text:
    New Orleans and Carrollton Railroad Company v. McKelvey.
    A variance from the corporate name in a petition filed in an action instituted by a corporation, which caunot mislead the defendant as to his creditor, is immaterial; as where a railroad company, invested with hanking privileges, and incorporated under the name of the “New Orleans and Carrollton Railroad Company,” is termed in the petition the “ New Orleans and Carrollton Railroad and Banking Company.”
    Where a note is payable at the office of a particular bank, a demand of payment at the place specified, of one apparently in charge of the affairs of the hank as its cashier or agent, if the maker be not present, is sufficient. The holder is under no obligation to present it elsewhere, norpersonally to the maker; and where the notary states in his protest that a demand was made of one having apparently such authority as agent, it will be prima, facie evidence of the fact, and throw on the defendantthe burden of proving it untrue.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Phillips, for the plaintiffs. Boioman, for the appellant,
    cited Code of Practice, arts. 343, 344, 345, 346. 17 Ltf. 234. Acts of 1833, p. 9.
   The judgment of the court was pronounced by

King, J.

The defendant is sued as the maker of two promissory notes, payable at the office of the New Orleans and Carrollton Railroad Company, at Bayou Sara. The suit is instituted in the name of “the President and Directors of the New Orleans and Carrollton Railroad and Banking Company.” The defendant admits liis signature to tlie notes, but denies that any such eorporation exists as that namod in the petition, or that he is indebted to such a corporation. He further denies that a legal demand was made at the place 0f payment, or on the proper person. There was a judgment in favor of the plaintiffs, and the defendant appealed.

The corporation possessed originally no banking powers, and when invested with those privileges, by a subsequent amendment of the charter, 'no change was made in its name. The inadvertent addition of the word “ banking” to the plaintiffs’ name, which in reality more truly describes the character of the corporation, is not so material a variance from the corporate name as to affect the validity of the pleadings. It could have led the defendant into no error, in regard to his creditor.

The notary states in his protest, that he presented the notes at the office of discount and deposit of the New Orleans and Carrollton Railroad and Banking Company, to Bobinson Mumjord, agent of said office of discount and deposit, of whom payment was demanded, &e. It is contended that this demand is insufficient: first, because there is no proof of Mumford’s agency ; secondly, because it was not made1 at the place indicated- in the notes.

Where a note is made- payable at the office of a particular bank, it is sufficient to demand the payment at the specified place, of a person apparently in charge of the affairs of the bank, as its cashier or agent; if the maker be not present; and, in the event of dishonor at that place, the holder is under no obligation to present it elsewhere, nor personally to the maker. 10 La. p. 208. Story on Bills, ss. 234, 235.

The statement of the notary in his protest of a demand en such-an apparently authorized agent, makes such prima facie evidence of the fact, as to put the defendant on the proof that it is untrue The place described by the notary as that at which the demand was made, is evidently tlie office of the plaintiffs, at Bayou Sara, where the notes were payable. See the case of Thatcher v. Goff et al. 13 La. 363. Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Rowly et al. v. Kemp, Tutrix.
    Where a purchaser at a judicial sale fails to comply with its terms, his acts may bo treated as nullities.
    Where a sheriffbas made a seizure under aji.fa., he is not hound to return the writ, unless required to do so by the plaintiff. He may sell under the seizure oven after the return-day, where the failure to sell before is not attributable to the plaintiff.
    Where a judgment was rendered for a certain amount, subject to a credit, and the credit instead of being written in the body of the fi.fa., was endorsed- on it, in a certificate of the clerk under the seal of the court, the error, if it bo one, is no ground for enjoining the execution for its whole amount.
    The fact of an execution being issued for more than the amount due under the judgment, will not authorize an injunction for the whole amount.
    One holding a prior mortgage cannot prevent the sale of the mortgaged property at the suit of a subsequent mortgagee. Ho must exercise his rights on the proceeds.
    Appeal from the District Court of Concordia, Curry, J.

      Frost and H. A. Bullard, for the appellants. Thomas and Snyder, for the defendant
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs enjoined the proceedings under a writ of fieri facias, issued on a judgment obtained by the defendant, Elizabeth Kemp, tutrix, against the plaintiff, Rowly, which weihave recently had before us, anto p. 316, The injunction was dissolved, with twenty per cent damages on the amount of the execution enjoined, and five hundred dollars special damages and costs. The plaintiffs have appealed.

I. The principal ground on which the injunction was obtained, related to the irregularity of the proceedings of the sheriff in the execution of the writ subsequent to the first exposure for sale of the property seized. The defendant, Charles N. Rowly, as attorney in fact of Lansing, bid for it, and it was adjudicated to him, and he not complying with the terms of the sale, the sheriff re-advertised the property for sale, treating the acts of Rowly, attorney in fact, as nullities, as he was bound to do, for his conduct throughout shows that his sole object was to embarrass the proceedings of the sheriff, and defeat the pi’ocess of the court, It is well settled that, having made a seizure, the sheriff was not bound to return the writ, unless required by the plaintiff, but might proceed to sell under the seizure, notwithstanding the expiration of the return day of the Writ, the failure to sell not having been attributable to the plaintiff. Dugat v. Babin, 3 Martin, N. S. 393. Labiche v. Lewis, 12 Robinson, 8. The objection to the regularity of the proceedings under the writ, as well as the reasons given for Roioly’s refusal to comply with his bid, we consider untenable.

II. In the judgment of Elizabeth Kemp, tutrix, on which the execution issued, there was a credit of $1,000 allowed, to take effect from the 11th March, 1841. This credit, instead of being written in .the body of the writ, was endorsed on it, in the terms of the judgment, under the certificate of the clerk and the seal of the court. This error, if it be one, which We do not admit, could furnish no ground for enjoining the execution, for its whole amount, upwards of $60,000.

III. It is urged, on behalf of Rowly, that the whole of the judgment was not due, and that such has been the decision of this court on the appeal in that case. This is true. We reduced that judgment $1,300, on account of credits ■which we thought ought have to been allowed to Rowly. But Rowly did not stny the execution on appeal which he took from that judgment by giving bond and surety, and thereby authorized the issuing of the execution. He did not present this as one of the reasons for which he asked for the injunction; he did not allege that the debt was not due to the plaintiff in execution. But, in any event, the extent for which Rowly could claim relief, would be for the amount by which the judgment was reduced, and affords no reasonable excuse for enjoining the proceedings for the recovery of the balance of it.

IV. But there are other parlies besides Roioly, who are plaintiffs. His alter ego, Jacob L. Lansing, and Samuel Rowly, of the State of New York, Hamilton M. Wright and JamcsWright, of the city of New Orleans, unite with Rowly in defeating the recovery of the plaintiffs’ debt. Both Samuel Roioly and Lansing are, or appear to be, purchasers of the Marengo plantation and slaves, at sheriff’s sale, at different periods, and the only relations they ought to have in this controversy are as stakeholders of the price.

V. Hamilton itf. Wright and James Wright assign, as their grounds of application, that they purchased the judgment of (he Mechanics' and Traders' Bank, and have become subrogated to all its rights, and that under their execution the Marengo plantation was sold, and bought by Samuel Rowly, who is now alleged to bo the owner, but that the sale did not satisfy the debt.

It appears that these parties instructed the sheriff, through their attorney, Ikfr. Frost, whois also thesole attorney of Rowly, and the surety, in the injunction bond, if Samuel Rowly should become the purchaser of the property at sheriff’s sale, to dispense with his giving any security on the twelvemonths’ bond for the purchase-money, which was accordingly done. There i&evidence before us which authorizes the belief that this .judgment was- assigned to the Messrs. Wright, for the purposes of Rowly, and that the consideration of the transfer from the bank came from him-.

It is urged that, pending the appeal from the original.judgment, the defendant in this suit and plaintiff in the other,, had no right to'enforce the mortgage by executing the judgment, and that the court has recognized the rank of the-mortgage of the Mechanics’ and Traders’ Bank, adversely to the rank of the minors’ mortgage, on which the bank had taken a suspensive appeal. The appeal was suspensive only as to the rank of.the mortgages. The order granting the appeal expressly provided that,, the execution of the judgment against Rotoly and Lansing should not be suspended. The bank was interested in the distribution of the proceeds of the property mortgaged; but no case is before us in which it was authorized to enjpin the sale of the property mortgaged to the minors, which extended, only to one-third of- the plantation- and slaves, while-that in favor of the bank extended to the whole, and amounted only to the sum or $9,383 22, with interest. 6 Mart. N. S. 615. 7 Ib. N. S. 281.

Tho judgment appealed from was against the plaintiffs in solido, and the' surety, for §>12,000, being twenty per cent on the amount of the principal and interest of the judgment oi'Elizabeih Kemp,, tutrix, and of the execution enjoined, and five hundred dollars special damages, incurred for expense-of counsel feos.

Tlie amount of the injunction bond is only §!5,000! A party applying to a court to suspend its process, which had- become embarrassed with difficulties which he himself has been instrumental in creating for his own special benefit, ought to. present a clear legal case, to protect himself from the payment of damages to the injured party. The law authorizes the court to-impose them on the dissolution.of injunctions wrongfully sued out. The maximum rate which the court has power to assess is high — very high; but the abuse is great which the law intends to remedy.- It endangers the security of property, as well as-the proper administration of justice, and it is our duty to repress all attempts to defeat the execution.of judgments upon frivolous or fraudulent pretexts. We consider that there was no pretence on- the part of Rowly to arrest this execution, and those who have lent their names for. the furtherance of his purposes,, as we think the other plaintiffs have, cannot complain if they are treated as his instruments, and amerced accordingly. The original judgment bears ten percent interest, and we trust the delays will not be long ere the minors shall be-restored to their rights. The injunction was granted in Jan. 1846, and we think twenty per cent damages too high, under the circumstances.

It is therefore ordered that the judgment appealed from be reversed, and that the defendant recover from the plaintiffs in solido, and John W. Frost? their surety, the sum of five thousand dollars, with costs; the defendant paying the costs of this appeal.


author: Slidell, J.

text:
    Hynes v. Cobb et al.
    ’•fflie nullity resulting 'from a stipulation for usurious interest attaches to tlie agreement for interest only, and does not destroy the obligation for the principal.
    An agreement to pay the highest rate of.eonventioual-interest upon a nominal -principal, part of which was composed of usurious interest, is usurious.
    Where a party has stipulated, in a note, for usurious interest after maturity, .he-cannot ¡recover legal interest even iron) judicial demand.
    A payment made after maturity on a note which hore usurious interest from that time, where no imputation is expressed in the receipt nor.otherwise shown, will be imputed to'the principal, that being the debt which the maker had the most interest in discharging, the stipulation for interest not being binding, on him. C. C. 2160, 3162.
    This is an action on a -promissory note for $5,254 10, dated the 13th'of November, 1841, and due on the 1st January, 1842, bearing ten per cent interest from maturity. The facts of the case are these : The agent of the plaintiff loaned the defendants a sum of money, which, with twenty per cent added.thereto, made the amount specified in the body of the note, and also charged the defendants the highest rate of conventional interest upon the original amount of money, .as well as upon the twenty per cent usury included .in .the face of the note. The defendants pleaded the usurious character of the contract, and appealed from a judgment rendered against .them. PPEAL from .the District Court of Madison, Curry, J.

      Amonétl, for the plaintiff.

      Snyder and Shannon, fertile appellants.
    The contract, being ■usurious, was made in contravention of a prohibitory law, and cannot be enforced; and the plaintiff, by the turpitude of the contract, has .forfeited the right to recover any portion of the.nate sued.on. Rosenda v. ZabrisJcie, 4Rob. 493. Cox v. Roioly, 12 Rob. 273. Hagan v. Canal BanJc, 1 An. Rep. 62. Under the law, at the time the contract was made between the plaintiff and defendants, the stipulation for usurious interest vitiated -and avoided the whole contract. - According to art. 2895 of the Code, interest cannot be stipulated at a higher rate than ten per cent per annum; and under this Code all contracts made in contravention of a prohibitory law are void. C. Code 12, 1887, 1889. To test the question whether or not the contract is void ab initio or only pro tanto, it is proper to inquire whether a loan of money with a stipulation for usurious -interest, is a divisible or indivisible obligation. If the latter, the whole .contract must follow the fate of the usurious portion. If the former, then it can be pruned of its illegalities, and the loan for the amount actually received be sustained. The usury being the primary inducemeritto make the 'loan 'by the plaintiff, forms the main and principal motive for the contract. It is only necessary to inquire with what intent the loan was made by the plaintiff. The evidence of Lowry, who acted as the agent of the plaintiff, fully discloses the moving cause and consideration of the loan, viz: twenty per cent premium on the money loaned, and ten per cent interest on the original amount of the loan and the premium.
    The judgment of the .court a qua ,is clearly erroneous. The demand of the plaintiff should have been rejected at his cost. In .the decisions heretofore made by this court upon questions of usury, it has never gone so far as to declare the whole contract to be void. But by reference to those decisions it will be perceived that the question has never been fully presented to the court. The contracts have only been sought tobe avoided to the extent of the usury, in the cases heretofore adjudicated upon, and the court in all the recent decisions have declared the contracts void to the full extent demanded by the defendants, in the various suits heretofore decided. The defendants therefore contend, that the contract having been made in contravention of a prohibitory law, is absolutely Hull and void; that the contract of loan with a stipulation for usury is indivisible, an<I that if void for any portion, it taints tlie whole transaction, and bars a recovery for even the actual amount loaned by the plaintiff; thatif the contract is not void_ a¡¡ iniiiw, the plaintiff is precluded from recovering interest on any part of the loan, and that the judgment mustbe reduced to the actual amount received by the defendants.
   The judgment of the court was pronounced by

Slidell, J.

The defendants are sued as makers of a promissory note, payable to the plaintiff, and on which interest was stipulated, after maturity, at the rate of ten per cent. The note was not protested, nor is any defaultsliown, other than that created by the judicial demand. The defendants pleaded usury, and claim the nullity of the entire contract, both for principal and interest. It appears that the amount promised to be paid by the note, which was dated Nov. 30, 1841, and payable on the 1st day of January, 1842, being a little more than one month, was composed of the amount loaned on that day to the defendants, and of twenty per cent added thereto, being at a rate exceeding two hundred per cent per annum.

It is urged by the defendants, that the nullity of the entire contract should be decreed. But the rule is well settled that in contracts stipulating usurious interest, the nullity attaches to the agreement for interest only, and does not destroy the obligation for the principal. See the cases of Walden v. City Bank, 2 Rob. 178. Rosenda v. Zabriskie, 4 Rob. 493. Also the case of Reed v. Duncan, 1 An. Rep. 265. Twenty per cent therefore must be stricken from the face of the note. The agreement to pay ten per cent after maturity upon a nominal principal sum, of which an important portion was in reality for usurious interest, was usurious, and .cannot be enforced.

It remains, then, only to consider, whether legal interest can be granted on the amount levied, from the date of default.

There was no protest, nor other evidence of default, till the judicial demand by the citation of the defendants, in the year 1845.

Under the law, as it existed at the time of the making of the contract, it was provided that, in contracts which do not stipulate for the payment of interest, it ■is due from the timo the debtor is put in default for the payment of the principal. Art. 1932- So article 1935 declares that, in cases where no conventional interest is stipulated, the legal interest at the time of default shall be recovered, although the rate may have been subsequently changed by law. Looking to the terms of these articles, and to the policy of our laws prohibiting usury, we do not think we should be authorized to give even legal interest from judicial demand to a party who had stipulated an usurious conventional interest after maturity.

It appears that, on the 6th January, 1845, an endorsement was made on the note of a payment, on that day, of $240, No imputation is expressed in the receipt, nor otherwise shown. In an ordinary case, the law would make the Imputation to the interest. But the article of the Code which directs that imputation, must be construed in connection with other rules in pari materia. One ■of these is that, where the receipt hears no imputation the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those that are equally due. See .arts. 21,62, 2160. Here the stipulation for interest had in law no binding force, and, looking to the spirit of the law and ¡the legislation on this subject, as a whole, we think, in the absence of any agreement, the imputation should be made to the principal.

The plaintiff has asked for judgment, with mortgage upon certain property described in an act of mortgage purporting to be signed by the parties, and comprising both land and siavos. It is admitted by the plaintiff, that the names of the negroes were not in the act when it was signed. The notary who passed the act, and who was also tho agent of the plaintiff in making the usurious loan, was offered as a witness by the plaintiff, and stated on his direct examination, “ that Mr. Cobb told him to put in the ten negroes; that the space was left blank in the act, and he was authorized to put the ten negroes by Mr. Cobb.” On his cross examination he says: “ The act was passed at Mr. Cobb’s house, and that Mr. and Mrs. Cobb did not object to putting the negroes in. That ho went upon the boat to Mr. Cobb’s, to pass the act. That the boat barely touched at Mr. Cobb’s.” The slaves appear by the mortgage to be the wife’s property, and in the notary’s unsatisfactory statement of this irregular proceeding, there is nothing to show that she authorized him to fill up the blank. The plaintiff has established no mortgage right to the slaves.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that the plaintiff recover of the defendants the sum of $4,138 42, without interest, and with mortgage on the land only, described in the mortgage executed on the 30th November, 1841, before Alfred J. Lowry, notary public, whereof a copy is on file in this suit, and costs in the court below, those of this appeal to be paid by the plaintiff.


author: Rost, J.

text:
    Brown v. Bemiss.
    A fi■ fa. levied on an undivided half of a tract of land cannot be enjoined by the owner of the other half, on the ground of his having a privilege thereon for the price of a levee made on the land under an adjudication by the inspector of roads and levées, nor on account of aclaim for the increased value of the property from useful improvements while plaintiff in injunction was a possessor of the land in good faith. If entitled to a privilege for the cost of the leyée, the party has aright to be paid by preference out of the proceeds of the salo of tho property seized; but if he has only a claim for the increased value of the property resulting from useful improvements, a separate appraisement of the land and improvements should be made after the sale; and the sezing creditor will be entitled to receive the value which the land bears to the product of the sale, and the plaintiff in injunction tho value of the improvements estimatedin relation to the same product; the rents of the property since the notice of seizure, to be added to the share of the seizing creditor, and deducted from the plaintiff's.
    Appeal from the District Court of Madison, Selby, J.

      Thomas, for the appellant. Amonett and Steele, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, being joint owner with one Rufus Stone, of certain lands fronting on the Mississippi river, enjoined the seizure under execution of the undivided half belonging to Slone, on the following grounds : 1st. That under an adjudication made to him, in due form of law, by the inspector of roads and levóes, he had erected a levée in front of the whole land, and was entitled to a mortgage and privilege upon the undivided half of Stone, for one-half of the price of adjudication. 2d. That ho had previously purchased the interest of Stone, at a sheriff’s sale, which was subseauently set asido on the proceedings had on the monition. 3d. That, between the sale and tho decree sotting it aside, he was a possessor in good faith, and made upon the land useful and valuable improvements, for which he is entitled to be compensated. 4th. That it is necessary for the preservation of his rights, that the levóo and improvements made by him bo appraised separately, and that he is entitled to be paid the amount of that appraisement, before tho seizing creditor proceeds to soil the land.

The defendants took a rule to show cause why the injunction should not be dissolved, on the ground that the plaintiff has not made out a proper case for such a remedy; that he has not shown the existence of a privilege; and that, if the privilege exists, it is no cause for an injunction. The court below dissolved the injunction with five per cent interest on the amount of the judgment enjoined, and the plaintiff appealed.

The court did not err in dissolving the injunction. The seizing creditor has the right to go on and sell. If the plaintiff is entititled to a privilege for making the levóe, he must be paid by preference out of the proceeds. If he has no privilege, but only a claim for the increased value of the property resulting from useful improvements made by him, his remedy is clearly pointed out in the case of Lanusse v. Lanna, 6 Mart. N. S. 103. The separate appraisement, for which he contends, is to be made after the sale; and when the respective values of the land and of the improvements are ascertained, he and the seizing creditor are to receive their proportions out of the proceeds; that is to say, the seizing creditor the value which the land bore in relation to the product of the sale, and the plaintiff the value of the improvements considered in the same way; the rents of the property, according to the proportion which each holds in it since the notice of seizure, to be added to the share of the seizing creditor, and deducted from the plaintiff’s. For the preservation of the plaintiff’s rights it is necessary that the judgment be amended.

It is therefore ordered that the judgment dissolving the injunction be amended, and that the sheriff, on receiving the proceeds of the sale, be directed not to pay them over to the seizing creditor, but bring them into court, to be paid to the plaintiff, or to the seizing creditor, or to both, as the District Court may direct, in conformity with the views expressed in the foregoing opinion. It is further ordered, that the judgment as amended be affirmed, with costs.


text:
    Brown v. Police Jury of Madison et al.
    Decision in Brown v. Bemiss, supra p. 305, affirmed.
    Appeal from the District Court of Madison, Selby, J.

      Thomas, for the appellant. Stockton and Steele, for the defendants,
    cited Civil Code, arts. 3239, 3240. Code Pract. arts. 296, 6S3. 6 Mart. N. S. 615. 7 lb. N. S. 281. 2 La. 66.

      Amonett, on the same side.
   The judgment of the court was pronounced by

Rost, J.

The facts of this case are the same as those of the case of Brown v. Bemiss, just decided, and for the reasons therein given the same decree must be entered.

It is therefore ordered that the judgment dissolving the injunction be amended, and that the sheriff, on receiving the proceeds of the sale, be directed not to pay them over to the seizing creditor, but to bring them into court to be paid to the plaintiff, or to the seizing creditor, or to both, as the District Court may direct. It is further ordered, that the judgment, as amended, be affirmed with costs.


author: King, J.

text:
    Taylor v. Rundell.
    Contracts entered into during minority, may bo rendered valid, by a ratification, either express or implied, made after the disability has ceased. C. C. 1778, 1785, 1869.
    Where improvements made on public lands of the United States purchased by a minor, are held by him after arriving at the' ago of majority, and he continues to cultivate the land, it will amount to a ratification of the contract.
    Appeal from the District Court of Madison, Curry, J.

      Amonett, for the plaintiff. Shannon, for the appellant.
   The judgment ef the court was-pronounced by

King, J.

This action is instituted upon two promissory flotes executed by the defendant, payable to E. W. Thorpe, or bearer, and by the' latter transferred to the plaintiff. Interest is claimed from the maturity of the notes, on the-ground that they were given for property producing revenue. The defendant admits the_ execution of the notes, and pleads minority and a failure of consideration. A judgment was rendered in the court below against him, from which ho has appealed.

Interrogatories were propounded to the defendant, enquiring into the consideration of the notes, to which he answered that, they were given for a claim, which Thorpe said he had to one thousand acres of land ; that the land belonged to the government; that Thorpe had no title to any part of it; that it yielded no revenue; and that he was under twenty-one years of age when he executed the notes. Two Witnesses, whose veracity has not been impeached, contradict two of these statements. They both state that the notes were given for improvements upon public land ; and one of them states that the defendant made annual revenues from it. It is further shown that the defendant has always been in peaceable possession' of the land and improvements, since the date of his purchase.

The answer's of the defendant, stating that he was under twenty-one years of age when the notes were executed, are the only evidence in support of the plea of minority. If the effect of these had not been destroyed, by the testimony of the witnesses who contradict his statements in other respects, they would still be insufficient to support the plea. The defence is not that the defendant is now a minor, but that he was a minor in 1841, when he executed the notes, and his oath is to the same effect.

Contracts entered into during minority may be rendered valid by ratification, either expressed or implied, after the disability ceases. Civil Code, arts. 1778, 1785, 1869. The defendant has continued to hold possession of the improvements, and to cultivate the land, and appears to have made no offer to restore either. This is an affirmance of the contract. Judgment affirmed.


text:
    King, Executor, v. Hicky.
    A third possessor, sued in an hypothecary action, cannot plead that the notes given for the original debt are prescribed. Prescription is an exception which tlie debtor and his creditors alone can plead. The obligation subsists until they avail themselves of the proseription; courts of justice cannot supply it.

      A purchaser in possession of real estate, sold by order of the probate court free of encumbrance, by whom the price has not been paid, may bp condemned, in au hypothecary action by a mortgagee entitled to be paid out of the proceeds of the sale, to pay to the latter so much of the price as may be necessary to discharge his claim, where the representative of the deceased mortgagor, though notified of the proceeding, makes no opposition to it, and no creditor claims any superior privilege on the price. The purchaser is but a stakeholder, bound to account either to the plaintiff, or to the succession of the mortgagor.
    APPEAL from the District Court of East Baton Rouge, Johnson, J« At a sa!o of the estate of Merriman, in 1833, Walsh purchased two slaves,, giving his promissoiy notes for the price, with a mortgage on the slaves to secure' their payment. The heirs of Merriman transferred the notes and mortgage to plaintiff’s testator, Bowen, subrogating him to all their rights to the notes and mortgages. On the 18th January, 1845, the notes were protested for non-payment, after a demand made of the maker. On the 9th of April following demand of payment Was made of the defendant, Micky, as third possessor, and on the 2d of May ensuing, a second demand was made of him. The plaintiff thereupon instituted this hypothecary action. The defendant pleaded: 1st. The general issue. 2d. That he purchased the slaves at a probate sale of the community existing between Walsh and his wife, on 31 August, 1836, and that they were sold free of all encumbrances. 3d. The prescription of five years. There ’ was a judgment below in favor of the defendant, on the grounds, that the claim was prescribed, and that the slaves were sold free from encumbrance, leaving the plaintiff to look for payment to the proceeds of the sale. The plaintiff appealed.

      Elam, for tho appellant.
    The sale under which the defendant holds the slaves, did not extinguish Bowen's mortgage. The principle that, a sale of property by order of a Court of Probates extinguishes all mortgages, had its-inception in the case of Lafon’s Executors v. Phillips et al., 2 Mart. N. S. 225, reviewed in the case of Be Ende v. Moore, same vol. 336, assimilating it to the cessio honorum, where all the creditors are presumed to be represented claiming a sale of the property for the purpose of paying the debts of the deceased* This principle was adapted to the provisions of the laws then in foree, which-placed the estate of the deceased, not accepted by his heirs, under the administration of the law, which required the judge to sell ail the property for the purpose of paying the debts. 'Phis rule has been extended from time to time, to suit the equity of cases as they arose, but has never been, and never can be; oxtended to sales not made for the purpose of paying the debts of the deceased, and when the proceeds do not remain subject to the orders of the Probate Court. This rule cannot be made to apply to sales made to effect a partition. C. C. arts. 1261,1262, 1263,1370, 1382, 1395.
    In this case, the titles to the slaves were in Walsh, and if they made a part of the community, it is not shown that they were sold to pay the debts, for no debts-are shown to have existed, other than the debt to Bowen. The avowed object of the sale was to effect a settlement with his minor children, and not to pay Bowen’s debt. Walsh, as tutor to his minor children, could not cause the property of the community to be sold to effect a settlement with them. Stafford v. Villain et al. 10 La. 319, and McGehee v. Dw-pay, TJnder-tutor, et ah 7 Robinson, 229, nor to effect a partition without being authorized by the judge by the advice of a family meeting. C. C. art. 1235. All tho lawwould sanction would have been an adjudication to him at the appraised value, to be held subject to the mortgage in favor of the minors. C. C. art. 338. The title' to the slaves was not changed by the proceedings of the Probate Court, and-could not in any wise effect Bowen’s mortgage. Bowen should have been notified of the application to sell the property on which his mortgage rested. C. P. arts. 990,192. 6 Rob. 302. If the judge cannot grant an order ex parte to erase and cancel a mortgage resting on properly sold under his authority, that mortgage is not erased ipso jure. Vide 5 La. 330. 6 Rob. 301. This is a case in point; the sale under which Micky bought, did not cancel the mortgages of the minors, much less the mortgage of Bowen. “ The law should be construed strictly to save a right, and liberally to give a remedy.” 1 Baldwin’s C. O. R. 316. 1 Peter. Dig. p. 581, sec. 36.

      T. 6?. Morgan, for the defendant.
    The note given by Walsh is prescribed, and consequently the mortgage also. C. C. art. 3505. Shields v. Brandegee, 4 La. 326. All mortgages imposed on the property by Walsh were released and cancelled by the sale made by the Court of Probates, and the defendant acquired the slaves free from all mortgages or encumbrances, leaving the creditors of the estate of Mrs. Walsh to their legal recourse on the proceeds of such sale, or against Walsh individually. C. P. arts. 938 to 99G. Lafon’s Executors v. JPhillijw, 2 Mart. N. S. 225. De Ende v. Moore, 2 lb, 336. French v. Prieur, 5 Rob. 299, and cases there cited. The necessity of selling the slaves, upon whom the plaintiff'claims to have a mortgage, is apparent from the fact disclosed by the plaintiff, that the price due to the vendors had not been paid.
   The judgment of the court was pronounced by

Rost, J.

This is an hypothecary action, instituted against the defendant, as third possessor, and the prayer of the petition is, that he pay the plaintiff’s claim, or that ho surrender the property mortgaged. He answers that he holds the slaves in controversy under a probate sale, by which the mortgage has been extinguished. He also pleads the prescription of five years against the note's, to secure the payment of which the mortgage was given. Judgment was rend-" ered in his favor, and the plaintiff appealed.

Under the state of facts presented by this case, the defendant is Without capacity to plead the prescription of five years upon the notes. That prescription is an exception which the debtor and his creditors alone can plead, and the obligation subsists until they avail themselves of it; if they do not, courts of justice cannot supply it. It is in evidence that a demand was made of the original debtor, more than thirty days before the institution of this suit, and it does not appear that he refused payment on that ground.

As the succession had debts it is a fair presumption that the probate sale' Was made to pay them, and we will, for the purposes of this enquiry, consider that the slaves claimed passed into the hands of the defendant free from previous encumbrances, the plaintiff being entitled to be paid out of the proceeds.

Under the late decision of this Gourt in the case of Boguille v. Faillei, 1 An. R. 204, if the mortgage still existed, the plaintiff would have the right to cause the property subject to it to be sold, and to receive the proceeds. C. P. art. 68. C. C. art. 3361.

Here the property was sold ten years ago, to effect the settlement of a succession. The person who had charge of it, and who was the original debtor of the plaintiff, has rendered no account whatever of his administration; although notified of these proceedings, he has made no opposition to them, and no creditor has appeared claiming superior privileges on the proceeds of the property.

The price of the adjudication is traced by the plaintiff into the hands of the defendant, and identified. It is not pretended that any portion of it has been hondfide paid to the representative of the succession, and the defendant stands in the capacity of a stakeholder bound to account either to the plaintiff, orto the succession from which he purchased.

The sum in his hands, with the interest that has accrued upon it, is more than sufficient to pay the plaintiff’s claim, and we consider him entitled to be paid-out oí'it, as he would have been, if the slaves had been sold'underan hypo*fhecai'y action, instituted by him.

It is therefore ordered that the judgment be reversed, and that there be judgment in favor of-the plaintifffor the sum of $1,274 85', with interest at the rate of ten per cent per annum, from-tlie 18th-of May, 1835, until-paid, and oosts in* both courts.

       Kixg, X, being a party to this case, did not sit.

        Morgan, for the dofondant, prayed for an amendment of this decree, so as to allow the defendant to surrender the mortgaged property, and thereby, exonerate himself from personal responsibility» Refused.


author: Kin®, J.

text:
    Webb, Administrator, v. Kemp.
    In proceedings against a sheriff, to render him liabie, under the 7th section of the stat. of 7 April, -182G, for failure to return* a on or before its return day, he may show any cii-
    cdmstaiice whicli will legally excase his failure to return* the‘writ before that time; and Where the writtenreturn on the writ is offered in evidence by the plaintiff, the facts which it recites will be evidence for the defendant*
    Appeal from the District Court of St. Helena, Jonas, J.

      Merrick, for' the appellant. Bailies, for the defendant',
    cited 1 Mart. N. S. 243, 5 lb. N. S. 179, 19 La. 4S2, 9' Rob. 4’64', to show that the return made on a fiu fa. by defendant, having been introduced by plaintiff, was evidence for the former of the facts recited in it.
   The judgment of the corn't was pronounced by

Kin®, J.

The defendant, Kemp, is sought to b‘e rendered liable for the' amount of a Writ of fieri facias directed to him, which he failed to return within tlie delay prescribed by law.- He pleaded tlie general issue, and further avers that, immediately aftei the'writ came into his hands, He made a seizure^ and that the property levied upon would Have been sold within the time prescribed by law, had- not the plaintiff ordered the sale to be postponed to a day beyond the return day of the writ; and that he made a- sale of the property seized, which produced $10(1, which sum, he avers, lie paid to-the plaintiff, and' returned therwrit.

The only testimony in the record'is the execution' itself, w-ith the return tliereon, which were offered in evidence by the plaintiff. From the latter it-appears that, the writ was received by the defendant, on the- 3d November, 1842; tliat, on the 15th of the same month, a slave was seized; that the sale was postponed by order of Thomas Webb, the plaintiff in execution, until the-lii-st Saturday in February, 1843; and tliat, on- the' 6th of February, 1843, the slave was sold for $100. The writ was not returned until the 9th of August following. The court below rendered a judgment in favor oftko defendant, from which the plaintiff has appealed.

We tliink tliat the judge did not err. A plaintiff who has authorised the sheriff to protract the execution of a writ beyond the return day, cannot afterwards complain that the latter has failed to'make a return within the delay fixed, nor claim to hold liim liable for the amount of the execution, in consequence of his-failure to make a return within the prescribed delay.

When a sheriff is sought to be rendered liable, under the act of 1826, he may show any circumstance which would legally excu'se him for a failure to return, or execute, a fieri facias. No more valid excuse can be offered, than the express'instructions of tlie plaintiff in execution. The complaint, in (he present instance, is not that the sheriff failed to return the writ after it had been exe- . cuted, nor that he refused to execute it; and there is neither allegation nor proof that the plaintiff has suffered damage from the neglect of the sheriff to snake a timely return. Judgment affirmed.


text:
    Baker v. The Bank of Louisiana.
    Where a mortgage mentions the parish in which the .mortgaged property is situated, the bayou on which it lies, the number of acres it contains, the use made of the property as a ■plantation, andthatit was purchased by the mortgagor at a probate sale of the succession of a person named, the conveyance being shown by evidence to be of record in the same .parish, the description of the property is sufficient.
    Appeal from the District 'Court of West F éliciana, Boyle, J.

      Ratliff and Cowgill, for the appellant. Bowman, for the defendants.
   The judgment ,of the court was pronounced by

Slidell, J.

In the year 1837, the Bank of Louisiana'took a mortgage, with, the pact de non alienando, from Samuel Wimbisk, upon a-tract of land in the parish of West Feliciana, to secure an indebtedness of Wimbisk, and, the debt not being paid, obtained an order of seizure and sale. The sheriff having made seizure of the land, the-plaintiff instituted this suit to enjoin the sale. There was judgment for the defendants in the court below dissolving the injunction, .and the plaintiff has taken a devolutive appeal.

The only objection presented in argument to the validity of the bank’s mortgage is, that the mortgage act does not sufficiently describe the property, and -consequently that its registry in the mortgage office was not notice to third persons, and not binding upon the plaintiff, who has a notarial act of sale from Wimbisk of the property, of a date posterior to the mortgage.

The description in the mortgage to the bank is -as follows! “ A certain tract of land, ora parcel of ground, with the improvements thereon, situate, lying and ¡being in said parish, on the bayou Tunica, being the land and plantation purchased by the said Samuel Wimbisk, at the probate sale of Samuel Davis, de " eeased, containing five hundred and eight acres.” This description is substantially the same as that in the act of sale from Wimbisk to the plaintiff, with the exception that the latter gives the boundaries or adjoining estates.

We consider the description sufficient. It states the parish, a stream on ■which the property lies, the number of acres, and the use made of the property, and recites the origin of Wimbisk’s title, which is shown by evidence to have been by deed recorded in the same parish. No one can suppose that Baker, or any other party dealing with Wimbisk, and examining the records of the mortgage office, could have been deceived. It is said that Wimbisk, as is shown by the testimony, owned other tracts on the bayou Tunica; but it does not -appear that any of them corresponded in size with this, or were cultivated as plantations.

We must also observe that, there are circumstances which go very far to prove actual knowledge by Baker, of the mortgage of the defendants. Baker was the son-in-law of Wimbisk, at the -date of his alleged purchase, and living in tlie same parish with him, in which parish the land was. The sale purports to be for $5,00.0 cash; and the vendee dispenses the notary from the duty imposed upon hinj by law, of procuring .and annexing a mortgage certificate, and this without any declaration by the vendor that there were no encumbrances. There was a special s.ubrogatjon to the warranty of Wim,bisk’s vendor. In his petition for injunction, Baker d.oes no,t allege ignorance .of the mortgage.

The appellees have prayed that the judgment be amended s.o .as to allow them interest apd daipag.es, and they ape entitled to ih,eip.

It is therefore decreed that the jpdginent .of the court hejow he so .amended, that the defendants recover .of the plaintiff, John D. Baker, and Stephen C. Cobb, his surety, in .solido, the sum .of $631 34, hearing interest at ten per cent on the judgment injoinod from th.e service of the injunction to the d.ate of dissolution by the .court below; and the further sum .of $15D, as special damages ; that the .cost of this appeal be paid by the plaintiffs; and that in ail other respects the judgment of the .court, below be affirmed.


text:
    Mechanics and Traders Bank v. Rowly et al.
    A provision ii> a statute incorporating a bank, enacted under the .constitution of 1812, “ that it sliallliavethe like privileges granted to it in making loans on mortgage, in tailing security, and in enforcing payment, as are pow accorded bylaw to the Bank of L — ." will confer upon the former all the privileges granted to the latter, witboHi; any farther specification. Decision in jSauk of Louisiana v. Farrar, 1 An. R. 49, affirmed.
    Appeal from the District Court of Concordia, Curry, J.

      F. II. Farrar, for the plaintiffs. Benjamin and Micou, for the appellant.
    This suit was brought on ¡a note and mortgage executed by the defendants, then husband and wife, in solido, in favor of the plaintiffs. At the time of the loan ,a commuity of acquets existed between the parties, but before fhe institution of guit it had been dissolved, and they were separated frpm bed and board. Judgment was rendered against the husband by default. The wife filed an answer denying her liability apon the contract, and pleading the separation, &c. Judgment was rendered against her, and she appealed.
    Was Mrs.. Rowly legally bound by the note and mortgaae executed in solido with her husband ? In claiming that she is not liable, she relies upon article 2412 of the Civil Code :
    “ The wife, whether separated in property by contract or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.”
    The plaintiffs, on the other hand, insist that this general principle of law is not applicable to mortgages .contracted under their charter, and rely upon the following section;
    “ And further, that the said corporation shall have the like privileges granted to it in making loans on mortgage, taking security, and enforcing the payment thereof, .as are now accorded by law to the Bank of Louisiana.” Sec, 25, act 1 April, 1833. Acts, p. 134.
    The clause in the charter of the Bank of Louisiana, which is said to be incorporated into the charter of the plaintiffs by this reference, is the 32d section of the act of April 9th, 1824. 3 Moreau’s Dig. p. 55. It is in the following words :
    “ In ali hypothecary contracts or obligations entered into by any individual with or in favour of the said president, directors and company of the Bank of Louisiana, according to the true intent and meaning of this act, it shall be lawful for the wile of such individual to bind herself jointly and in solido with him; and in such case the property and rights of said wife, either dotal or of any other description, shall be affected by said contracts or obligations, provided the said wife be of the age of majority at the time of entering into such contracts ojobligations.”
    Was it the intention of the legislature by this reference, to incorporate into the charter of the plaintiffs this section of the charter of the Bank of Louisiana ? The protection granted to married women, is part of the settled policy of the land. The system from which our jurisprudence is derived, and our Codes themselves, do not leave the rights of the wife at the mercy of the husband. Aware of the great and almost unlimited control usually exercised by the husband over the wife, it was deemed necessary, for the public good, that the laws should intervene for the protection of the weaker party. This policy, however, has been abandoned by our legislature to subserve the interest aud wishes of many of the banks; but in these cases it has been done by direct and explicit •legislation. The Bank of Orleans and the Louisiana State Bank were not excepted from the general provisions of the laws. See their charters, 1 Moreau’s Digest, pp. 62 and 68. The 32d section of the charter of the Bank of Louisiana, is copied at length and verbatim into the chartez-s of the Consolidated Association, &c., sec. 23. 2 Moreau’s Dig. p. 404. Of the Canal Bank, act of 5th March, 1831, sec. 23. Acts, p. .54. Of the Union Bank, act of April, 2d, 1832, sec. 25. Acts, p. 62. Of the .Citizens’Bank, act of 18133, sec. 25. Acts p. 190. Of the Commercial Bank, .act 1st April, 1833, sec. 30. Acts, p. 162. Of the Gas Light and Banking Company, act 1st April, 1835, sec. 29. Acts, p. 105. Of the Exchange and Banking Company, act 1st April, 1835, sec. 27. Acts, p. 203. Of the Atchafalaya Railroad and Banking Company, act 10 March, 1835, se.c. 24- Acts, p. 50. Of the New Orleans and Carrollton Railroad and Banking Company, act 1st March, 1836, ae.c. .9. Acts, p. 27. Of the Merchants’ Bank, act 25th February, 1836, sec. 26. Acts, p. 61. And of the Improvement aud Banking Company, act 9th February, 1838, sec. 12. Acts, p. 49. The only charter similar in this respect to that of the plaintiffs’, is the charter .of the City Bank, 3d March, 1831 (Acts, p. 34), the 8th and 18th sections of which make reference to the privileges of other banks ; and it is worthy of re. mark that the charter .of the Canal Bank, passed by the same legislature, and .approved only two days after that of the plaintiffs, has the provision in controversy copied at large, and verbatim.

    Let us next consider some of the rules of interpretation applicable to statutes -in general, and especially to charters of privileged companies: “ Statutes are ,to be .construed in reference to the principles of the common law, for it is not to he presumed that the legislature intended to make any innovation upon the .common law, further than the ease absolutely required.” Kent’s Com. p. 464, 3d ed. 1836. Dwurris on Statutes, 695. Among the rules proposed by M. Portaljs, to be prefixed to the Code Napoleon, were the following: “ La pré.•somption du juge ne doit pas étre mise i la place de la présomption de la loi. II n’est pas permis de distinguer lorsque la loi ne distingue point, et les exceptions qui ne sont point dans la loi ne doivent étre supplé.es.” On these rules M. Toullier obse.rves: “ Malgré l’utilité et la justesse reconnues de ses máximes, jis furent supprimés, parce que, dit on, tout ce qui est de doctrine appartient á I’enseignement du droit et aux Jivres de jurisconsultos.”
    It is however more particularly with special statutes, those granting peculiar privileges to certain classes or persons, those derogatory to the general policy of the law, that we have here to deal; and we assume it to be a principle that all .such statutes ai'e to be strictly construed, as if they were of a penal character. Chief Justice Marshall, speaking of a corporation, says: “ Being the mere creature of Jaw, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.” Dartmouth College v. Woodward, 4 Wheat. 636. “ A power derogatory to private property must be construed strictly, and n.ot enlarged by intendment.” Anon, Loift, 438. “Ambiguous words, in a private act of parliament, incorporatinga public company, are to be construed against the company and in favor of private property.” Scales v. Pickering, 4 Bing. 448. Barrettv. Stockton et al. 2 Mann, and Gran. 134. Acts of parliament which confer privileges upon a company, aud profess to give the public certain advantages in return, are to be construed strictly against the company, and liberally in favor of the public.” Parker v. Great Western Railroad Company, 7 Maun, and Gran. 253. “ In the construction of statutes mudo in favor of corporations or particular persons, and in derogation of common right, care should be taken not to extend them beyond their express words or their clear import. They cannot take away a common law right, unless the intention is manifest; and, when not remedial, are 110l; t0 extended oven by equitable principles.” Sprague v. Birdsall, 2 Cowen, 420. “ Private statutes, made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or from necessary implication.” Parsons, C. J. Coolidge v. Williams, 4 Mass. Rep. •154. “ The rights of the crown can never be taken away by doubtful words or ambiguous expressions, but only in express terms.” Dwarris on Statutes, p. 70G. To bring a case within the statute, it should be not only within the mischief contemplated by the legislature, but also within the plain intelligible import of the words of the act.” “A casus omissus can in no case be supplied by a court of law, for that would be to make laws.” lb. p. 711. “ It is a well settled rule of law, that every charge upon the subject must be imposed by dem- and unambiguous language.” Ib. 7413. “ Private acts of parliament conferring new and extraordinary powers of a special nature upon particular persons, affecting the pi-operty of individuals, or giving exemption from a general burden attaching by law upon ail parties, should receive a strict interpretation.” lb. p. 750.
    Let us now consider this clause of the plaintiffs’ charter, with reference to the principles thus announced. If the words of the act are fairly susceptible of another interpretation — if they do not necessarily and unequivocally adopt the provision in relation to married women, that provision must be held to be excluded from the meaning of the charter. The language of the act is, the bank shall have the like privileges, &c. Now let us examine what privileges were conferred upon the Bank of Louisiana in relation to mortgages: The lGth section of the charter of that bank prescribes the amount to be loaned on mortgage, and the value and nature of the property on which such such loans must be made ; section 26 declares how mortgage loans shall be received and paid ; section 30, that the loan shall not be paid until the mortgage shall have been recorded ; section 31, that the bank may seize the property in whatever hands it may pass; section 34, that the bank shall not be delayed by ajudiciril respite ; section 35, that the mortgaged property shall not pass to syndics or assignees of an insolvent; and section 32, that in all mortgages, &c., it shall be lawful for the wife to bind herself, etc. 1 Moreau’s Dig. Now all the above provisions, save the last, are in terms as well as substance, privileges given to the bank, while the last is in terms a privilege granted to married women. In 1824, and for many years after, the legislation and policy of this State evidently favored the obtaining of money on loans on long terms, even at high interest. Such an opinion was .entertained of the fertility of our soil and the extent of our commerce, that interest was not regar-ded, and money was eagerly sought for on any terms, provided a long time was given for its reimbursement. The exemption of married women from their contracts, and the mortgages allowed them upon the estates of their husbands, had the double effect of diminishing on one band the desire of capitalists to loan money even at the Louisiana rates, and on the other hand to limit the ability of our citizens to obtain loans. Hence the restrictions upon contracts of married women, though so thoroughly incorporated into our laws, became for the time unpopular; their original object was forgotten, and they began to be considered burlhensome and impolitic; though intended to be a protection, they were regarded as a disability, and it came to be considered a valuable privilege that married women should be allowed to borrow. Without this provision the class of borrowers dealing with the banks would have been more limited ; greater particularity would have been required in ascertaining the rights of wives, and in lending to husbands only on unencumbered property; but the right of the bank so to loan, to take security and enforce payment, would still have been protected. That the charter would have been highly valuable without giving to married women such rights, is obvious from the fact that one of the banks, with whom they cannot so contract, has been for many years and is still in successful operation. The reference relied upon may therefore be considered as met and filled by the several provisions more strictly designated as privileges of the bank, and appertaining to the mode of taking securities and enforcing the mortgages.
    The question is not merely whether by intendment this privilege of married women may not; 1'iave been designed to be re-enacted in the plaintiffs’ charter, but whether that intention is clearly and unequivocally expressed. In many statutes, particularly those intended to remedy an evil, or to prevent wrong or injustice, it is the duty of the courts to supply deficiencies in the language of the law; but this does not apply to a charter of incorporation. It is granted not for the public benefit, but for the emolument ol'the shareholders. It confers upon a few a portion of the rights belonging to the sovereign, and creates peculiar and exclusive privileges. Such a grant must always be strictly construed, and the privileges embraced are not to be aided by the ingenuity of j udg'es. “ It is a well settled rule that every charge upon the subject must be imposed in clear and unambiguous language.” Bwarris on Statutes, p.749. The fact that out of twelve banks claiming the right to receive mortgages from married women, all of them save the plaintiffs’' and one other, have received the grant in express and unequivocal terms, and without reference from one charter to another; should also have its weight. We must presume that, if it had been intended to confer the privilege of borrowing upon such persons, it would have been so expressed in this as in the other charters. “ When in several statutes infari materia the legislature is found sometimes inserting and sometimes omitting a clause of relation, it is to be presumed that their attention has been drawn to the point, and that the omission is designed ; but if it were not intended, said Lord Ellenborough in R. Shone, we can only say of the legislature, quod voluAt, non dixit.” Dwarris on Statutes, p. 707.
    There is another reason for a strict interpretation of such acts. They are always granted at the solicitation of parties having a direct and pecuniary interest in obtaining them. These parties always cautiously prepare the draft of their charters ; it is therefore incumbent on them to state clearly what they ask. “ I consider it an established and highly useful rule in the construction of all acts of parliament of a local or personal nature, to require that the persons soliciting such an act', should state in it plainly, distinctly and unequivocally,, what they mean, in order that the public on one hand and the legislature on the other, may not be taken by surprise, and maynot be left in doubt, as to the object and effect of the enactment.” Bailey J-, Doe v. Brandling, 1 Mann, and Ryl. 611, cited and approved by Walworth, Chan, in Cayuga Bridget. Magee, 2 Paige Ch. Rep. 121. We must therefore conclude that the general policy of the law protecting married women from the improvidence of their husbands, has not been infringed in the plaintiffs’' charter; that the power of wives to bind themselves for their husbands, is not given in plain, distinct and unequivocal terms, and consequently does not exist.
    The constitution of 1812, art, 4, sec. 11, provides : “ That the legislature shall sever adopt any system or code of laws by a general reference to said system or code, but in all cases shall specify the several provisions of the law it may enact.” This provision was unquestionably intended to prevent the adoption of the common law in this State by a statute of reference. But this object is accomplished by the first clause of the proviso, and the constitution proceeds to say that in all cases the provisions of the laws intended to be enacted shall be specified. Although the desire to exclude the common law gave rise to this restriction, the attention of the convention once drawn to the subject, the provision was extended as to prevent improvident legislation in other cases. The French text makes this more apparent: “ et que dans tous les cas elle devra décréter spóoialement toute les dispositions de lois qu’elle pourra faire.” This is a constitutional restriction of legislative will. A passion for law-making is certainly one of the greatest evils of our system. The constitution could not suppress this evil, but attempts to limit and control it. In order to secure the deliberate attention of legislators to the labors entrusted to them, they are prohibited from enacting by mere reference, and are enjoined to specify the provisions which they intend to adopt as laws. The acts of former legislatures, as well as foreign laws, must be included in this provision. Another object of the constitution was to make the law more accessible to the citizen. The intention of the legislature must be unequivocally expressed, to support a grant of an extraordinary power to a corporation. It must also be constitutionally expressed. If by reference, the number of the section and date of the law should always be given, and the terms intended to be adopted should be so clearly stated as to make doubt impossible, or else the provisions adopted are not specified in the mode prescribed by the constitution. In the plaintiffs’ charter it is said that, “this bank shall have like privileges, &c., with another.” Neither the date of the act, nor the number of the sections, thus intended to be incorporated, is given ; and there is no description or specification of the nature or extent of those privileges. Other privileges appertaining to the same subject are then c0pi0cl at large into the charter, thus inducing the natural- belief that the privileges so specified were- the same intended by the clause of reference.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a case iu which the husband- and-wife bound themselves jointly and severally in a promissory note to tne plaintiffs, and executed a mortgage simultaneously to secure the payment of it. The- amount they acknowledge to have received in the act of mortgage, which contains a formal renunciation of the rights of the wife.

The charter of the Mechanics' and Traders' Bank confers on that corporation1 similar privileges to those conferred on the Bank of Louisiana in making loans on mortgages, taking security, and enforcing the payment thereof.

The rights which the latter institution would have in a case of this kind we have determined in the suit of the Bank of Louisiana v. Farrar, 1 An. Rep. 49.

To grant a new trial on the showing the appellant in her very informal affidavit, would be an undue interference with that discretion- which judges of the first instance are, from their opportunities, best qualified to exercise.

Judgment affirmed.


author: Kins, J.

text:
    Stanbrough v. Barnes, Curator.
    A- possessor in good faith is entitled to remuneration for useful improvements,- and is not aei countable for fruits. -C. C.-500. The owner has the choice either to reimburse the price' of the improvements, or to pay a sum equal- to the enhanced value of the soiL
    Appeal from the Court of Probates of Madison,- Downes J.

      Phillips, for' the plaintiff. Amonett, for the appellant. Stockton and Steele, for the defendant.
   The judgment of the court was pronounced by

Kins, J.

Stanbrough presented to the curator oí Bray’s succession, a claim for improvements made upon a tract of land belonging to the deceased. The' administrator admitted that the improvements had been made as stated in the account, and referred the claim to the probate'judge to decide' upon their value. A rule was taken to show cause why the account should not be paid; .in answer to whichythe attorney for the absent heirs, and Wilkinson, the assignee of one of the heirs, opposed the demand, alleging that it was excessive, and that Stanbrough was a possessor in bad faith when the improvements were m'ade. The judge determined that the laud derived two-thirds of its value- from the improvements; that Stanbrough was a possessor in good faith when they were-made ; and decreed that the land should be sold for cash, and that two-thirds of the price should be paid to Stanbrough. From this judgment Wilkinson has' appealed. We think that the evidence fully supports the conclusions of the1 judge below, that Stanbrough was a possessor iu good faith, and that two-thirds-of the present value of the land are the result of his labor and industry, in clearing and fitting the soil for culture. He is consequently entitled to remuneration-for useful improvements, and was not accountable for fruits. 16 La. 421, 425. Civil Code, art. 500. The choice in such casos is left to the owner, either to re-emburse the price of the improvements, or to pay a sum equal to the enhanced value of the soil.

The appellant contends that, if the plaintiff be entitled to any thing, it is the enhanced value of the property, but that this should have been ascertained by the court below, and decreed to him as a fixed sum. The administrator does not object to the mode adopted for ascertaining the measure of the plaintiff’s compensation, and the curator for the absent heirs himself suggests, in answer to the rule, that the relative value of the land in its improved and unimproved condition should be ascertained, and that a sale should be made, and the proceeds awarded to the succession and the plaintiff, in the proportions thus established.

Thus all the parties in interest must be considered to have made their election, and all concur in demanding that the remuneration shall be the enhanced value of the land. If, in the exercise of the discretion allowed them by law, they had ehosen to pay the value of the improvements, we should not have felt authorised to affirm the judgment which has been rendered. A sale of the property in such cases, after determining the proportion which the value of the improvements bears to the entire price, is just andequitable, and the only meang of effectually protecting the owner against the entire loss of his land, for the purpose of satisfying the claim of the bond fide possessor. We perceive no sound objection to a decree of this kind ; it is in the nature of a judgment ordering a sale for a partition. Judgment affirmed.


text:
    Harper v. Stanbrough.
    aÜvery government has the right to establish and regulate the rights of property in things within its jurisdiction, in such manner as the public interest may require.
    Whore a testator dying in another State, possessed of slaves there, directs that, if either of his two sons, to whom his property had been bequeathed, “ should die without a lawful heir, his part, real .unipersonal, shall go to the survivor,” and one of the sons receives his portion ■of the slaves and removes with them into this State, and dies without issue, the survivor cannot recover them, nor their increase here. Tlio clause on which plaintiff's claim rests, though it might confer a title on the survivor by the laws of the State where the testator died, as it creates a substitution, cannot he enforced here. Such a testamentary disposition cannot operate on property within this State. Code of 1808, b. 3, tit. 2, ch. 4. C. C. 1507.
    APPEAL from the District Court of Carroll, Curry, J. This is an action to recover certain siaves, claimed by plaintiff as the surviving son of one Harper, who died in the State of Mississippi, in the year 1811. His will, dated Sth August, 1811, contains the following bequest: “ I give to my two sons Jesse and William, all my lands, to be equally divided between them; if either of my sons should die without a lawful heir, his part, real and pei’sonal, to the surviving one.” Jesse Harper removed, with his portion of the siaves so bequeathed, into this State, in the year 1823. In 1838, lie died here, without issue. This action was instituted by the surviving brother, to recover the slaves originally bequeathed to Jesse Harper, with their increase. The plaintiff appealed from a judgment in favor of the defendant. A copy of Harper's will, which was offered in evidence on the trial, was excepted to on the ground that it liad never been ordered to be executed by the probate court of the parish in which tho property is situated. The copy was admitted. Plaintiff also offered in evidence, sec. 23 of chap. 104 (p. 458), sec.-24, chap. 9 (p. 34), sec. 45, chap. 73 (p. 379) of the Revised Code of Mississippi.

      Thomas, Snyder, Prentiss and Finney, for the appellant.
    Two questions arise: 1st. Was the will of Jesse Harper, senior, properly admitted in evidence?. 2d. If properly admitted, does it sustain plaintiff's claims to the slaves in controversy? The whole case turns upon the validity and effect of the will. Its construction, validity and effect are governed by the laws of Mississippi, where it was made, and where the property upon which it operated, was found, at the time of the testator’s decease.
    1st. As to the admissibility of the will, as evidence of plaintiff’s title, in the courts of this State. The will was duly probated in Mississippi, before the proper tribunal, and the transcript of the proceedings of the Mississippi tribunal are-properly and duly certified. It was not necessary to have the will probated here. C Mart. N. S. 622. 17 La. 4. Story’s Confl. Laws, §- 238-9. We-do not ask the execution of the will in this State, but offer it as evidence of our title to tho property sued for, which title originated in Mississippi, though the-contingency upon which it vested happened here. It is well settled that m foreign will is admissible in evidence to show title, without ever having been probated here, provided it has been received, and its execution ordered, by the-proper tribunal of the country in which it was made. Balfiuvv. Chew, 5 Mart. N. S. 517. The pointis still more directly decided in Johnson v. Rannels, 6' Ib. N, S. 621. The doctrine is also recognised in Robert v. Allier’s agents, 17 La. 5. If this is true as regards foreign wills, when set up as the foundation of title to property located here at the time the will took effect, still more strongly will the rule apply when the property was located in the country where the-will was made, and removed since the probate there. There can be no doubt tile will was properly admitted in evidence.
    2d. Does the will sustain the plaintiff’s claim-to tho slaves in controversy?’ The will was executed in Mississippi, and took effect upon the slaves before-their removal from that State. The removal of the property by one of the legatees could not destroy the lights of the other. What then are those rights ? After various bequests, among which is one of the negroes in controversy, to-Jesse Harper, junior, and another of several slaves to plaintiff, the testator says:“After that, I give to my two sons, Jesse and- William, all my lands to be equally divided between them; if either of- my sons should die without a lawful heir,, his part, real and personal, to return to the surviving one,” &c. This is the-clause under which plaintiff claims. The contingency under which the devise• over to the survivor of the two sons was to take effect, to wit; “ dying without a lawful heir,” &c., has occurred; and at the death of Jesse Harper, junior, without issue, the title to his share, both real and personal, of his father’s estate, vested instantly in the plaintiff. The slaves in question formed no part of the succession of said Jesse,.and of course no title could be derived under the probate sale.- The provision of the will under which plaintiff claims, is an executory devise, according to the laws of Mississippi, where it was made, and' where the property affected by it, was located.
    It is contended by defendant that this provision, taken in connexion with the-previous ones, constitutes an estate tail, which by virtue of the statute of Mississippi, was converted into a fee simple, in Jesse Harper, junior, and gave him-an absolute property in the slaves claimed by plaintiff. Plaintiff’s right is nob affected by the statute of Mississippi, converting estates tail into fees simple. This is an executory devise. An executory devise is defined by Blackstone to-be “such a disposition by will that, thereby no estate vests at the death of thedevisor, but only on some future contingency. It differs from a remainder in three very materia! points. 1st. That it needs not any particular estate to support it. 2d. That by it a fee simple may be limited after a fee simple. 3d. That by this means a remainder maybe limited of a chattel interest, after a particular estate for life created in the samo.” Black. Com. book 2, c. 11. 4 Kent’s Com. 269-270.
    To show that this is an executory devise, and not affected by the statute of Mississippi, docking entails, we cite the following cases : A testator devises lo A, B and C, his sons; if either of them should die without children, the survivor or survivors to take his share.” “ This gives a fee silnple to the devisees, and the survivors, on tho death of either without issue, tako by executory devise.” Richardson v. Noyes, 2 Mass. 56. See also IAppetv. Hopkins, 1 Gallison, 454. In the case of Cor die v. Cordle, 6 Munford, 455, the testator after dividing his estate between his sons, W. C. and D. C. provided, “that if either ■of his sons died without lawful heir, his surviving brother should inherit all the estate of the deceased.” Held, that this was a good limitation over in favor of the survivor, upon the death of tho other son without issue. In the case of Timberlake v. Graves, 6 Munf. 174, where a testatrix bequeathed certain slaves and their increase “to her nephew, J. A., to him and his heirs forever: but in case ho should die without heir, then and in that case tohe equally divided -between her two neices, M. A. and P. A.” Held, it was a good limitation over, upon J. A. dying without issue.
    In New York, where the statute converts an .estate tail into a fee simple, the validity of an executory devise, and what constitues such a devise, have been well settled. C. devises his real estate to his four sons and a daughter Elizabeth, and then adds: “ Further my mind and will is that, if any of my said sons, William, Jacob, Thomas and John, or my daughter Mary, shall happen to die, without heirs male of their own bodies, then the lands shall return to the survievors, to be equally divided between them.” Held, that these words did not create an estate tail, but a limitation over in fee, to the survivors, on the failure of male heirs. Fosdick et al. v. Cornell, 1 John. R. 440. A devised as follows: “ I give and bequeath to Catharine and Sarah, each the sum of ¿612 out of my personal estate, and the remainder to be equally divided among my eleven children ; and if any one or more happen to die without heirs, then his or their part or shares shall be equally divided among .the children.” Held, that this was a good devise over, by way of executory devise. Jackson v. Slaals, 11 John, .337. Seo also Jackson v. Blancher, 3 John. 289, and Moffatt v. Strong, 10 John. 13. In Andersonv. Jackson, 16 John. 382, E. devised a farm to his son Joseph, his heirs, &c., forever ; and another farm to his son Medcef, his heirs, ,&c.; and added: “ It is my will that if either of my said sons should depart this life without lawful issue., his share or part shall go to the survivor,” &c. Joseph died without lawful issue. Held, that the words quoted did not create an estate tail, especially since the statute abolishing entails, but was a good limitation over in fee, by way of executory devise, to the survivor, on failure of issue living at the death of either of the sons. In the case of Jacksonv. Christman, 4 Wend. 277, the following clause of a will came up for construction: “ I give, devise .and bequeath to my six sons, all my real and personal estate, share and share .alike, &e.; and if any of the above six should happen to die without heirs, then his or their share shall fall to the survivors of the above named, sons, share and .share alike.” Field, these words wore good and effectual, by way of executoiy devise, to vest in the survivor the share of one dying without issue. That a limitation over to the survivor of persons in esse, will be construed as an executory devise. See also Morgan v. Morgan, 5 Day, 517. Wilkes v. Lion, 2 Cow-en, 333. Cutter v. Doughty, 23 Wend. 513. Jackson v. Chew, 12 Wheat. 153. 4 Kent’s Comm. 277-8-9. From these authorities it seems clear that the provision of the will of Jesse Harper, senior, under which we claim, is an executoiy devise, and a legal and valid disposition in tho State of Mississippi, where it was made. The majority of tho cases cited also show, that the phrase “ dying without heir or heirs,” means “dying without issue.”
    But if our construction were doubtful under the authorities cited, the statues of Mississippi themselves, fully recognise such a disposition as valid, and remove all the difficulties which have, in England, as well as in our sister States, rendered this question of executory devises so difficult and vexed. By sec. 24, H. & H.’s Digest of Miss, laws, p. 348, estates tail are converted into estates in fee simple, with the proviso, however, “that any person may make a conveyance or devise of lands to a succession of donees then living, and the heir or heirs of the body of the remainder-man,” &c. Even if this were an estate tail, which it clearly is not, it would not be within the statute, because the plaintiff was a donee then living. But the 26th section of the same statute, H. & H.’s Digest, p. 349, settles the construction of the will beyond all cavil. It provides that: “Every contingent limitation iii any deed or will made to depend upon the dying of ¿my person without heirs, or heirs of tho body, or without issue, or issue of tho body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to tako offect when such person shall die, not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be), living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressed and plainly declared on the face of the deed,” This goction settles all the disputes in the books, as to whether the words “dying without heirs, or without issue,” See., mean without heirs or issue living at the time of the death, oran ultimate failure thereof at any future period. Where the words of the will can be construed in the first sense, then such a provision as we rely upon is admitted by all the authorities, to constitute a good and valid executory devise. The statute of Mississippi has provided that such a construction shall be given to these words, unless a different intention be expressed and plainly declared in the will. As to the effect of this statute, see 4 Kent’s Comm. (5th edition) 279-280.
    The provision, then, under which we claim, was legal and valid under the laws of Mississippi; and upon the death of Jesse Harper, junior, without issue, the property bequeathed to him, vested in plaintiff, as the survivor, by way of executory devise. The property did not go into the succession of Jesse Hat* per, junior, but, immediately on his death, belonged to plaintiff. As to the extent of plaintiff‘g right under the devise, see 4 Kent’s Comm., 269-270.

      Stacy and Sparrow, for the defendant.
    The will of Jesse Harper, senior, has never been ordered to be executed by any tribunal of this State, and can not be carried into effect hero. Civil Code, arts. 1637, 1681. If a will, not ordered to be executed, cannot be carried into effect on property, no one can claim any rights upon that property under the will. It is true that the Supreme Court has held differently in the case of Johnson v. Runnels, 6 Mart. N. S. p. 522, But that decision was under the old Code, whose provisions on the subject aro less strong than those of the present Code. The decision in the case of Stewart’s Curator v. Row, IQ La. p. 530, has overthrown the doctrine established in Johnson v. Rannels. The will contains a fidei-commissum, and is on that account void. Civ. Code, art, 1507, The property was a short time after the date of tire will brought into this State, and had been subject to its laws more than fifteen years previous to the death of I-Iarper. It may be that between the heirs of Harper, this disposition would be valid in the State of Mississippi. But the question now to be decided is between third persons, purchasers in good faith, citizens of Louisiana, and one. claiming under the will. Under such circumstances, the court is bound to give effect to the laws of Louisiana. Story’s Conflict of Laws, no. 244. 19 La. p. 217. 2 Mart. N. S. p. 97.
    Even by the laws of Mississipi, the limitation on the title to the property in Jesse Harper, imposed by the will, did not prohibit him from alienating or encumbering it, and treating it in every respect as his own. Although a title in lee tail, the statute has made it one in fee simple. Rev. Code of Mississippi, sec. 24, ch. 9, p. 34 ; sec. 24, ch. 104, p. 458. 2 Blackstone’s Comm. vol. 2, pp, 108, 109, 111, 117. The former restraints against alienation by the devisee are removed. If liable to be alienated, it was liable also to be sold for the payment of his debts.

      Bemiss on the same side.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a petitory action to recover certain slaves claimed by plaintiff under the will of his father, Jesse Harper, senior, and which are alleged to be in the possession of defendant. The petition alleges that Jesse Harper, senior, being then a resident of the State of Mississippi, executed his will on the 9th August, 1811, and soon after died, leaving two sons, Jesse Harper and the plaintiff; that by his said will, he made various deyises and bequests to his said sons, but upon the express condition that, should said Jesse or plaintiff die without lawful heir, the portion devised to him should go to the survivor; that, after the death of his father, Jesse Harper took his portion of the slaves bequeathed, and among them those sued for, out of the State of Mississippi into the State of Louisiana, where he, himself, died, without issue, in 1838. The slaves are held by the defendant under a probate sale of the effects of the succession of the late Jesse Harper, junior, who died in Louisiana, in 1838, having here removed with his slaves in 1823. The action is for the recovery of the slaves originally belonging to Jesse Harper, junior, and their issue.

There was judgment for the defendant, and the plaintiff has appealed. The will was admitted to probate in the State of Mississippi. The clause relied on by the plaintiff as establishing his right to recover the slaves as his property, is as follows: “ After that I give to my two sons Jesse and William, all my lands, to be equally divided between them; if either of my sons should die without a lawful heir, his part, real and personal, to the surviving one.” This clause is interpreted to relate to and include the bequest of slaves,made to the sons in another part of the will.

It is contended by the cousel for the plaintiff that, the contingency on which the devise was to take effect in favor of the survivor, has occurred by the death of of Jesse Harper without issue, and that the title to his share of his father’s estate vested instantly in the plaintiff; and that the slaves in question forming no par’tof the succession of the deceased, no title could be derived under the probate sale. The absolute property in the slaves is said to have been vested in the devisee, subject to the contingency which devolved it exclusively on the surviving brother. The difficulty which occurred to us on the argument of this case has not been overcome. It is, whether we can recognise the existence of such a title to slaves as the plaintiff’s rights import, conceding that by the laws of Mississippi he would be held to be the owner oí the slaves, and, as such, entitled to recover them as his property. On their permanent removal to this State, they became immovables by the effect of law.

The clause in the will of Jesse Harper, senior, on which the plaintiff’s claim rests, creates a substitution. By chapter 4th, of the 2d title, book 3d, of the Civil Code of 1808, which was in force at the time the slaves in question were removed to this State, in 1823, which treats of dispositions reprobated by law in donations inter vivos and mortis causa, substitutions and fulei-eommissa are pro hibited. The same provisions exist in the Code of 1825, art. 1507. The nullity of substititions extends even to the instituted heir, donee, or legatee, who is charged to return a thing to a third person; and the courts of this State have uniformly given effect to the prohibition, not only as a part of the law but of the .declared and established public polity of the State. Cloutier v. Lecompte, 3 Mart. 485. Farrar v. McCutcheon, 4 Ib. N. S. 45. Mathurin v. Livaudais, 5 Ib. N. S. 302. Arnaud v. Tarbe et al. 4 La. 504.

The proper application of the law to the case under consideration presents a question of importance, and by no means free from difficulty. It is contended that the law of Mississippi, having had its full effect on the property in dispute for several years, the rights of the parties were complete and vested, and cannot be held to be impaired by its removal to this State, and remaining here for the time and under the attendant circumstances.

On the other hand, it is urged for the defence, that, under the law of Louisiana, no such title in slaves as that under which the plaintiff claims, can be recognized.

It is the attribute of every government to establish and regulate such modifications of the rights of property in things within its jurisdiction, as the public interest requires. Testamentary substitutions are prohibited in this State. The prohibition is established in the interest of public order and state policy. & Toullier, no. 13. Discussions du Code Civil, on art. 896 of Napoleon Code, 2d vol. PP- 8G ot soq. They lmvo always boon held null by our courts, the nullity being of that character which is absolute and irremediable. °

Nor does it appear material in relation to the nullity of the .substitution as the basis of a title, whether the testamentary disposition acts upon the property within this State at the time of its taking effect, or subsequently on the .translation of the property to this State. It is the operation of the testamentary disposition on property within the State which the law reprobates, and it is this obnoxious operation of the will of Jesse Harper, senior, which the plaintiff seeks to carry into effect through the tribunals of this State. The effect which we give to our own laws on property within our jurisdiction is no more than that which is usual, particularly in relation to this description of property.

Throughout the most populous and powerful States of this Union, the right of property in slaves is not now recognized, except under the provisions of the constitution of the United States, and, in most of them, in the course oí their legislation, ithas been limited to a termofyears, and restricted to slaves m esse. They are persons, and their condition and the right of their master to their service depend exclusively on the law of the State under the guarantee of the constitution. It is difficult to imagine on what principle the law of a sister State can have effect on persons and slaves born in this State, and in the service of a citizen and inhabitant. Slaves are considered in Louisiana as immovables. It rests with the legislative power of the State exclusively, to regulate the different descriptions of property or ownership in relation to them. The modifications of the right of property under our laws are few and easily understood, and answer all the purposes of reasonable use. It is incumbent on courts to maintain them in their simplicity. A stranger case could not occur than this, to show the dangers and evil consequences of giving effect, within our own limits, to the complicated and involved jurisprudence upon which the title of the plaintiff has been supported at bar.

"We therefore conclude that the title asserted, being a testamentary substitution which was to take effect on the death of Jesse Harper, junior, he being domiciliated and dying in this State, and his slaves being, and some of them born, therein, we cannot give it effect. Judgment affirmed.


text:
    Harper v. Lee.
    APPEAL from the District Court of Madison, Curry, L This case presented the same question as the case of Harper v. Stanbrough, supra, and was argued at the same time, the counsel being the same in both.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons assigned in the case of Harper v. Stanbrough, the judgment of tho District Court is affirmed, with costs.


text:
    The State v. Briscoe et al.
    In all cases, however summary, the plaintiff mast prove his allegations, or he cannot recover.
    Appeal from the District Court of Madison, Curry, J.

      Phillips, for the State. Snyder, Stacy, and Sparrow, for appellants.
   The judgment of the court was pronounced by

Rost, J.

These proceedings were instituted under the provisions of an act relative to public education in the parishes of Concordia and St. Bernard, approved April 2d, 1835.

A rule was taken by the district attorney upon the defendants, who constituted a board of commissioners for the purpose of building a school-house in the parish of Concordia, to show cause Why judgment should not be entered against them, in favor of the State, for a suin' of $1,500, alleged to have been received by them from the Slate treasurer, and converted to their own use. The defendants excepted to- the proceedings, on the ground that the-rule set forth no cause of action against them, and reserved the right of answering to the merits, should this exception not be sustained. The court below overruled the exception, but refused to permit an answer to be filed ;■ and upon the pleadings. unsupported by evidence of any kind, gave judgment in favor of the State for the sum claimed.

However summary a proceeding may &e> the plaintiff cannot recover without proving his allegations. This case must be remanded for further proceedings.

The judgment is therefore reversed, and the case remanded to be proceeded in according to law, with directions to the district judge to permit tire defendants to plead to the merits the plaintiff and appellee paying the costs of this appeal.


text:
    Pellerin v. Dungan.
    Where a principal claims under a contract of sale made by his agent, and does not deny the authority of the agent to make it, he will be bound by its terms.
    Appeal from the District Court of St. Mary, Boyce, J.

      Maskell, Simon and Morphy, for the appellant. Dwight, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is separated in property from her husband, claims the price of eleven hogsheads of sugar made on her plantation, which she alleges were purchased by the defendant at 4J cents per pound.

The sale, under which she claims, is shown by the defendant to have been made by her husband, acting as her agent, and to have been reduced to writing. The consideration therein stated is, the transfer to the plaintiff of certain store accounts, which it describes.

The plaintiff admits the agency of her husband in the management of her property; she does not deny his capacity to make such a contract; and, as she claims under it, she is not entitled, under her showing, to receive payment in money.

The court below gave judgment against her as in case of non-suit; but, as her claim is devoid of equity, the judgment must be made final, as prayed for.

It is therefore ordered that the judgment be amended, and that there be judgment in favor of the defendant, with costs in both courts, reserving to the plaintiff her rights under the contract.


text:
    Prendergast v. Perkins.
    ■Pó authorize a'purchaser to resist payment of the price, or to re qaire security against eviction, he must show either that his vendor had no titlo to the property sold, or that he has been disquieted in his possession, orhas'justrcáSon to apprehend that he will be disturbed. C. C. 2535. C. P. 710’.
    Appeal from the District Court of East Baton Rouge, Boyle, J.
    Gf. S, Lacey, for the appellant. JSlam, for the defendant and interVenor.
   The' judgment of the court was pronounced by

King, J.

This suit was instituted originally against Per/cins alone, as the-endorser of a promissory note, of which Beaumont is' the maker. Perkins denied that the plaintiff was the owner of the note, and alleged that it belonged to’ her husband, Thomas Prendergast; that it was given for a part of the price of a' tract of land, sold to Beaumont, which was found to be largely deficient in quantity ; that the note was received by plaintiff after its maturity, and is subject, in' her hands, to all equitable defences; and he' pleaded a failure of consideration. Beaumont, the maker, intervened in the suit, and adopted the defences set up" by Perkins ; and further alleged, that he had been disturbed in the possession of the land for which the note was given; that, at the time- of the sale to' him', there were outstanding titles superior to those of his vendor; and that he had been compelled to institute a suit to test the validity of his title, to which his vendors,, Prendergast and Branagan, had been made parties, as warrantors. Tie prays" that, in the event of a judgment being rendered in favor of the plaintiff, its execution may be suspended, until security be furnished’against the consequences of eviction. Issue was joined upon the intervention of Beaumont, and a judgment against him prayed for. A j udgment Was rendered against both the maker and endorser; but the plaintiff was required, before issuing execution, to furnish the' security asked for by the defendant and the intervenor. The plaintiff has appealed, and complains of that part of the decree of the court below requiring her to furnish security.

It appears from the evidence, that the plaintiff was a creditor of her husband for a sum exceeding the amount of the note sued on, for her paraphernal effects,received by the latter, and that the note was transferred to her for the purpose of replacing those effects. The testimony satisfies our minds also, thatPreradergast was the owner of the property for which the note was given, up to the-date of the sale to Beaumont; that he was in reality the vendor of Beaumont,. acting through Branagan, who was a person interposed ; that the note sued on-was executed for his benefit; and that it went into the hands of the plaintiff, after maturity, under circumstances which left it open to such equitable defences, if any such existed, as are available against a party receiving a note after maturity.

In order to authorise the defendant and the intervenor to resist payment, or require security, it was incumbent on them to show, either that the vendor was without title to the property sold, or that the purchaser had been disquieted in his possession,'or had just reason to fear that he would be disquieted. C. C. art. 2535. C. P. art. 710. Pepper v. Dunlap, 9 Rob. 283.

The only evidence relied on in support of the plea that there are outstanding titles to the land, superior to those of the vendors, Prendergast and Branagan, or that the purchaser has been disquieted, is the record of a suit instituted by Beaumont against Labauve and others, for the purpose' of testing the Validity of their respective titles, and the' pleadings in that suit allege no better title in the defendants. The defendants, Labauve and others, have not joined issue in that cause, nor, as far as we are informed, do they deny the validity of Beaumont’s title. The defendant, intervenor in the present suit, has not produced’ the titles under which it is alleged that Labauve and others claim, if any such exist,- whereby we would have been enabled to determine whether they interfere with Beaumont’s claim. The defendant and intervenor have clearly failed' to show any of the circumstances which Would authorise them to suspend the payment of the note, or to require security against eviction before paying it.

Itis therefore ordered that so much of thejudgment of the District Court as decrees that no execution issue on sa#d judgment, until the plaintiff furnish bond# with good security, to refund the principal, interest and costs of said judgment to the defendant and intervenor, should the suit of Thos. Beaumont v. Joseph Labauve et al., No. 801, now pending before the Fourth District Court of the parish of West Baton Rougey be decided adversely to the claim of Thos. Beaumont, be avoided and reversed. In other respects said judgment is affirmed,, the appellee paying the costs of this appeal.