Volume 1 — Martin's Louisiana Term Reports, New Series (1821–1830)

<p>Appeal from the court of the first district.</p>

<p>on application for a rehearing. It is with the utmost reluctance that the defendant’s counsel forces himself on the attention of the court once more in this cause. A perusal of the judgment, however, convinces him that the verbal arguments he urged on the hearing, were so ill expressed as not to be understood at the time, or so feebly stated, as to have escaped the attention of the court during the long interval between the argument and the decision.</p> <p>The court say that the defendant contended that Fouque was not “tutor either de jure or de facto.” This statement convinces me, my argument was misunderstood ; because it implies an admission that if he had been tutor de facto he would have been liable. Whereas the foundation of my whole argument on this point was, that there could be no such thing as a tutor de facto, as opposed to one de jure, that he must either be tutor de jure, or a mere intermeddler in the affairs of the minor.</p> <p>The argument I pressed was this. The law gives the tacit mortgage on this subject in two cases only.</p> <p>1st. On the property of the tutor. Civil Code, 72—75.</p> <p>2d. On the property of him who “without being tutor” takes upon himself the administration of the property of the minors Civil Code, 456, art. 20.</p> <p>The court cannot extend it. There is no reason for doing it if they could ; the law gives no lien on the property of those who deal with the tutor, or who borrow the minor’s money from him.</p> <p>Was Fouque tutor? this was my first enquiry, not did he act as such? not did he take the title? not even did he accept the trust? none of these acts give the lien. He must be tutor to come within the first provisions of page, 72, 75.</p> <p>If he was not tutor than he must have administered, to bring him within the provision of the Code 456, art. 20.</p> <p>The court in their opinion clearly lose sight of this distinction for they say. “By the opinion heretofore rendered in this case, it was “determined, that Fouque did assume and take “upon himself the tutorship as set forth by “the plaintiff.” But because a man named as tutor by the testator, takes upon himself the tutorship, is he therefore a tutor? no more it appears to me than a man would be sheriff who on being named by the Governor should act without being confirmed by the senate and without taking the oath or giving security.</p> <p>The office of tutor is as much created by law as that of sheriff. The father or mother have no natural right to make the appointment any more than the Governor has a natural right to make a sheriff; both powers are given by positive law, in both cases all the formalities required by law must be complied with before the act is complete. The father or surviving mother may appoint a tutor that is, they may name one, but something more is requisite besides this nomination and the tutors acceptance. The judge must confirm this appointment, art. 14 p. 60 ; art. 15, he may on a refusal to confirm appoint another, art. 22 speaks again of his right of confirmation, where there is a previous nomination; or of appointment, where there has been none; and gives a right of appeal to this court from his decision. But this is not all, art. 53 “prior to the entering “on the exercise of their duties” they shall take an oath faithfully to fulfil them, and art. 55 he shall give security to the Judge who “appointed or confirmed him”.</p> <p>This is the will of the law by which alone the office of testamentary tutor is created; he must be named by the father or mother, must accept, be confirmed by the Judge, must take the oath of office, and give security; until all these five requisites concur, the law has not been complied with, which makes him tutor. Here there have been only two of the five he has been named by the testator and (the court think) he has accepted; but would not the court I respectfully ask, alter the law if they should say (which they have not yet done) that two (out of five requisites) being complied with, he was therefore tutor? if they can dispense with the three last requisites why not with the two first? what bounds would there be to such constructions?</p> <p>To test this strictly, suppose an application made for a quo warranto against a Parish Judge who had omitted only the taking the oath, and giving security, although he might have been confirmed by the senate and commissioned, and he was to answer that he was Judge. Can there be a doubt that the determination would be against him, but how much stronger would the case be if he had never been confirmed or commissioned. Can there be any difference because this is a private office? surely the reason is the same. If he is tutor without taking the oath, without being confirmed, without giving security, then he need never perform these formalities, then he may administer without those safeguards for the correctness of his administration, then no tutor would ever give this security, then the law would be a dead letter which prescribes it. Suppose Fouque had brought a suit as tutor and the defendant was to answer by denying that he was tutor, could judgment be given for him merely by his producing the evidence of the will and the inventory? if not, then surely this branch of the enquiry is decided, and we must say that he was not tutor.</p> <p>I entreat the court to remember that our first enquiry is strictly, was he tutor? Not whether he acted as such, or called himself so, or thought that he was, but was he so really? If he was not, then he cannot come within the purvieu of the 75th article, and we have disposed of the one-half of our enquiry.</p> <p>I am the more earnest on this point because neither in the first, nor the second judgment of the court is this question decided. If the court say that he was tutor, although never confirmed, and without the security and the oaths, then I should think myself presumptuous in saying any thing more on the subject, but until that is done the consequence of the cause to my client and the extensive results of such a decision upon the principles of our jurisprudence make me deem it a duty to ask the decision of the court upon it.</p> <p>In the first decision of this cause, 10 Mart. 483, the principal attention of the court seems to have been drawn to the question, whether Fouque had accepted the tutorship? and deciding that he had, they determine that the tacit mortgage attached—it is true, they say, page 485, that the want of the oath, and of the security (leaving the want of confirmation wholly out of view) “are circumstances which cannot alter the nature or extent of his liability.” But what I ask the court most respectfully to determine, is, not whether these omissions alter his liability, (I well know, that if he has administered, these omissions would, certainly not lessen it,) but, whether he is tutor without having complied with those formalities, and without being confirmed? I regret exceedingly, that, that part of my petition for a re-hearing, which went to the merits of the case, has been mislaid by the judge; it contained some arguments and authorities, of which I have kept no note, and to which I should now be glad to refer, having no time to look again for the authorities—only that part is printed, which relates to the admissibility of Fouque as a witness. Before I quit this first enquiry, permit me also to remark that I think the analogy endeavoured, to be established in the first decision of the court, (10 Martin, 483) between the tacit acceptance of a tutorship and of a succession is not well founded.</p> <p>It is based on the maxim ubi eadem est ratio, eadem est lex—but nothing it appears to me can be more dangerous than such a maxim, if applied to different branches of our statutory jurisprudence; the court in such case would have by means of this maxim, the complete controul of all the written laws. The provisions of one statute, would always be extended to another, although the Legislature by their omitting them, had as clearly signified their will as they could have done by express words,—and surely nothing can exemplify this more strongly than the present case: the Legislature have declared that when the heir assumes that quality in any instrument or judicial proceeding, he shall be deemed to have accepted the succession; no oath, no confirmation, nothing more is prescribed. With respect to a tutor the Legislature have declared, that he must be named, be confirmed, take the oath of office, and give security. Now if the court think that there is no more reason for these formalities in the case of a tutor, then in the case of an heir, in other words that eadem est ratio, the consequence follows eadem est lex, and the whole form, nay, the very essence of the statute is changed—it is as completely repealed as if the legislature had done it: for as the courts must execute the legislative will, if they adopt a maxim which authorises, nay, which obliges, them, to put such a construction on the laws, as to make them all come within the same rule of reason, as their rule may be different from that adopted by the legislature, and as there can be but one true rule of reason, they must adopt that which is the true one, and whenever it conflicts with that of the Legislature, the latter must give way. But in this case, if even the maxim should be adopted as our rule, it will be proper to inquire whether the reason why the slight evidence which is sufficient to show the acceptance of a succession, should also be enough to charge a tutor with all the burthens of his trust.</p> <p>The ratio quare appears to be widely different: the one, is an act which holds out great inducements for the party to perform, but by which he may also incur responsibilities—the law therefore will not permit him to play fast and loose; to declare one day that he is heir, to act as such, perhaps get the succession by those means, and then by denying that quality, to avoid the payment of the debts of the estate. This is the reason why they make the first act of assumption obligatory on him. The quality of heir also is not a trust, not an office. The person upon whom it is cast is at perfect liberty without consulting a magistrate, or finding security, or giving any pledge, to take the quality, it depends entirely on his own volition, every act therefore, that evidences that will, is sufficient to make him heir: and the legislature has for greater certainty designated what acts shall be legal evidence of it.</p> <p>But the case of a tutor is widely different; it is a trust, an office, a private one indeed, but still an office; created by law, and the admission to which is regulated by forms prescribed by law. It does not solely depend upon the will of the person who is named by the testator to be tutor, as it does on that of the person whom he has instituted his heir, to determine whether he will be so or not; the judge must be consulted, his securities must be approved, he must take the oath and receive his commission, or his confirmation, which is equivalent to it.</p> <p>The acceptance therefore makes the heir; but the acceptance alone does not make the tutor. The reasons of the provisions which govern the one case, are not the same with those which govern the other.</p> <p>Having offered my reasons to show that Fouque in this case was never the tutor of the plaintiff, if they are satisfactory, I have only to show:</p> <p>II. That Fouque never took upon himself the administration of the property of the minors.</p> <p>The object of these two articles of our code was evidently to carry into effect the provisions of the ancient law for the security of minors against the acts of those, who either with or without authority, should administer their estate. They go to the full extent of those laws, but they go no further. They make the tutor liable for omission as well as mal-administration. But they make the intermeddler liable only for the losses occasioned by his administration. For this doctrine I refer the court to the authorities, (and they were very numerous) which I cited on the hearing. If, for instance, one without being tutor should administer as such, but faithfully administer, and that a legal tutor should afterwards be appointed, by whom the estate of the minor should be defrauded, surely then the unauthorised administrator could not made liable for these losses.</p> <p>The second enquiry then after determining that Fouque was not tutor, would be, has he “taken upon himself the administration of the plaintiffs’ property?” if he has, have they suffered any loss in consequence of it?</p> <p>If from any thing that appears in this cause, these facts can be fairly inferred, then I give up this point of the defence of my unfortunate client. To resolve the first of these questions we must have a distinct idea of the terms that are used, what it is to take upon oneself the administration of a minor’s property.</p> <p>Our code tells us that words are to be understood in their “most known,” “usual,” “general,” and “popular” signification—with this guide I should say that there can be no administration of an estate without some act in relation to it, such as none but an owner or one authorized by him could legally do. To pick up an article of personal property that had been lost belonging to a minor, and carry it to his guardian—to borrow the same article and return it; to make a list of property to be delivered to the executor, none of these are acts of administration, because none of them imply ownership or authority. If my definition be a true one, (and I am really at a loss how the word can be employed in any other sense,) we are prepared to determine how far Fouque had taken upon himself the administration of the plaintiffs’ property, by any of the acts he had done.</p> <p>What are those acts? it will not take us long to enumerate them. He assisted at the taking an inventory preparatory to the executors taking possession of the property; in the caption to which inventory, which probably he never read, he is styled tutor, immediately after which the executor (who was also named tutor) takes the whole and exclusive possession of the property, in conformity with the directions of the will by which the seizen is given to him alone. How then is it possible that Fouque could at this time, and by this act, be said to administer, when the very act was, to give formality and notoriety to the sole administration of another? Nothing was done here that by the most forced construction could be supposed to imply an act of authority or disposition, of the property by Fouque, consequently there was no administration.</p> <p>The next and the only other act relied on, is the borrowing the money—but it is difficult to conceive any act, that so completely excludes the idea administration as this does. The administrator is he who lends, certainly not he who borrows; if every man who borrowed money of a minor’s estate were to be considered in that light, there would be no end to the tacit mortgages it would produce, and it would soon effectually put a stop to any species of dealing with a tutor; for as no kind of dealing can be more remote than this, from the idea of an administration, every other kind would of course incur the responsibilities and inconveniencies attached to it.</p> <p>It will surely not be objected that although neither of these acts alone would amount to an administration, yet that being accompanied in the two instruments by which they were effected, with an assumption of the quality of tutor, that this changes their nature. I say this will not occur to the court, as an objection to my argument, because we are not enquiring now whether Fouque took upon himself the quality of tutor, or what effect that assumption would produce; we are only inquiring whether he administered—and to say that he administered because he was tutor, and that he was tutor, because he called himself would seem to be revolving in a circle which we could never quit, and carrying us back to the first branch of our inquiry, which if we wish to reason distinctly, should not be confounded with the second. The law has designated two cases in which the tacit mortgage attaches, and only two. First, when the party is tutor. Secondly, when he administers the property without being tutor. If the court say that it shall attach in all cases where he calls himself tutor, it appears evident to me that they add a third case to the two which the law has thought sufficient for the security of the minor, and if they go on to say that whoever acts as tutor, though he does not administer, the property shall also be liable, they add a fourth case; for there are acts which none but a tutor can lawfully do, which are not acts administrative of the minor’s property. The making of an inventory of property in possession of another, as in the present case, the directing of his education, the care of his morals, the selection of his masters, the consent to his marriage, and others of this nature, have no relation to his property, and therefore certainly can never, come within the letter nor the spirit of the law, which attaches the lien on those “who without being tutors, take upon themselves the administration of the property of the minor.” I hope the court will excuse me for requesting them once more to remark that it is not administration alone, but administration of the property that causes the lien,—and that therefore I am right when I say a man may act as tutor and incur no responsibility if he is not tutor, and does not administer the property.</p> <p>The legislature has by a series of late acts shown the utmost solicitude to reduce the number of these tacit liens, which render purchases, insecure, and sometimes cause the ruin of the most cautious dealers. If the court had the power to extend them, they would it seems to me, pause before they did it; but in a case where the legislative will is so clearly expressed, and has confined the lien to two cases—they will do more than pause, they will stop, and not add a third or fourth case, as I think has been demonstrated they must do, if they give the lien and do not explicitly either that Fouque was tutor, or that without being so, he had administered the property. They have not yet said so, when they do so I shall respectfully submit and lament that interest for my client should so far have clouded my faculties, as to have prevented my perceiving the true application of the law to my case. One word more on the subject of the loan made by the executor to Fouque, considered as an act of administration in the latter. I have said that no act could more effectually exclude the idea of administration than borrowing, because it showed most explicitly that the exclusive management and direction was in another. Let me add the circumstances that appeared in evidence; that he gave first a mortgage, then, endorsed notes, then, other notes, and another mortgage, that he was put to great shifts and inconveniencies to find that security, that he paid one per cent. per month for the money, which paid monthly, amounts to near three times the sum he would have been obliged to pay, had he really administered and had chosen to keep the money in his own hands; that he covenanted expressly to repay the money to Vellio the executor, or to his representatives; that Vellio proved the debt as one due to himself as tutor; that Fouque entered it as such on his bilan; that no facility whatever in the transaction was given to him on account of the assumed quality of tutor in the instrument, but on the contrary every possible precaution taken to secure the debt and to increase the interest that would have been taken from an utter stranger, and surely we shall have a case as distinct from one of an administration as it is possible (for my mind at least) to conceive. If Fouque under pretence of being tutor and calling himself so, had obtained the money, it would have been an act of administration and made him liable as such, but when so many circumstances as those I have enumerated concur to show that the name of tutor, gave him no facilities beyond those a common borrower would have had, the idea of administration must be discarded, and the introduction of the words “as tutor, &c.” in the instrument must be ascribed to mistake, and considered as mere surplusage, more especially when we find that in the original loan, no such title is assumed, and by the testimony of Michel and of Fouque, this appears a continuation of the same business, the changing of the securities being the only alteration.</p> <p>If this loan was not an administration there is no other act that he has done but being present at the inventory. I have shown that it was not such an act, because the property was then in Vellio’s hands, had been put there by direction of the will, and by the same will was to remain under his sole direction, he was tenedor de bienes, and the inventory was taken merely to state the amount, not of the tutor’s inventory, but the executor’s. This was no more an act of administration on the part of Fouque of the minor’s estate, than it would have been of mine, had I employed him to make a catalogue of my books, which I intended to lend, or give, to another. But suppose this to be such an act, what are the consequences of it? If any loss has resulted from his interference make him responsible for the amount of such loss. But surely! surely! if not the slightest inconvenience has resulted from that act, it would not be quite consonant to equity to give it as the reason for changing the nature of a subsequent transaction, which without it would have been an ordinary loan, transforming it into an act of administration, and charging it as a tacit lien on his estate, to the utter ruin or an innocent purchaser.</p> <p>III. Another point in which I flatter myself with convincing the court that there is error in the judgment, is the effect which the judgment against Fouque ought to have on the decision of this cause.</p> <p>I can present nothing so forcible or better adapted to truth, and to my cause, than the following reflections of the court, to show that we have a right to examine into the legality of that judgment. “The defendant, (says the court) in the case now under consideration, is an entire stranger to the proceeding against Fouque; if he cannot question the validity of that judgment, as a means of defence against the seizure and sale of property acquired from the principal debtor, no means of protection would be left for him against the most iniquitous collusion and fraud, which might have been practised between the original creditor and debtor.”</p> <p>Thus we have it established, and indeed it has never been denied, that a judgment against the original debtor is necessary to support this suit, that we have a right to inquire into the validity of that judgment; and as a consequence, if we find it illegal or unjust, that it can be no foundation for this suit. These principles are clear and they are established by the decision of the court.</p> <p>A judgment has been produced. Is it valid?</p> <p>The court have taken a view of it, which has led them to believe that it is. But I trust fully that further consideration will induce them to alter that opinion. If the syndics were necessary parties to the suit, then it seems conceded, that the judgment against Fouque alone was erroneous. I will first examine this objection before I proceed to the consideration of the others. I contend that Fouque was not liable to the suit of the plaintiffs—he had made a cession, the consequences of which were by express law an exemption from any suit, except in two cases: first, for fraud by our statute—secondly, for the surrender of other property he might subsequently acquire, Part. 5, 15, 3. Civ. Code, act of 1817, 1st sect. The court say that because he may be sued in these cases, “he is not absolutely privileged against suits on account of debts which existed previous to the cession of his estate; and that, if there be such cases, we can imagine none more just and proper than a suit, the object of which is merely a liquidation of the debt due by the insolvent, in order to pursue third persons, &c.”</p> <p>Now it is respectfully suggested that this is not the legal conclusion; if the law exempts from suits except in two cases, it appears that, however equitable it may seem, the court cannot add a third; it may be just and proper to allow such suit, but as it does not come within either of the exceptions, it is barred by the general rule, which is as express as words can make it; the law of Partidas, above referred to, says of the cession: “tal fuerza hay, que despues, nose pueden ser el deudor emplazado; ni es tenudo de responder, fueras ende, si ouviesse tan gran ganancia, que podria pagar los deudos todos, o parte de ellos.”</p> <p>The only cases in which a suit is allowed after a cession then, are one, which may be brought to recover property afterwards acquired; another alledging fraud under our statute. The suit against Fouque was neither; therefore the suit against Fouque, was not authorised by law; and of course was invalid and can be made the foundation for no subsequent proceeding. The case cited by the court, Fitzgerald vs. Phillips, 5 Martin, 588, as the doctrine, that a suit may be brought against an insolvent in other cases, will be found on further examination, to show clearly, that such a suit can only be brought on a suggestion that the party has acquired other property. The same case was further considered, 4 Martin, 294, when the court expressly say, “Finally, in this case, the right of the creditor to sue being created by the change which happens in the debtor’s situation, he should alledge and prove it. In this case, therefore, if the want of that allegation had not been cured by the answer of the defendant, we would have dismissed the action when it first came up before the court.” In effect, I pray the court to re-consider that part of their opinion which “considers a suit (against the insolvent) for the liquidation of the debt due by him in order to pursue third persons who may be responsible for such debts, either as third possessors or sureties, as the most proper and just that can be imagined.” I pray them to consider whether, to use their own strong and expressive language, it does not leave the third possessor “without protection against the most iniquitous collusion and fraud which might be practised between the original creditor and debtor.” Let it be considered, that in such case, the original debtor has no interest whatever in the defence of the suit—it is not brought (by the very case assumed by the court) to make him liable, but another; he will, (to say the least,) be careless, and may, without risque of detection, be corrupt in the defence; he may suppress proofs of payment in his possession; or he may not exact the necessary proofs on the part of the plaintiff; (such as the production of the note in the present instance) of what avail, then, would a judgment against such a party be, in order to charge an innocent third possessor with a debt? Surely, this worse than useless formality, this dangerous proceeding, could never be permitted much less required by the law; and most surely, when the law in terms forbids it, the court cannot take upon itself to introduce it, under suggestion that is equitable or just.</p> <p>But if not against the insolvent, against whom must the judgment required by law be obtained? I answer, that if such action can be brought at all, it must be against the syndics. They alone, can represent the insolvent as to all transactions prior to the cession: they have all his papers—they are supposed to have knowledge of his affairs, sufficient to conduct his defence. The court seem also to be of this opinion but for a mistake in point of fact on the evidence in the cause, and a consequent error in the law is applied to it. The court think, that by the evidence in this cause, the syndics had completely performed their trust, in the year 1813, when they made a distribution; and that in all cases the law is, that the office of syndic ceases, as soon as distribution shall be made.</p> <p>The office of syndic is a trust, which embraces all the pecuniary affairs of the insolvent. If before distribution, the defence of such a suit as the one in question, formed a part of this trust, (and it is conceded by the judgment that it did) it must form a part of it after such distribution; because, the office is to continue until every part of the trust is fulfilled. It would be different, indeed, as to the syndics personally, if the distribution was accompanied by a formal discharge from the trust. But in that case, though the person might change, the trust would still continue, and would not revert to the insolvent; but whoever found it necessary to bring any suit, in which his estate ought to be represented, would be obliged to proceed to the nomination of new syndics; and this has frequently been done in practice here. As to all transactions prior to the cession, the insolvent is completely defunct, and his syndics represent his estate as completely, as the heir does that of the ancestor in this country; or as the executor does his testator in countries, where the execution is not limited in duration as it is here.</p> <p>Let us suppose the case of syndics appointed twenty years since, who have made the distribution of all the monies, that in that time they have been able to collect; and that at this day one of the creditors should discover real property belonging to the estate not claimed by any adverse possessor, but unsold; or a debt that might now be recoverable, though formerly supposed desperate, would not the syndics, (always supposing they had obtained no formal discharge from their trust,) would they not, although they may have made a former distribution, be allowed to sell the property; to recover the debt; and make another distribution of the proceeds? If they would, then certainly it shows, that the office has not expired: and if not, they are as liable to be sued as they are capable of sueing. But suppose that the distribution operates as a discharge, and that they cannot sue for, or distribute the same; it will not be denied, that the creditors may appoint others who may; and that too, without calling on the insolvent for a new cession. This shows, that the trust is not ended, even when the persons who were appointed to execute it are incapacitated from performing the duties; and if the trust exists for one object, it must for all: and the same means in case of discharge, may be resorted to by the party whose interest it is to bring a suit against the estate, as may be pursued, in order to enable a suit to be brought. If, then, the distribution operates as a discharge of the old syndics, the plaintiff ought to have caused the estate to be represented by new ones; if it did not so operate, the old ones ought to have been made a party. But the distribution does in no case operate itself as a discharge. The syndics may, in case they think nothing further is required to be done, demand such discharge, and the court may in proper cases grant it; but here the syndics did no more than declare a dividend of the money in their hands, which all syndics by our statute are obliged to do, whenever they have funds; (Sec. 33, 34, 35, of the laws of 1817) and which, from the very nature of their trust, they would be obliged to do without any such provision. The money they collect belongs to the creditors, and as owners, they may ask for a distribution as often as a reasonable sum has accumulated in the hands of their trustees: there, then, may be many dividends. Each dividend is a distribution, and until the syndic is formally discharged, the making of a distribution does not put an end to his trust. Thus much on the law of this point. Now, as to the fact. The syndics, it is true, made two dividends, one in the year 1813, and another in the year 1814. But they filed the tableau which the court thinks was the termination of their trust at the time of the first dividend, in 1813; but continued to act, to collect money, to bring suit until 1814, when they made the second dividend, a full year after this supposed cessation of their functions. The date of the tableau proves when it was made, and the statement defendants in their petition, when they received the second dividend. But even then, neither they, nor the defendant, nor this honorable court, nor any one else, thought they were discharged; they hoped to make a third; there was other property, as they thought, belonging to the estate; and several years after the distribution, which the court thinks put an end to their office as syndics, they brought a suit against the defendant to recover the property of these very negroes, which the present plaintiffs have seized as being bound by their secret lien.</p> <p>The cause was commenced in the parish court by original petition, filed in 1814, by supplementary petition filed in 1818, was tried in 1819, and was removed to this honorable court, where it was finally decided, so late as March 1819; and, consequently, was pending when the second dividend was made, and when the suit was brought against Fouque. During all this time, it never occurred to plaintiff, to defendant, or to the court, that the trust had ceased. Certainly the syndics never elected that it should cease, they still considered the estate as unsettled, and were suing for the recovery of property they thought a part of it at the very time the Judge dismissed the suit as to them, (on what ground I know not, for he has given no reasons for his judgment,) as they could not be discharged without their consent, this seems conclusive. But it is not all: immediately after that suit was decided, the present plaintiffs began theirs to which they considered it necessary that the syndics should be made parties, the syndics came in and answered, but they did not deny their quality, they still considered themselves as capable of being sued, and though the judge ordered the suit to be discontinued as to them, it was not because he thought they were not syndics, but because he erroneously thought Fouque was the proper defendant.</p> <p>This fact of their continuance in office, must I presume change the decision of the court, which was founded wholly on the idea of their being discharged. I have said perhaps more than enough on this part, but let me submit this query to the consideration of the court—if Vignaud in the suit brought by the syndics had pleaded that they were no longer such, would his plea, under all the circumstances of the case, have been allowed?</p> <p>The first reason then why the judgment produced against Fouque cannot be a foundation, for this suit is made out by the principles laid down by the court, and by the facts in the cause, that at the time the suit was dismissed as to them, they were, if the suit could be supported at all, the necessary parties to it.</p> <p>The second reason I shall alledge is, that the district court had no jurisdiction of the cause. By the Spanish law as well as by our statute, all suits relative to the estate must be brought in the court having cognizance of the cession, which in this instance was the parish court; we were no parties to the cause, and therefore could not make the objection.</p> <p>A third is, that the judgment is void on its face, no reasons having been assigned on which it was founded. This judgment was rendered on the 2d June, 1818, and on the 23d February 1822. Four years, one month and twenty-one days after the judgment was rendered, and not until after the second judgment on the re-hearing had been granted in this cause. The plaintiffs’ attorney moved to amend the judgment and the court ordered it by enacting these words: “The court being satisfied that the plaintiffs’ claim is fully supported by the evidence." This point always escaped the attention of the defendant’s counsel. I could not think it possible that such a procedure should have taken place at all, and still less without notice to me, and when I perceived it, it was not until I had compared the record with the minutes that I could be convinced there had not been some mistake in copying the dates.</p> <p>A fourth is that if any suit can be sustained against the defendant on the tacit mortgage it ought to have been brought by the syndics. The plaintiffs claim as mortgage creditors; now this court has decided in the case of Lanusse's syndics 455, that the mortgagee cannot himself sue, but the syndics must sue, recover the amount and distribute it; if there be any difference with respect to tacit mortgages I cannot discover it; there may be cases in which the proceeds of the mortgaged premises would be applicable to higher privileges, costs, funeral charges, &c. Should it be objected that here is a third possessor? I answer that the same circumstance occurred in the case of Williamson's creditors, 5 Martin, 620. S. Henderson had bought and possessed the house, but it was not held to alter the general doctrine.</p> <p>A fifth objection to the judgment against Fouque, is that it does not appear to have been rendered on any evidence whatever and particularly that the essential evidence of the production of Fouque’s note was not required. In determining on this argument the court are of opinion that the evidence on which the judgment against Fouque was pronounced cannot be inquired into in the present suit. Here again I refer to the doctrine previously laid down in the judgment the terms and substance of which I have before had occasion to quote and to admire. “That if the defendant cannot question the validity of that judgment as a means of defence against the seizure and sale of property acquired from the principal debtor, no means of protection would be left for him, against the most iniquitous collusion and fraud which might have been practised between the original creditor and debtor.”</p> <p>But how can I question the validity of the judgment if I am not permitted to inquire into the evidence on which it was rendered. What means have I to detect collusion, if I am are not permitted to show that no defence was made when there was a good one; that the defendant did not require the evidence to be produced, which would have been required by the court, had the objection been made by the defendant. It does not appear a conclusive answer to say that we must presume the court would not have given judgment for the plaintiff, if they had not had sufficient testimony to justify them; if that presumption were sufficient, it would be useless to grant appeals; and we all know that where no defence is made, or where parties appear and make no objection, courts every day admit testimony that would otherwise be rejected, and give judgments, that would not have been given had a proper defence been made. In the present instance Fouque contented himself with pleading his cession, and threw his defence on the syndics. The suit was discontinued as to them, and there was no defence, no one to point out deficiencies in the proof, and the court did not think it their duty to examine into them. What then is meant by allowing me to question the validity of a judgment? It is on that may see that it|s pronounced in the forms prescribed by law, that there has been a a positive citation, answer and judgment; if this be all, it is but a poor privilege; for collusion will take care to clothe itself in the outward legal garb; but to detect it and enable me really, not nominally only, to question the validity of a judgment, I must do that which the court say I am not allowed to do, I must inquire on what evidence it was founded; I must be enabled to show if I can, that the defendant in that suit to which I was no party, has sacrificed my interest to his carelessness, or sold it by his collusion, otherwise the privilege of questioning the validity of the judgment would be illusory and unavailing.</p> <p>There is no maxim in jurisprudence better established or which has fewer exceptions than this, that no man is bound by a judgment to which he is no party. But if I am not permitted to inquire into and to contest the evidence on which a judgment to which I am no party, but which affects my interest is founded, I am then bound by it and in every such case of course this wise principle of law is disregarded, I am bound by a judgment to which I am neither privy nor party. All these incongruities and inconveniencies are remedied by giving the party whose interests are to be affected by a judgment to which he is no party the right as well to contravene its justice as its regularity, in other words to examine whether the evidence given in the cause was sufficient to support the judgment.</p> <p>If we then have this right the task is easy. No manner of evidence appears to have been introduced, there is indeed a copy of the notarial act annexed to the petition, but whether an authentic copy or not, does not appear. There are, the petition, the answers, a record, that the cause was brought to trial, and a judgment, but no witnesses examined, no papers read or produced, and it is not until four years afterwards that the judge refers to any reasons for his judgment. He then indeed says, that he was satisfied that the plaintiffs’ claim was supported by the evidence, but that declaration, the court will certainly agree with me, was a mere nullity; let it be remarked that we have a complete copy of the record before the court. If a witness had been examined, his name would have appeared; if a paper had been produced, it would have been on file. What does not appear for all our purposes is not. We cannot prove a negative, the record is prima facie; nay. I should say unless diminution is alledged, conclusive evidence that it contains all the matters relating to the suit. It contains no evidence, not even the will, nor the inventory. The plaintiff relies wholly on the notarial act, and it is even doubtful whether an authentic copy of that act was produced. That act refers to a note which the mortgage was intended to secure, the mortgage was tacked to the petition, but the note certainly was not. The record incontestibly proves this fact. Now in the case of Cox vs. Rabauds syndics, 4 Martin 16, it is positively declared that the mortgage is not enough, the plaintiff must also shew that he is the holder of the notes. The court seem to admit this necessity, for they say “ whether the note alluded to was or was not produced on the trial of the suit against Fouque does, not appear. If it was (they add) it remains on file in that action, and has nothing to do with the present suit, if it was not, we must suppose its absence was supplied by other legal testimony.” Now we have shown by an inspection of the record that it is not on file, the same record proves that there was no evidence to supply it; and if I have been successful in showing that we have a right to inquire into the justice of that judgment, it must have something to do with the present suit; for although this suit is brought for a tacit lien, that lien grows only out of the loan, which was evidenced as much by the note, as the mortgage. Suppose Fouque had discharged this debt to Vellio at the time it became due, and taken up his note, can there be a doubt that Fouque, much more his innocent vendee, would be exonerated ? Suppose instead of receiving the money from Fouque, he received it from another and transferred the note to him, could it make any difference. If we say no, it leads to this manifest injustice that the heirs recover from us, and the executor receives the same debt from the person to whom he has transferred the note. Besides, the holder of that note is subrogated to all the rights which the nature of the transaction gave him, if it carries with it a tacit mortgage, he will be entitled to avail himself of it, and our property will still be liable, even after we have paid this claim.</p> <p>The court seem so decided as to my objections to the want of a trial by jury, when it had only been waved by those who were declared to be no parties to the suits, that I will say nothing more on that subject, but close with an objection to the present suit, that I think must be fatal.</p> <p>There are judicial and conventional mortgages, which are evidenced by written acts; tacit mortgages, which in some instances have no writings to support them.</p> <p>The law says, Civ. Code 62, art. 43, that mortgage creditors may cause the property affected to be sold, and that a seizure shall be ordered, by producing a copy of the act of mortgage, a judgment against the principal debtor, and the oath of the creditor, with the additional proviso, art. 41, that the titles have been registered in the manner prescribed by law. But in cases where there is no instrument to produce, and of course where there can be no registry, what is to be done. The court think that the provisions of the law are to be dispensed with, and that in such case the judgment and the oath are sufficient, but by what authority? The legislature when they required the production of a title and a registry, knew that there were cases of mortgage in which they could not be produced they speak of them in the very section; they had not forgotten them, but they require for the seizure a requisite which cannot be complied with in those cases. The conclusion is palpable, they meant to exclude them from that off-hand mode of proceeding. Tacit mortgages, which derive their existence from acts not evidenced by writing, are always subject to doubt and contestation, and it was thought unreasonable to begin by depriving a man of property in his possession, while the claim of the plaintiff rested only on parol proof and on doubtful allegations. Nor is there any necessity to justify an extension of the law in this particular; the party, without having recourse to this summary mode, which I verily believe it was never intended he should have, is not without remedy; he may proceed in the ordinary way against the third possessor in the manner pointed out by the C. P. L. 119, No. 2, and other Spanish books of practice. As then this is a special remedy, as the only road to obtain it, is the one pointed out by the legislature and as that road cannot be pursued by a tacit mortgage, as there is no necessity that he should travel it, but on the contrary strong reasons why he should not. Can a court of justice without asuming legislative power permit him to arrive at the same end by a bye path, or dropping the metaphor, give the summary remedy to a party who cannot comply with an express previous condition of obtaining it. I have given the court much trouble in this case, but they will not regret it, if it should lead to the advancement of justice, and they will excuse it in favor of my motive, if it should not.</p> <p>There are some new arguments in these notes, which if good will not lose their effect because they come late. The truth is that the firm persuasion I have always been in, that the principal point in this case was in my favor, that I have perhaps been too inattentive to its other features.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the fourth district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of probates of the parish and city of New-Orleans.</p>

<p>An appeal lies from an order revoking the appointment of an attorney for absent heirs.</p>

<p>Appeal from the Court of the fourth district.</p>

<p>An appeal taken from a judgment, which the judge has not signed, is premature.</p>

<p>Oral evidence may be received to show, that no consideration was received by the drawer of a bill of exchange.</p> <p>Judgment cannot be given for a defendant, for a balance which may appear due him, unless specially claimed in the answer.</p>

<p>The provision for the support of the wife, during a suit for bed and board, is not conditional on her success.</p> <p>A short absence from the place assigned the wife for a residence, does not deprive her of the right to subsistence from her husband.</p>

<p>The decision of the court of the first instance, prevails in the supreme unless manifestly erroneous.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p> <p>The points on which the plaintiffs rely, and the proofs and authorities by which they are supported, are the following:</p> <p>1. Durnford acted either as the mandatory or the quasi negtiorum gestor of the deceased in his life time, in securing the debt due from St. Maxent. They rely for proof of this upon his signing the act; supported by the circumstancial evidence of Dr. Dow—that Hodge, for some time before his death, could not attend to business.</p> <p>The defendant insists on the presumption that Hodge was personally present, and that Durnford only signed for him, and that his commission ended with this act. But we rebut this, by the law and practice, which is without exception, that when the party is present but cannot sign, either through ignorance, or other inability, the notary must certify the fact and the cause, 3, Feb. lib. de Es.p. 442, old ed. c. 26, § 1, no. 2. “ Los quales (los otorgantes) sabiendo y pudiendo firmar las firmaran, y si no, un testigo instrumentel a su ruego, haciendo mencion en la escritura que este firmara por el ortogante.” Here we see that when one, only signs for another without intending to do more, that then the notary must put it in the writing stating that one of the witnesses will sign, firmara, for him, same book p. 422, c. 16, § 1, no. 3. “ La quarta, que lo firma los ortorgantes” (as in the above authority) but adds "y expressando el motivo de su impossibilidad."</p> <p>The expression in the act that “Hodge being present accepted,” &c. is no proof of his being personally there, but coupled with the signature of Durnford “ For David Hodge,” shews that all that was meant, was, that Hodge was present by his agent Dunford, it is to be remarked too, that the act of accepting was not an onerous one, and that being purely for the benefit of the obligee any one might accept for him. This distinction may be gathered from the latter part of the authority last quoted, where it is said that the notary must certify that he knows the obligor, but as to the obligee it is not necessary because he undertakes no duty.</p> <p>2. That Durnford having undertaken to receive the security and began to act, was obliged to do every thing necessary to give it effect, and that whether he acted as mandatory or quasi neg. gestor, his duties and obligations were the same; for this we rely on the following authorities, Civ. Code, Quasi Contract. ib, mandat. Pothier treatise of mandate, no. 38, 46, 47. ib. Quasi Neg. Gestor, no. 201, 203, 208. The whole of these treatises passim.</p> <p>3. The doctrine of the liability of a mandatory, is said to be shaken by the decision of Breedlove & Bradford vs. Turner. It is sufficient to answer that, that case was decided on a totally different point. But attorneys at law are not mandatories, they are special officers; and as far as their duty lies in the exercise of judgment, they are only bound to exercise it according to the best they have. The law of mandatories is clear and as precise as any title in the law; he is bound pro levissima culpa, which also includes, negligence, and want of skill. This doctrine applies particularly to the quasi neg. gestor, who, by intermeddling to my prejudice has, perhaps, prevented my employing some one who understood it better, or would do it with more care.</p> <p>The neglect here was gross—apparent to every body that notice must be given, to prevent the payment to the original creditor.</p> <p>Durnford knew that it was necessary. In the year 1810, he brought a suit against Seghers—Record, no. 2801, in evidence in this case.</p> <p>The suit is brought on the same transfer, which is the foundation of this suit; and in the petition, Durnford alledges, that the defendant, Seghers, had notice of the transfer when it was made, by which he became liable, 19th January, 1811. Segers answers by a general denial, 8th June, 1814. The case was brought to trial, and judgment given in favour of the defendant. This suit, contradicts, by his own acts, three of his grounds of defence.</p> <p>1st. That he did know, that notice was necessary.</p> <p>2d. That Seghers would not have been liable, if the notice had been given.</p> <p>3d. That no action lay against Seghers, on the assignment.</p> <p>By another record, in evidence also, in this case, no. 2571, (no. 47 in this court,) the syndics of St. Maxent against Seghers, it appears, that as late as 1797, six years after the transfer, Seghers still owed a balance of $30,000 and upwards, to St. Maxent; so that, if at any time within six or seven years, Durnford had done that which he did in 1810, commenced a suit against Seghers, or given him notice of the transfer, the debt would have been sesured. In that suit, a balance of 200 dollars was recovered. But, by the suit, No. 617, also in evidence, $7000 was directed to be credited to Segur,* by the syndics of St. Maxent, for money paid, under the Spanish government, and not included in the former amount; so that Segur’s estate has overpaid more than 4000 dollars.</p> <p>The insolvency of St. Maxent’s estate, appears by the several suits brought by his syndics, above referred to; and also, by the suit brought by the syndics, under the Spanish government, against Segur, to liquidate the account. By which it appears also, that the first payment of Segur’s mortgage to St. Maxent, was not paid, until more than a year after the death of Hodge—that upwards of $40,000 were paid by him, between that time and the year 1797, when there was $30,000 reported due.</p> <p>In the year 1796, Durnford brought a suit against the widow St. Maxent, to which his syndics became party; this record is submitted to the court.</p> <p>Fol. 1. They will find the note given to the merchants in Jamaica, endorsed by them; so that if this note is the foundation of the debt, it is prima facie the proprietors.</p> <p>Fol. 4. Durnford alledges, that the debt is due to Hodges’ estate.</p> <p>Fol. 12. Letter to Hodge from St. Maxent, apologizing, for not paying the debt from Jamaica.</p> <p>Fol. 16. Answer of Mde. St. Maxent, acknowledging the debt.</p> <p>Fol. 18. Syndic of the creditors comes in and says, he has nothing to oppose to the demand of Durnford.</p> <p>Fol. 19. Decree, directing that Durnford’s debt be admitted, and paid, according to its proper rank.</p> <p>From this record, as well as from the mortuary proceedings, it appears, that Durnford was not only an executor, but that, immediately after the death of Hodge, he was, at the request of the other executors, appointed to finish all the business of the estate, alone. Vide fol. 8 & 9.</p> <p>From all these facts and authorities, the plaintiffs think it most evidently appears, that the debt in question, was well secured by the assignment of Segur’s mortgage; and that it has been lost, by neglect in giving notice—Whose neglect was this?</p> <p>Durnford’s: if he was the mandatory, or the quasi neg. gestor, before the death of Hodge.</p> <p>Durnford’s: if he was not the mandatory, or the quasi neg. gestor; because, it was his duty, immediately after the death of Hodge, to sue for, or at least, to give notice.</p> <p>It is evident that, if any step had been taken within four years, the debt would have been secured.</p> <p>The estate cannot suffer by such gross neglect.</p> <p>By the will in the mortuary proceedings, the plaintiffs are instituted heirs. The proof of their identity is annexed to this, and to the papers in another suit, also in evidence; and indeed, was not contested.</p> <p>It has been suggested to me by the defendant’s counsel, that he will adduce an argument from the decree, in favour of Durnford, allowing the debt against the insolvent estate of St. Maxent, to show that, from that circumstance it should be presumed, that the debt is secured.</p> <p>To this I answer, first, that no such presumption ought to arise, from a decree for the payment of a simple contract debt against an insolvent estate, to be paid in its proper rank; for this debt, though a mortgage debt against Segur, gave no lien on the estate of St. Maxent.</p> <p>Second, that if it had been secured in 1796, against St. Maxent’s estate, Durnford would not have sued Segur for it, in 1810.</p> <p>Third, that the presumption is, that a debt, carrying no privilege against an insolvent estate, is at least, so strong, as to throw the burthen of proof on the party, who is interested in showing its solvency.</p> <p>Fourth, that in this case, it was particulary the duty of Durnford, who had the whole management of the estate, and alone knew, or ought to know, whether the debt was secured.</p> <p>Fifth, I answer, that if any dividend can be obtained from the estate of St. Maxent, he will be subrogated to our rights, after making the payment, but that</p> <p>Sixth, from the lapse of time, near 30 years, that the estate has been in the hands of the syndics, they must, long ago, have settled the same, and filed their tableau of distribution.</p> <p>The argument may be resumed shortly, thus:—</p> <p>Either Durnford has received this money, or he has not. If he has received it, he cannot legally object to paying us, unless the estate is indebted to him, which he has neither alledged nor proved.</p> <p>If he has not received it, it has been abundantly shown, that it is owing to gross neglect, either as agent or executor, and it matters little to us in what capacity.</p> <p>As heirs, we are entitled to the whole estate, and of course, to any and every particular part; and the executor surely cannot object to delivering or paying any particular sum, by showing that there are other parts of the estate which he has not accounted for. We are, therefore, entitled to a decree for the amount of this debt, without waiting for the settlement of the estate, which he may retard for years, as he has already done.</p> <p>All this is intended, merely as an application of the argument to the facts, and a statement of these, with a reference to the different records: for the application of the law to the case, the plaintiffs refer to the arguments on the hearing.</p> <p>The plaintiffs and appellants are not entitled to recover against the defendant for the following reasons:</p> <p>1st. There is no proof that the defendant ever signed the notarial act which is considered as the foundation of this suit: he is not stated to be a party to it in any part of the body thereof; or to have contracted in any way therein. Notarial acts are proof only against the parties thereto. 11 Martin, 634, Pothier, on Oblig. n. 700, 704. And then only as to the contents thereof—3 Febrero Adicionado, 400, n. 2.</p> <p>2d. The notarial act (if signed by the defendant) was the contract and agreement of D. Hodge, who the notary declares was present at the passing thereof. “Estando presente a su ortogamiento D. Hodge, dixo, la acceptaba a su favor." Hodge was a merchant of eminence and well known in the province of Louisiana, though at the time of passing the act, incapacitated from attending to business from a stroke of the palsy; and most probably incapable of writing his name. The defendant being his clerk at the time, signed his name for Hodge, “ Thos. Durnford para D. Hodge." This is the only way, in which it is possible to reconcile the act and the signature to it. For the notary assures us that D. Hodge was present, agreeing and consenting to the contents of the instrument: and even that he signed it. “ Asi lo ortorgaron y firmaron.” The words of the act are clear, plain and explicit; free from ambiguity; presenting a natural meaning; therefore no interpretation should be admitted to change them in any way, (see 8 Martin, 1, Waters vs. Bachus.) It is inadmissible to say, with the counsel of the plaintiffs, that Thos. Durnford the agent of D. Hodge, and acting for him, was meant by the notary; when he said that D. Hodge was present, agreeing, accepting, signing. For such construction is forced and contrary to the natural meaning of the words.</p> <p>Is is admitted that when one of the parties to an act cannot sign, it should be mentioned in the body of the act. But the omision of the notary to fulfil this form does not authorise the conclusion that such party was not present, but was represented by an agent; for in that case, the act should have mentioned that it was the agent or attorney in fact who contracted.</p> <p>The defendant, it may be fairly concluded, was called upon by his employer Hodge, to sign the act for him as evidence of his acceptance thereof; (which might have been done by any one :) and with his signature his commission and authority ended.</p> <p>3d. Had it been the duty of the defendant to do more than sign his name for his employer Hodge; had even the defendant undertaken to perform every thing which it was requisite for Hodge himself (who made the contract) to do : yet it would have been unavailing. Therefore, no action could be maintained against him for the omission of an useless act.</p> <p>The instrument is in form, a mortgage of a debt: clumsily and carelessly drawn up: a non descript; such as we find no where in Spanish books of forms. But admitting that it is an assignment, as the petition of the plaintiffs terms it; still the act is totally void and inoperative, since it gives no power to sue Segur the debtor of St. Maxent. A clause to that effect was absolutely necessary to entitle Hodge to demand the debt from Segur. “ Advertiendo que si carece de este requisito la cesion, y el deudor se resiste a su paga, quedara frustrada, y sera inefecaz la cesion, por defecto de potestad, para apremiarle judicialmente a su solucion," 3 Febrero Adicionado, 237, n. 40, part. 1, cap. 14, sec. 2, n. 40.</p> <p>We may fairly infer that this was one of the reasons of the judgment in favor of Segur when the defendant sued on this strange instrument. No reasons or motives were given for the judgment; nor any law cited. But if the above authority was shown to the court, it must have been conclusive. See a regular and legal instrument of assignment. 3 Febrero, Ad. 255, 6.</p> <p>4th. Conceding to the counsel of the plaintiffs, that the defendant, and not his employer Hodge, made the contract with St. Maxent, and that no notice was given to Segur, by which omission the mortgage availed nothing; yet it was but an error in judgment on the part of the defendant, for which he cannot be liable.</p> <p>On reading the contract passed before the notary, there was nothing which could indicate to him a necessity of notifying Segur. As it was a mortgage by public act, it was natural for him to conclude that all that was requisite was done. In reading the seven volumes of the Library of Notaries, by Febrero, I have not been able to find the doctrine of notice mentioned; much less to find that without a notification the assignment or mortgage may be defeated. The defendant not being conversant, (from his employment as a clerk to a merchant,) in the niceties of the Spanish law, might well suppose this formality unnecessary, and unavailing. As in truth it would have been, as I have shown, from 3 Febrero, Ad. 237, art. 40, above cited.</p> <p>This court in the case of an attorney, now appointed to one of the highest judicial offices of the State, F. L. Turner, has adjudged that for an error in judgment on a point of law, a man bred to the profession is not responsible in damages. 9 Martin, 353, Breedlove vs. Turner. Our statute and the Partidas consider attornies as mandatories, and make their responsibility the same. More, assuredly, cannot be required of a man unversed in the profession, than from an able counsellor.</p> <p>An argument against the defendant is attempted to be drawn from the record of the suit instituted in 1810, by him against Segur on this mortgage; because the counsel, who drew up the petition, has alledged that Segur had notice of it. Supposing this proved, that the defendant knew at that time, that such notice was requisite; it by no means follows that he was equally conversant, with the law eighteen years before.</p> <p>The judgment in that suit proves only that Segur was not liable on the instrument: and nothing more : which was evidently correct.</p> <p>First. Because the testamentary executor had no right to institute the suit; more than one year having elapsed since his appointment. 4 Martin, 338, Lamothe’s executor vs. Dufour.</p> <p>Second. Because the instrument gave no power from St. Maxent to Hodge, to demand the debt. 3 Febrero, Ad. 237, n. 40.</p> <p>The record of the suit, instituted by the defendant in 1795, against the widow of St. Maxent, for the recovery of this debt, shows that, at that time, he was under the impression that nothing could be done against Segur. This procedure, certainly does not countenance the idea, that the defendant was negligent about the debt; but rather, that he was well assured, that he could have no legal demand against Segur, who was still owing a large sum to St. Maxent.</p> <p>But it is said, that the defendant, as testamentary executor of D. Hodge, was bound to give notice to Segur, of the assignment; and therefore, for that neglect, he should be liable. Most of the arguments already used, may be again invoked, in reply to this new effort of the of counsel of the plaintiffs. But further, this is an after thought which he knew nothing of, when he instituted this action. No allegation like it, is made in the petition; and under a reserve of all legal objections and exceptions to the testimony offered, (which was made in the court below,) none of it can be made to apply, but such as is conformable to the allegations made in the petition.—11 Martin, 547, Flogny vs. Adams.</p> <p>No argument against the defendant, therefore, in his capacity of testamentary executor of D. Hodge, can be urged now; on a future action against him, the plaintiffs will have the full benefit arising from it, if they should think it worth pursuing.</p> <p>5th. The plaintiffs have no interest in this debt; it belongs to merchants in Jamaica; This appears, from the mortuary proceedings and inventory of D. Hodge; and the suit of the Executor vs. St. Maxent's widow, and therefore cannot maintain this action.</p> <p>6th. The defendant appears to have acted throughout, with a good faith, and with all the diligence and knowledge he possessed; and therefore, cannot be liable in this action for damages; even admitting, the undertaking to be such as the counsel of the plaintiffs has stated it.</p> <p>“ Nihil enim ampliùs quàm bonam fidem praestare eum oportet, qui procurat.” Dig. 17, 1, 10; 2 Dict. du Digeste, 8, no. 38; 7 Part. 33, 11; 1 Henry Blackstone, 158; 9 Martin, 353.</p> <p>7th. This action is prematurely brought; the defendant, in his capacity of testamentary executor of D. Hodge, has obtained judgment against St. Maxent’s estate, for this debt. Until his accounts, as testamentary executor, has been exhibited, and until it is known what he has received on that judgment, the amount of the loss cannot be ascertained; and supposing him liable to the action, it can be only for the difference between the debt and the amount of the dividend against St. Maxent’s estate. The estate of Hodge may prove insolvent, too, as the defendant pleads it actually is: the plaintiffs, then, who now claim as “ beneficiary,” heirs, may be entitled to nothing. For, until all the debts of Hodge have been shown to be paid, they cannot claim any part of this estate.—Civil Code, 164-170.</p> <p>8th. The action is lost by prescription.</p> <p>First, of one year. Part. 7, 9, 22; Institutes of Justinian, lib. 4, tit. 4, with the gloss.</p> <p>Second, by that of ten years. Nov. Recop. lib. 11, t. 8 l. 5; 7 Ferrari’s Bibliotheca, 295, no. 30; Dunod, 65.</p> <p>Third, by that of thirty years. 3 Part. 29, 22; Civil Code, 487, art. 272.</p> <p>Therefore, it is believed, most confidently, that this court, will affirm the judgment rendered in favour of the defendant.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>Appeal from the court of the fourth district.</p>

<p>Appeal from the court of the first district.</p>

<p>If the appellee accept service of the appeal, after the return day is expired he waves his right to have it dismissed.</p> <p>Parol evidence cannot be received to prove that a note which is expressed to be paid in dollars, was to be discharged in bank notes of the bank of Kentucky.</p> <p>Parol evidence may be received to establish services rendered by an attorney before a justice of the peace.</p>

<p>Appeal from the court of the second district.</p>

<p>The foreman of a taylor has not a priviledge for his salary.</p>

<p>Appeal from the court of the eighth district.</p>

<p>Declarations of the father are good evidence of the age of the child if made before the cause of action arise.</p>

<p>An endorsee without notice is not affected by any equity between the original parties.</p>

<p>Appeal from the court of the second district.</p>

<p>The attendance before referees waves want of notice.</p> <p>A consent to refer a cause and receive a report of referees is a waver of the trial by jury.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>Appeal from the court of the first district.</p>

<p> Appeal from the court of the third district. </p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the third district.</p>

<p>Appeal from the court of the first district.</p>

<p>When a commission is directed to a justice of the peace by name, it is not required to show his qualifications.</p> <p>Former declarations of a witness may be received to contradict the evidence he gives on trial.</p> <p>Deposition cannot be read when the opposite party had not received notice of the time and place of taking them.</p> <p>Proof by a witness that he once had a written paper, and that he does not know what has become of it, will not authorise that introduction of secondary evidence to establish its contents.</p> <p>The maker of a deed is the best witness to prove its execution.</p>

<p>Appeal from the court of probates.</p>

<p>If the plaintiff fails to answer interrogatories the defendant may at his option move to have the suit dismissed, or go on to trial and take them as confessed.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>A suit for a breach of contract made thro’ an agent should be brought against the principal for whom agent contracted.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>An assignee by an act sous seing privé cannot obtain an order of seizure and sale.</p>

<p>The order given at the beginning of proceedings to obtain a respite, ceases with the granting of it.</p> <p>The judgment of homologation is not complete, without being signed by the judge.</p>

<p>Appeal from the court of probates.</p>

<p>Appeal from the court of the first district.</p>

<p>A sheriff cannot recover for keeping slaves unless he shows the expenses incurred</p>

<p>Appeal from the court of the third district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the second district.</p>

<p>A judgment is not evidence against third parties of the truth of facts on which it was rendered.</p>

<p>A person bound under an order of court to give surety must give persons residing within the state.</p>

<p>If a petition for an injunction is dismissed for want of equity appearing on the face of it the appellate court cannot take notice of evidence said to have been introduced.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>A party not injured by a judgment cannot appeal from it.</p>

<p>Many parts of the Civil Code apply to commercial cases. When the defect of the thing sold is established—there is no need of an allegation of fraud or warranty.</p> <p>An action quanti minoris, lies for a vendee who has sold the thing. Prescription is presumed to be waved, when not pleaded.</p> <p>It is no defence to an action quanti minoris, that the vendee sold the thing advantageously.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the third district.</p>

<p>The master of a vessel has no claim to damages for the wrongfully suing out an attachment&levying it on tobacco shipped on obard; which is not taken out and remains in his care, on his promising the sheriff to keep it.</p>

<p>Altho’ there are but two members of a firm, it does not follow that their interest is equal.</p>

<p>If the plaintiff declare on a written contract, he cannot give in evidence one by parol.</p>

<p>The syndic of an insolvent cannot make an acknowledgment which will enure to the benefit of the commercial partnership of which he is a member. Impending insolvency will not excuse a want of demand of payment from the maker of a promissory note.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>

<p>A vendor who has obtained a release from his vendee is a competent witness in an action with a third party.</p> <p>Whether two witnesses be necessary to prove the loss of a title, the object of which exceeds $500.—Quere.</p> <p>The action of warranty which the first vendee had against his vendor, is not transferred to the second purchaser without a stipulation to that effect.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal dismissed for want of a statement of facts, &c.</p>

<p>He who undertakes tho' gratuitously, the business of another, is bound to indemnify the latter from the conseqnence of his neglect.</p> <p>A bank is responsible for the acts of the notary it employs.</p>

<p>The court of probates has not jurisdiction of a demand against a surviving partner for a partnership debt.</p> <p>If books which were delivered to be bound are not returned, an attachment will lie for their value.</p>

<p>Possession is not evidence of property in a note, the interest of which, on inspection, appears to be in another.</p>

<p>Appeal from the court of the parish and city of New Orleans.</p>

<p>An attachment will not lie against a non-resident executor.</p> <p>An attorney appointed by the court, cannot give jurisdiction by pleading informally.</p>

<p>Answers to interrogatories cannot be divided.</p>

<p>Third parties to an act, are those who are not parties to an instrument by which their interest in the thing conveyed, is affected.</p> <p>The vendor off an immoveable who does not record his lien in the parish where the object is situated, loses his privilege on it. A mortgage recorded without an order of the judge, operates as notice to third parties.</p>

<p>Appeal from the court of the second district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>An appeal bond which states that the appeal has been taken in a suit not defective.</p> <p>A contract which is to be reduced to writing, is not complete until the writing is made and signed.</p>

<p>Appeal from the court of the first district.</p>

<p>The law in force in this country, at the change of government, on the subject of cessio bonorum, is not unconstitutional.</p>

<p>A complete grant prevails over an order of survey.</p>

<p>Several creditors, standing in the same predicament, and seeking the same relief, may join in one application.</p> <p>One, who has obtained a respite, and meditates a removal, may be arrested and his goods seized.</p> <p>When he is brought before the judge, his person and goods may be secured, notwithstanding a defect, in the process on which he was arrested.</p>

<p>Appeal from the court of the third district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the parish and city of New Orleans.</p>

<p>Appeal from the curt of the second district.</p>

<p>A syndic who becomes insolvent, may be removed and another appointed in his stead.</p>

<p>A party to a sale, cannot prove its simulation by parole.</p>

<p>If parol evidence, in regard to immoveable property, be admitted without objection in the inferior court, it cannot be objected to on the appeal. If there be error on the part of the vendor in delivering the property and error on the part of the vendee, in taking possession the latter cannot hold by prescription.</p>

<p>Appeal from the court of the seventh district.</p>

<p>A clause in a marriage contract by which the whole o the acquests & gains is to go to the survivor, in case there are no children, is not illegal.</p> <p>An exception may be taken to the opinion of the judge, on a question of law growing out of the merits, if given, on sending the cause before referees.</p>

<p>Appeal from the court of the seventh district.</p>

<p>Appeal from the court of the seventh district.</p>

<p>The purchaser of a tract of land of 1400 arpents, cannot refuse payment on the ground that the United States have only confirmed the title to 640.</p>

<p>Appeal from the court of the seventh district.</p>

<p>When the claimant does not shew his right to any determined spot, it cannot be enforced.</p>

<p>A bona fide creditor of an insolvent, may, when sued by the syndics, plead in compensation, a debt due him previous to the insolvency But he must prove the period when he became creditor, by other evidence than that of the insolvent.</p>

<p>The subscribing witness to an instrument must be produced or his absence accounted for.</p>

<p>Appeal from the court of the fifth district.</p>

<p>When there exist mortgages on the property ceded by the insolvent, it must be sold by the syndics for cash.</p>

<p>A debtor cannot avail himself of a payment made contrary to the consent of the creditor, on the pretence that the person he owed, was agent of him to whom the payment was made.</p>

<p>If a party withhold proof in his power, which he is not bound to produce, the court may remand the case for a new trial.</p>

<p>If the case turns on the identity of property in the defendant’s possession, which he refuses to let the witnesses see, and there be a verdict in his favor, the court will remand the cause for a new trial.</p> <p>The affidavit of a juror not admissible to impeach the verdict.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Whether an instrument of writing which declares that property was sold to secure the vendee against certain obligations, be a mortgage or a sale? Quere.</p> <p>A clerk cannot certify to the contents of a paper in his possession; he must give a transcript of it.</p> <p>When a record is admitted which contains within it evidence that is legal, and that which is not so, it will be presumed to be admitted to establish the former.</p>

<p>A conditional sale followed by delivery, is a vente a remeré.</p> <p>A sale made in another state of the union for a slave, need not be recorded here.</p> <p>Delivery of slaves takes place by the delivery of a title which states that the slave sold has been delivered.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Amendments may be allowed at any stage of the pleadings, but if it appear that the cause has been as fully tried on its merits, as it would have been with the amendment, the supreme court will not remand the cause.</p> <p>An application to remove a cause to the court of the U. States, must be simultaneous, with the appearance.</p> <p>A seizure made under a writ, after the return day thereof, is void.</p> <p>The marshal may be sued in a state court for trespass.</p>

<p>A special mortgage attaches on property which the mortgagee acquires after mortgage, if it be particularly enumerated in the act.</p>

<p>Sentence of interdiction cannot be pronounced on exparte evidence.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>The surety on an appeal bond is not relieved by the appellee obtaining a mortgage, reviving his judgment against the appellant's heirs, &c.</p>

<p>If the defendant, after a motion to dismiss, proceed to trial, the motion to dismiss is thereby waved, and he cannot afterwards claim the benefit of it.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Interest is to be calculated from the maturity of the note, till the day of a partial payment, and added to the principal : the partial payment is then to be deducted from the aggregate.</p>

<p>The appeal is to be dismissed, if the record be not filed on the return day.</p>

<p>The appeal is to be dismissed, if the record be not filed on the return day.</p>

<p>If a slave be wrongfully detained, wages will be allowed from the date of the citation.</p>

<p>If the appellant neglect to bring up the record, and the judgment be affirmed damages will be given.</p>

<p>Appeal from the court of the sixth district.</p>

<p>A defendant who appears not to have been ignorant of his want of title, may be decreed to pay wages, even before the demand.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the seventh district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>The judge’s certificate cannot control or eke out the facts appearing on the record.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Damages given for a frivolous appeal.</p>

<p>Appeal from the court of the sixth district.</p>

<p>If the property of the debtor be covered by special mortgages and privileges, the sheriff may seize and sell as much as will satisfy the execution over and above the amount of the liens.</p>

<p>Appeal from the court of the sixth district.</p>

<p>A power to sign the constitutuent's name, in any transaction, in which the attorney may deem it necessary and proper, does authorise the endorsement of a note.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Appeal from the court of the seventh district.</p>

<p>A sale of minor's property without the legal solemnities, is void. And the circumstance of the parish judge not knowing it was the property of minors, will not render it valid.</p>

<p>The case will be remanded, if the finding of the jury leaves room to doubt.</p>

<p>Appeal from the court of the seventh district.</p>

<p>Creditors may seize the property of their debtor, transferred without consideration.</p>

<p>The alleged attorney of absent heirs, is bound to shew his authority and the right of those claiming as heirs.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Under a plea of compensation, if the defendant offer evidence would without any objection made thereto in the lower court, none can be made above. A jury may find a verdict for a sum due to th e defendant.</p>

<p>A dation en paiement does not require a compliance withthe formalities required in case of a donation.</p>

<p>Appeal from the court of the sixth district.</p>

<p>Whether the vendee can recover land, which the vendor, before the sale, has sworn to belong to the person in possession?</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of probates of the parish and city of New Orleans.</p>

<p>Appeal from the court of the first district.</p>

<p>Appeal from the court of the first district.</p>

<p>When the interest of a witness appears by the instrument, on which the suit is brought, he cannot do away his incompetency, by his own declaration.</p>

<p>Objections to a verdict lose much of their weight, when not made in the court where the cause was tried.</p>

<p>Appeal from the court of the parish and city of New-Orleans.</p>