author: Taliaeeebo, J.

text:
    John H. Sutton, Tutor, v. John R. Mock, Administrator, and William Mock, Intervenor.
    Where a claim to a right in movable property, apparently belonging to a succession, is set up on the ground of an alleged partnership with the deceased, the proof of partnership must be clear and explicit.
    APPEAL from the District Court, Parish of Avoyelles,

      Cooley, J. A. B. Irion, Wctddill <& Barbin, for appellants. Gullom & Thorpe, Intervenór. J. H. Farrer and II Taylor, for appellees.
    The facts are stated in the opinion of the Court.
   Taliaeeebo, J.

The plaintiff, in his representative capacity, brings this suit against the administrator of the estate of Elizabeth Mock, deceased, requiring him to show cause why certain property, found on the plantation and in the succession of the decedent, should not be placed on the inventory of the estate ; and prays that a more perfect inventory be made of the property of the succession ; complains that the administrator has sold seventeen bales of cotton, the property of the estate, and converted the proceeds to his own use; that he is about to sell thirty bales more of the cotton of the estate in an illegal manner ; that he has converted to his own use various articles of personal property belonging to the estate, such as household'and kitchen furniture, stock, etc. He prayed for and obtained a writ of sequestration, under which the sheriff seized and took into possession thirty-nine bales of cotton, three bales in the lint and one hundred and eight thousand pounds of cotton in the seed. In an amended petition the plaintiff prays that the administrator be required to file a final account of his administration, alleges gross maladministration on the part of the administrator, the insolvency of both the administrator and his sureties, prays that the administrator be removed from office or required to give ample security, and that the cotton under seizure be partitioned among the heirs of the estate, etc.

The answer of the defendant contains a general denial. Defendant avers that for several years past, previous to the death of his mother, Mrs. Elizabeth Mock, he resided upon the plantation with her, and that they carried on their planting operations in partnership, each party contributing teams, farming utensils, food, etc., and divided the crops in proportion to the number of laborers furnished by each partner; that the crop which was on the place at the decease of Mrs. Mock, he divided equally, giving one-half to her estate and taking the other half to himself, although he furnished eight hands and his mother only six in the production of the crop. He avers that the mules and other property on the place at the decease of his mother, and not placed in the inventory, were his individual property. He avers that by reason of the sequestration Illegally sued out by the plaintiff, ho has suffered damages to the amount of one thousand dollars, expended in attorney’s fees and other expenses, etc.

In this suit, William Mock, a brother of the.administrator, intervenes claiming the cotton sequestered as his property, and prays that the sequestration be set aside; that the cotton seized be decreed to belong to him ; that damages be awarded to him for the annoyance and injury he has reoeived from the proceedings of the plaintiff.

Upon these issues the parties went to trial in the lower Court. Judgment was rendered, decreeing the cotton in controversy to belong to the succession of Elizabeth Mock, deceased, and directing a supplementary inventory of the property of the succession to be made, and the cotton sequestered to be placed upon it, and that the administrator account for the same in the settlement of the succession of Elizabeth Mock, deceased.

From this judgment the intervenor appealed.

This somewhat entangled litigation, presents the too common case of the existence of improper feelings between relatives and co-heirs, arising from the division of a common patrimony.

As having'a material bearing upon the consideration of this case, we shall advert to the habitations and the relative position of the plantation or field cultivated by Mrs. Elizabeth Mock, and the defendant jointly, and the one cultivated by the intervenor.

Upon a body of land lying upon the bayou DeGlaises, and owned by the estate of Mock, is situated a plantation which, for a number of years past, has been cultivated partly by J. R. Mock and his mother, up to the time of her decease, and partly by the intervenor. But it is clearly in proof that this cultivation is and has been, as far back as 1857 inclusive, entirely distinct, and in every respect disconnected. A cross fence, running from the bayou to the woods in the rear, has separated their fields and divided their agricultural operations. The plantation cultivated by J. R. Mock and his mother, his above, and that cultivated by William Mock, his below the cross fence. A gin, which has been used in common, is situated below the cross fence; and upon the place' occupied and cultivated by William Mock. Upon the lower place, occupied by William Mock, in front of and near the gin, it is shown there stands a cotton-house in which, and in the gin, it has been the custom of William Mock to place his cotton as it was picked. It is likewise shown that upon the upper place, occupied by Mrs. Mock and J. R. Mock, there is a cotton-house and a carriage-house, with shades attached, which has been used for housing the cotton produced on that place. It is in proof that theso parties have uniformly conducted their business separately ; that their laborers have never worked in common; that the crops produced have always been housed separately upon their respective places, and it is not shown that there has been, at any time, an intermixture of the cotton grown on the two plantations. It is shown that William Mock is a judicious planter, and that he formerly owned and worked a force upon the place he occupied capable of producing from fifty to eighty bales of cotton per year.

Mrs. Elizabeth Mock died in the year 1863. J. R. Mock, the defendant, became the administrator of her estate. An inventory was made on the 21th of August of that year, and the property of the estate, except the land, was sold at probate sale on the 19th of November following. At this sale a lot of cotton in the seed, equal to twelve thousand pounds in the lint, was sold, and purchased by the intervenor.

The sheriff’s inventory of the seizure, made under writ of sequestration, recites he “seized thirty-nine bales of packed cotton, three bales of lint cotton, not packed, and one hundred and eight thousand pounds of seed cotton, in four different lots.” He states, in' his testimony before the Court, that he seized thirty-nine bales of cotton, some of which were in front of the gin house, outside of the gin house fence, some inside of the, gin house fence, and two bales under the gin. That he also seized about three bales of lint cotton in the gin house, and one hundred and eight thousand pounds of cotton in the seed, and that the cotton in the seed was in three different lots, one in the gin house, (amount not stated), another in a crib near the gin house, supposed „ to contain forty thousand pounds, and a third “above the residence of J. R. Mock,” which is estimated to contain about sixty thousand pounds.

We find then that the sheriff sequestered cotton to the amount of about sixty-seven bales, found upon the premises occupied and cultivated by William Mock, aud that the remainder sequestered, amounting to about sixty thousand pounds in the seed, was found on the place cultivated by Elizabeth Mock and J. R. Mock. It is sought to be established, and it was so decided by the judgment of the District Court, that all this cotton is property of the estate. The presumption that all property found in a succession belongs to it, does not, in our view, apply to the several lots of cotton found upon the premises cultivated by William Mock. We rather conclude from the drift of the evidence and the facts shown, that he is the owner. We find nothing in the record establishing a right in the estate to any of the cotton found upon William Mock’s place. The other lot, found upon the other place, we think should be considered property of the estate, or rather what remains, after deducting from it the amount purchased at the probate sale by William Mock. .

The decree rendered in this case by the Court á quo, seems not to have been predicated upon direct proof, showing ownership in the estate, but upon acts of the administrator and upon the acts and declarations of the intervenor, ignoring title in himself.

Although the proceedings of the defendant as administrator, in regard to the making of the inventory, were not regular in all respects, yet we are not satisfied that they were such as to warrant the conclusion that he was in bad faith. As to the declarations of William Mock, the intervenor, when considered in connection with the circumstances under which they were made, we can scarcely deem them of such a damaging character as to be conclusive against him. The one to which the gravest import is attached, is the declaration to the witness Schuler, on the day the cotton was sequestered, that “it (the cotton) was the identical cotton made by the witness when he owned the Mock plantation in 1861.” It is clear, from the context and from what immediately preceded, that the remark could only be applied to the cotton raised on the place cultivated by Elizabeth Mock, and not to all the cotton sequestered; for it is shown that he managed and made crops for himself on the place he occupied, from 1857 to 1865. His declaration to Schuler could have little effect against himself, and still less against the administrator.

With these views of the acts and declarations of the parties, and in the absence of any satisfactory proof adduced by the plaintiff, showing ownership in the estate, of the several lots of cotton found on the place occupied by the intervenor, and sequestered in this case, we render the following judgment:

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the sequestration set aside. Of the cotton sequestered, it is adjudged and decreed that William Mock, the intervenor, is owner of thirty-nine pressed bales, the three bales more or less of lint cotton in the gin, and the lot of seed- cotton in the cotton house in front of and near the gin, north of the cross fence; these several lots making, in the aggregate, about sixty-seven bales of the average weight of four hundred pounds. Of the lot of cotton in the seed, containing, by estimation, sixty thousand pounds, and being in the house on the premises formerly occupied by Mrs. Elizabeth Mock, it is decreed that the said intervenor is owner of a portion equivalent to twelve thousand pounds in the lint, being the amount of his purchase of eotton at the probate sale of the property of Elizabeth Mock’s succession, made on the 19th of November, 1863. The residue of the last named lot of seed cotton is adjudged and decreed to belong to the succession of Elizabeth Mock, deceased, and it is ordered that the same be inventoried and administered as such, reserving to the defendant the right of sharing, by proper evidence, any individual right he may have in the said residue growing out of the partnership he alleges to have existed between himself and Mrs. Elizabeth Mock. It is further ordered and decreed, that all costs of these proceedings be paid by the succession.


source: Caselaw Access Project

author: Hyman, C. J.

license: Public Domain

text:
    Amelia Judice, Widow, etc. v. Marie V. Provost et al.
    Courts will not permit an injustico to be done tbe owner by the usufructuary, in his abandoning arbitrarily that part of the property subject to usufruct, which might be heavily burdened with charges or repairs, or which he might so consider, and retain that ■which was profitable, unless the law imperatively required Courts to sustain the usufructuary in such a course.
    If the usufructuary desires to be relieved from the repairs and charges imposed on him as usufructuary, he must renounce the usufruct on tho whole, not on a part, of property subject to right of usufruct. Civil Code, 669.
    Plaintiffs have no right to force defendants into a multiplicity of suits, in the division of the property belonging to the community.
    APPEAL from the District Court, Parish of St. Mary,

      Simon, J. A. De Blanc and F. Fuselier, for appellant.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

Philemon Provost and plaintiff, who were husband and wife, acquired during their marriage community property.

Philemon Provost died, and plaintiff accepted the usufruct of Ms part of the undivided community property.

Subsequently, she made a declaration that she relinquished the usufruct on a part of the property (some land), and asked the Court to cause this part to be partitioned between her and tho deceased husband’s heirs, the defendants.

Defendants asked that the whole, not a part, of the community property be returned to be divided, or that her demand be rejected.

The District Judge rendered judgment rejecting her demand, and she has appealed.

There are certain repairs to be made on property subject to usufruct, by the usufructuary. There are also certain charges on the property which is to be paid by Mm. C. C. 564, 565, 572.

And these repairs and charges are often greater on one kind of property than on another.

We could not permit an injustice to be done the owner by the usufructuary, in his abandoning arbitrarily that part of the property subject to usufruct, which might be heavily burdened with charges or repairs, or which he might so consider, and retain that which was profitable, unless the law imperatively required Courts to sustain the usufructuary in such a course.

If the usufructuary desires to be relieved from the repairs and charges imposed on him as usufructuary, he must renounce the usufruct on the whole, not on a part, of propérty subject to right of usufruct. Civil Code, 569.

Plaintiff had no right to force defendants into a multiplicity of suits, in the division of the property belonging to the community. She had no better right to demand a division of a part of this community property, and hold another part in indivisión with the heirs, than she had to renounce in paxt and retain in part her rights as usufructuary.

Judgment of the District Court affirmed.

The plaintiff to pay the costs of this appeal.


author: Taeiaeebro, J.

text:
    James W. Whitworth v. William Ferguson.
    When the law is changed after prescription begins, the time elapsed before the chango is to be computed aocording to the old law, and that which follows according to the new.
    In the absence of any proof of the lex loci contractus, the provisions of the Oode of Louisiana must govern.
    Tender of payment by defendant debars him from pleading prescription. Atender is an admission of the debt.
    APPEAL from the District Court, Parish of St. Mary,

      Simon, J. Jules J. Olivier and J. W. Walker, for appellants. A. L. Tucker, for appellee.
    The facts are stated in the opinion of the Court.
   Taeiaeebro, J.

The plaintiff seeks to enforce a judgment rendered against the defendant and Scarborough Pentecost, in solido, on the 6th day of September, 1846, in the Circuit Court of Posey County, in the State of Indiana, in favor of Richard D. Wood, John Yarrow, Horatio C. Wood, James Abbott and Josiah Bacon, commercial partners, trading under the firm and style of Wood & Abbott, for the sum of $4,898 96, bearing six per cent, interest per annum, from the date of the judgment, subject to a credit of $1,587 50, to take effect on the 8th of June, 1847. He avers that he is the legal owner and transferree of said judgment. The suit was filed in the District Court of the Parish of St. Mary, on the 12th of August, 1859, and citation was served upon the defendant on the 26th day of the same month and year.

The defendant opposed the plea of prescription in an exception, and afterwards, answering to the merits, denied all and singular the aEegatlons contained in the plaintiff’s petition, and avers that, if the plaintiff be the owner of the judgment sued upon, he can only recover the sum of one hundred dollars, that being the amount paid by Mm for the pretended claim sued upon; avers plaintiff to be the purchaser in this case of a litigious right, a species of traffic reprobated by our laws.

Judgment was rendered in the District Court in favor of the plaintiff, and defendant appeals.

The plea of prescription is clearly not tenable. Judgments, by the former law of this State, were prescribed against only by the term of thirty years. This period was reduced to ten years by the Act of the Legislature of the 30th of April, 1853. To this case both terms are applicable, according to the rule uniformly held by this Court, that, “when the law is changed after prescription begins, the time elapsed before the change is to be computed according to the old law, and that which follows according to the new.” Tested by this rule, we find that the judgment in this case would not have been prescribed until the 20th of February, 1861.

It is contended in argument, that, at the time the transfer of this judgment was made, the partnership, in whose favor the obligation upon which the judgment is founded, was dissolved by the decease of one of the partners, and that the surviving partners were without authority or right to transfer the assets of the partnership; and, in the absence of any showing of dhe lex loci contractus, that the provisions of our Code must govern.

If is urged, on the part of the plaintiff, that the defendant’s tender of payment debars him from the use of this plea, as the tender is an admission of the debt and of the validity of the transfer; and he refers to 2 Greenleaf bn Evidence, section 600, and to 2 Starkie on Evidence, section 788.

We think the authorities are conclusive on the point.

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


author: Hyman, O. J.

text:
    M. E. Girard v. Charles Babineau, Administrator.
    An estate is liable for all oosts inourred by an exooutorin endeavoring to sustain the'validity of a will which is afterwards declared void. 5 L. R. 107.
    But whoro heirs institute a direct action against the legatees, to have the will annulled, andaré successful, the estate is not chargeable with the costs and charges -incurred by the logatoes in their attempt to sustain the will.
    APPEAL from the District Court, Parish of Lafayette,

      Mouion, J. M. & Girard, for appellant. Eraste Mouion, for appellee.
    The District Court assigned the following roagons for the judgment in this case:
    This is a suit brought by the plaintiff to recover of the defendant, as fii&gimstjffttQr ?! t'l}§ ef M&rgueñt? !abb}eW) tbe «¡ai of seyct| hundred and ten dollars, for professional services alleged to have been rendered to said succession.
    On the 5th of July, 1858, the plaintiff, an attorney at law, prepared, received and wrote the last will and testament of the late Marguerite Babineau, in the form of a nuncupative will, under private signature, wherein the said Marguerite Babineau bequeathed to one Narcisse De Blanc, several slaves, and appointed him her testamentary executor.
    On the 6th January, 1859, the plaintiff, acting as attorney of Narcisse DeBlanc, filed a petition praying for the probating and homologation of said will and for letters testamentary, and on the-of the same month and year, the heirs at law of Marguerite Babineau filed an opposition to the homologation of said will, alleging its nullity. Notwithstanding this opposition of the heirs, Narcisse DeBlanc, claiming to be testamentary executor under the will, files on said 18th of January, 1859, a petition praying for an inventory, and afterwards another for the sale of the property belonging to said succession.
    On the 25th of June, 1859, the heirs of Marguerite Babineau instituted a direct action against the legatees under her will, to have the same annulled and set aside.
    In this action Narcisse DeBlanc is not sued in his capacity of testamentary executor, but as one of the legatees of Marguerite Babineau, and on the same day an answer is filed by the plaintiff, for Narcisse DeBlanc and Catherine Pierre, f. w. c., anda separate answer is filed by Messieurs DeBlanc and Fuselier for other legatees. Thus issue was joined between the heirs and the legatees of Marguerite Babineau. The fee of the plaintiff for having attended to this case before the District and Supreme Courts, is five hundred dollars, beside thirty dollars paid for the printing of his brief. Belying on the ruling of the Supreme Court, in the case of Slerlin v. Oros, 5 L. R. 107, the succession of Marguerite Babineau, is sought to be made liable for the payment of this fee, as part of the costs, by the .testamentray executor in maintaining the will. In the opinion of this Court, this charge does not come under the ruling of the Court in the case of Slerlin v. Oros. From the moment that all the legatees of Marguerite Babineau appeared in Court and filed their answers to the direct action brought against them to annul the will, the eontestalionalilies was between them and the heirs, and not between the latter and the testamentary executor.
    After the filing of the opposition to the probating of the will, the testamentary executor had no authority to employ counsel to ask a sale of the property. The only charges in the plaintiff’s account that come under the ruling of the Supreme Court in the case of Slerlin v. Oros, are the following: Seventy-five dollars for petition for the probating of the will; ten dollars for the inventory, which was a conservatory act, for the benefit of both the heirs and the legatees, and ten dollars for the petitiqg of the present defenejapt to appoiqtecl afeihjstyatoi’,

      It is therefore ordered, adjudged and decreed, that the plaintiff do recover and have judgment against Charges Babineau as administrator of the succession of Marguerite Babineau, for the sum of one hundred and twenty dollars, with five per cent, interest thereon from the day the services were rendered, until paid, and the costs of this suit to be taxed.
   Hyman, O. J.

It is ordered, adjudged and.decreed, that the judgment of the District Court be affirmed, for the reasons given by the District Judge in rendering the same.

It is further decreed that plaintiff, who is appellant, pay the costs of this appeal.


author: Labatjve, J.

text:
    Henry L. Garland, Administrator, v. Ulger Roy.
    A judgment of the Supreme Court was rendered at the last term of the Court held before the late civi war, affirming the judgment of the District Court, and the Court adjourned before the expiration of the three judicial days necessary to render the judgment final; afterwards, the records of the Supreme Court were destroyed by troops, who occupied the town where the Supreme Court was held:
    HeldThat, on motion, and the fact of the judgment having been rendered and the record destroyed being fully established, and more than three judicial days in term having elapsed, the Court will decree the judgment of the District Court affirmed, and direct the District Court accordingly.
    APPEAL from the District Court, Parish of St. Landry,

      Marstel, J. Dupre & Garland, for apellant. Lewis & Porter, for appellee.
    The facts are stated in the opinion of the Court.
   Labatjve, J.

This case is before us on a motion filed by plaintiff, suggesting that, at the last term of this Court held in Opelousas, in August, 1860, there was a judgment rendered in this case by said Court, affirming the judgment of the District Court; that said judgment did not become final, as the Court adjourned before the three judicial days had expired, after the rendition of the same, and that, subsequently, the said judgment, together with other records of the said Court, were destroyed by the Federal army whilst occupying this town.

And praying that this case be removed from the trial docket of this Court, and the party admitted to substantiate the allegations made in this motion, and praying for general relief.

This motion having been heard, and the evidence clearly establishing the facts and allegations set forth in said motion, and more than three judicial days having expired since the yepditjon of said judgn}e$t q| this Court, and this Court being satisfied that the judgment appealed from was affirmed:

It is therefore ordered, adjudged and decreed, that the judgment appealed from be deemed and considered, and acted upon as affirmed; and that the same be carried into execution in the same manner as if a duly certified copy of the lost decision had been returned and filed in the inferior Court; and it is further ordered and decreed, that this decree shall be considered as a substitute of the lost decision; and it is further ordered and decreed, that a copy of this decision be sent to the inferior Court, in order that the judgment appealed from be executed according to law. C. P. Art. 618.


author: Labauve, J.

text:
    Emile Tanneret v. Edwards, Sheriff, et al.
    A judgment homologating an account between a tutor and his ward, and decreeing a balance in favor of the ward, is an executory judgment, and authorizes the issue of an execution to enforce it.
    A sale of movable property is not complote until there has been a tradition or delivery to the purchaser.
    Movable property, which has been sold but not delivered, is liable to seizure on an execution issuod against the vendor to enforce a judgment against him.
    APPEAL from the District Court, Parish of Avoyelles,

      Edwards, J. A. B. Irion and. A. & M. Voorliies, for appellant. Waddill <& Barbin, for appellees.
    The facts are 'stated in the opinion of the Court.
   Labauve, J.

The principal and main question upon which the solution of this case depends, is one of delivery.

Z. G-. Biché, having sold a lot of cotton to -the plaintiff, gave him a receipt as follows:

Avoyelles le 23 Decembre 1863.

Bepu de Emile Tanneret la somme de trois mille trois cents piastres en plain paiement de huit mille livres de coton en grain a raison de onze cents la livre. II est convenue que je dois eplucher et emballer ce coton quand Mr. Tanneret me fournira la toile et la corde necessaires á l’emballer; il est de plus convenue que le dit coton est aux risques et periles du dite Tanneret, hors de eeux que pourraient resulter de ma propre negligence. (Signed) Z. G. Biche.

The defendants, W. A. Gordon and Castillo and Césaire Lemoine, caused to be seized, on the 13th October, 1865, as the property of said Z. G. Biché, a lot of cotton containing about 35,000 pounds in the seed, situate on the plantation of said Biché, in a house once occupied by Paulin M. Grimillion.

On the 31st October, 1865, fte pleáfttiff; pljijpÍBg t¡^e goítpjj p;s bifi ^ppertjfj enjoined $)§ gffe

Zerbin. G-. Biché testified, that when the deputy sheriff came to witness to execute the writ of fi. fa. enjoined in this case, he (witness) pointed to a house in which his cotton was, and told him that out of that lot he had sold 30,000 pounds to plaintiff, (Tanneret); he did not say to the sheriff not to seize the cotton of Mr. Tanneret. * * * He told the sheriff when he came to make the seizure, that the cotton had not been delivered to the plaintiff. There was about 30,000 to 35,000 pounds of cotton in the lot. * * * When witness sold his cotton to plaintiff, he did not point to any particular lot of cotton, but pointed to the cotton in the house above stated, and promised that he would deliver him 30,000 pounds of good cotton, such as was in the house. When witness sold his cotton to Tanneret he had more than 30,000 pounds of cotton; besides the 30,000 pounds sold plaintiff, witness sold some cotton and used some before and after the sale ; he did not take the cotton he sold, out of the house above stated, except about 1000 pounds before the seizure. At the time the seizure was made, witness had no other cotton upon his place out of which he could have delivered the 30,000 pounds, except a little in his gin house. * * * *

Joseph T. Dueoté. * * * When Biché sold the cotton to plaintiff, he pointed to the cotton in the house above stated, and said he would deliver him such cotton. * * * *

The judgment, upon which the execution enjoined issued, homologated the account of tutorship rendered by Z. G. Biché to his ward, Césaire Lemoine, and was rendered in favor of said Césaire Lemoine against his said tutor, Zerbin G. Biché, for the balance of of six thousand three hundred and thirty-five dollars and seventy-five cents, with five per cent, interest per annum from the 1st of September, 1865, until paid.

This judgment is clearly executory, and execution properly issued. J. B. Capdeiville v. Joseph Erwin, Sheriff, et al. 13 An. 286.

The District Court dissolved the injunction, and the plaintiff appealed.

From the above testimony, we are satisfied that the cotton bought by plaintiff was never delivered to him, and that it was liable to be seized by the creditors of said Z. G. Riché.

The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. C. C. Art. 2452. Marcadé 6, pages 380, 221.

Personal property sold and not delivered, is liable, in the hands of the obligor, to seizure and attachment. C. C. Art. 1917. 1 An. 59. 3 An. 462. C. C. Arts. 2243.

This cotton was sold by weight at eleven cents per pound, and until it was weighed, it was at the risk of the vendor (C. C. Art. 2433); then it was his property: res perit domino.

It is therefore ordered and decreed that the judgment appealed from be affirmed, with costs.


author: Taliaherro, J.

text:
    E. North Cullom v. Colvin Guillot.
    A sale of movable property is not complete without delivery.
    A purchaser of movable property who purchases in good faith, without notice of a prior &ale, and who has secured possession of the property, has a good title as against the first purchaser, who has not possession. An injunction to enjoin the second purchaser from taking posssession of a portion of the property, in process of delivery, will be dissolved.
    APPEAL from the District Court, Parish of Avoyelles,

      Edwards, J. Cullom & Thorpe, for appellants. W. A. Steward, for appellees.' Waddill & Burbitt, for intervenors.
    The facts are stated in the opinion of the Court.
   Taliaherro, J.

The plaintiff alleges that he purchased from the defendant, in April, 1865, sixteen thousand pounds of cotton in the seed, to be delivered whenever the purchaser was ready to receive it; the cotton, in the mean time, to be at the risk of the plaintiff, who undertook to run the hazard of seizure and confiscation by the Government — a danger then imminent. Plaintiff further complains that, in violation of this agreement, the defendant afterwards sold the same cotton to Lapeine & Ferre, merchants of New Orleans, and when about to deliver the cotton to the last named purchasers, he (plaintiff) took out a writ of injunction, by which the defendant was restrained from the delivery of the entire lot of cotton sold. He prays that he be decreed the rightful owner of the cotton, and that the same be delivered to him, and for general relief, etc.

In this suit Lapeine & Ferre intervene, claiming the cotton in dispute; averring that it was purchased for them by their agent, who, in pursuance of their contract with the defendant, had made advances to the latter; that the defendant, in pursuance of his contract with them, had delivered to them twelve hundred pounds of the cotton, and was prevented from the completion of the delivery by the acts of the plaintiff. They pray damages for the annoyance and injury they allege they have received; that they be decreed the owners of the cotton; that the injunction be dissolved, with judgment ^ their favor, of damages, etc., and for general relief, etc.

Judgment was rendered in the Court below in favor of the intervenors, and the plaintiff appeals.

The intervenors complain of the judgment of the District Court in this, that it does not award them damages.

The evidence adduced seems to establish that, as between the plaintiff and defendant, there was a sale of the cotton to the former; but as there was no delivery of the article sold, the sale was not complete as to the intervenors, who, subsequently, as it appears, in good faith, purchased the same cotton, made advances upon it to the defendant, and who had actually received twelve hundred pounds of the cotton, and were in the act of receiving the remainder,.when restrained by the injunction sued out by the plaintiff. Under this state of facts, we think the judgment of the lower Court should be affirmed. O. O. Art. 1916. 7 An. 373.

On the question of damages, prayed for by the intervenors, as the facts were all fully before the lower Oourt, and it declined awarding damages, we do not, from anything appearing upon the record, feel inclined to alter the judgment in this respect.

It is therefore ordered, adjudged and decreed, that the judgment of the District Oourt be affirmed, the plaintiff and appellant paying costs in both Courts.


text:
    Narcisse Thibodeau v. Damouville Thibodeau, Administrator, et als.
    Whoro a vendee gives a special mortgage to socuro the payment of a portion of the purchase prico of immovable property, he has the right to enjoin proceedings on an order of seizure and sale, where, ho has reason to fear that ho will be evicted or disquieted in the possession of the land by tho claim of a third party, until the danger of eviction shall cease, or until security is give n against danger of loss by eviotjon; but if, aftor the injunction is obtained, the vendor’s tide is made perfect, he has no right to suspend payment longer, and the injunction will be dissolved.
    APPEAL from the District Court, Parish of St. Martin,

      Simon, J. BeBlane & Fusilier, for appellant. Gary <& Fournel, for. appellee.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

Plaintiff bought, at the sale of the property belonging to the succession of Leonard Thibodeau, deceased, a certain tract of land. He bought it for part in cash and part on credit^, and gave a special mortgage on it to secure the payment of that part of the price that was on credit.

Damouville Thibodeau, the administrator of the succession, obtained an order of seizure and sale, which commanded the sheriff to seize and sell the land, to pay that part of the price (with interest thereon) for which it was sold on credit.

This order of seizure and sale, plaintiff in the above entitled suit enjoined, under the allegation that he had reason to fear that he would be disquieted in his possession of the land by the claim of a third party, and ’asked that judgment might be rendered authorizing the suspension of payment of the credit part of the price, until the danger of eviction should cease, or until security be given against the danger of eviction.

Defendant answered that the fear alleged by plaintiff was groundless, and prayed that the injunction might be dissolved, with damages.

The District Judge rendered judgment in favor of plaintiff for the costs of suit, and the administrator has appealed.

Article 2536 of tho Civil Code authorized plaintiff to suspend payment, if ho had just reason to fear disquiet of his possession, by an action of mortgage, or by any other claim, until the cause of the fear ceased, unless security was given him against the supposed danger of disquiet.

The land belonged to the Government of the United States. After plaintiff had bought it, he went to the Land Office at Opelousas, to inquire into the title for the same, when he discovered that, although in the book of entry in the office, there was a statement that an entry of the land had beon made by Jean Baptiste Huval, the author of plaintiff’s vendor, yet' the entry had been erased by cross-marks.

With no other information but this (and none other is proven satisfactorily); the plaintiff cortainly had cause to believe that no title had passed from the Government to Huval, and had just reason to fear that he was liable to be disquieted in his possession of the land.

Wo think that the injunction was properly obtained ; but, since the institution of this suit, a patent has been issued to Huval, under the pro-, .visions of an Act of Congress of 2-lth April, 1820, entitled “ An Act making further provisions for the sale of public land. ”

Tho patent thus issued makes the title complete in plaintiff against the Government. He has not shown by evidence any other cause to fear disquiet but that which has been removed, and ho has not the right further to suspend payment.

He has made no deposit, as required by Art. 2537 of the Civil Code, to relievo him from the payment of interest.

It is decreed that the judgment of tho District Court be avoided and reversed.

It is further decreed that tho injunction granted in this case be dissolved, and that tho sheriff be authorized to enforce the order of seizure and sale; that there be judgment against defendant on his claim for damages; that defendant pay the costs of the District Court, and that plaintiff pay the costs of this appeal.


author: Hxman, C. J.

text:
    Olivier P. Normand v. Elmire Barbin, Administratrix.
    An action was instituted against the administratrix of a doceased person who, during his lifetime had been the tutor of minor children, to make tho successiondiable for board of the minors:

      Held .' — That the debt was not tho debt of tho tutor, but the debt of tho minors ; that tho action should hftvo been brought against the tutor, and if no now tutor had boon appointed, tho plaintiff should have asked for the appointment of a tutor ad hoc, to ropresont tlio minors in his suit.
    APPEAL from the District Court, Parish of Avoyelles,

      Gidlom, J. Waddill & Barbin, for appellant. Gidlom <® Thorpe, for appelleo.
    The facts are stated in the opinion of the Court.
   Hxman, C. J.

The minors, Celina, Emile, Adolph, and Camile Bobouché, became indebted for board to. Mrs. Pierre Normand, during the timo that Joseph P. Normand was their tutor.

Joseph P. Normand died, and Mrs. Pierre Normand transferred her claim against said minors to plaintiff, who brought suit against Elmire Barbin as the administratrix of tho succession of of Joseph P. Normand, deceased, to recover from her, as administratrix, the amount of tho claim and interest.

The District Judge rendered judgment against tho administratrix for the claim, with interest, condemning her to pay the same in due course of administration of said succession.

From this judgment she has appealed.

It is clear that the claim sued on is owing by tho minors alone, and that the succession of Joseph P. Normand is not liable to be sued for the debt of the minors.

The action should have been brought against .their tutor, or if no tutor had been appointed for them after the death of Joseph P. Normand, plaintiff should have asked that a tutor ad hoc be appointed for them, against whom plaintiff should have instituted his suit. See C. P. 115, 116, 964.

It is ordered, adjudged and decreed, that tho judgment of the lower Court be reversed.

It is further decreed, that there be judgment in favor of the defendant.

It is further decreed 'that plaintiffs pay all the costs incurred in this suit,


author: Labaúve, J.

text:
    Louisa Moore v. Thomas Moore.
    A married woman cannot sno hoy husband for alimony, except incidentally in a pyinoipal demand, foy separation from bed and board, or divorce.
    APPEAL from the District Court; Parish of Caddo,

      Weems, J, T. T- & A. D. Land, for appellant." Looney é Wells, for appellee,
   Labaúve, J.

This case was returnable at the last term of this Court, held at Natchitoches, and by consent of counsel on both sides was submitted to us, to be finally disposed of at Opelousas or New Orleans,

• This suit is brought by plaintiff against the defendant, her husband, for • alimony. After having alleged her grounds of .action, she prays that her said husband, Thomas Moore, be condemned’to pay her in quarterly payments the sum of five thousand dollars, as alimony, so long as her said husband shall refuse to give her that support and protection which the law of his marriage contract imposes upon him.

The defendant filed the following exception :

In this case now comes the defendant Thomas Moore, and presents that the petition in this cause presents no ground of action, in this : Thaj; the law does not give to a married woman alimony, except provisionally in same cause; that in this cause the plaintiff seeks not a separation or a divorce, nor does she ask the remedy of the Court to cause a return to th§ patrimonial domicil, etc,

This exception having been ruled to stand as a part oí the answer, the defendant afterwards answered by pleading a general denial, etc.

The Court, after hearing the testimony, gave judgment in favor of defendant, as in a case of nonsuit, and the plaintiff appealed.

The defendant, in this Court, insists on his exception to the right of action. The general rule is that a wife has no right of action against her husband; but there are exceptions, which are indicated in Article 105 of the Code of Practice, where it is said: “A married woman cannot sue her husband, as long as the marriage continues, except it be to obtain a separation from bed and board, or for the separation of property, or for the restitution and enjoyment of her paraphernal property, or in case she holds her property separate from him by marriage contract. ”

This article prohibits, in the strongest words, any action by the wife against her husband, except those enumerated in it. She cannot sue.

This article is found in chapter 5 of the Code, designating whaipersons are entitled to bring actions. This very question was presented in the case of Bourdelle v. Her Husband, page 41 of 18th An.; and we there decided that a married woman could not sue her husband for alimony, except incidentally in a principal demand, for separation from bed and board, or divorce. We have reconsidered the question, and are still of the same opinion.

We are satisfied that the judgment rendered below is in accordance with law.

Judgment affirmed, with costs.


author: InsuEY, J.

text:
    Ferdinand Pecoul v. Jean Auge.
    The lessee has the absolute right to remove improvements and additions made by him on the thing let, provided he leaves it in the state in which he received it.
    He is not obliged to take for them an equivalent in money; nor is the lessor bound to kcop and pay for them, lie may do this, when the additions have been made with lime and eemonfc.
    APPEAL from the Sixth District Court of New Orleans,

      Duplanlier, J. Albert & M. Voorhies and II. Saucier, for appellant. A. Derbes, for appellee.
   InsuEY, J.

This is a contest between Ferdinand Pécoul, the plaintiff in injunction, who is the owner of a building in New Orleans, and Jean Augé, the defendant, his lessee, as to the ownership of certain improvements and additions, claimed by Augé to have been made by him on the property leased, at the time he was the lessee of David Urquhart, who sold the building to Pécoul, from whom it was subsequently leased by Augé.

Without seeking to impugn the right that Augé might have had to remove these improvements, had he continued to be the lessee of Urquhart, Pécoul contests the exercising of that right against him, because he purchased from Urquhart the building, with all the improvements, rights and appurtenances attached thereto, without any exception or reservation whatever; and he contends that it was incumbent on Augé to have made him aware of any such right as he claims, before he purchased the building, in order that provision might have been made respecting it, with his vendor; and, that failure of Augé so to do, and by his long silence and inaction, he is concluded and estopped from the exercise of any such right.

This was the view of the matter taken by the Judge of the lower Court, who gave a judgment in favor of Pécoul, perpetuating the injunction sued out by him, and prohibiting Augé from removing the improvements claimed by him.

It can hardly be questioned that Pécoul acquired by his sale from Urquhart no greater rights than Urquhart himself possessed.

Nemo plus juris ad alium transferre potest quam ipse haberet; and that, as a general rule, no one can be divested of his property without his consent. Id quod nostrum est sine facto nostro ad alium non potest; and hence it becomes necessary for Pécoul to show how he became the owner of Augé’s imxDrovements.

If Urquhart has sold Pécoul property belonging to Augé, the vendee’s recourse is against his vendor.

It is true that if Augé, being cognizant of the sale of the building to Pécoxú (an innocent purchaser), stood by without asserting his claim to improvements and additions thereto, whilst, the lessee of Urquhart, he would, upon every just and equitable principle, be precluded from claiming from Pécoul propierby, which he acquired from his vendor with the tacit consent and presumed acquiescence of Augé. Qui tacit consente videtur.

There is no proof, however, that Augé was aware of the sale to Pécoul, before it was passed ; and the fact that the act of sale was an authentic one, carries with it no such presumption as his counsel pretends, th%t Augé must have been aware of its being executed.

As to his subsequent silence, whilst continuing the lessee of the building under Pécoul, that cannot affect him, unless that silence were continued during the time for prescription, when applicable, and prescription is not relied on in this case. See McIntosh v. Smith, 2 An. 757.

By Article 2697 C. C., the lessee has the absolute right to remove im-1 provements and additions made by him on the thing let, provided he leaves it in the state in which he received it.

He is not obliged to take for them an equivalent in money; nor is the lessor bound to keep and pay for them. He may do this, when the additions have been made with lime and cement. Augé is willing to receive from Pécoul, in lieu of Ms improvements (which he proves to be Ms), their value, which the evidence fixes at three hundred dollars.

The plaintiff’s counsel calls our attention to a bill of exceptions, tendered by him and allowed on the trial of the case, to the ruling of the Court receiving evidence to prove facts too vague and without sufficient stipulation in the pleadings of Augé. The Court did not err in overruling the objections to this evidence, as it is very evident, from Péeoul’s letter to Augé, written before the suit was .brought, and in evidence in‘the case, that he was fuíly aware before trial of the nature of Augé’s demand, and could not, therefore, be surprised. See the cases in 9 An. 119; 10 An. 528, and 12 An. 795.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the injunction sued out by Pécoul be dissolved. It is further ordered that Jean Augé, the plaintiff in reconvention, be decreed to be the owner of the improvements-and additions claimed by him on the building leased by him, and allowed to remove the same, unless Pécoul pay him therefor the sum of three hundred dollars.

It is finally ordered, that Ferdinand Pécoul pay the costs in both Courts.


text:
    L. Olanyer v. T. B. Blanchard, Jr.
    Courts have no power to render a judgment payable in one kind of money only, when Congress has established different kinds of money, making them a legal tender for the payment of all moneyed obligations.
    APPEAL from the Third District Court of New Orleans,

      Féllowes, J. A. L. Tissot, for appellant. J. Magne, for appellee.
   Hyman, C. J.

Plaintiff sued defendant to recover of him, as per contract, 1642.85 francs, or their equivalent in gold currency of the United States.

Defendant, in answer, admitted that he was indebted to the plaintiff for 1642.85 francs, and that these francs corresponded (in money of the United States) to $305 57; but pleaded that he had tendered to the plaintiff the said sum of $305 57, in Treasury notes.

The judgment, signed by the District Judge, did not declare what amount defendant should pay plaintiff, and from this judgment defendant has appealed.

There is no proof that a tender, for the full amount owing to plaintiff, was made, as alleged by defendant, and the question in controversy be^ tween plaintiff and defendant is, whether defendant shall be condemned to pay plaintiff in gold currency of the United States.

In the ease of Sebastiana Galliano v. Leon Pierre & Co., 18 An. 16, this Court has decided that Courts have no power to render a judgment payable in one kind of money only, when Congress has established different kinds of money, making them a legal tender for the payment of all moneyed obligations.

It is decreed that the judgment of the District Court bo avoided and reversed. It is further decreed, that plaintiff recover of defendant 1642.85 francs, or their admitted equivalent, to net three hundred and five dollars and fifty-seven cents, and the costs of suit in both Courts.


author: Ilslet, 3.

text:
    F. W. Coeler v. The Succession of C. T. Abels.
    Admissions by a deceased person, proved by a witness who cannot be contradicted, much less Convicted of perjury, are the weakest kinds of evidence, and scarcely worthy of any belief.
    APPEAL from the Second District Court of New Orleans,

      Llowell, 3. Culler £ Hawkins, for appellant. JJudd £ Lamb&rl, for appellee.
   Ilslet, 3.

The plaintiff -in this suit claims, from the succession of Charles T. Abels, three promissory notes described in his petition, and also the sum of two hundred and fifty dollars, all of which he avers represents his half of the proceeds of the fixtures hnd good will of the Casino House, situate at the corner of Union and Carondelet streets.

The notes had been, previous to the 24th January, 1861, in the plaintiff’s possession, when, at the instance of the administratrix, he was ordered by the Court to deliver them to the clerk thereof.

There is no evidence in the record, except that of the brother of the plaintiff, to prove his demand, and he makes the following statement in regard to it:

He says: “I know it was agreed between Mr. Abels and my brother, that whatever the house alluded to would bring, they would divide the proceeds thereof. The house was sold to Charles Bostier for three thousand five hundred dollars. @ It was paid in a check of two thousand dollars and three notes, payable in the Bank of America, each note for five hundred dollars. The notes Abels gave me to deliver to my brother. He gave them to me because they were part of the payment of the house.

“I gave the notes to my brother.

“They are the same three notes that my brother gave up, by order .of this Court, to tlio administratrix.”

In another examination, the same witness repeats substantially what he had previously said, with some additional remarks, to the effect that the notes were handed to him by Abels in the manner and with the request as to the disposal of them by me as before stated. That when the witness received the notes, his brother was absent from the city; but on his return, a week after he had received the notes, he handed them to him.

He says that his brother and Mr. Abels were on very intimate terms for years. The plaintiff was doing a very fair business at that time. Mr. Abels was started in business first, by the plaintiff, on the corner of St. Charles and Conti streets.

The witness knows that 'his brother was the lessee of the house. He identifies the three notes, A, B and C, as the same which were handed to him by Mr. Abels for his brother, who put them in his bank box, kept in the Bank of Louisiana.

The evidence of this witness, and the fact that Casino House was leased to the plaintiff and not to Abels, that he was dispossessed of the notes by order of the Court, and that the administratrix now holds these notes as succession property, is the case presented by the plaintiff.

The administratrix has not succeeded in gainsaying the witness, D. W. Coeler, and his evidence will therefore receive all the weight to which it is legally entitled.

It must, however, be borne in mind that the plaintiff has no other evidence of his connection with Abels, than that furnished by his brother.

This Court has ofien said, that admissions by a deceased person, proved by a witness who cannot be contradicted, much less convicted of perjury, are the weakest kinds of evidence, and scarcely worthy of any belief.

But if supported by other facts, such admissions may establish a claim.

Now, it is shown as a fact to which the witness (Coeler) might properly testify, that previous to the death of Abels, and indeed, from the day of the passing of the sale from Abels to Bostier, his brother, the plaintiff, held these notes as the owner of them, and we have seen that his possession of them was anterior to that of the administratrix. Had not the plaintiff been ordered by the Court to deliver up these notes, he would have occupied the position of defendant instead of plaintiff in a suit to .test the ownership of them, and the onus of proof would then have devolved on the succession to show that the notes belonged to it.

Wo cannot, therefore, consider the plaintiff as a suspicious suitor, setting up, for the first time, hi-s claim to these notes.

Had he never possessed the notes, and he was urging his claim to them only after Abols’s death, he would havo derived but little benefit from the admissions or acknowledgment of Abels, as proved by his witness ; but placing him in his proper attitude, and considering the other facts properly proved, we cannot but give credence to the statement made by the witness, Coeler, as to the admission oi Abels, that the price of the property sold belonged jointly and equally to him and the plaintiff.

Our attention has been called to the evidence of C. Bostier, in order to draw from it a different state of facts to those proved by Coeler; but after an attentive perusal of it, we cannot perceive' any discrepancy between the two statements.

We will merely modify the judgment rendered by the Court below.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be so amended as to order that the sum of two hundred and fifty dollars and interest be paid in due course of administration, and so amended that it be affirmed with costs, to be paid by the appellant.

Howelx,, J., recused.


text:
    John L. Macauly, Commissioner, v. John G. Robinson.
    Where the holder of the stock of a private corporation, which stock had not been fully paid up, has his stock declared forfeited by the corporation on account of nonpayment of installments due:

      Held: — That the forfeiture of the stock dissolved the stockholder’s connection with the corporation, and he cannot be held liable by creditors of the corporation for the amount unpaid on such stock in proceedings in insolvency.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Hewes & Fuslis, for appellant. Mott & Fraser, for appellee.
   Labatjve, J.

The Mississippi Sound Company, now declared insolvent, and represented by plaintiff as commissioner, was organized under the act approved March 14, 1855, as a jn'ivate corporation; the defendant subscribed to forty shares of $50 each, making an aggregate sum of $2,000, on which he paid $600. Having failed to pay the balance of $1,400, the directors of said company, on the 12th October, 1857, resolved that his subscription to the company of forty shares, on which $600 had been paid, be declared forfeited according to the terms of the charter; and on the same day he was notified thereof. The company having forfeited its charter for insolvency, under section six of the act above quoted, the plaintiff was appointed commissioner to effect its liquidation, and now claims of the defendant the said balance due on his subscription; the answer is first a general denial. Defendant admits that he subscribed to forty shares of the Mississippi Sound Company, but pleads that he paid $600 to the said Mississippi Sound Company, and that after said payment he was notified that at a meeting of the directors of said company, held October, 1857, his subscription of forty shares was declared forfeited, according to the requirements of the charter, which said forfeiture of his said stocks before suit, operated liis discharge and release.

The District Court, after hearing the testimony, gave judgment for plaintiff against defendant for the balance claimed, and the defendant took this appeal.

This company was incorporated for the purpose of building and equipping steamboats for the transportation of freight and passengers on Lake Pontchartrain, Lake Borgne, Mississippi Sound, Mobile Bay, the Gulf of Mexico and the tributary waters thereof ; its charter was framed and recorded as required by the act of March 14, 1855, and contains the following dispositions:

Article 10 : When any installment for stock subscribed is not' paid punctually when due, the directors may sue the subscriber for the amount or amounts due, or in their option, after giving him two weeks’ notice of the same, served personally on him or his legal agent, at any meeting of the directors, declare the same forfeited, as well as the amount he may have paid on his stock.

On the 12th October, 1857, as stated above, the stock of the defendant was duly declared forfeited by the directors, and he duly notified thereof, as prescribed above. But the plaintiff contends that the company was insolvent at the time the said stock were forfeited, and that the directors could not release any of the stockholders to the detriment of the creditors.

The evidence shows that the said company was very much in debt at the time of the said forfeiture of stock, but fails to inform us when the said company was forced into insolvency, as prescribed in section sixth of the act under which it was incorporated ; the plaintiff, however, admits, in his brief, that this insolvency was declared subsequent to the said forfeiture ; therefore, the charter of the company was in full force until declared forfeited, and the directors were in full power to act and declare, on the 12th October, 1857, that the said stock of the defendant was forfeited. We are of opinion that the defendant, by this forfeiture, was no longer responsible as a stockholder, either to the company or to its creditors ; all relations between him and the company and the creditors had ceased.

The law requires that the charter of this corporation shall be recorded in the office of the recorder of mortgages at the place selected for their domicil, and published in a newspapier at the domicil, once a week, at least thirty days.

The object of this is to give notice to the world of the dispositions and stipulations contained in the charter, and to inform any one, desiring to deal with the company, of the obligations and responsibility of the stockholders; the creditors have then constructive notice of the dispositions under which stockholders may forfeit their stock and be released; but the gravest and most important question, purely of law, is whether a stockholder, notwithstanding the forfeiture of Ms stock and release, is yet bound to the ersditoys for the unpaid balance? The act referred to says;

§ 8. That no stockholder shall ever be held liable or responsible for contracts or faults of such corporation, in any further sum thaii the unpaid balance duo to the company on the shares owned by him. Now, does the defendant owe any balance to the company? No; he has been released. Does he own any share as stockholder? No ; he has forfeited them. We conclude that the defendant is not bound in any manner.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided. It is further adjudged and decreed, that there be judgment for defendant, and that the plaintiff and appellee pay costs in both Courts,


author: Taliaferro, J.

text:
    Michael Clastrier v. The Sun Mutual Insurance Company of New Orleans.
    Xn order to entitle shippers to recover for alleged damage to merchandize, whilo on a voyage, it must satisfactorily appear that the damage ocourred while the merchandize was in charge of the carrier and under his control, and the result of his negligence or want of skill. *
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. J. A. Maybin and Henry J. Leovy, for appellant.
   Taliaferro, J.

In April, 1857, the plaintiff shipped, by his agents in this city, from New Orleans to New York, on the ship Silas Holmes, three cases or boxes containing fine and costly merchandise, consisting of embroidery and laces, then recently imported from Prance. The defendants insured the goods to the amount of $22,000. The plaintiff alleges, that during the voyage the ship encountered stormy weather, which produced much leakage of the vessel, from which cause the goods insured were greatly damaged' by sea water. That on the arrival of the ship at New York, the boxes were opened and the goods found wet and badly injured; that a survey and sale of the damaged 'goods was made in Nesv York at public auction, under the authority of the Port Wardens, and that the sales amounted to $4,824 42. The plaintiff prays judgment for $14,365 29, the difference between the valuation of the goods, by J. A. Brands, a witness, and the amount realized by the auction sale. He also prays for interest and costs.

The defendants specially deny that the goods were damaged during the voyage by any of the perils or risks insured against. They also specially deny that the goods were worth the swa stated in the pqliey qf hmrance, and aver that the sum is enormously excessive and fraudulent. They allege that the proceedings, prior to and attendant on the alleged sale, were irregular, illegal and fraudulent.

The judgment of the Court below was in favor of the plaintiff, and was based upon the valuation made by Biddle and Brunemaire, at a cash estimate of $13,659 47. The judgment was for $8,835 08, with legal interest from May, 15th, 1857, and all costs of suit.

Both parties have appealed.

Several bills of exception apimar in the record, but we do not deem their consideration important in the decision of this case.

The testimony of numerous witnesses, the most of them residing in New York, was taken under commission, and the record is quite voluminous. It appears, by the evidence on the part of the plaintiff, that in the latter part of the month of March, 1857, M. Clastrier shipped the three cases of merchandise, which constitute the subject of this litigation, from New York to New Orleans, on the ships Black Warrior and Philadelphia, consigned to Messrs. A. Pepin & Co. of this city. That they were received and kept by them about two weeks. It being found that the market at that time in New Orleans was unfavorable for the sale of goods of that character, these cases were, by order of the jslaintiff, reshipjoed to New York, by Messrs. A. Pepin & Co., on the Silas Holmes, as before stated, and the bill of lading forwarded to Messrs. VanWyek, Townsend & Warren, auctioneers of that city, for the purpose of having the goods sold at auction.

It will be proper, first, to consider the evidence adduced by the parties in relation to the question, whether the goods were damaged while on board the Silas Holmes, and by any of the perils or risks insured against.

It appears from the plaintiff’s evidence that the goods in question were carefully put up in cartons or paper boxes, and these deposited in the three large wooden cases which were forwarded to New Orleans on the Black Warrior and the Philadelphia, in the latter part of March, 1857 ; that the goods at the time they were so packed away in these cases, were new, clean, fashionable and in good order ; that the cases were put on board these vessels on a clear, dry day ; that they were received in New Orleans in good order, by Messrs. A. Pepin & Co., who placed them away carefully in their store, and who, afterwards, as before stated, returned them to New York on the Silas Holmes, putting them on board that ship in good order and free from any stains upon the boxes ; that when the boxes or cases were opened in New York, the goods they contained were found to have been wet and much damaged by water. It also further appears from the plaintiff’s testimony, that the Silas Holmes, during the voyage from New Orleans to New York, encountered continuous stormy weather, from the 25th April until the 2d May. This fact is shown by the protest made by the captain of the Holmes after the arrival of the vessel in New York. In that protest it is set forth, that during the tempestuous weather the vessel labored heavily, that the force of the storm caused her to strain and pitch violently, and to make more water than usual, and that the pumps were worked day and night. From these facts the plaintiff holds the inference to be clear, that the damage arose during the voyage from the leakage of the vessel during the storm.

On the part of the defence, it is shown, by the testimony of the captain and mate of the Silas Holmes, that the three cases containing the plaintiff’s goods were carefully stowed away near the stern of the‘vessel, under the cabin, and between decks, at the height of thirteen feet above the bottom or floor of the vessel, a deck or floor intervening between the cases and the bottom of the skip; that these cases remained in the place where they were put during the entire voyage; that at no time during the storm was there a depth of more than eleven or twelve inches of water in the hold from leakage, and that the ship was pumped every two or four hours. They further state that the cases were delivered on the wharf about three days after the arrival of -the vessel at New York, in good, fair condition, and that no objection was made by the drayman to receive them. The mate says the cases were delivered upon the wharf in the same good condition they were in'when received on board ; that he saw no mark of damage upon them, and that, had there been any, he would have seen it, as he was on the wharf attending to the delivery of the freight. The testimony of the two officers as to the condition of the cases when they were delivered, is corroborated by the evidence of several other witnesses, particularly by Wright and Wusbbnrn, who swear that the ' cases were particularly noticed by them, and that they were dry, clean, free from stain and in good order. Wright produced the receipt of Acker, the drayman, showing the receipt of the cases in good order. Butler, the port warden, testifies to the good condition of the cases. Nelson, a witness, states that a survey of the cargo of the Silas Holmes was taken, and that no report was made by the inspector. Aeher, the drayman, relied upon by plaintiff to show the bad condition of the cases when delivered, only says they were muddy in spots, th-t they had the appearance of being old and having been frequently handled and moved about. Several witnesses testified as to the condition and appearance of the goods after the cases had been opened at the auction store of Messrs. VanWyck, Townsend & Warren, in New York, and as to whether the damage was caused by fresh or salt water. Four witnesses state their belief, that the damage of the goods by water was not a thing of recent occurrence. One of the witnesses thought that several weeks had intervened; another, several months. Butler, the port warden, says, in his evidence, that after the first examination he told the parties that the goods had been a long time damaged, and that he had his doubts as to their having been damaged on the Silas Holmes on her voyage from New Orleans to New York ; that he was requested to give a salt-water certificate, but refused. He said there was uo damage on the outside of the cases. Metcalf, a witness, says the cases were in good condition. He thought the damage the goods had sustained, was of long standing. He was not able to say whether or not the goods had been wet with salt water. Morris, another witness, says the cartons were much mildewed and rotten, and must have been wet a long time. Rosey, a witness, says the damage was not caused by salt water. Brunemaire, a witness, says the damage was of recent occurrenc'e, and caused by salt water. States that he applied some of the aitides to his mouth, and discovered a saltish and bitter taste. The statements of Biddle, a witness, as to the kind of water by which the goods became wet, seem somewhat contradictory, and but little can be drawn from his evidence touching that point.

It is shown on the part of the defence, that pecuniary inducements were held out to Butler, the port warden, in order to influence him to give a salt-water certificate, a thing which we have seen he refused to do. Butler states, in his testimony, that YanWyck, the auctioneer, proposed to him, that if he would give a salt-water certificate of damage on the goods, an arrangement could be made which would be to his individual advantage; that a very large amount of goods would be sold at auction, and out of which he might make something handsome.; and that if he wanted a check for $500 or $1,000 it was at his service. YanWyck states, in Ms own testimony, that Mr. Brunemaire said, that if the port wardens would give a certificate that the goods were damaged by sea-water on the voyage of importation, he would give some money. Brunemaire, it appears, was the personal friend of the plaintiff, and seems to have evinced an undue solicitude to promote his interest.

We find nothing in the evidence showing the precise day or time the cases containing the goods were opened. They were put in the store of the autioneers, on the 8th May, and sold on the 15th of the same month. It is fair to suppose the goods were opened soon after they were received by the auctioneers, in order that they might be displayed before the day of sale, for the inspection of those inclined to purchase.

Having briefly recapitulated the evidence of the parties touching the inquiry we set out with, we will now examine the character and force of that evidence. .

It is seen that the evidence on the part of the plaintiff is entirely inferential, a species of proof which, to be conclusive, must logically flow from antecedent facts clearly established. The inference maintained by the plaintiff would have been much strengthened had he succeeded in showing, in addition to his other facts, that the cases containing the merchandise had réachéd New York in a wet and damaged condition, showing their recent contact with water. ’ But in this he signally failed. The storm which the Silas Holmes encountered, terminated on the 2d May, and the vessel entered port two days afterwards. There would seem to be a strong probability that if during the storm the cases had been penetrated by a quantity of water, sufficient to produce tlie effects upon the cartons and goods within, which it is shown were produced, some external mark of leakage, dampness or stain' would have been visible upon the sides or bottoms of the cases. But no such indication was observed. The inference sought to be established by the plaintiff is met by positive evidence on the part of the defendants. They show, by the captain and mate of the vessel, that the cases containing the plaintiff’s goods were not at all damaged or effected by water during the voyage, and the reasons why they were not. -The plaintiff points out, it is true, a difference of manner and tone in the testimony of the captain as a witness, and the declarations sworn to in his protest, and on that account would impeach his credibility, as well as that of the mate. But we see no discrepancy in the facts stated, and do not deem the statements made in different forms materially incompatible. The testimony of the two officers as to the dry, clean and good condition of the boxes when delivered upon the wharf at New York, is abundantly sustained by other witnesses.

It does not appear satisfactorily that the goods were damaged by sea water. One witness swears positively to a saltish, bitter taste perceived on applying some of the damaged articles to his mouth. Another witness swears that the damage did not proceed from sea water. The'majority of the witnesses who were present at the examination of the goods, were unable to determine this question, but were clear in their convictions that a considerable space of time had elapsed since the occurrence of the injury. From the general tenor of the evidence, we think the presumption legitimate that the goods were not damaged on board the Silas Holmes ; and this presumtion is made stronger by the efforts made by indirection, to use the mildest term, to obtain the greatly desired seawater certificate. Upon the whole, we conclude that the evidence adduced on the part of the defence preponderates. Under this view of the essential inquiry in the controversy, an examination of the other points in the case would be nugatory.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, that judgment be ron: dered in favor of the defendants, the plaintiff appellee paying costs in both Courts.

Howell, J., recused.


text:
    Succession of Newland Holmes.
    When an appeal is granted, not on motion for appeal in open Court, but on petition of appeal, service of petition and citation of appeal must be made on the appellee.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Fellows & Mills, for appellant. J. P, Horner, for appellee.
   Hyman, C. J.

In this case Newland Holmes is an appellant from a judgment against him, in favor of James Murhway, who was the tutor of Holmes.

' Motion has been made to dismiss the appeal, because service of petition and citation of appeal was not made on the appellee, Murhway.

The appeal was granted by the District Judge in chambers, on petition.

When an appeal is granted, not on motion for appeal in open Court, but on petition of appeal, service of petition and citation of appe 1 must be made on the appellee. See Code of Practice, Arts. 582, 583, 584, and an Act of the Legislature, entitled “ An Act relative to appeals and notices of judgments,” approved March 22d, 1843.

No service of petition and citation of appeal has been made on the appellee, nor was there a prayer for service.

Motion sustained. Let the appeal be dismissed.


author: Ilsley. J.

text:
    L. E. Peyroux v. Pierre Lacoste.
    The only inquiry for the Court, when an order of seizure and sale is appealed from, is, whether the Judgo who issued had sufficient evidence before him to authorize his fiat.
    Without some authentic evidence of the interruption of proscription, no action via executiva can lay.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. F. Bermudez, for appellant. L. Gastei-a, for appellee.
   Ilsley. J.

It was held, in the case of John W. Dodd v. Roht. A. Crain and another, 6 Rob. 58, that the only inquiry for this Court, “when an order of seizure and sale is appealed from, is, whether the Judge who issued had sufficient evidence before him to authorize his fiat, ” and concurring, as we do fully, with the opinion thus expressed in that case, we have only now to ascertain if the evidence submitted with the petition to the Judge who granted the order of seizure and sale, was, in the present case, what the law required in a proceeding via executiva.

It is urged by the appellant that the note sued on was, at the time of and previous to the issuing of the order of seizure and sale, prima facie prescribed, and this is evident on an inspection of the note, which matured on the 26th October, 1860, whilst suit was only instituted on the 25th November, 1865.

Without some authentic evidence of the interruption of prescription, which evidence is no where to be found in the record, no action via executiva can lay. The jurisprudence on this point is too firmly established to be questioned. See Splane v. Daniel, 11 Rob. 449; McMasters v. Mather, 4 An. 419; Union Bank of La. v. Dosson, 7 An. 548; Fowler v. Beatty, 10 An. 275.

It is needless to examine the objection urged by the appellant in regard to the want of internal revenue stamp on the note sued on.

It is therefore ordered, adjudged and decreed, that the order of seizure and sale granted by the Judge h quo, be and the same is hereby rescinded, and the suit dismissed, without prejudice to any legal right or remedy that the plaintiff and appellee may have; .the costs of both Courts to b© paid by the plaintiff and appellee.


author: InsLET, J.

text:
    Gleason & Clark v. R. B. Sykes.
    Where, by tho announced terms of a public sale, the purchaser has three days to remove the articles purchased, and the property is destroyed in the possession of tho seller, before the expiration of the • three days, the loss is the loss of the seller.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. ■ O. Hunt and Hunt & Denegre, for appellant. T. J. & A. Q. Semmes, and li. K. Gutlen', for appellees.
   InsLET, J.

The plaintiffs in this suit claim from the defendant the repetition of the price of ninety-four and a half bales of cotton, which they purchased from him at public auction, and for which they paid him.

The cotton was destroyed by fire before it was counted or delivered to the plaintiffs, and the only question now to solve is, at whose risk was this cotton at the time of its destruction ?

The Judge of the first instance was of the opinion, and decided, that the sale was not one in gross, but one by tale ; that it never became perfect, and that the cotton remained at the risk of the seller.

It is unnecessary tp examine that ground, and the reasons thereupon adduced by the Judge a quo ; although the decree rendered by him in favor of the plaintiffs rested solely on those reasons, and on the application he made of Article 2-133 O. C.

We are satisfied that the loss of the cotton occurred before the expiration of the three clear days, which, by the announced condition of the public sale of the 23d of April, purchasers were allowed to remove it; during which whole delay it was to remain at the risk of the seller.

It is true that, at the sale of the 23d April, this condition, before recited, was not announced totidem verbis ; but it was then and there distinctly declared by the seller, previous to any bid being made, that the lots of cotton then about to be offered, would be made on the same terms and conditions as had been stipulated and proclaimed at the first sale of cotton, on the 11th April; and this was the conditions of that sale. The evidence does not leave this doubtful. See Art. 1895 C. C.

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


text:
    The State of Louisiana, ex relatione Solomon Loeb, v. The Judge of the Fifth District Court of New Orleans.
    Wiiere the District Court rendered a judgment making a rulo asking the rescission of an order granting an appeal absolute, and the party aggrieved prays an appeal to the Supreme Court from the judgment annulling the order allowing the appeal, the Supreme Court, on mandamus, will compel the District Judge to allow the appeal.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumont, J. Leaumont, in propria persona.
   Taliaferro, J.

The complainant avers that a judgment was rendered against him, in the Fifth District Court of New Orleans, for the sum of fifteen hundred dollars, with interest and costs, at the suit of Louis Loeb; that, after the rendition of the judgment, he obtained from the Judge of the said District an order granting him a suspensive appeal; and that, on the 5th day of November, 1806, the transcript of appeal was filed in the office of the clerk of the Supreme Court. He avers that Louis Loeb obtained from the Court of the Fifth District a rule against complainant, to show cause why the order granting the suspensive appeal should not be rescinded; and that, upon the trial of the rule, it was made absolute, and the order of appeal annulled ; that he thereupon moved the Court for a suspensive appeal from the judgment rendered on the rule, which motion was overruled and the appeal refused.

The complainant seeks redress in this Court.

On the day fixed by this Oourt for hearing the case, the Judge of the Fifth District Court filed his answer to the rule served upon him. He assigns various grounds, on, which heavers the relator’s,petition to this Court should be dismissed; but, in the opinion of this Court, the Judge has failed to give the reasons for his own action, complained of by the relator, as required by Article 842 of the Code of Practice.

It is therefore ordered, that a peremptory mandamus issue to the Judge of the Fifth District Court of New Orleans, commanding him to grant the suspensive appeal prayed for from the judgment rendered on trial of the rule in this case.


author: Irsrey, J.

text:
    M. W. Francis v. Steamer Black Hawk and Owners.
    A judgment of default, taken while exceptions are filed and undetermined, is a nullity.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumoni, J. Charles E. Beynes and J. Ad. Bozier, for appellants. B. Eagan, for appellees.
   Irsrey, J.

This is an appeal taken by J. H. McKee, from a judgment rendered against him, as a solidary obligor.

Judgment by default was entered against McKee, on the 30th November, 1865, at which time an exception, filed by McKee and his co-defendant, was pending and undecided.

On the 1st of December following, the exception was tried and maintained, with leave to the plaintiff to amend his petition.

On the 6th December, the judgment by default, entered on the 30th November, was confirmed, and this final judgment is complained of by the defendant as irregular and illegal.

He cites, as authority for the position assumed by him, Rawle v. Skipwith, 8 N. S. 119, in which this Court said there was error in the Court of the first instance, giving judgment by default whilst the exceptions were undisposed of ; and also Ballard et al. v. Lee’s Administrator, 14 La., wherein it was held by the Court, that “ the first judgment by default having been taken while the defendant was not in Court, was illegal, and must be considered as a nullity. The second (default), confined expressly to the amended petition, is the only one which could be legally made final.

It was only in this case now before us, after legal service of the original and supplemental petition, which was specially prayed for by the plaintiff himself, and which service was made on McKee on the 15th November, 1865, that a judgment by default could have been legally entered against him, and no judgment was ever taken after the last date mentioned. It is clear, then, upon reason and authority, that the default being a nullity, no final judgment could be rendered upon it.

It is therefore ordered, adjudged and decreed,'that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded to the said Court, to be proceeded with according to law.

It is further ordered, that the costs of appeal be paid by the plaintiff and appellee.


text:
    West, Renshaw & Cammack v. Mrs. Louisa Chew, Executrix, etc.

      A writ of attachment is not allowed by law in a caso sounding in damages, where the damages arise from tort, and are not liquidated.
    ^PPEAL from the Sixth District Court of New Orleans, DupkinUer, J.
   Labauve, J.

The plaintiffs claim of the defendant $95á 57, as damages sustained by them, and caused by the wrongful and illegal acts of the deceased Robert Chew, herein represented by Mrs. Louisa Chew, as executrix, in certain proceedings.

They aver that, by the said wrongful and illegal acts of the said Robert Chew, deceased, and Mrs. Louisa Chew, his executrix and heir, they have suffered large damages for false imprisonment and injuries inflicted by defendants and their agents; and that, in order to avoid imprisonment, as before stated, by Major-General Butler, and in order to recover their property illegally withheld from them, as above stated, by the said Mrs. Louisa Chew, executrix, and to establish their rights in and to the same, they have been compelled to employ counsel both in New Orleans and New York, and to pay them for their services ; that they paid Rozier $150, Harrington & Grieff $51 50, Durant & Horner $750; total, $951 50. That said fees were actually paid by petitioners, and were expenses caused by the wrongful acts of the said Robert and Mrs. Louisa Chew, as stated above.

It being shown that the defendant resided permanently out of the State, and the plaintiffs taking the prescribed oath, and giving bond, as required in such cases, a writ of attachment issued.

A rule was taken upon the x>laintiffs to show cause why the attachment herein granted should not be set aside, and the property released, on the grounds :

That the affidavit and bond are not sufficient to warrant the issuance of the writ, and that the case is one of alleged damages, in which the writ of attachment is not warranted in law.

The Court made the rule absolute, and the plaintiffs appealed.

We are of opinion that our learned brother below decided correctly. This is essentially an action in damages, alleged to have been sustained by the plaintiffs, and caused by the wrongful acts of the other party, and the writ of attachment improperly issued. Grimer v. Prendergast, 3 An. 376. Prewit v. Carmicael, 2 An. 943. 12 An. 110.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


author: Howeee, J.

text:
    Grieff & Byrnes v. Boudousquie & Fortier.
    Persons aro often held partners, as to third persons, when, either expressly or by just implication, they are not to be deemed partners between themselves.
    If one lends his name as a partner, or suffers his name to be used in the business, ho is responsible to third persons as a partner, for he may induce third persons to give that credit to the firm or establishment which otherwise it would not receive, nor, perhaps, deserve. This doctrine is founded in the enlarged principles of natural law and justice.
    APPEAL from the Sixth District Court of New Orleans,
    Buplantier, J. Horner c& Benedict, for appellants. Buchanan & Gilmore and Bermudez, for appellees.
   Howeee, J.

Plaintiffs, having sold a bill of goods to the defendant Boudousquie, engaged in the grocery business in this city, brought suit against him and Arthur Fortier, as his silent partner. Judgment was rendered in the lower Court against the former, and in favor of the latter, from which plaintiffs appealed, as to Fortier.

No contract of partnership between defendants is proven, but plaintiffs rely on circumstances, as shown by the evidence, to make Fortier liable in solido with his co-defendant, to wit: That he furnished the means for carrying on the business ; that the goods were bought in the name of Boudousquie, and, when sold, the bills were generally made out in Fortier’s name; the license was taken out and the business conducted in his (Fortier’s) name ; that he notified certain customers “not to pay any balance due the house of Arthur Fortier to any one but himself or his order;” and that he collected from one, and retained about $800, for which he gave a receipt in his own name.

Fortier, examined as a general witness, says that he was not a partner ; that he simply intended to aid his nephew, who, not having taken an oath, could not obtain a license in his own name ; that the bills of goods sold were made out in Ms (Fortier’s) name, because of tMs fact, and that he endeavored to secure the sums due by customers in order to get what he had advanced, having become dissatisfied with Boudousquie’s management. He states, also, that Boudousquie, at one time, sent the witness Bezou to him to effect “a settlement as a partner in the concern.” This witness (Bezou) says :

“It was admitted in public report that Mr. Fortier was the partner of Mr. Boudousquie. * * * Mr. Fortier furnished the means to carry on the business.”

Whatever may have been the intention of the parties, inter se, we think the facts make them liable as partners to third persons. The books inform us that “ persons are often held partners, as to third persons, when either expressly or by just implication, they are not to be deemed partners between themselves.” If one lends his name as a partner, or suffers his name to be used in the business, he is responsible to third persons as a partner, for he may induce third persons to give that credit to the firm or establishment which otherwise it would not receive, nor, perhaps, deserve. This doctrine is founded in the enlarged principles of natural law and justice. Story on Partnership, $ 36, 37, 48, 49, 53, 54, 64 and 65. 3 Kent, l 43, pp. 31, 33. 4N. S. 127. 9 Johns. 489.

Fortier is disclosed by the evidence as the principal party in the business, and it would be against public policy and natural justice to exempt him from the liabilities which attend his voluntary position.

It is therefore ordered, that the judgment appealed from be avoided and reversed, and it is now ordered that plaintiffs recover of the defendant, Arthur Fortier, the sum of $810 86, with five per cent, interest from 11th 'Octobrr, 1865, and costs in both Courts.


author: Howeld, J.

text:
    A. Marchand v. J. Coyle.
    Trade with tbe enemy during active hostilities is illegal, and parties engaged in such trade acquire no rights thereby that can be enforced in Courts of justice.
    APPEAL from the Sixth District Court of New Orleans,

      Duplaniier, J. Durant & Horner, for apellant. Buchanan & Gilmore, for appellee.
   Howeld, J.

On 2d March, 1864, plaintiff (a resident of New Orleans) instituted suit in the Sixth District Court of New Orleans, against the defendant, as a resident of this city, on the following written instruments :

1. “ $732. At Mr. Wm:. Welds’, New Orleans, April 14, 1863.

“I promise to pay on demand, to the order of Mr. Wells, seven hundred and thirty-two dollars, for value received.

(Signed) James Coylb.

(Endorsed) Wm. Wells.”

2. “$50. Due William Wells or bearer, fifty dollars on demand.

(Signed) James Coyle.

(Endorsed) Wm. Wells.”

On the 18th April, 1864, the defendant filed an answer, admitting his signatures, and averring that said instruments are void in law, having been executed at Pontchatoula, in this State, then and now in the hostile possession of the enemies of the United States, and brought contrary to law within the jurisdiction of this Court; and, therefore, the payee or his assignee, the plaintiff, has no cause of action upon the same, and cannot stand in judgment; and secondly, that said instruments have been changed since their execution, without his knowledge or consent.

Judgment was rendered, by Hon. G. Duplantier, sustaining the defence, and plaintiff appealed.

It is shown that the defendant resided in New Orleans, but left the city on the 1st October, 1862, and was absent until April, 1864, his family remaining in the city. During this absence he executed said note and due bill, at the residence of Wm. Wells, the payee, then in a district of country in insurrection against the United States ; and plaintiff obtained possession of, and brought suit on them during the war.

Whatever may have been the nature and effect of the contracts between the maker and payee, upon which it is unnecessary to express an opinion, as the latter is not before us, we think plaintiff’s acquisition of the notes', under the circumstances, was in violation of the laws of Congress and proclamations of the President, prohibiting all commercial intercourse between the sections held by the respective hostile forces, and of the principles of the laws of nations, and that, therefore, he acquired no rights that he could enforce in our Courts. Wells, the payee, residing in a hostile section, could not, at the time, have maintained an action on said notes in our Courts, and he could not assign such right to plaintiff, a resident of this city.

It is therefore ordered, that the judgment appealed from be affirmed, with costs.


author: Howelii, J.

text:
    D. W. Jones v. Murphy & Lewis, et als.
    Whore a suit was commenced on two promissory notes in the State of Kentucky, and a few days after a suit by attachment, on the same notes, was instituted in the Fifth District Court of New Orleans, and the suit in Kentucky carried to final judgment first, and a fi. fa. issued and returned nulla bona;

      lltld .- — That the judgment thus obtained in Kentucky could bo substituted by way of amendment, in supplemental petition, as the cause of action in the Courts of this State, in place of the notes, so as to maintain the attachment. The opinion of the majority in Wrifjht, Williams <£♦ Co. v. J. J. 23. White-, 1A Án. 583, sustained.
    i Ü. PPEAL from the Fifth District Court of New Orleans,
    Leaumont, J. Miles Taylor, for appellant. 8. H. Torrey, for appellee.
   Howelii, J.

This case presents the same facts, pleadings and points of law, as the main action in the suit of Wright, Williams & Co. v. White, 14 A. 583, and after mature deliberation, we are led to adopt the views expressed by the majority of the Court in that case.

Plaintiff instituted two suits against defendants, in the State of Kentucky, where all the parties reside, on a note and bill of exchange, amounting to $12,301 05.

A few weeks thereafter, and while said suits were pending, plaintiff brought this suit by attachment, in the Fifth District Court of New Orleans on the same written instrument.

Subsequently, he filed a supplemental petition, setting forth the facts, that since the institution of this action he had obtained judgments against the defendants in the Kentucky suits, and issued executions thereon, which were returned nulla bona, alleged that he is entitled in law to introduce the copies of the said judgments in this proceeding, to establish the indebtedness of the defendants to him, and prayed for judgment in the promises as práyed for in the original petition.

To this supplemental petition, the defendants filed the exception, ■“that the original cause of action, if any existed, has been merged in the judgments rendered in the State of Kentucky, and the proceedings therein had, as shown by the supplemental petition and documents annexed:

That this Court, by the said proceedings of plaintiff, has been divested of jurisdiction of the matters in controversy.

Defendants plead res judicata, and prayed that the suit be dismissed.

The Court below sustained the exception and dismissed the suit, and plaintiff appealed.

As held in the case cited above, conceding that the notes sued on were merged in the Kentucky judgments, the debts are not extinguished nor the Court here divested of jurisdiction of the matters in controversy. The judgments established the debts to be due and owing from defendants to plaintiff, and, being in our jurisprudence the highest evidence of the existence of these debts, can, upon proper allegations in an annexed petition duly served, be received as proof of the same debts declared on in the original petition. The cause of action is not changed, but merely the form of the evidence thereof. Plaintiff had the right to sue: defendants on these allegations in Kentucky, and in this State at the same tjme, and as he could not issue execution here on the Kentucky judgments, they must avail as his proof that the obligations in controversy still exist on the part of defendants, and secure to him the benefits of the remedies in the suit pending here. The effect of the judgments rendered'in Kentucky, is to fix the indebtedness of the defendants, and that effect' is sought to be shown her© in the mode adopted. The error which we think defendants commit, is in confounding the evidences of an obligation with the obligation itself. ' We are of opinion that there is no legal reason why these two judgments should not be substituted, by way of amendment, as the form in which the cause of action exists in place of ■the notes, for the purpose of maintaining the attachment suit. We cannot see that because plaintiff has strengthened his proof, he has weakened his rights.

For thesfe reasons, and those given in the case of Wright, Williams & Co. v. White, 14 A. 583, we conclude that plaintiff should recover.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that plaintiff have judgment in solido against the defendants for $12,301 05, with legal interest on $4,743 45, from 1st day of August, 1861, and on. $7,557 60, Horn. 1st day of January, 1862, with costs and privilege on the property attached. Defendants to pay costs in both Courts.