted to allow the representatives of a deceased plaintiff to be made parties, even when the suggestion of his death is made by the defendants’ counsel, after the evidence has been closed and the argument commenced.
    There are three parties to a suit, which are necessary at its inception and progress to final judgment, viz: judex actor et reus.

    Even when there are more plaintiffs than one, the others not having authority to represent this one if he dies during the progress of the cause, no valid judgment can be pronounced, until his heirs and representatives be made a party to represent him.
    This is an action instituted by Henry Babcock, Charles Gardiner and R. Watson, as commercial partners, and holders of a promissory note, for four thousand five hundred dollars, drawn by W. P. Scott, payable to the order and endorsed by H. G. Williams and others, negotiable and payable at the bank of Louisiana, at New-Orleans.
    The petition charges that said note was duly protested for non-payment, and notice thereof given to the defendants, Williams and others, as endorsers. Judgment is prayed against them in solido, for the amount of the note.
    The defendants pleaded severally a general denial.
    Upon these pleadings and issues, the parties went to trial.
    The protest and certificate of the notary were produced in evidence. It stated that “at the request of Messrs. Babcock, Gardiner & Co., the holders of said note, he, the said notary^ on the day it became due, made demand of payment of the proper officer of the bank, where the note was made payable, who answered the same could not be paid for want of funds of the drawer.”
    The signatures were all proved, but while the trial was in progress, the testimony having been gone through, and the case argued by the plaintiffs’ counsel, the counsel for the defendant suggested the death of Henry Babcock, one of the plaintiffs, a.nd tendered an affidavit of the fact, and that the information had just been received. A motion was made to continue the cause, that the representatives of the deceased plaintiff might be made party to the proceedings, before final judgment. This motion was opposed by the plaintiffs’ counsel, and the motion overruled by the court, as coming too late. The decision of the court was excepted to.
    Judgment being rendered in favor of the plaintiffs for the amount of the note, the defendants appealed.
    Dunbar, for the defendants and appellants,
    assigned as error, on the face of the record, that no legal evidence was offered on the trial, to show that any legal or proper demand was made of the drawer, to fix the endorser, that the notary’s certificate was insufficient.

      2. The protest of the notary states, that he demanded payment of the proper officer of the bank where the note was made payable, which is wholly insufficient to charge the endorsers.
    3. No legal cause or excuse is shown or given in the protest, why demand was not made of the drawer, or of his authorised agent.
    4. He contended in argument, that a demand, and protest for non-payment, must be made specifically and certain; that”* it was made of the drawer or authorised agent, and not of the proper officer of the bank. Who is he 1 It should state of whom, how, and in what particular manner the demand was made, in order that evidence might be produced to contradict it, or show, that it in fact was not made in the manner specified. Chitty on Bills, 334,396. Chitty,jr., 46. 3 Kentfs Commentaries, 97. 1 JEspinesse, 3. 5 Ibid., 175. 2 Blackstone’s Reports, 509. 2 Martin, N. S., 511.

      Winn and Spaulding, contra,

    showed that the demand and notice of protest was properly made of the drawer, by making it of the officer of the bank where it was made payable. It was the business of the drawer to have had funds there to pay j^e note, by himself or an agent. ^ The notary was not in fact required to make a demand of any particular person. It was sufficient if he made it of any person at the place it was made payable. Bayley on Bills, 28.
    The proceedings in a cause will be stopped, and a continuance granted to allow the representatives of a deceased plaintiff to be made parties, even when the suggestion' of his death is made by the defendants’ counsel, after the evidence has been closed and the argument commenced.
    There are three parties to a suit, which are necessary at its inception and progress to final judgment, viz. : judex actor et reus.

    Even when there are more plaintiffs than one, the others not having authority to represent this one, if he dies during the progress of the cause, no valid judgment canbepronounc-ed until his heirs and representatives be made a party to represent him.
   Martin, J.,

delivered the opinion of the court.

During the trial of this cause, after the evidence had been gone through, and the plaintiffs’counsel had begun his argument, the defendant suggested the death of the plaintiff Babcock, moved the court that the proceedings be stopped, and the cause continued, to give an opportunity to the representatives of the deceased to come in and make themselves parties. The motion was supported by an affidavit, stating that the death of this plaintiff had hot come to the knowledge of the defendant or his attorney, until the testimony was closed. The motion was opposed by the counsel for the plaintiffs, and overruled by the court.

The district judge/ in our opinion, erred. Three parties are necessary to the inception and prosecution of a suit, judex actor et reus. In the present case one of the plaintiffs has ceased to exist, ánd the two others are without authority to represent him: the defendants, if judgment was given against them in favor of the surviving plaintiffs, would, notwithstanding, remain liable to the action of the representatives of the deceased. Their rights of the latter cannot be acted on until they become parties to the suit. The case must be remanded, to afford the opportunity of this being done.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded, with directions to the court below not to proceed to trial, until the representatives of the deceased plaintiff be parties to this suit; the appellees paying the cost of this appeal.


author: Martin, /.,

text:
    BABCOCK, GARDINER & CO. vs. WELLS ET AL.
    "WESTERN DlST.

      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where it was suggested, and offered to be proved, before the trial had closed, that one of the plaintiffs was dead, and that the cause be continued for the representatives of the deceased plaintiff to be made parties, judgment will be reversed, and the case remanded for this purpose.
    This was an action by the plaintiffs, as a commercial firm, and holders of a promissory note, made payable to the order of J. M. Wells and others, and endorsed by him and them, to render them liable on their endorsement.
    The defendants severally pleaded a general denial. This case is similar to B. G. & Co. vs. Williams et al., ante., 394.
    The notary’s certificate was produced in evidence, to show the demand of payment, protest, and notice to the endorsers.
    After the trial had progressed near its close, the defendants’ counsel suggested the death of Henry Babcock, one of the plaintiffs, and offered the testimony of a witness to prove the fact; and moved the court to continue the cause, that the proper steps might be taken to bring in the legal representatives of the deceased plaintiff, which was opposed by the plaintiffs’ counsel, and the motion overruled by the court, the latter being of opinion the suit could be carried on by the surviving partners, or their attorneys, who were still parties, notwithstanding the death of one of them.
    Judgment was rendered in favor of the plaintiffs, and the defendants appealed.

      Winn and Spaulding, for the plaintiffs.

      Dunbar, contra.

      Where it was suggested, and offered to he theVetriaibeh°ad closed, that one of the plaintiffs was dead, ■ and oontinuedUS?for the representatives of the deceased plaintiff ties,6 'judgment and tim'cascTrei manded for this pm pose.
   Martin, /.,

delivered the opinion of the court.

jn this case, during the trial, the death of one of the plaintiffs, Henry Babcock, was suggested by the defendants’ counsel, and offered to be supported by the testimony of wit- ’ . 11 . nesses. A motion was made to continue the cause, until the proper steps were taken for the representatives to become v ,.. ,, , , „ , , parties, which was opposed by the counsel for the plaintiffs, an<* overruled by the court, and the cause proceeded in, to final judgment. This case cannot be distinguished from f & . & that just decided between the same plaintiffs and Williams an(^ others. The same judgment is to be tendered in this as jn that case,

R is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded, with directions to the court below not to proceed to trial, until the representatives of the deceased plaintiff be parties to this suit, the appellees paying the costs of this appeal.


text:
    GRAPPE vs. ROBINSON.
    Westf.uk Dist.

      October, 1836.
    AITEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Service of petition, as well as citation of appeal, is required, or the appeal will be dismissed.

      Elgee, for the appellee,
    moved to dismiss the appeal, on the ground that there was no service of the petition of appeal accompanying the citation. This was a fatal defect, which authorized the dismissal of the appeal. 7 Louisiana Reports, 361.

      Service of a as citaüónof ap- or^’the16 appeal be dismis-

      Winn, contra,

    moved for time to have the sheriff’s return amended; he expected the service had been properly made, but omitted in the return.
   Martin, J.,

delivered the opinion of the court.

The dismissal of the appeal is prayed for, in this case, on the ground that there was no service of the petition of appeal. Service of the petition, as well as citation of appeal, is required by law. This case cannot be distinguished from that of Taliaferro vs. King’s heirs, 7 Louisiana Reports, 361.

It is, therefore, ordered, that the appeal be dismissed, with costs.


text:
    WELLS ET UX. vs. SCOTT’S EXECUTRIX.
    westehh Dist.

      October, 1836.
    APPEAL FROM THE COURT OF PROBATES FOR THE PARISH OF RAPIDES.
    Where judgment is rendered for, or against the wife, in which she has a separate interest, even when she is sued as executrix, her husband must be joined and cited in the appeal.
    In suits for a cause of action relative to the wife’s separate interests, both husband and wife must be made parties. <
    This is an action against the executrix of the succession of the late Thomas C. Scott, to compel her to render an account of her administration, and for a partition of the succession.
    The plaintiff’s wife alleges she is one of five children and heirs of the deceased, and that the defendant has been regularly qualified as executrix of her ancestor’s estate, and entered upon the duties; and further, that she is the mother of the petitioner, and four other minor children, but has since intermarried with John K. Elgee, and has been retained in her tutorship by the advice of a family meeting; that the succession consists principally of lands and slaves, and houses and lots in Alexandria, &c. as will more fully appear by reference to the inventory, and that a part has been sold to pay the debts of the deceased, of which no account has been rendered. She prays for the rendition of an account, and that a partition be made of said succession among said heirs.
    The executrix filed her answer, with an account of her administration annexed, showing a balance of four thousand and eleven dollars and forty-six cents in her favor, which she prays may be homologated, and judgment rendered therefor. She prays for the prolongation of her term for another year, and consents to the sale of the property and partition of the estate.
    The judge of probates rendered judgment, homologating the account, and decreeing the balance of four thousand and eleven dollars and forty-six cents, to be allowed and paid to the executrix, and that she be continued in office for the further term of one year, on giving bond and security. The plaintiffs appealed.
    In the citation of appeal the defendant, as executrix, is alone cited, and the .appeal bond is executed to her alone.

      Elgee, for the appellee,
    moved to dismiss the appeal, because the husband of the executrix, who was made a party in the court below, was not cited and made a party in this court. The appeal should be dismissed on the authority of the following cases: 7 Louisiana Reports, 112. 9 Ibid., 471.
    2. It is a general rule and provision of law, that the husband must be joined with the wife in a suit against her. Code of Practice, 118. Louisiana Code, 123.

      Dunbar, contra,

    contended, that the judgment being for the executrix alone, and in that capacity, it was unnecessary to cite in her husband in the appeal.
    2. The appeal is taken against the executrix alone, in her official capacity, and should be so considered, and the case decided on in that capacity.

      Where a judgment is rendered for or against the wife, in ■which she has a separate interest, even when she is sued as executrix, her husband must be joined and cited in the appeal.
    • In suits for a cause of action relative to the wife’s separate interests, both husband and wife must be made parties.

      3. If it should be discovered that it is necessary to cite in the husband, further time should be given for that purpose. 9 Louisiana Reports, 47.
   Bullard, J.,

delivered the opinion of the court.

The appellee moves to dismiss the appeal, on the ground that her husband is not made a party, nor cited as appellee.

It is answered, that she is before the court merely as executrix, and may well appear without the assistance of her husband. The 118th article of the Code of Practice provides, that in all suits for a cause of action, relative to the wife’s separate interest, both husband and wife must be parties. In this case the husband was a party below, and the judgment is in favor of the executrix, for a balance on her account of administration. The balance thus decreed to her, certainly does not belong to the estate, and consequently not to the executrix in that capacity, but personally. The judgment became her property, and when the appellants seek to avoid it, her husband must be joined with her.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.


text:
    DELINONICO ET AL vs. TRIZZINIE.
    Western Djst.

      October, 1836.
    APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    A judgment, for even a part of the sum claimed by the plaintiff, rejects the defendant’s claim when it is pleaded in compensation and reconvention.
    If on an examination of the evidence, it appears no injustice has been done, judgment will be affirmed with costs.

      A judgment, for even a part of the sum claimed by the plaintiff, rejects the defendant’s claim, when it is pleaded in compensation and reconvention.
    If, on an examination of the evidence, it appears no injustice has been done, judgment will be affirmed, with costs.
    This is an action for work and. labor, performed by the plaintiffs, for tbe defendant. They allege that they all three worked as mechanics for the defendant, between nine and ten months, at the rate of one hundred dollars per month, and boarded, and that their work is worth nine hundred and sixty dollars, for which they pray judgment.
    The defendant pleaded a general denial. He further averred, that true it was he had hired the plaintiffs to work for him, but that they had imposed upon him, by representing themselves as good workmen, when, in fact, they were not so; that they spoiled his work, fell sick, lived and boarded with him for four or five months, and he paid their medical bills. He annexes an account for advances and payments, losses, and damages, occasioned by the plaintiffs, which he pleads in compensation and reconvention.
    • The district judge, after examining the respective accounts of the parties, and the evidence adduced, gave judgment for the plaintiffs, in the sum of three hundred and sixty dollars. The defendant appealed.

      Dunbar, for plaintiffs.

      Gayoso, contra.

   Martin, J.,

delivered the opinion of the court.

This is an action for work and labor done at a fixed price. The defendant has pleaded the general issue, and that the plaintiffs, who represented themselves as good and skillful workmen, were absolutely incapable of performing the work they had undertaken; that they spoiled his materials, and neglected their work, whereby he has sustained considerable loss, which he pleads in compensation and reconvention.

The plaintiffs established their claim to a considerable part of their demand, and had judgment for the sum of three hundred and sixty dollars, which rejected the defendant’s claim, set up in his pleas, and he appealed.

The case has been submitted to us without argument or points filed, and a close examination of the record has resulted in the conviction that no injustice has been done to the appellant. '

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


text:
    TUCKER vs. PEEBLES'S CURATOR.
    Western Dist.

      October, 1836.
    APPEAL FROM THE COURT OP THE SIXTH JUDICIAL DISTRICT, THE JUDGE OP THE FIFTH PRESIDING.
    A suit is improperly dismissed at the first term, because the plaintiff1 is unable to produce certain documents originally annexed to the petition, but which are shown by the affidavit of his attorney to have been lost, and that steps were taken to prove their contents.
    The absence of the documents annexed to the petition, affords no evidence ■ of their having been taken away by the plaintiff.
    Criminality is never presumed, and the loss of documents which have been filed, may have been caused by accident, or attributed to the want of care in the person entrusted with them, rather than one who had an interest in their preservation.
    This case commenced by an injunction. The plaintiff applied to the judge of the sixth judicial district, for an injunction to restrain and prohibit the defendant from acting as curator of the vacant estate of one H. H. Peebles, deceased, and also from selling the property of the succession. He alleges that he is the owner of certain slaves found in said succession, which he purchased in the lifetime of said Peebles, as evidenced by two bills of sale, which he annexes to his petition. ,
    He further alleges, that the deceased left a will in Tennessee, in which he appointed an executor, which is now being admitted to probate there, and that consequently, the defendant, is not entitled to the curatorship of said estate.
    He prays for an injunction to prohibit the defendant from selling the property, as an administrator of said estate.
    The district judge was of opinion he had no jurisdiction of the matters set forth in the petition, except so far as the petitioner claims a right of property in the slaves designated. An injunction was only granted restraining the sale of the slaves, on the petitioner’s giving bond and security in the sum of three thousand dollars.
    The defendant accepted service of the petition and writ of injunction. He then moved the court for an order compelling the plaintiff to produce in open court, on a particular day, the two bills of sale referred to, and annexed to the petition, which, it seems, had been taken away. The order was granted and extended to a late day of the term, requiring the production of these documents on pain of dismissal.
    On the day fixed, the plaintiff’s attorney moved for a continuance, on his own affidavit, stating that the documents in question were lost., but had been in his possession at the time of filing the petition, and that a commission had issued to take the depositions of witnesses, proving their former existence and contents. The motion was overruled, and the documents not being produced, as ordered, a judgment of dismissal was pronounced. The plaintiff appealed.

      Dunbar, for the plaintiff.
    1. This case should not have been dismissed. The plaintiff is a non-resident, and had a right to a continuance. The most that could have been done, was, the defendant might have declined answering until the documents were produced, and if they were not forthcoming in a reasonable time, then a final disposition of the cause might ha^e been ordered. 1 Louisiana Reports, 114. % Ibid., 134. Code of Practice, articles 174-5.

      Thomas, contra.

    1. The injunction in this case was expressly granted on the bills of sale in question. They were annexed to the petition, and upon them the order'to restrain the sale was made. There is nothing to show that they have been withdrawn by leave, and the plaintiff is bound to produce them, or to take the consequences of a failure.
    A suit is im-ffat^hcTfirst , .be“luiie-unable to pro-documentseorig-?nal'7 an"f?ed but -which are affidavit *of his hand that steps were their contents.76
    The absence of annexed to the j^evMence'of their having been taken away by the plaintiff.
    Criminality is and^^he^oss ^hich have been fi'ed> may baTC been caused by accident, or at-ívánfof careen ^st|¿rsonw“¿ them, rather an™ interest ^ti*e!r Preser_

      2. The defendant was bound to answer and could not do so until he had the papers, which formed the basis of the action against him. A distant day was fixed to produce these papers, and no excuse can now be given for their non-production. The judgment should be affirmed.
   Martin, J.,

delivered the opinion of the court.

The plaintiff obtained an injunction, to prevent the sale of certain slaves, which he claimed, and which were about being sold by the defendant. At the next term of the District Court, the defendant obtained an order, requiring the plaintiff to produce in open court, on a given day, the documents annexed to his petition at the time the injunction was granted, and which, it appears, had been since taken from it. The order was extended, and a rule entered that the suit be dismissed, if tbe order was not complied with, by producing the documents on the protracted day. The plaintiff’s counsel filed his own affidavit, stating that the documents mentioned in the petition, as he was informed by the plaintiff, had been lost; that commissions had been taken out to prove their loss and contents. Notwithstanding this affidavit, or failure to produce the documents, as ordered, the . suit was dismissed.

It appears to us, the district judge erred. The absence of the documents affords no evidence of their having been taken away by the plaintiff. The maxim cui prodest ille fecit, would offer a greater presumption against the defendant t*3 •* *■ ^ than the plaintiff for the former had a greater interest in their disappearance. Criminality is never presumed, and the alleged loss may have been caused by accident, or the want of care and attention of the person to whom the safe keeping of the petition was confided.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded, witli directions to the court beiow to proceed therein according to law ; the appellee paying the costs of the appeal.


text:
    THOMAS vs. CRAWFORD.
    Western Dist.

      October, 1836.
    AFPE AL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, THE JUDGE OF THE FIFTH PRESIDING.
    Where a ease turns on a mere question of fact, and the evidence' does not support the defence, judgment for the plaintiff will be affirmed.
    This suit is instituted on two promissory notes, amounting to four hundred and forty-six dollars, with interest, executed by Margaret Crawford, “ as widow of R. F. Crawford,, deceased, and tutrix of her minor children.” The plaintiff also claimed two small accounts, for money paid on account of the said widow and heirs. He prays judgment for the aggregate sum of four hundred and eighty-nine dollars.
    The defendant admitted the execution of the notes sued on, but pleaded a general denial to the allegations in the petition. She also averred that the notes in question' were given in error, and set up an account between her late husband and the plaintiff, to show that nothing was owing to the latter.
    Testimony was introduced on this issue, from all of which, the district judge concluded the defence was not sustained. Judgment was rendered in favor of the plaintiff, and the defendant appealed.

      Thomas, in propria persona.

      Spaulding and Dunbar, contra.

      Where a case turns on a mere question of fact, and the evidence does not support the defence, judgment for the plaintiff will he affirmed.
   Martin, J.,

delivered the opinion of the court.

The defendant sued on two promissory notes, resisted the plaintiff’s claim, on an allegation that they were given in error, and through misrepresentation. There was judgment against her, and she appealed.

The case turns on a mere question of fact, and a close examination of the evidence has satisfied us, that the district judge correctly concluded, that the allegation set aip in the defence was not supported.

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


text:
    NICHOLS vs. ALSOP.

    Westkuw Dxbt.

    October, 1836.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Where the justice of the case is strongly in favor of the plaintiff, but owing to a defect in the pleadings there is a verdict against him, the court might, in the exercise of its discretion, grant a new trial, to enable him to correct the errors of his attorney, by amending the petition.
    The Supreme Court will remand a case for a new trial, when this can be done with propriety, and is required, in order that the ends of justice be attained.
    This is an action to recover back the price of a slave, and a sum for expenses incurred in consequence of his unsoundness.
    The petitioner alleges she purchased a slave from the defendant, for the sum of three hundred and fifty dollars, with full warranty, and that he has proved to be unsound and worthless. That she has expended a considerable amount for medical aid and attendance, all of which has proved unavailing. He is entirely valueless, having rendered no services since the sale, and is incurable. She prays judgment for the sum of three hundred and fifty dollars, the price she originally paid, and for one hundred and fifty-five dollars, in damages, as a remuneration for expenses and loss sustained, &c.
    The defendant pleaded the general issue: and upon these pleadings and issues the parties went to trial. The cause was submitted to a jury. The evidence showed that the slave named in the petition was affected with epilepsy, at the time of the sale, and never rendered any services. That the medical bill in attempting his cure, amounted to seventy-five dollars, and the other attendance on him worth fifteen dollars per month. The price paid for him was three hundred and fifty dollars.
    It appeared there was no tender of the slave made to the defendant. The judge charged the jury “that the plaintiff could not recover, because the petition contained no prayer for a rescission of the sale.” This charge was excepted to by the counsel for the plaintiff.
    The jury returned a verdict for the defendant. From judgment rendered thereon, the plaintiff appealed.

      Dunbar, for the plaintiff,
    observed that the transcript had been sent to him from Concordia, and he knew nothing of the case but what appeared on the face of the record.

      2. It appeared to him, that the court erred in the instructions given to the jury; for the party had a right to institute an action for the reduction of the price, and for damages, without claiming a rescission of the sale. Louisiana Code, article 2519 to 2522.
    3. The judgment should be reversed, and if the court is unable to render a final one, the case should be remanded. No counsel appeared for the defendant.
   Martin, J.,

delivered-the opinion of the court.

The plaintiff is appellant from a judgment rendered against her, in a redhibitory action, on the sale of a slave, afflicted with epilepsy. The statement of facts made by the counsel of the parties, shows the existence of the disease at the time of the sale. That the plaintiff was at great cost and expense in attempting to cure the slave, and in other respects suffered great damages by his protracted illness. We do not recollect a stronger case on the merits presented for our consideration.

Where the J¿seC<is strongly ™ .ia™f of,the owing to a de-fngs^here'is^a 7?rdict, a£ainst him, the court might, in the fiisoiStion^grant ^ ^ correct the er-ney, by amend-in§ tlle Petltl0n-

Court3ivíTre-trial'when ^is can he done with propriety, and is required in order that the ends of justice be attained,

The defendant had a verdict in consequence of the judge instructing the jury, that the plaintiff could not recover, because she had not prayed for a rescission of the sale in her petition. It also appears from the statement of facts, that the defendant reserved his objections to the competency of the testimony, because no tender of the slave had been made. J 7 A new trial was prayed for and refused.

The justice of the case is so strongly in favor of the appellant, that it appears to us, the district judge might have, ex-officio, granted a new trial, in order to afford the plaintiff an opportunity of amending her petition; and to prevent her from being the victim of an oversight of her attorney. We do not remember a case in which, with greater propriety this court may exercise the powers conferred on it, to remand, when this is required, in order that . . . . , justice be attained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; the verdict set aside, and the case remanded for new proceedings, according to law; the defendant and appellee paying the costs of the appeal..