Volume 3 — Martin's Louisiana Term Reports (1809–1830)

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

parish and city of New-Orleans. This was an action tor goods, wares and merchandize sold and delivered by the plaintiff to the defendant, and the general issue was pleaded. There was judgment for the defendant, and the plaintiff appealed.

<p>Appeal from the court of the first district.</p> <p>The petition contained two counts: the first for money laid tut and expended by the plaintiffs for the use of the defendant, the other for money bad and received by the latter from the former~ Reference was had in the petition to an account annexed thereto, composed of several items, for lawyers, marshal, clerk and notary's fees, with the expenses of an. express to Washington, amounting together to $1599 75: to which was added the sum of $896, for eight years interest. The charges appeared to ha~e been incurred in defending the plaintiffs ship, in a suit brought by the tithed States, for the breach of an act of congress, by the defendant, in putting several negroes on board. The defendant pleaded the general issue.</p> <p>The district court gave judgment in favor of the plaintiffs for 82193 73, the sum claimed, with interest from the date of the petition, being of opinion, that “ from the manner, time and place of putting the negroes on board, both the captain and shipper knew it to be contrary to law, and having combined in the transaction, they were both bound to make good the losses resulting from it.”</p> <p>The defendant appealed.</p> <p>The statement of facts is subscribed by the counsel of each of the parties, It relates, that the plaintiff's, in the year 1809, were owners of the Ship Clara, which sailed from the port of New-York, on the 8th of January of that year, A. Tanal, master, bound for New-Orleans, on board of which the defendant was a passenger When the ship had proceeded as far down as Governor's island, or perhaps a little below, a boat came along side, from which two negro women, the property of the defendant, were received on board. The negro wrnnen were immediately put under the hatches, and there detained till the ship got to sea, when they were released and permitted to come upon deck. When the ship arrived at the mouth of the Mississippi, they were again put under the hatches until they were landed, At or after the arrival of the ship in New-Orleans, the consignees did not see the negro women on board. Information was lodged with the collector, that they bad been brought on board of the ship, and she was seized and libelled in the district court of the United States, and condemned as forfeited to the United States. The plaintiffs spent in defending the suit $1449 75, and $150 in sending an express to the city of Washington, to obtain a remission of the forfeiture, as stated in the account annexed to the petition. The captain received the freight of said negroes and the passenger of the defendant: and abourt the time the ship was seized, several others were so, for the same cause, having come to New-Orleans from Baltimore and Charleston.</p> <p>There cannot be any doubt of the plaintiffs' right of recovery on the merits. As to the form of the action, that of assumpsit has been resorted to, because it is, in its nature, always an equitable one. It is a general description of all the cases in which it lies, that the defendant is bound by ties of natural justice and equity, to reimburse monies which have been paid for his benefit. Indeed, it is considered in the books as a generic action, applying to almost every possible description of cases, resulting from the dealings and transactions of men, in this age of commerce; comprehensive in its mesning, efficacious in its remedy. It has its origin in contracts, either express or implied, for the purpose of affording a remedy, whenever an injury has been received, either through mistake, deceit misrepresentation, imposition or oppression. Courts of justice will lend a ready ear to the suggestion of an implied promise.</p> <p>Assumpsit lies to recover back money paid under a mistake, or throught the fraud of the party. Beze vs. Dickson, 1 T.R 281, Hassan vs. Wallis, 1 Salk. 28. To recover money of a consideration which happens to fail. 2 Burr 1012, 1 T.R. 732, 2 id, 365, Shelton vs. Rastal. To recover money paid to any person acting under a void authority, Robertson vs. Eaton, 1 T.R. 59, Jacob vs. Allen, 1 Salk. 26. Allen vs. Dundas, 3 T.R. 125, or money obtained by fraud, extortion, imposotion, oppression, or taking an undue advantage of the situation of another. 1 Burr. 1012, Artly vs. Reynolds, 2 Strange 915, Smith vs. Brownley, Douglas 671, Crockehst vs. Bennet & al. 2 T.R. 763-or money that has been embezzled, or which any person has been defrauded of by cheating, or otherwise. Whip vs. Thomas, Bullier's N.P. 130.</p> <p>Injuries received from any circumstance, originating in mala fide, the general current of authorities say may be reached by the action for money had received. Clark vs. Shee & al. Cowp. 197. Trelhane vs. Terry, Bull. N.P. 131, Moses vs. M'Farlane, 2 Burr. 1005. 2 Black. rep. 219, Jaques vs. Goulingsly, 2 Black. 1073 Jacques vs. Wethy, H. Bl. 65 Browning vs. Thomas, Cowp. 79.</p> <p>As a general rule, I may say that indebitatus, assumpsit will lie every case, when the law or the circumstances of the case give a claim to the plaintiff.</p> <p>The plaintiffs must fail, for the evidence, which they have intro-ed, does not support the facts alleged in the petition. There is no evidence of any promise on the part of the defendant, who therefore has only to answer non fa hoec foedera veni.</p> <p>Besides, the plaintiffs cannot complain that the defendant put on board of their ship, slaves, which they, through the master of her, willingly received.</p> <p>Finally, the judgment must be reversed, at least for the interest which has been allowed before the beginning of the suit : for there was no demand, and the claim was unliquidated.</p>

<p>Acts of the legislature are not in force immediately after they receive the governor's signature, but after prumulgation.</p>

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

On the 3d of October, 1816, Stevenson, being in embarrassed circumstances, assigned over all his estate to M'Culloch and Holmes, his trustees, for the benefit of all his creditors. The parties are all citizens and residents of the state of Maryland, where the assignment was executed.

<p>If the creditors refuse the cession of the debtors goods on allocation of fraud, though the court direct assignment to be made to the sheriff in trust, the insolvent is not entitled to his discharge.</p>

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

<p>If two persons, married in Hispaniola, and in community of goods, remove to Charleston, and the wife dies, the community will not continue between the husband & the children.</p> <p>A sum reckoned in livres, in a contract entered into at dispaniola, is not to be paid in livres tour-nois.</p>

<p>APPEAL frum the Court of the first district.</p>

<p>APPEAL from the court of first dictrict.</p>

<p>APPEAL from the court of the first district.</p> <p>In the month of February, 1816, the defendants contracted a debt with the plaintiff. (all merchants of New York) to the amount of about twelve hundred dollars, for which the latter received their promissory notes, payable at a future day. Before, however, those notes became due, the defendants represented themselves in embarrassed circumstances, and obtained from the plaintiff and their other principal creditors, a letter of license, dated 19th June, 1816, to enable them to continue in business; each creditor giving in extension of the terms of payment, six, nine and twelve months. Accordingly, on the 14th of September, 1816, the plaintiff renewed those notes, which were then actually due, enlarging the credit, as just mentioned. But, a few days after their renewal, the defendants stopped payment, and altogether failed in. business; and on the 26th of September, 1816, assigned their estate to J. E. Haight, D. L. Haight, H. E. Haight, and E. Potter, junior.</p> <p>The letter of license sets forth the embarrassment of the defendants; that if their payments are extended, they will be able to continue in business, and promptly pay their debts. It then stipulates, that if any creditor shall sue the defendants, or attach their property, "contrary to the true intent and meaning" of that instrument, such creditor shall forever lose his debt.</p> <p>The assignment arranges the creditors in four distinct classes, making it the duty of the as signees to pay them in that order. The assignees are of the first class-the plaintiff is one of the fourth and last class of creditors, and to which the property of the assignors will not reach. After the above mentioned extension of credit, and shortly before the making of the assignment, the defendants shipped goods to the value of fourteen or fifteen thousand dollars, to New-Orleans, on their own account, consigned to Flower and Findley, the garnishees in this action.</p> <p>The plaintiff, not choosing to come in under the terms of the assignment, which he was regularly notified to do by the assignees, followed the goods here; and on the 13th of November, 1816, attached them in the hands of the garnishees, for the whole amount of his debt-at which time, however, the renewed notes were not payable, although the terms of credit specified in all the old notes, which were so renewed, had, for some time, expired.</p> <p>The district court sustained the attachment, and gave judgment for the plaintiff for twelve hundred and nineteen dollars, sixty-two cents, the amount of the renewed notes; and the defendants appealed.</p> <p>This attachment was brought in violation of the agreement entered into by M'Bride, in the letter of license. We will endeavor to shew, that the assignment by the Crocherons did not destroy the letter of license, and that, therefore, the agreement of M'Bride is still in force. The counsel adduced, in the lower court, many cases to prove that, because one of the contracting parties is unable to fulfil his part of the agreement, the other is, to all intents and purposes, discharged. Admitting, for argument’s sake, that all these authorities are law, we contend they are not in the least applicable to our case. In those cases the party was completely and absolutely unable to perform his part of the contract-in our case it was not known whether the debtors could or not. This is the grand distinction, and which we submit with confidence to the court. At the time of this attachment being issued, it was impossible to say whether the Crocherons could pay their debts or not. The notes were not to be finally paid until twelve months had elapsed from September. In November this attachment was laid-after an interval of only two months. At that short period of time, it was impossible to determine whether there was such a disability on the part of the Crocherons as to exonerate M'Bride from his engagement under the letter of licence. To this day. this question cannot be settled; for not quite nine months have expired. But, in answer to this, we will be told that, though it was not certain at the time of the attachment whether these debtors could perform their contract; yet they made an assignment, which is proof of their insolvency. We deny that this is an infallible proof. We admit that a presumption of insolvency arises against the debtor; yet, on the other hand, with confidence we can assert, that a man may be declared insolvent, or a bankrupt, and yet, under all circumstances, not be one: for, at the time of being declares an insolvent or bankrupt, under a law, the debtor may be so situated as not to have his property under his control. It may be in different parts of the world, shipped on mercantile adventures. He is then obliged to have his situation known, and underdo a tem a tent-porary bankruptcy. This certainly will not appear to the court; a strange and unauthorized doctrine. Lord Mansfield declared in Rex vs. Town of Liverpoll, 1 Burrows 732-"That a man may be able to pay above 20 shillings, notwithstanding his being in strictness a bankrupt."That great man advanced a similar assertion in Dassel vs. Simpson, Dougl. 92-a man may become a bankrupt, and yet be able to pay 25 shillings in the pound.” On these authorities, and on the principle of the thing, we say, that because a man may make an assignment of his property, he is not to be considered as absolutely unable to execute his part of a contract. Our case is still stronger. We are not declared insolvent under an law; we made a voluntary transfer of our property, for the benefit of our creditors. It is a mere arrangement between ourselves and creditors, to relieve us from the many embarrassments in which we were involved: it is altogether a contract. We confidently say, that no case can be produced, which goes so far as to declare a man absolutely incompetent of fulfilling his engagements, because he assigns his property over to his creditors. On the contrary, we assert it to be but an arrangement for the benefit of the debtor, to enable him to discharge his debts, at a more auspicious time. It is made to assist us in our embarrassment, without exonerating him in the least from his engagements. unless the creditors have released the debtor altogether. We consequently say, that this assignment did not prove, that the Crocherons were in such reduced circumstances, as to render them wholly unable to satisfy their creditors; and that therefore, our position will not be affected by it, when we said that this attachment was brought without knowing, that the Crocherons could liquidate their debts.</p> <p>“If a contract be fair in its creation, it shall not be affected by a subsequent event, which has thrown the advantage greatly or wholly on one side," is a position which has been most strenuously, and ably held by the most learned judges of England. In 1 Brown Chanc. Rep. 157, Mortenier vs. Capper, to the utmost extent, this principle of law is recognized. “Sale of an estate for a certain sum of money, and an annuity for life. The agreement being fair, a court of equity will decree a specific performance; though the party die before any payment of the annuity." 3 Brown’s Chanc. Rep. 605. Jackson vs. Lever & al. presents the same doctrine. “ A contract, that the one party shall convey an estate, and the other shall grant an annuity, shall be carried into effect, though the vendor died previous to any payment of the annuity," 2 Brown's C. Rep. 17, Henley vs. Acton, supports similar principles. To shew that the same doctrine has been held by other judges, we call the attention of the court, to 1 Atkins, 12, Gibson vs. Patterson & al. "Though the vendor of an estate, does not produce his deeds, or tender a conveyance within the time limited by the articles, the court does not regard this neglect, but will decree a sale notwithstanding."-Lord Macclesfield has said in 1 Peere Will. 728, Cann vs. Cann, "that solemn conveyances, releases and agreements, made by the parties, are not slightly to be blown off and set aside." In later times-only a few years past, the court of Chancery in England, has most unequivocally upheld a similar position. More particularly we refer this court, to 6 Vezey Jr. 340 Paine vs. Miller, and 9 Vezey Jr. 246.-These authorities, go to the full lengths, which we stated in the commencement; that a fair contract shall not be overturned by a subsequent event, which has given the one of the parties, even all the advantage. Apply this principle to our case, and it will be immediately seen, that the subsequent assignment by the Crocherons, did not destroy the letter of license. The letter of license, was an instrument of writing under hand and seal-entered in the most solemn manner, between the creditors and the debtor To set aside such an instrument, says Lord Macclesfield, is not to be easily done. It grants to the Crocherons, an extension of time, to enable them to discharge their debts. It contains the important proviso, that no creditor shall sue for his debt, under the penalty of losing it. This was then, a fair contract, for the advantage of each party. It in course of time, turns out that the Crocherons become too embarrassed, to proceed in business; and they make an assignment of their property, for the benefit of their creditors. Now here the advantage of the contract is not wholly on the part of the debtors; nor is it in strictness greatly so. They give up their property, and expect no benefit from it. But they ask from the creditors, the execution of their part of the agreement. Now will not this case be brought completely within the spirit, even the very letters of the authorities, we have quoted in our favor? Shall this “subsequent event" overturn this contract, fair in its creation, even when the advantage is not wholly on the side of the Crocherons ? We ask the court, if these cases will not completely bear us out, in saying that the letter of license is still in operation; and that consequently, M'Bride is bound by his own agreement?</p> <p>But on the reason of the thing, why should the assignment overturn the letter of license? M'Bride, and the other creditors, must have known all the risks which they would have to run, in granting an extension of credit. Many accidents and misfortunes might happen, before the twelve months could have expired. Of this M'Bride must have been aware: yet he signs the instrument. In the letter of license, nothing is hinted about its revocation, in case of an assignment of property. M'Bride could not have supposed, that the law would authorize him to say that it was, when that law is undetermined. Every danger which a man in business could encounter, must have been in the mind of M'Bride, at the execution of this instrument. The Crocherons could not guarantee their solvency-this the creditors could not exact of them; for it would be in the highest degree unreasonable. But they would do every thing which could be done, to extricate themselves from their difficulties--all that industry and honesty could effect, would be performed by the Crocherons. If they must sink beneath their embarrassments, it was a misfortune which they must encounter. But if any injury could arise, it must be sustained by their creditors.They had all these in consideration, when giving the letter of license. These dangers and these accidents have occurred; and upon them the loss, if any, must be thrown.</p> <p>Our first point was, that this attachment was issued in violation of the agreement of M'Bride. This difficulty will attack the counsel in the commencement of their agreement How to prove that a man can break his contract when he pleases, and thus render his engagements a nullity, requires all their learning and ingenuity. But the assignment is pleaded in bar. To this M’Bride is a perfect stranger. He disdainfully refused to accede to its laws. He alone wishes to overturn it. M’Bride alone steps forward; tenders in bar of the execution of his solemn agreement, an instrument with which he never had any thing to do-but which was an arrangement with other creditors, to his entire exclusion. To assist him in breach of duty-to support him in a most unwarrantable claim, he asks the interference of this court.</p> <p>A question may be started respecting the validity of the assignment of the Crocherons. The decision of this is not necessarily involved in the main question. We are not afraid to meet it; and will endeavor to shew that, it is perfectly good. Many cases have decided, in direct contradiction to our opponent, that a man may, even in insolvent circumstances, give a preference to his creditors. We deny that the Crocherons were completely insolvent. But, admitting they were, we will exhibit to the court three cases which authorized them to make an assignment, granting a preference. In Small vs. Oudley, 2 Peere Will. 430; the court there held, that a debtor may prefer one creditor to another; nor is the time when the assignment is made material. This is the basis of all the decisions on that subject. In 8 Term Rep. 528, Lord Kenyon says that, "putting the bankrupt laws out of the case, a debtor may assign his effects for the benefit of particular creditors.” But, what we most rely upon are two cases this country-one in New York, and the other in Connecticut. 5 Johns. Rep. 412. "A debtor may, in insolvent circumstances, bona fide, give a preference to one creditor to the exclusion of others, and such preference, though voluntary, is valid, unless done in contemplation of an act of bankruptcy; and even if an act of bankruptcy be contemplated by the debtor, yet, if at the instance and application of a particular creditor, he pays such creditor, or assigns him property, such payment or assignment will be valid, as against the assignees of the bankrupt." This point is strongly laid down in 3 Day, 340, Hempstead vs. Starr. "A, on the eve of failure, made a general assignment of his effects, and gave immediate possession to B, one of his creditors, in trust, to the debts due to B and certain other meritorious creditors specified, and to pay over the surplus, if there should be any, to the creditors generally. C and B, creditors, not specially named, soon afterwards attached these effects in the hands of B, as the property of A, held that this conveyance was not by law fraudulent against the attachment of creditors." These cases completely nullify the assertion, that a man, in insolvent circumstances, cannot make a preference of his creditors. Now, let us see if this assignment was "wholly bottom- ed on fraud." Nothing can give a more satisfactory answer to this question than the evidence. Fraud must mean, cheating the creditors: it must be most positively proved, and never, in any case, presumed. Haight, a witness-a man entitled to the utmost credit, whose veracity has not been questioned by our antagonist-indeed his own witness solemnly deposes, that he was informed by the debtors of their intentions to ship these goods to New-Orleans-that they were not to be included in the assignment the assignment -and that the Crocherons declared at the time, the creditors should not lose a cent, even if it took up all the proceeds. Now, this evidence is uncontradicted, and we must therefore believe it Is there then any thing bearing the appearance of fraud in this? "The creditors should not lose a cent,” is the strongest proof of the honesty of these unfortunate men-"even if it took up all the proceeds,"-shews that they expected their shipment to this place would be more than sufficient to discharge their debts-if not, all should go to satisfy their creditors. So anxious were the Crocherons to do themselves and their creditors the fullest justice, that one of them comes to New-Orleans expressly to take care of the property, that every thing which could be, should be done to vend it to the greatest advantage, in order to relieve themselves from their embarrassments. If there is any thing like fraud in this, it must exist in the most religious transaction. But, to rake out fraud, subterfuge must be resorted to. Brewster, the clerk, swears that he never saw any entry of this shipment in the books of the Crocherons. He does not swear there is no entry; but Haight swears most positively there is one. Which will the court believe? And will they believe the assertion of counsel, that this entry might have been made just before Haight gave his desposition? Is there any thing through the whole evidence to authorize such an insinuation against Haight? The imagination of our opponent is too rich-it destroys his judgment.If there is nothing in the least resembling fraud in this transaction-if the law will permit the Crocherons to give a preference-the court will then say this assignment is valid. The opposite side have denied the validity of this assignment. So much the better for us. Then the letter of license is still in complete force. An invalid instrument cannot affect a valid one. M,Bride admits the validity of the letter of license. If so, it cannot in the least be touched by an instrument, void ab initio. Which ever way the case is put, the letter of license must be considered by this court as still in operation against M'Bride and the other creditors.</p> <p>Our second point is this, that this attachment was laid before the debts were due, and, therefore, prematurely brought. It will be recollected, that the notes of the Crocherons were renewed six, nine and twelve months; only two months had expired when M'Bride commenced his action; he sued on the renewed notes, not pretending to have a right of action on the old ones, well knowing how shameful his conduct would appear in the eyes of the world. We admit the principle of law laid down by our antagonist, that on the debtor's insolvency all his debts are due in present, though the contract makes them payable in future. This rule of law is not applicable to our case. Those debts are proved under a commission of bankruptcy. or when the debtor is discharged under an insolvent act. Ours is neither-we make a voluntary assignment-we do not ask to be discharged under any law-we give up our property from our own will, and enter into this arrangement with our creditors, without being compelled by any law whatever. In the former case, the debtor is forced to do what the statute prescribes-he must give up every thing in the order fixed to his creditors-they are also compelled to come in and receive what is parcelled out for them. This is the distinction. In our case every thing is voluntary-no compulsion is or can be used on either side. Under such an assignment, these debts are not debita in present because there is no bankruptcy, no in solvency, but an arrangement between the debtor and his creditors. Were it necessary, we could refer the court to our statutes in relation to attachments; and, upon a comparison of the facts as sworn to by the plaintiff and those admitted by him in this appeal, we doubt not that the contradiction evident in the two would destroy the application to uphold their demand in this court.</p> <p>We do not want the court to notice the "supposed title of the assignees." it was unnecessary for them to defend this action. The Crocherons not the assignees, are the defendants, and therefore the principle stated in Chitty's Pleading, 1 vol. 505, has nothing £o do with our case. This property, it is in evidence, was never to be included in the assignment; but to be left at the disposal of the Crocherons. All the Haights positively swear that this was the understanding of the parties, nor was there in this any thing. illegal or morally incorrect. It was to be under the control of the debtors that they might make sufficient out of it to enable them to liquidate their debts. Neither was it necessary to for- ward any documents to their consignee in this city. The very act of one of the Crocherons coming with the property superseded the necessity of this. It was under his direction he was the agent of the house, and he could deliver it to any person in this place whom he thought most entitled to confidence. The delivery of it by him would be a sufficient authority for the agent in this place to sell it and render the ceeds to the Crocherons. It was not then the apprehension of any fraud-if fraud could possibly exist-being detected, that no papers were transmitted to the garnishees, but the bare simple act of one of the debtors arriving here with it, rendered it wholly useless.</p> <p>From what has been said, the court will immediately perceive the difference between our case and that reported in 3 John. 125, which the plaintiff has brought to his assistance. Item the concealment by the debtor was fraudulent, and nobody knew it but himself. In our case, the evidence will, we trust, satisfy the court that there was no fraud. Our assignees were creditors, and the legal guardians of the property of their debtors. They knew every thing that was done by the Crocherons, relative to the shipment of their goods to New-Orleans. They certainly would have done nothing which could have had a tendency to deprive them, of the payment of their debts. The facts in the two cases are different toto coelo, and no inference can be drawn by the court, from that in Johnson to the prejudice of ours.</p> <p>We have thus given the two points, on which we rely for our defence, Many others could have been presented the court. We resist the demand of M'Bride, because we say, that his attachment was brought in contravention of a solemn agreement, and before the notes-the foundation of the action, were due. This Court will, we have no doubt, well consider the nature and extent of M’Bride’s demand. They will in their decision in this suit perceive, that an important principle is involved. We ask for nothing but justice, and we do say, that the demands of the creditor in this case, are not consistent with justice.</p> <p>The letter of license became inoperative, by the subsequent insolvency of the Crocherons, and the assign ment of their estate, and so was no bar to this attachment.</p> <p>The assignment does not affect the rights of M'Bride, to receive payment out of the property attached.</p> <p>I. It is a very general rule, that on the debtors insolvency, all his debts are due presently, although by the contract they are payable in futuro. This is an acknowledged principle. Now, the Crocherons became insolvent, and assigned over their estate, in September, 1816, which had the effect of making McBride’s debt due at that period. The attachment was issued in November following.</p> <p>But, again: "according to the true intent and meaning" of the letter of license, the creditors, who had not accepted of the assignment, might well attach, What was that license? To enable the Crocherors to continue in business and pay their debts. Had they done so, the creditor could not have attached: but the moment they became insolvent, and assigned over all their estate, they put it out of their power to pay-they broke the conditions upon which the license was granted to them, and the creditor was no longer bound by it. And what is the legal construction of the license? The Crocherons represent themselves embarrassed. The creditors say to them, "if you will continue in business, and fairly and honestly pay your debts, we will give you further time to pay us." Upon these conditions they received the letter. Now, can it be contended, that they have complied with these conditions? If not, and they are not bound, and cannot be made to comply with their part of the agreement, shall the creditor be compelled to observe his? Was not their insolvency and assignment a complete destruction of their power, and a declaration of their intentions not to comply? Clearly so. In the courts of con mon law, this has been repeatedly so decided; and in 1 Pothier on ob. p. 2, ch. 3. art. 3, sec. 3, there is an authority in point. " The term granted by the creditor to his debtor, is founded on a confidence of his solvency-when that foundation fails, the effect of the term ceases;" and goes on to say that, in such case, the debt is immediately due. No principle can be more just as respects all concerned. It is the change of the condition of one of the parties, that releases the other: for when one of the contracting parties has put it out of his power to observe that part of an agreement to which he is bound, it would be extremely hard to compel the other party, to his certain ruin, to perform his. Something of this princple is found in every code of laws-in courts of equity too, it is fully established-as in the case of Drake vs. Mayor of Exeter, 1 Chancery Cases, 71, where the lessor covenanted with his lessee and his assigns, that upon the payment of cer- tain rents quarter-yearly, he would renew the lease. But the lessee became insolvent, and as- signed over his property to assignees. The lessor was called on to fulfil his part of the agreement, viz. to renew the lease, but which he refused to do, because the lessee, by his in- solvency and the assignment of his estate, had estate ha~ put it out of his power to fulfil his part of the agreement-that is, to pay the rent: and the court of chancery ruled, that the refusal was properly made; and, as the lessee could not comply with his part of the agreement, would not compel the lessor to renew the lease. This case is certainly very much to the present argue ment. So in Willingham vs Joyce, 3 vesey's Chan. Rep. 168-bill for a specific performance of an agreement to grant a lease to the plaintiff -on evidence of his insolvency, the court would have dismissed the bill with costs, unless the matter had been compromised, on the ground that the plaintiff had put it out of his power to observe his part of the agreement, to pay rent, by becoming insolvent; and so the parties were discharged. And going upon the same reasoning, it has ever been held, in equity, that a failure of the consideration of a contract, by a subsequent contingent event, to which the agreement, from its nature, was subject, is a good reason for not compelling the party not in fault, to comply with his part of it; as in Stent vs. Bailies, 2 Peere Williams' Rep. 217, where the contract was for the sale of shares in the Lustring Company. Afterwards, before the fransfer was made, a scire facias issued to repeal the patent granted to this company; and, at the same time, a proclamation was published, forbidding transfers. The company never afterwards opened their books, nor was there any prospect of their doing so. The seller brought an action on the articles in a court of law, and obtained a verdict; upon which the purchaser filed a bill in equity, for an injunction. Sir J. Jekyl, master of the rolls. "It is against natural justice, that any one should pay for a bargain which he cannot have; there ought to be a quid pro quo but, in this case, the defendant has sold the plaintiff a bubble, a moonshine:- and a perpetual injunction was decreed, on the ground that, it being out of the defendant’s power to afford the plaintiff that benefit which the contract was intended to secure, the plaintiff should not he compelled to perform his part alone. There was an appeal from this decision; but the lord chancellor confirmed the decree. The case of Pope vs. Roots, i Bro. P. C. 370, is also full to the same purpose. There J. S. in perfect health, agreed to sell his estate to B. in consideration of an annuity for life; before the conveyance, however, but after it ought, by agreement, to have been executed, J. S. died. On a bill brought by B. for a specific performance of this agreement, the court dismissed it, because it was impossible for J. S. (being dead) to have the benefit of the annuity. B. would have nothing to pay, and yet would get the whole estate, which would be unjust; and the court said it was a clear rule, that where one party, by the conduct or misfortunes of the other, could not have the benefit of his part of the agreement, he shall be put in as good a condition as the other, and law and equity will take care that neither party shall suffer by the mis- fortunes or frauds of the other. Now, it must gratify the court to be able to apply those very just and equitable principles to this case, parti- cularly as it appears that there is only property sufficient to pay the first and second classes of creditors; and M'Bride being one of the fourth, will lose his claim entirely, unless he is paid out of the property attached.</p> <p>Thus much being advanced in support of the first proposition, before reasons are attempted to prove that the assignment of the Crocherons cannot affect M'Bride in the present action, a preliminary question arises, whether the suppos- ed title of the assignees under the assignment, will be noticed by this court, inasmuch as it is not pleaded, and the assignees are not before this court as parties to the suit? Now, it appears by the affidavits only, that an assignment has been made. By the plea, the letter of of license alone is relied on, in bar of the attachment. Will this court notice the alleged title of the assignees, inasmuch as they have not pleaded? It is believed not. Matter of defence going to avoid the action, ought to be pleaded. 1 Chitty on Pleading, 505. But why? That the opposite party may know to what he is required to answer. Is not the civil law the same? Here the pleadings do not in- form the attaching creditor that the assignment will be relied on in defence against the attachment; and his counsel cannot know any thing of it-as between the creditor and the assignees there is no contestation, and the court cannot decide the disputes of persons not regularly litigating in a suit in court. But if the court overrules this objection, which is made only be- cause it may lessen the labors of the court, let us see whether it can make any difference in the ultimate decision of the cause. We are willing to investigate to the utmost stretch of the defence. Then,</p> <p>II. Goodfaith is the basis of all mercantile dealings-but it is due to the character of this transaction to say, that it was bottomed in fraud, fraudulent from beginning to end. And what effect does fraud produce? It vitiates all convitiates ait coutracts, all proceedings-it destroys the most solemn judgment of a court of competent jurisdiction. The Dutchess of Kingston's case, Hale's Hist. of the Com. Law, 39, note 31.</p> <p>We must look to the character of this assignment, which we are now supposing duly pleaded; for it is admitted, that if it was a bona fide transfer of the property attached, the attachment ought to be dismissed. The rule undeniably is, that where personal property is assigned in a sister state, or elsewhere, according to the laws of the place where the transfer is made, a creditor cannot afterwards attach that property. The rule with respect to real property is directly opposite; but we have no concern with that.</p> <p>Now, whether the assignment be good or not, as affecting the claims of creditors, will depend principally on the laws of New-York, and the motives of the party making the deed.</p> <p>A recurrence to the evidence is necessary. Fraud is discoverable throughout.</p> <p>The assignment purports to convey all the personal estate of the Crocherons. They do not say in the body of that instrument, that any thing is reserved. The creditors too are to be paid according to the good will and pleasure of the Crocherons. Who are they who endeavor to destroy the rights of others, the rights of their own creditors, all of whom have equal rights? But they presume to say, unless there is property more than enough to pay the first class, (most favored) the second shall have nothing- and so on. The evidence shews that there is barely enough to pay the first and second classes. Have insolvents, even honest insolvents, a right to make this discrimination? A debtor may, to be sure, in the ordinary course of trade, when solvent, and not in contemplation of bankruptcy, pay one creditor in preference to another; but in no other situation-never has be that right in contemplation of, or after insolvency. Here the Crocherons completely failed, and then assigned their property to some creditors, in preference, and to the exclusion of others. Will the law uphold such a conveyance? "It never entered into the mind of a judge to say, that a man in contemplation of bankruptcy, and more especially after complete insolvency, could sit down and dispose of his goods to particular creditors." Lord Mansfield. Thus, in the case of Ogden & Thomas, assignees of Cummings vs. Jackson, 1 Johns. N. York Rep. 373-3: Cummings, having become insolvent, assigned to Jackson, a creditor, certain goods in payment of his debt. The assignees, however, afterwards brought this action of trover, to get back the goods. The court gave judgment for the plaintiffs, on the ground of fraud, against the other creditors, saying that "it would not be permitted that a person insolvent at the time, should parcel out his estate to such creditors as he may see fit to prefer." And the court added, that to do so, was contrary to the genius of the law, which required an equal distribution. A great number of cases have been decided in other states, and in England, where the common and bankrupt law obtained, analogous, to the laws of New-York. It is thought sufficient to notice one or two leading cases on the subject, decided in Great-Britain. Harman vs. Fisher, 1 Cowper's Rep. 126, is one of them. There the question was, whether an insolvent might lawfully give preference to some of his creditors? and it was held by the whole court, that a person in insolvent circumstances, or absolutely insolvent, could not do so; that it could only be done in the ordinary course of business, where the party was solvent at the time, or thought himself so. and not in contemplation of bankruptcy. "What," said Lord Mansfield, "is the nature of the transaction upon the face of it?-it is in terms, that he, (the insolvent) means to give a preference. This the law does not allow." So in the case of Linton, assignee f a bankrupt, vs. Bartlet, 3 Wilson, 47-8. The bankrupt, being in insolvent circumstances, assigned over his estate in preference to some of his creditors. This was held to be fraudulent and void-"that it was partial and unjust to all the other creditors" -and the court declared the assignment void. And, again, in the case of Rust, assignee, &c. vs. Cooper, 2 Cowper. 635. This is cited particularly, because the object and motives of the party making the assignment, were very similar to those of the Crocherons. The bankrupt had made an assignment to his creditors; but so that a part of them only could take any benefit under the assignment. He was insolvent at the time. The court looked into the motives of the insolvent, and said-"In the present case there is not a single thing but what is a step towards fraud, and a proof of an intended preference; and to support it, would be to overturn the whole system of the bankrupt laws. The present, therefore, is a fraudulent assignment upon all the other creditors, and all the laws concerning bankrupts." Let the learned counsel say, how this case and the one before the court differ.</p> <p>But, in truth, what are the pretensions for shutting M'Bride forever out of payment? Is it the honorable conduct of the Crocherons and the Haights, their assignees? Let us see. The whole transaction shews that the object was to defraud the creditors out of the goods shipped to New-Orleans. It was never intended that they, or the assignees, should have any control over those goods. It was never intended that the general creditors should have any of the avails of that very heavy shipment. Every thing was transacted in the dark. Three Haights are made assignees, adding Potter, a very correct young man, by way of giving false colors to the business. He was to be made the dupe. These couscientious Haights all swear that the goods in question were not intended to be included in the assignment, but that the Cro-cherons intended to keep them under their own control-and one of the Haights confesses that he was promised payment out of the proceeds. But Potter, and all the other creditors, supposed that the assignment covered all the property of the insolvents. Now, was there ever a more gross fraud? The combination is too apparent to be passed unnoticed. "Make us your assignees; and, that your creditors may be satisfied, and suppose all is fair and honest, let the assignment appear to convey all your property; but you must keep the shipment to New-Orleans a perfect secret, and pay us out of the proceeds -then the surplus you may have; but take care that the creditors know nothing of it." Accordingly, no entry whatever was made in the books of the Crocherons of this very heavy shipment-all is done behind the backs of the creditors-even their confidential clerk, then book-keeper, (Brewster) who did their business, was kept ignorant of this meritorious transaction. What does he swear? "He never made, or saw any entry made, of the shipment to New-Orleans." This is not counteracted by the evidence of one of the Haights, who swears that the books are in his possession, and that "there is an entry." Very true-it was easy to have the entry made but a moment before he took the oath-so he says, there "is" an entry: but the artifice is too shallow to impose upon this court. This is not all-the insurance offices of New-York refused to insure, Why? Because they dare not write to the offices for insurance. This would be making the matter too public-and no bill of lading could be shewn, as the goods were shipped in such private silence that the captain of the vessel must not be trusted with the secret, and so was not required to sign bills of lading. One of the Haights acknowledges that he cautioned the Crocherons, that the creditors would find it out-i. e. find out the shipment to New-Orleans: and it turns out in evidence, that some of the goods of the Haights accompanied this very shipment, and were embarked in the same enterprize. As they could not trust to the captain to sign bills of lading, they could send no document here to the garnishees to present to the captain on his arrival, to get possession of the goods; therefore it was found necessary to despatch one of the Croche-rons with the goods on board.</p> <p>Now, we think it does appear, that a more fraudulent, a more corrupt transaction never came before a court of justice-and will this court suffer the parties guilty of those frauds to take advantage of them to the injury of a bona fide creditor, who has parted with his goods in faith of the honesty of the purchasers, but who have combined to deceive him? Shall they be suffered to pocket fourteen or fifteen thousand dollars? The assignment purports to convey all their goods. Thus their creditors were to be quizzed out of this very considerable sum- go without a farthing. But this concealment operates very differently from what they contemplated. It is a fraud-and as to their creditors, makes the assignment absolutely void- as in the case of Duncan vs. Dubois, 3 Johns. New-York Cases, 425-6-7, where the insolvent the insolvent kept back from the knowledge of his creditors a claim which he had on the United States for revolutionary services. It was held fraudulent, and the assignment and discharge of the insolvent void, because "it was a fraud upon the creditors to withhold that claim, so that he might afterwards appropriate the result of it to his own use."</p> <p>Then it is submitted, that the subsequent insolvency and assigmnent of the Crocherons did away the letter of license, and restored the claims of M'Bride as they would have been, had that instrument not been made and his notes renewed-that supposing the court will recognize the claims of the assignees, the assignment under which they can alone claim, (supposing it to include the goods in question) is fraudulent and void -that if it did not convey those goods, it was a fraudulent concealment-and that makes the assignment void: and, what is very mate- rial in the latter case, these goods remained the property of the Crocherons, and of course subject to this attachment. But, if it be said that the goods in question were conveyed by the assignment to the assignees, a further answer is, that the subsequent possession and control of the Crocherons, independent of other frauds, makes the deed absolutely void as against crecte. ditors. The case of Mace vs. Cadel, 1 Cowper's Rep. 233, went upon this ground, and decided that, if a man convey his goods to a third person, yet keeps the possession or control, it is void, as being fraudulent, according to the doctrine in Twine's case, 3 Coke, 81.</p> <p>We mighthere rest the case; but the counsel for the defendants having taken some different positions from those on which we have discussed the merits of this controversy, it is fit to notice them.</p> <p>It is admitted,that if the property assjgned by the Crocherous is insufficient to pay all their debts, that then the letter of license is destroyed by the assignment-and the force of the autho- rities proving that position, is not questioned. But, it is said, that this case may be distinguish- ed from that class of cases-and how? Because, say the counsel, "in those cases the party was unable to perform his part of the contract; but that, in the case at bar, it is not known whether or not the property assigned by the Crocherons is sufficient to pay all their debts." That the law is as admitted and proved from authority, there is no doubt; but the gentleman is mis- taken in point of fact. The court wil1 see from the testimony, that three witnesses expressly swear, that there is not property more than suf- Eastern District July 1817. ficient to pay the first and second classes of creditors-and there are no less than four classes, and M'Bride is one of the fourth. How, then, could it be said, that it does not appear that the estate will not pay all the debts of the Crocherons? The evidence was not recollected. If M'Bride does not get payment here, of course he never can hope for it.</p> <p>Then authorities are cited which, it is said, prove that, "if a contract be fair in its creation, it shall not be affected by a subsequent event, which has thrown the advantage greatly, or wholly, on one side." Now, if any judge had ever said so, it would prove nothing here; for there is evidence enough to shew, that the letter of license was not fair in its creation. Perhaps no court exists that would not say, that this instrument was procured from the creditors with a view to the fraudulent transfer, concealment, &c. which so rapidly followed the date of the letter of license, and have been proven. But, in truth, these authorities do not support the counsel's position-far from it. They prove a contrary doctrine-for, in a note to the case of Mortimer vs. Copper, 1 Brown's Chan. Rep. 257, it is declared by the court, that the case of Cass vs. Randall, 2 Vernon's Rep. is badly reported, aud is not law; and, it is added, that that at case, is the only one which supports the position taken by the opposite counsel; but that, as the reporter mistook the decision, it is not an authority. And, as to the case in Brown’s Rep. the counsel have not fairly cited it. The court will discover that it is not an authority to the extent they suppose. It is opposite to their principles-for the chancellor ordered an in quiry into the value of the estate, and put the party in the same situation as he would have been, had not the old man died. So that there is no authority-there can be none-shewing that, if the debtor become insolvent, he may still compel his creditors to observe their part of a contract which, from its terms, they only stipulated to perform on condition, that the insolvent would perform his. The decisions, and the reason of the thing, are conclusive against it.</p> <p>The expression of judges in Brown, 733, and Douglass, 92, that a man may become insolvent, and yet his estate pay twenty shillings in the pound, may be true, yet has nothing to do with this case-for here the evidence is positive, that the estate of the Crocherons is insufficient to pay more than the first and second classes of creditors.</p> <p>As to the authorities cited to shew that an insolvent may legally prefer one creditor to another, there are cases in which it may be done, but not to the extent to which the counsel suppose.</p> <p>It is said that we admit the validity of the letter of license, and that if we destroy the assignment, the license precludes M'Bride from recovery. Let us see if this is so. 1. Too much is taken for fact, because we do not admit the validity of that instrument. 2. But, if we did, would that have the supposed effect? By no means; because, by reason of the fraudulent concealment of this property, &c. as to the Cro-cherons, the assignment is a nullity, with respect to creditors who dissent from it. It is upon this principle, that the Crocherous shall not be allowed to avail themselves of their own wrongs -and we did not suppose that the gentleman would anticipate what was never intended, and could not be argued with safety in a court of law. But the assignees have got possession of the estate; and, by this time, have paid away all the proceeds, though nothing has been re- ceived by M'Bride.</p> <p>It is next advanced, that M'Bride attached, on the renewed notes, before they were due: But this is not so-he attached for his debt, un- der all the circumstances of the case, disclosed in evidence to this court. The opposite counsel admit, that on the debt- or's insolvency, all his debts are due presently: indeed, that principle of law, is too well tested to be denied; but how do they attempt to get over it;-why say the counsel, "here the Croch- erons, have not taken the benefit of any bank- rupt, or insolvent law; therefore we do not know that they are insolvent. Again, they forget, that their witnesses swear, that the estate will only pay the 1st and 2d classes of creditors. Are they then not insolvent?</p> <p>To recapitulateThe letter of license was granted by the creditors of the Crocherons, upon the condition, that they should continue in business, and pay all their debts. This condi- tion they have broken, by making a general as- signment of their property; which shews their inability to pay, or why make the assignment? But the concurrent testimony of all the witnes- ses is, that they are only able to pay the first and second, out of four classes of creditors- of which last, M'Bride is one, and of course can get nothing but from this attachment. 2. The property in question was excepted out of the assignment, and was not transferred to the assignees; but still continues to be the proper- ty of the Crocherons. This concealment of a large portion of their property, was a fraud up- Eastern District July 1817. M'B ui~ on the creditors. The Crocherons shall not be allowed to avail themselve of, or benefit by their own wrongs. In truth, this was the very reason why M’Bride, after the transaction came to light, would not accede to the terms of the assignment. Had he not done so, he could never hope for payment. 3. As that property still belongs to the Crocherons, the letter of license being a nullity, has not M’Bride a right to recover payment of his debt, out of the property attached?</p>

The petition stated, that the plaintiff's testator, finding himself in difficulties, thought proper to place a part of his property out of the reach of certain enemies. who menaced him with unjust law suits and prosecutions: whereupon he determined to provide a friend, who might cover it.

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

<p>A bill of exceptions to the admission of a witness will not be noticed, if the fact proved by him, be proved by other legal testimony.</p>

Marie J.Broutin, wife of the defendant, made her last will and testament, entirely written, signed and dated with her own hand, enclosed it under a sealed cover, and in the presence of the number of witnesses required by law, pre- sented th packet to a notary, who drew up thereon an act of superscription, as in the case of a mystic will; but omitted to insert therein that the testatrix had declared, that the will was written by herself, or by another by her direc- tion, and…

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

<p>The surety in an attachment bond is bound, through, at the time of its execution, no such a bond was legally demand-able.</p> <p>The record of a suit, in which judgment was obtained against his principal, is not evidence against him.</p>

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

<p>When the judgment is reversed for want of reasons, the Court may proceed and render such a judgment as ought to have been given below.</p> <p>If an executor receives a note from his testator's debt or he may sue thereon, after the expiration of the year.</p>

In the year 1786, J. B. Piedferme presented presented to the then commandant, at Natchitoches, his petition, asking permission to settle on a tract of land, which he describes as situated about nine leagues above that posts on the Red River, at a place called the Fayard, containing about eighty arpens, on the high land side of the river, unfit for cultivation, forming a fer a cheval from one high land to the other, and fit only for a cattle farm, for which he designed it.

<p>A bill of exceptions, to the opinion of the court in refusing a conditional verdict, will not be noticed if the whole evidence comes up, and the supreme court is enable thereby finally to dispose of the case.</p>

<p>If the proceedings on which a judgment pleaded in bar, be so confuse, that the facts cannot be well ascertained, the case will be tried on its merits.</p>

<p>A creditor of a party to a suit, who has not established his claim below, cannot exercise his debtor's right of appeal.</p>

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

<p>Appeal from thecourt of the fifth district.</p> <p>In the year1814, some person, not connected in the present cause, sued Prevost, the husband, recovered judgment, and obtained execution. The sheriff thereupon seized a house and piece of land, as the property of Prevost, and pro. ceeded to make the appraisement. This being done, and no opposition whatever made to these proceedings, he sold the property seized to the present defendant. Henrietta Borel, wife of Prevot, however, obtained and kept possession of the premises&emdash;in consequence of which the defendant requested the sheriff to put him in possession, who thereupon summoned the posse comitatus, and did actually put him in possession. The house being of no use to the defendant, and the materials, in his estimation, not worth taking away, he caused it to be burnt. Henrietta Borel afterwards claimed the premises as her own private property; brought a petitory action, and recovered it by a judgment of the supreme court. 4 Martin, 506. And on the 18th of March, 1816, about eighteen months after the alledged trespass had been committed, she brought her action for damages, not against the sheriff, but against Hennen, and did in fact get a verdict for $2000. On a mo- tion for a new trial, this verdict was affirmed, and judgment thereupon rendered: he appealed.</p> <p>for the defendant. The first circumstance that appears extraordinary in the proceedings in this case, is the enormity of the damages. Two thousand dollars have been awarded as an indemnification for a trespass on a property which was sold for the sum of &333 67.</p> <p>The jury, which could give such a verdict, must have been actuated by a spirit very different from that of justice.</p> <p>It is equally remarkable, that during the whole of the proceedings, previous to the sale of the property, no claim was interposed, no opposition made by Madame Prevost, or by her husband, in her behalf. When a sheriff seizes property, by mistake or otherwise, which he has no right to take, common sense immediately suggests to the owner to make his claim without delay. If he neglects this obvious precaution, he virtually waves his right as to the injury, trespass or tort, and retains his right to the property only-for, in strictness, there is no tort or injury, unless where there is an intention of injuring. How can a sheriff be considered as a wrong doer, for taking property which he believes he has a right to take, and which the owner suffers him to seize and to appraise, without making any claim, complaint or expostulation?</p> <p>In England, and in the United States generally, when the sheriff makes an illegal or erroneous seizure of goods, the owner of them, if the sheriff persist in the seizure, has no other remedy but to bring his action of trespass. But in this state, the law has provided an immediate and summary remedy, which is very generally known and very frequently enforced. When property is seized for a debt, a third party who affirms that the property belongs to him, or that he has any right in it, may make opposition to the execution, and the judge shall take cogni- zance of this opposition, in a summary manner. Part. 3. 27. 3.</p> <p>The mode of making, and the proceedings in, such opposition, are briefly stated in the Cu- ria Filippica, part. 2, Juico executivo.- part. 26, tercero opositor. From which the following extracts are submitted to the court.</p> <p>No. 4. " Esta oposicion se puede, y ha de hacer, y admitir en qualquier tiempo durante sentencia de remate, como sea antes de dada la possession, o hecha la paga.”</p> <p>The words of the law, be it remarked, are imperative as well as permissive. The intention of the legislator evidently being to prevent expensive, circuitous and unnecessary law suits. suits.</p> <p>The 7th number of this section provides for the very case in which Madame Prevot was placed: Aunque la muger, durante el matrimo-nio, no puede pedir su dote y bienes al marido, que sin culpa suga viene en inopia, o pobreza,-empero puedelo pedir en esto caso, quando es executado a pedimento de otro acreedor, y op-ponerse a la execucion, &c. &c.</p> <p>The 12th number provides, that these oppositions, when necessary, shall be tried and determined by proofs in the ordinary mode of proceeding.</p> <p>What is here quoted, is founded upon laws of the Partidas, and the Recopi1acions, referred to in the book cited. Madame Prevot, having then neglected to use the means, and avail herself of the remedy given and prescribed by the law, what right has she afterwards to complain of an injury or trespass, which her neglect and silence alone occasioned? How was the sheriff to know, legally or officially, that the property in question did not belong to her husband, the defendant in the original suit? Did not the absence of any claim on the part of a third person, tercera opositor, justify him in presuming, that it really was the property of the debtor? Under such circumstances it is contended, that Madame Prevot can be entitled to no damages whatever, from any one, for the seizure of the premises ; and that, having recovered back the property, she has got every thing which she can legally claim. If she had been refused her costs in the action, to which she had recourse for recovering it, that loss would have been only a just penalty, for having preferred a tedious and expensive litigation, to the cheap and summary process, which the law has provided, and which would have secured her from all inconvenience in the first instance.</p> <p>This argument is strengthened, when the relation between Madame Prevot and the defendant in the original suit is considered. He, as her husband, was the administrator and protector of her property. He might therefore very naturally be considered in the neighbourhood, as the owner of the estate. He was at least, the apparent owner of it. The sheriff, then was justified in taking it at first, and in proceeding to the sale of it, as long as no legal opposition thereto was made. The silence of the parties up to this stage of the proceedings, gives strong reason to suspect some collusion. They thought perhaps, that by allowiug the seizure and sale to proceed thus far unopposed, the actual property of the debtor would be secure from seizure, and that in the mean time, then he might place it out of his creditors’ reach, by some of those ingenious stratagems, of which debtors of a certain class so well know how to avail themselves.</p> <p>How was the sheriff to act, the sale having been thus suffered to proceed, unopposed to its last stage? We maintain, that it was his duty to put the purchaser in the possession of the property; for, at any time previous to the possession being given, the third opposer may make his claim in due form of law. No such claim having been made, it was fairly presumable, that no right to it existed, and this being a case in which it appears that resistance was made, or threatened, it become the sheriffs’ duty “to call for the aid, and command all the people of his country to attend him, and enable him to keep the peace, and execute the process of the court, that was directed to him.” 1 Bl. Com. 362, Dalt. Sher. 5.</p> <p>As to the notion entertained by the judge, and stated by him to the jury, that all those who assisted the sheriff in this proceeding, were trespassers, it seems to be quite erroneous. It was the duty of all those able bodied inhabitants of the country, whom the sheriff called to his aid, to obey his summons. The statute of 1805, for establishing the county courts, went so far as to declare, that every person, so called, by any sheriff, who shall refuse to render such assistance, may be punished by fine, at the discretion of the court, not exceeding $25. 1. Orl. Laws 184," And it would have been a most absurd anomaly in our jurisprudence, if a man could be held liable as a trespasser, for doing that which by law he was bound to do, and for refusing to do which, he would he subject to a legal penalty. The provision just quoted of the county court act, has, it is true, been repealed ; unintentionally or in advertenly, as we apprehend for the duties of the sheriff continue the same as before. But though the specific penalty be in consequence abolished, we contend that the sheriff's authority, to call for the aid of the posse comitatus, still remains in full force. It is still made the duty of the sheriff of each parish "to execute all judgments and orders of the district court &c,-and to discharge all the duties which were incumbent on the sheriff of the parish, and su- perior court." (see act to organize the supreme court, s. 23.) It is enacted in the 16th sect. of the same statute, that the proceedings of the district courts, shall he governed by the acts of the territorial legislature, regulating the proceedings of the late supreme (superior) court court of the territory of Orleans. Now, by the 14th and subsequent sections of the act, regulating the practice of the said superior court, Orl. Laws, 1. 236, the sheriff's duties in making seizures and sales, are the same, and prescribed nearly in the same words, as they were under the county court act. His powers, therefore, so far as they are requisite for the execution of those duties, must continue-for it is a well known, undoubted principle of law, that whenever any duty is imposed, or any authority given, the means necessary to the performance of the one, or the execution of the other, are impliedly, if not expressly, accorded. What these means are, in cases like that under consideration, must be found in that system of jurisprudence, conformably to which the office of sheriff was created. Under the free system of the common law, the sheriff would naturally have recourse for aid to the good people of his county, in the same manner as the Spanish alguazil mayor would demand assistance from the military power. The office of sheriff is provided for, and the mode of appointment to it regulated by the constitution of this state-whence it may be inferred, that the nature, the duties and power of that office were generally recognized and understood as they are, and always have been, from similar provisions in the constitutions of several of the other states of the union; that is, according to the principles and usages of the common law. Repeated adjudications of the supreme courts of Massachusetts and Connecticut authorize this presumption. Backus' Sheriff Adv.</p> <p>With the kgality of the process, or proceeding of the sheriff in such a case as the present, the posse comitatus have nothing to do. It is quite enough for them to know that he is the sheriff, and that what he is doing is apparently just: otherwise who would ever venture to obey the sheriff, when called upon to execute the law ? The following authorities on this point go very far beyond what we require:"If J. S. be compelled by J. N. to commit a trespass, the latter only is liable-for no person can be guilty of a trespass, unless he act voluntarily." 6 Bac. Ab. 589. "If a stranger have officiously assisted a sheriff or his officer in the execution of a writ of fi' fa', which issued upon a regular judgment, he is not liable to an action of trespass-for it is not only lawful, but it is the duty of every man to assist in the execution of such a writ." 6 Bac. Ab. 590.</p> <p>These considerations would serve to exonerate the appellant and protect him against this action, if it were even in proof that he had personally assisted the sheriff, as one of the posse comitatus, or even as a stranger. But the statement of facts does not go that length. It is there declared that the defendant was asked to join the posse-but he objected to going with them, giving as his reason that, as he was the purchaser, it would be improper in him to do so.</p> <p>Much stress appears to be laid by the judge below, in the bill of exceptions, on the circumstance that the sheriff put Hennen into possession of the premises-which, it appears from the said bill of exceptions, he had before seized and sold to him, without any warrant or au thority, save only the writ of fi’ fa' aforesaid. And what other authority or warrant, we ask, was requisite? In fact, our laws have provided no other. That writ enables the sheriff to seize the property-and having so seized, and being in lawful possession of it, he sells it and delivers it up to the purchaser. What need of a writ of seizure, or of possession, when the sheriff himself is already in possession of the property? This throws a new light on the affair, and clears up all difficulties. It was Madame Prevot who was the transgressor in this case. She it seems, obtained possession, by some means or other, of that property, which the sheriff had seized and sold, as the record itself states-and it was only in consequence of this unlawful possession acquired by her, that the sheriff was obliged to have recourse to legal violence to eject her from the premises. Had she, when the property was first seized, previous to the sale, made the legal opposition of a third party, she would of course have recovered the possession. But, having neglected to do so, she was to be considered an intruder and trespasser.</p> <p>The sheriff having sold the property, as the statate directs, made the tradition and delivery of it in the manner prescribed by law. Tradition, or delivery of immovables, is made by the seller, when he leaves to the purchaser the possession of the same, by dispossessing himself, &c. or by putting the buyer on the premises. Civ. Code, 851, art. 28.</p> <p>Hitherto our argument goes to the complete exculpation of all the parties concerned in this supposed trespass of the sheriff as well as the defendant. But, whatever may be the liability of the former in this transaction, it is clear, beyond all doubt, that the latter must be regarded as a peaceable, legal, bona fide possessor. His case comes exactly within the definition of the bona fide possessor, as given by our statute. The possessor, in good faith, is he who is, in fact, the master of the thing which he possesses, or who has a just cause to believe that he is so, although it may happen that he is not; as it happens to him who buys a thing which he thinks belongs to the seller, and which yet he longs to another. Civ. Code, 478, art. 21.</p> <p>The sale of the property by an officer authorized by the state to make such sales, was quite enough to justify the defendant in believing that the title was a good one-that the property did in fact belong to the debtor, and, by operation of law, to the sheriff who had seized and sold it. If any thing more was necessary to confirm him in this belief, it would be found abundantly in the absence of all legal opposition to the sale. Such a possession as this would serve as a foundation for the prescription of ten or twenty years.</p> <p>It is, therefore, sufficient to defeat this action of trespass, or any other action, founded on a supposed tort or injury. In such cases, the maxim of our law is, that "good faith is always presumed, and that it is for him who alledges bad faith to prove it.” Civ. Code, 489, art. 71.</p> <p>Bonoe fidei emptor (says the Roman law) esse videtur qui ignoravit rem alienam esse, aut putavit eum qui rendidit, jus vendendi ha bere. ff. de verb. significatione.</p> <p>Con buena fe, (says the Spanish legislator) recibe el que succede a otro, o' cree que el que le entrega la cosa tiene potestad de entregarla, &c. Part. 7, 33, 9 Compendio por Perez, 44.</p> <p>But, if the seizure made by the sheriff, were wholly illegal and without any colour of justice, still this action could not be maintianed against the defendant. The sheriff alone would be liable to it. On this point, the authorities are very full and decisive. Celui qui a été depos-sedé par violence, n'est pas fondé a exercer cette action de reintegrande, contre celui qu'il trouve en possession de la chose dont il a ete depossedé par violence, si ce possesseur n'y a qucune part." Poth. Poss. n. 122.</p> <p>Cum a te vi dejectus sim, si Titius eandem rem possidere coeperit, non possum cum alio quam tecum interdicto experiri. If you have dispossessed me by violence, and if another, (Titius) have began to possess the same pro- perty, I cannot obtain the same interdict unde vi, except against you alone. ff. 43, 16, 7.</p> <p>The interdict unde vi is here spoken of: Istud interdictum unde vi non datur contra par-ticularem successorem; unde si ille qui commisit violentiam, vendidit vel donavit alteri illam illam rem, vel quovis alio titulo oneroso, vel lucrativo, per contractum inter vivos, vel per ultimam vo-luntatem, alioenavit, non potent primus possessor expulsus agere hoc interdicto contra illum tertium in particularemn successorem, sed tantum contra expulsorem qiu violentiam commisit, licet rem ipsam non possideat. Gomez. Comment. in leg. 45, Tauri, n. 186. Cujus ratio est, (he adds) quia regulariter interdicta sunt remedia personalia. ff. 43, 1.</p> <p>The plaintiff having brought her action of trespass, in the common law form, it may be proper to shew, that the principles of that system of jurisprudence, are as little favorable to her claim, as those of the Roman or Spanish laws. To be able to maintain an action of es-pass, says Blackstone, 3 Com. 210; one must have a property (either absolute or temporary) in the soil, and actual possession by entry.</p> <p>If the sheriff, or a stranger illegally take the goods of another in execution, and sell and deliver them to a third person, trespass cannot be supported against the latter, because they came to him without fault on his part. 1 Chitty's pleading, 170. The gist of this action is the injury to the possession; and unless at the time the injury was committed, the plaintiff was in ac- tual possession, trespass cannot be supported. Idem. 175.</p> <p>There is a material distinction between personal and real property, as to the right of the owner. In the first case we have seen, that the general property draws to it the possession, sufficient to enable the owner to support trespass, though he has never been in possession; but in the case of land and other real property, there is no such constructive possession: and unless the plaintiff had the actual possession, at the time when the injury was committed, he cannot support this action." Idem, 176.</p> <p>"Thus, before entry and actual possession, a person cannot maintain trespass, though he hath the freehold in law, &c. But a disseisee may have it against a disseisor, for the disseision itself, because he was then in possession; but not for an injury after disseisin, until he hath gained possession by re-entry," &c. Idem, 477.</p> <p>There must be a possesion in fact, of the real property to which an injury is done, in order to entitle a party to maintain trespass, quare clausum fregit." 6 Wilson's Bac. 566. 1 John. Rep. 511. 9 John. Rep. 64.</p> <p>These authorities, which might he multiplied without end, 6 Bac. Abr. 593, 3 Caines, 261, Buller's, N. P. 87, 1 Lord Raym., 692, 2 Salk. 639, Co. Litt. 257, 13 Coke, 500, 2 Lord Raym, 975, 1 Leon. 302, 319, 1 Gould. Esp. N. P. part. 2. 266, 9 John. Rep. 6t, &c. &c. all prove that, if Madame Prevot had an action of tress pass, it was against the sheriff, and not against the defendant. But, setting aside the name, and particular form of the action, his substantial and irrefragable defence, in law and is natural equity, is that, as he entered into the possession of the property in perfect good faith, having nothing whatever to do with the original suit, he cannot be liable to any manner of suit or prosecution as a wrongdoer.</p> <p>There is yet another legal defence, of which he can avail himself, and which, independent of all others, would be sufficient to defeat this action, now and forever, as against the defendant and afl other persons. It is the plea of prescription-a plea or exception which our law permits to be offered to every stage of a cause, even on the appeal. Code Civ. 483, art. 36. Such is the Roman, Spanish and French law: Prescriptionem in peremptoriam, quam ante con. testare sufficit, omissam priusquam sententia feratur, objicere quandoque licet. The peremn- tory exception, which might be well pleaded previos to the contestation of suit, may, though it should have been then omitted, be afterwards opposed, at any time before the sentence or decision of the cause is given. Cod. 8, 36, 5.</p> <p>Cum nundum finitam sententiam, sed dilatani allegatis; non est dubium omnes integras de-fensiones vobis esse.</p> <p>When the cause has not been decided by a final sentence, but continued, there is no doubt but that all kinds of defence remain to you in their integrity. Cod. 8, 36, 4.</p> <p>Il est de la nature de l'exception peremp-toire, de pouvoir être opposée en tout ètat de cause ; et telle est la prescription. 8 Droit Romain de Le Clerq, 63.</p> <p>On ne donte pas que la prescription ne puisse etre proposée en tout ètat de cause. C'ést une exception peremptoire, et cela dit tout. Aussi trourons nous dans le Journal du Palais de Toulouse, 2 tom. 552, deux arrets de cette cour qui jugent que le possesseur est tenu a prouver la possession du tems legitime pour la prescription, quoiqu'il ait commence a se de-fendre contre l'ancien proprietaire, qu'il ait d'á-bord pretendu simplement que la chose lui ap-partenait independamment de la prescription, et sans l'avoir proposêe au commencement de-vinstance, 9 Merlin, 489. See also 8 Le Clerq. Droit Remain, 63, Cod. 8, 36, 8, 2 Domat, 236, F. Ed.</p> <p>The peiod of prescribing against this action remains to be shewn.</p> <p>The wrong complained of by the plaintiffs, is called, in our technical law language, an injury. This word includes not only every species of libel, slander and calumny, but all acts of violence for which damages may be recovered in a civil action. It comprises all those torts which the common law designates by the names assault, battery and trespass, vi & armis. Ge-neraliter injuria dicitur omne, quod non jure fit. Inst. 4, 4, pro.</p> <p>Injuria ex eo dicta est, quod non jure fiat; omne enim quod non jure fit, injuria fieri dici-tur. 1 Dict. Dr. Rom. 395.</p> <p>Injuria autem committitur, non solum cum quis pugno pulsatus, aut fustibus coesus, vel etiam verberatus erit; sed it si cum convitium factum fuerit; sive cujus bona, quasi debitoris, qui nihil deberet, possessa fuerint, ab eo qui in-telligebut nihil eum sibi debere. Inst. 4, 4, 1,</p> <p>An injury is committed, not only by beating, scourging or whipping, but also by using slanderous language; or by seizing the goods of another, as if he were a debtor, when the person seizing them knew that nothing was due to him. Inst. 4, 4, 1.</p> <p>The punishment of an injury was by retaliation, according to the law of the twelve tables, when a limb was broken ; but, in lighter cases, the punishment was pecuniary. Afterwards, the praetors allowed the parties injured to lay their damages at a certain sum, which might serve as a guide to the judge in estimating them accord ing to his discretion. And this was the mode universally resorted to when the civil action of injury was brought. Inst. 4, 4, 7. This action corresponds, in the present case, with the common law action of trespass vi & armis, as the action of trespass on the case corresponds with many of the actions given by the Aquilian law. But the right to bring the former (the actios of injury) is limited to one year. Hoec actio dissimulatione aboletar; & ideo, si quis injuriam dereliquerit, hue est. statim passus ad animum suum nori revocaverit, postea expoenitentia remissam injuriam non poterit recolere. Inst. 4, 4, 12. Injuri rum actio annuo tem-pore proescripta sit. Cod. 5.</p> <p>This provision is adopted by the Spanish law. Hasta un ano puede todo ome demandar emienda de la deshonra, o’ del tuerto que re-cibio; e si un ano passasse desde el dia que le fuesse fecha la deshonra, que non demandasse en juizìo emienda dela, de alli adelante non la podria fazer: porque pode ome asmar que se non tuvo por deshonrado pues que tanto tiempo se calló, quo non fizo ende querella en juyzio; ó que perdonó ó acquel quo gela fizó. Part. 7, 9, 22.</p> <p>During the period of a year, every man may demand compensation or satisfaction for the in- jury or wrong which he has received. But if a year have passed from the day when the in- jury was done to him, without his having demanded, judilicially, satisfaction therefore, from thenceforth he may not make such demand; for it may be considered that a man does not hold himself to be injured, who has been so long si-lent, and has made no complaint thereof in jus- tice; or that he has forgiven the person who lia- done him the injury.</p> <p>Gregorio Lopez, in hisglossary on this law, notices the opinion of some doctors, who main- tained that a man was bound conscientiously to make reparation for injuries committed by him, even though the injured person should not bring an action within the year-and that. if he fail- ed to make such reparation, he was liable to be excommunicated. But the best casuists, it see as, decided, quod per lapsum anni est sublata actio injurtarum, et obligatio cicili~ nat~n'~olis adeo quod tacen~do per annum, videti~r injuriatus remisisse omneni injuriain.</p> <p>Our statute prescribes the same period for the action of one who has been disturbed in his possession. He, who pretends to have been in~ terrupted in his possession, ought to make his demand or complain thereof within a year, to be reckoned from the day of his being turned out of possession. For, if he leaves his adversary in possession for the space of a year, lie has lost his own posse~siun, ~whatever apparent right he may have had to it: but lie retains his attion for the property. Code Civ. 481, art. 27~</p> <p>L'action de reintegrande, torisrsqueile estpour~ su~vie au civil, doit, de mérne qi~e La coinplainte. étre intentée thins l'année, laquelle se coinpte dzt jour que La violence a cessé et que le spoli~ a étO en pouvoi~r de l'intent~r. Cela est con~ form~ aux principes du droit rornain. Dig. 43, t. tt3. Si donc on a laissé passer l'année sans iotenfer cette action ii resuite de ce laps un~ fin de non recevoir cor~tre cette action q~on von~ droit intenter aprés Vannée. Pothier. L'action n complaints est egalement annale. 9 Merlon, 550</p> <p>The lapse of time, then would have convert, ed the appellant's possession of the premises, had it been even at first obtained by violence on his part, into a legal possession; and therefore the action grounded on that violence could no longer be maintained.</p> <p>If it be attempted to distinguish the action for recovering possession, from the action of injury for the disseisin, then we rely on the law already quoted of Partidas. A law not repealed, altered or modified,-as respects civil suits, by any statute of this state. Our civil code is silent on this particular subject: it regulates the periods of prescription in various cases, leaving the others as before its promulgation. The 65 art. p. 486, provides, that after thirty years, all actions, either personal or real are prescribed against. But this provision is evidently intended to apply to actions only, for which, the period of prescription is not otherwise fixed. In other parts of the same code, different times of prescription are specified. In an antecedent part of that code, sec. 2, ch. 5, of the title of sale, it is enacted (367, art. 115) that, "l'action pour se faire restituer pour lesion d'outre moitie, doit etre exercée dans les quatre ans." This provision, it is well known, has not been affected by the subsequent clause, declaring that all actions are prescribed against after 30 years. But the law of the Partidas stands in the same degree of authority, as if it had been ordained on the day before the civil code was promulgated, or, as if it were found in that code itself, immediately preceding the article of the thirty years prescription. And it; has been already determined, after many solemn arguments, that the provisions of that code or digest, are to be taken, and construed along with the previously existing laws on the same subjects, as statutes made in pari materia, the whole to remain in force, if not incompatible with each other. In an action for slander, the prescription, here contended for, was admitted by the superior court, of the late Territory of Orleans;-subsequently to the promulgation of the civil code. In the action now before the court, the term of prescription is precisely the same, viz. one year from the day when the injury, or trespass, was committed. If this prescription were considered repealed, as incompatible with the above mentioned 65th art. of the civ. code, p. 486, so must every other prescription, provided for by the preceding titles of that code, or by any a antecedent law ; a construction too absurd and mischievous, to be for a moment supported.</p> <p>Now it will appear, from a reference to the record, that the disseisin or forcible entry com- plained of, took place some time in the year 1814, and that the present action of injury, to recover compensation for the alledged wrong, was brought on the 18th day of March, in the year 1816, leaving an interval between the sup- posed injurious act, and the complaint, or at least fourteen months and seventeen days.- And thus, by the plea of prescription, this ac- tion is overthrown.</p> <p>I will first reply to the plea of prescription set up by the defendant, and then she , that the merits of the case are with us.</p> <p>This plea of prescription, was not made in the court below, and cannot be made now.</p> <p>All pleas or, in the technical language of the civil law, exceptions must be set forth by the party, wishing to nail himself of them, and they cannot be supplied by the court. ff 44, tit. 1, & 1, 2 and 3. 8 Le Clerq, Droit Romain 63. No new pleadings can be made, nor new evidence given in this court, which is to judge according to the record, and give that judgment which the court below should have given. But it is clear that the court below could not have supplied this exception; and, therefore, that it cannot be noticed here. See act of 1813.</p> <p>On the merits, the defendant must be equally unsuccessful. From the statement of facts, it appears the defendant requested the sheriff to put him in possestion of the premises which he had previously purchased. Now the sheriff, agreeably to the duties of his office, as known at common law, is not bound to deliver to the ven- dee possession of real estate sold under a fi' fa'. 1 Haywood, 495. This principle is uncontrovertible. We can go to no other systsm than the common law to learn the duties and powers of the sheriff; the civil law can give us no light on the subject; for such office was unknown to it. If then the sheriff was not bound to deliver possession of the real estate sold, and be undertook to do it at the request of the vendee, both were trspassers and jointly and severally responsible in damages to the plaintiffs. The common law doctrine is well stated in 6 Wilson's Bac. Abridg. 589. Every party to a trespass is liable to an action of trespass; for there can be no accessary in trespass." So "if A command or request B to take the goods of C. and B does it, this action lies as well against A as against B And, "if J. S. agree to a trespass which has been committed by J. N. for his benefit, this action lies against J. S. although it was not done in obedience to his command, or at his request." or at his request" "If divers persons have been guilty of a trespass, the party injured may bring an action of trespass against them all, or against any one or more of them." These principles might be proved by reference to every elementary book as well as to innumerable adjudged cases. Such also is the doctrine of the civil law. “Je suis cense avoir fait moi-meme ce que quelqu'un a fait en mon nom, quoique sans aucun ordre. lors- que j'j ai donné de puis mon approbation.” Po- thier. Traite de possession, no. 23, L. 152, § 2. ff, de reg. jur. l. 1, & 14, ff. de vi & vi arm.</p> <p>The evidence, exhibited in the statement of facts, shews that the defendant, not only con- sented to the trespass after it was done, by tak- ing possession of the estate; but that he re- quested to be put in possession thereof.-It was committed not only at his request, but for his benefit; thus bringing the case directly within the authority cited.</p> <p>The charge of the jndge, to the jury, was in conformity with these principles; and the jury, the sole judge of the damages, have fixed the amount for which the plaintiffs should have the judgment of this court.</p>

<p>The supreme court will not issue a mandamus to restore the clerk of a district court, to his office. office.</p>

<p>When the judgment contains not the reasons, on which it is grounded, it will be set aside but if the record contains the whole evidence, the supreme court. will give such a judgment as ought to have been given below.</p> <p>1817. Although an answer to interrogatories be excepted to and the exception sustained, the party has no right to take it</p>

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

The plaintiff, claimed the payment of a crop of sugar, sold and delivered to the defendant. The answer admitted the sale and delivery, but stated that, after the shipment of the crop, it was discovered, that the sugar was of an inferior quality, and different from what it had been represented to be : wherefore the defendant claimed an abatement.

<p>If property be lead by auction, the auctioneer is to be allowed for his trouble on quantum meruit.</p>

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

<p> One may have a direct action on a stipulation in his favor, in a deed to which he was not a party. </p>

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

<p>A witness may prove the signature of a person whose hand writing is familiar to him, although he never saw him write.</p>

<p>Parol evidence cannot be received to shew that a grant to A. was made in lien of, and intended to annul, a grant to B.</p>

<p>The power of the special administrator did not extend to the estate of inhabitants of the state, although they had not resided two years in New-Orleans.</p>

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

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

<p>In Spain, a donation to an infant, of slaves delivered to the donee's father, is irrevocable, although he does not formally accept the gift.</p>

<p>The processverbal of the sale of property sold by the register of wills is evidence of the sale, and no act under the signatures of the parties is necessary to perfect it.</p> <p>The vendeecannot demand the rescission of the sale, on account of a capital crime committed by the slave im- mediately after the sale. the sale.</p>

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

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

<p>A note is not presumed to be paid, after the lapse of six or seven years.</p>

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

In 1813, A. Duplantier possessed an estate, in one of the faubourgs of New-Orleans, which he had purchased from the defendant. In the latter part of that year, the street before the estate being out of repairs, through the negligence of Duplantier, the corporation adjudged the work to be done to the plaintiff, who was the lowest bidder, under the express condition, that he should have his recourse on Duplantier alone for his payment.

<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>The witness to a notarial act may in certain cases, impeach it.</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 parish and city of New-Orleans.</p> <p>The petition stated, that one Pacaud owed plaintiffs S2680, and by a notarial act bound himself in solido with the defendant, who mortgaged therefore a lot of ground. At the foot of the petition is the president’s affidavit, in which a reference is made to the notarial act, which is annexed. In this act the sum due is stated to be $3350.</p> <p>The answer of the defendant, who appeared, at the time of answering, to be under interdiction, on account of insanity, was filed by her curator. It denied the mortgage to be her act and deed, and averred that the defendant, at the date of the act, long before and ever since, was and is incapable of conducting her affairs, from imbecility both of body and mind:</p> <p>That the sums mentioned in the petition and mortgage, did not agree-that the notes mentioned in the mortgage, on which the sum was said to be then due, had long since been can-celled.</p> <p>The parish court being of opinion, that "the infirmities of the defendant did not operate in such a manner, as to incapacitate her from conducting her own affairs, since she understood the nature of the obligation she contracted, and referred to,” gave judgment for the plaintiffs, for $2680. The defendant appealed.</p> <p>The statement of facts shews that, on the date of the mortgage, Pacaud owed the plaintiffs on notes endorsed by Chew and Relf $3350, that these notes were reduced by subsequent renewals, on the faith of the mortgage, to that of $2680, claimed in the petition. The new notes being subscribed by Pacaud alone.</p> <p>alone. Broutin, the notary who received the mortgage, deposed that he knew the defendant in- distinctly, having seen her once or twice, at her house. He read the act to her; she appeared to understand what was said to her, and answered pertinently. She was in an easy chair, spitting continually, very old and speaking with great difficulty. She appeared to under- stand the act. He asked her whether she would become security for Petcaud, and in case he did not pay the bank, that she would: she answered yes. She observed to her daughter, that the house stood on Royal street. The mortgage was executed in her house-two witnesses were present: the deponent believes Pacaud was there; she lived with the latter in a house in the yard. Urquhart, the president of the bank, was not there.</p> <p>On the part of the defendant, several withesses were heard.</p> <p>Langoureux, deposed to his knowledge her for 50 years. In January 1814, she had fallen into imbecility, and had not more reason than a child of six&emdash;she was not in a situation to direct her affairs&emdash;she could not understand the meaning of an instrument read to her&emdash;she bad entirely lost the use of her reason, was fed with a spoon, and in a state of bodily and mental imbecility.</p> <p>Morand knew her for 45 years: for five years before January 1814, and ever since, she has continued in a state of infancy and imbecility: she was incapable of conceiving the meaning of an instrument that was read to her. Her appearance announces the state of her mind, perfect imbecility and childishness; she speaks with great difficulty, and slavers so as incessantly to require a servant to wipe her face, and cannot speak correctly on any subject.</p> <p>About two years ago, Pacaud called on this witness to endeavor to persuade the defendant to execute a money engagement for him; but he refused, answering she was not in a situation to enter into any engagement. She had seve- ral houses in town, and, before her imbecility, always sent for the witness to consult him about her affairs.</p> <p>Piat knew the defendant since 1814, and taught music to her grand-daughter; he attend- East'n d daily, and always saw the defendant in a state of imbecility-has sometimes spoken to her-she was treated like a child, and he thought her incapable of attending to her affairs.</p> <p>Misotiere knew the defendant for thirty years: about 181.3, she came to dwell at Pacaud's, who lived with her daughter, in the neighbourhood of the witness. She was then in a perfect state of imbecility. He does not think that she was, at the time, or has been ever since, at any time in a situation to understand the contents of an instrument, or to attend to her affairs. Pacaud did all her business, and told the witness so.</p> <p>Blache had seen the defendant very often during these five or six years-she was, during that whole time, in such a state of imbecility as not to be capable of comprehending the meaning of a mortgage, or any other instrument. He does not know that she had any lucid interval, but every time he saw her, she was in the same situation.</p> <p>The above, and the mortgage annexed to the petition, constituted the statement of facts.</p> <p>In the mortgage, Pacaud promises to pay the 3350 dollars, for which the premises are pledged, and which the defendant promises to pay in solido, at such a rate of interest and periods as the bank with require.</p> <p>The parish judge erred in the conclusion he drew from the testimony, viz. that the infirmities of the defendant did not incapacitate her from attending to her affairs. The number of witnesses, who depose to the contrary, must outweigh the sole testimony of Broutin, the notary. if the defendant did not know what she was doing, she ought not to be bound, and the mortgage ought to have been set aside. Pacaud had the mother and daughter under his influence; and the notary is liable to the imputation of having a strong desire to support an instrument which he drew, and must feel a great reluctance to admit that he was, at least, imposed upon. The difference between the questions put to the defendant, her answers and the act, are evidence that the notary was mistaken as to the nature of the contract. If he erred in this, he might as to the sanity of her mind.</p> <p>The sunclaimed varies from that for which the obligation was given&emdash;this is for 3350 dol- lars&emdash;and the petition demands only 2680 dollars. This variance must be fatal to the action.</p> <p>Whatever mayonce have been due, or at VoL~. A3 least was due at the date of the execution of the act, has been paid, and is no longer due. This clearly appears by the absence from the hands of the plaintiffs of the notes, which were the evidence of the debt.</p> <p>Lastly, the defendant added her suretiship to that of Chew & Relf, who, as endorsers, were sureties to the plaintiffs for the sum due by Pacaud. Now, the plaintiffs could not render her situation worse, without impairing their claim against her. They have destroyed their claim by a novation. Their claim on Pacaud, if it still exist, is quite different from that for which the defendant bound herself: the former was secured by the endorseement of Chew & Relf, who are not bound for the latter. The defendant, when she became surety, knew that Chew & Relf stood between her and danger. Now, she stands aloof, and if she was compelled to pay, she would be without that recourse on Chew & Relf which was the inducement held out to her by Pacaud, when he solicited her to become his additional surety for the plaintiffs' claim.</p> <p>It is contended that the defendant, the time she executed the instrument, which is the ground of the present suit, was in such a state of imbecility that she cannot be bound by it.</p> <p>It does not suffice, in order to avoid an instrument, to alledge and prove the imbecility of the person who executed it. It is true, that if the instrument has been executed since a suit for interdiction was begun it is null, when the sentence of interdiction has been pronounced. Civ. Code, 80. art. 15. Discours, &c. sur le Code Civil, id.</p> <p>Three circumstances are required to invalidate, on account of insanity, the acts of a person in the full enjoyment of his rights: 1. That the interdiction have been pronounced or provoked in his life time. 2. The existence of the cause of interdiction, at the time the act was executed: lastly the notoriety of the cause; because he who contracts with a man notoriously insane, cannot have acted in good faith; but if the cause, though already existent, was not notorious, the nullity of the act ought not to be pronounced; because in cases of doubt, the presumption is in favor of a person, in the possession of the plenitude of his rights. Society ought not to suffer from the neglect, of the friends or persons, who surround him, to provoke his interdiction, and they ought not to be be easily permitted to attack what they have tolerated.</p> <p>In this case, it cannot be said, that the defendant's insanity existed at the time of the execution of the instrument: that it was notorious.</p> <p>It is true the plaintiffs do not claim the whole amount, for which the defendant bound herself, in the instrument, and this, because their debt has been reduced by several payments.</p> <p>Pacaud bound himself to pay the debt for the security of which the defendant bound herself, viz. 3350 dollars, at such times and in such a manner, as the plaintiffs might point out. It therefore suffices for them to shew, that the sum now claimed is the balance of the original one, reduced at different periods, by partial payments. He was the drawer of the original notes endorsed by Chew and Relf, who must be presumed to have paid him the sum, for which they were drawn. These gentlemen by their endorsement, transferred their rights to the plaintiffs, to whom the defendant engaged to pay Pacaud’s debt, if he did not pay it. If at the maturity of the notes they had been presented, and the plaintiffs had had recourse on Chew and Relf, they could have compelled the plaintiffs to transfer to them all their actions, not, only against the debtor, but also against his sureties.</p>

<p>If the appointment of a curator be revoked on an appeal, and he delays the delivery of the estate till the heirs come, the commision belong to the curator appointed by the appellate court.</p>

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

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

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

<p>An heir, to establish his own claim, may shew what was allotted to some of his co-heirs, several years before the suit brought, while he was an infant.</p> <p>If fraud and collusion be alledged against two persons, records, to which one of them was a party, may be given in evidence.</p> <p>The finding of the jury is to be understood with a reference to the pleadings.</p>

The plaintiff claimed from the defendant, six hundred dollars, the price of the adjudication of a new levee, ordered by the inspector of the district, to be erected before the defendant's plantation, and which was adjudged to the plaintiff, as the lowest bidder, on the 6th of March, 1817, to be completed on or before the 20th of the following month.

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

<p>If an insol-vent leaves no estate, except one exactly mortgaged to the endor,the latter will be postponed till the law charges be paid.</p>

<p>A judgment will be revers ed if the law on which it was rendered be repealed, before the case be pronounced upon, in the supreme court.</p>

<p>APPEAL from the court of probates of the parish of New-Orleans.</p>

<p>If there be a standing account between two persons & one of them produces his own checks, received from the bank, payable, to, and with the receipt of the other thereon: he will be entitled to credit, unless it be shewn that the checks were given for some other distinct claim.</p>

<p>An instrument, under private signature, may be recorded by the register of mortgages, on the production of the original</p>

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

<p>A master who has agreed to free his shave, for a fixed price, cannot be compelled to free him, after he has received a partial payment only.</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>The plaintiff obtained a writ of seizure on a notarial instrument, executed by the defendant, who had a provisional injunction, on a plea ci paynient. The parties proceeded to trial, and there was jud~nient for the plaintiff-the defendant appealed.</p> <p>The whole evidence caine up with the record, and consisted only of the deposition of a witness. lie deposed that, about two years ago, the plaintiff desired him to call on the defendant for the principal of the claim in suit; hit the defendant always put him off&emdash;that he. knows the the defendant paid the interest, at the rate of two per cent, per month, during the last four months-that he has given a receipt, dated April 7, 1817, for two months of that interest&emdash;that the plaintiff told the witness the defendant owed him for some syrup&emdash;that he knows the three endorse-merits on tbe~ notes produced to be in the proper handwriting of the plaintiff&emdash;that the plaintiff never spoke to him of the interest paid by the defendant&emdash;that he never received any uote for the plaintiff from the defendant&emdash;that the plaintiff negociated his own affairs with the defendant-all which he knows, having frequently seen the defendant at the plaintiff's.</p> <p>The notes produced were of the defendant to the plaintiff endorsed, in blank, by the latter; one of December 31, 1816, for $449 16, payable February 4, following-another, of February 19, 1817, for $467 79, payable on the 4th of April, 1817-the last of the 4th of April, 1817, for $472 34. payable one month after date.</p> <p>At the trial, the defendant offered to prove, by a person who had been agent for the plaintiff for the three last years, that the plaintiff is a noted usurer. and did no other business but to lend money at an illegal interest, and to shew what interest the plaintiff is in the habit of taking, in his transactions with the people. The court refused to examine the witness, and the defendant excepted to its opinion in this respect.</p> <p>The defendant has paid the plaintiff interest above the legal rate, and therefore, in conformity with the civil law, is entitled to a credit on the notes for the amount thus paid beyond the legal interest, Les interets pages an dessus du taux legal sont sujets a repetition (par imputation sur le cap-tal qui est encor du.) Dictionnaire da Digeste 100, verbo condicto indebiti, n. 10. Justin. digest, 12, 6, 26, with the commentary of Godefroy, Porthier Pandectae Justinianeau, 22, 1 n. 36. Voet in Pandictis, 12, 6, n . 13. 1, Clef des Lois Romaines, 507, verbo, Interest, 5 Rodriguez Digesto Teorico Practico, 126, 7 Promptuani Mullesi, 703, n. 11. The amount paid is proved by the receipt of the plaintiff’s agent, and by the notes of the defendant in favor of the plaintiff, which have been paid, and are now in the hands of the defendant. And as there was no written convention or other account of the interest, it must be reduced to the legal rate, five per cent, per annum.</p> <p>If the defendant be entitled to credit, on the principal, for the excess of interest he has paid, he had a right to shew the ordinary rate, at which the plaintiff lent his money to others, and the judge erred in rejecting the witnesses offered for that purpose.</p> <p>Whatever payment of interest has been made to the plaintiff, above the legal rate, was for the forbearance of exercising a legal right of enforcing payment ; and that being a valid consideration founded in equity, the defendant has no right to recall that payment: volenti non fit injuria. At all events, the interest can be reduced only 10 per cent per annum, as there is written evidence between the parties of an agreement to pay more than the legal rate. The notes offered in evidence by the defendant, cannot be considered as a payment of the present demand : they carry on the face a consideration, and unless proof be produced that they were given in payment of this claim, the court is bound to consider them as the payment of some other debt.</p> <p>The judge did not err, in rejecting witnesses offered to prove what interest the plaintiff may have received in other cases. On the plea of payment by the defendant, the plaintiff could not imagine that it was necessary for him to be provided with testimony to contradict the witnesses offered. Indeed if usury had been pleaded, the testimony could not have been received.</p>

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

<p>If the executorspresent their accounts, which are con- tested, and a decree be made forthe balance; and they after- wards receive monies of the estate, they cannot present an additional account, including these monies, and some of the items in the first account, with additional charges, not before produced. not before produc. ed.</p>

<p>Appeal from the court of probates of the pa rish 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>This action is brought to recover the penalty of a charter-party, on account of the violation of it by the ap-pellee. The charter-party expressly stipulates that the appellee should proceed with a cargo of the plaintiff and appellant, consisting principally of fruit, from the port of Cadiz to Havana, and from thence to New-Orleans, and for the fulfilment of this engagement the appellee bound himself in the sum of five thousand dollars. The evidence in the cause proves, that instead of proceeding directly to Havana, the vessel went into Porto Rico to land passengers, and although the appellee pretends that he was under the necessity of going into Porto Rico, on account of a want of fuel, yet it is proved that he had taken passengers at Cadiz to be landed at Porto Rico, and therefore intended, in any event, to go into Porto-Rico. It is contended that this was a departure from the voyage, and such a violation of the written contract as to make the appellee liable to the penalty.</p> <p>To obviate this charge, the appellee alledges a consent on the part of N. Fowler, the agent of the appellant, to go into Porto Rico, and produced the parol evidence of his captain and mate in the court below, to prove this consent. To this evidence the counsel for the appellant excepted, as well on the general principle of law that no parol evidence shall be received to contradict, vary or disannul a written agreement, as upon the special authority of Powel on contracts, 435 & 436. Upon this principle, it is contended that all the parol testimony in the cause tending to prove the consent of the freighter to touch at Porto Rico is inadmissible, even if true; but it is also contended, that the evidence is in itself incredible: for it cannot be supposed, that an agent who had contracted for a specific voyage, and of which he had given notice to his owner or principal, in order that he might effect an insurance on the cargo, would have consented to such a change in the voyage as would have discharged the underwriters, and annulled the policy-if, as is pretended, he consented to this change in the voyage, why was it not endorsed on the charter-party? We find a circumstance of much less importance carefully noted on the contract, to wit: the deficit in the amount of cargo, which had been stipulated for.</p> <p>The circumstance of the appellee having pro- tested at Porto Rico, although it is evident he intended going there when he left Cadiz, is conclusive evidence that he knew he had no right to enter that port. From all these circum- stances it is contended that the evidence, going to prove the consent of the appellant’s agent to touch at Porto Rico, is incredible, and on that account ought to be disregarded by the court.</p> <p>If then parol evidence against the written written charter-party in this case be inadmissible on legal principles, or if in this instance it be disregarded as incredible, it follows that the conditions of the charter-party have been broken by the appellee, and therefore the penalty incurred. But it is said the whole penalty is not recoverable unless it be shewn that actual damages to the amount of the penalty have been sustained. Of what importance then is it to the contracting parties to stipulate a penalty? If the actual damage sustained is to be the criterion of of decision, that must be shewn by testimony, and the insertion of a penalty in a contract is altogether nugatory. The penalty in this case was the measure of damages, agreed upon by the parties themselves, and is therefore equally obligatory on them as any other stipulation in the contract.</p> <p>In this case however, it is contended, that actual damage to the amount of the penalty has been sustained by the appellant. The evidence in the cause proves, that the current price of raisins at New-Orleans, at the time the Oswego ought to have arrived here, if she had proceeded direct from Cadiz, was about five dollars per box. But the account of rates, as made by the port wardens, shews that the average price for which these raisins were sold in this market was about one dollar and a quarter box. Two witnesses, who were called upon in the first instance by the officers of the customs, swear that the raisins were damaged seventy per cent. Now, it is in proof, that the raisins and other fruit were in good order when shipped; but, in consequence of being detained improperly in hot latitudes, they sustained a loss of seventy per cent. in the opinion of two witnesses, and an actual loss of more than three dollars per box, as shewn by the report of the port wardens. The actual damage of the whole cargo, thus sustained, will appear to be equal to the penalty expressed in the charter-party.</p> <p>The objection against M'Nair's right to sue on the charter-party, on the ground that he was not privy to its execution, is sufficiently obviated, by having proved the fact, that Fowler, who signed it, was the agent of M'Nair; and, although the appellee may not have known the name of Fowler's principal, at the time of ma- king the contract, yet he knew he was contract- ing with an agent, for he acknowledged the fact to one of the witnesses, on the passage. The fact then, of Fowler being the agent of ap- pellant, gives to the appellant the right of action on the contract made for his use; and it also establishes the competency of Fowler's evidence; for, it will not be denied, that an agent is a competent witness for his principal.</p> <p>Excluding from this case all parol evidence, tending to contradict or essentially vary the written charter-party, it seems to amount to this, that Thompson, the appellee, instead of proceeding from Cadiz to Havana, and from thence to New-Orleans, as stipulated by the charter-party, has been guilty of a deviation in the voyage, in going into Porto-Rico, for his own benefit, and contrary to the consent of the freighter, and that, in consequence of that deviation, the voyage was protracted, in hot latitudes, and the cargo ruined.</p> <p>If this be the true state of the case, the only question is, whether the appellee is liable for a violition of his contract.</p> <p>The grounds of defence The in this action, are two-fold-1. as to the mode of action, and-2. as to the merits of the case.</p> <p>I. The petition is in the name of "Nathaniel Fowler, of Beverly, who sues for the use of Rob. H. M'Nair, of New-Orleans," and is founded upon a charter party of affreightment, entered into at Cadiz, the 4th November, 1817. November 1817 between the said "Nathaniel Fowler, of the one part, and Solomon Davis, master of the American brig Oswego, of the other part:" the said Davis agreeing to receive from the said Fowler, on board the said vessel, 120 tons of merchandize, with which he is to proceed to the port of New-Orleans: in consideration whereof, the said affreighter agrees to pay the sum of $1950-and it is further agreed, that the said Davis shall touch at the port of Havana, where the affreighter is at liberty to exchange a part, or the whole, of the said 120 tons of merchandize, paying at the said port one-half of the freight and primage, &c.-and, for the true performance of all and every of the conditions in the said charter-party, "the said parties bind themselves, reciprocally, each to the other, &c. in the penal sum of five thousand dollars." Thompson, the owner of the Oswego, defendant and appellee, confirmed the contract entered into by captain Davis. It is alledged, that the conditions of this charty-party have been violated, by the Oswego's stopping at Porto-Rico, on her voyage from Cadiz to Havana; and that, consequently, the penalty is forfeited. In order to enforce the payment of this penalty, (among other things,) the present suit was brought: the defendant, not being a resident of Louisiana, his property was attached, in the name of Rob. H. M‘Nair, to whom, it was said, the penalty accrued, and to whom, as the alledged owner of the Oswego, shipped by Fowler, in his own name, and in his own property, is indebted. Now, it is conceived, that M‘Nair cannot, by any subtlety of pleading, as a party, nominal or real, or by any principle regulating contracts, maintain an action on a covenant such as this, to which he is not a party or privy, upon which he could not he liable, and of which any stipulation that he may desire to enforce, is in favour of another, under whom, whatever may be his actual relation, in point of interest, he has not derived any legal title. The principle that one, not party or privy to a deed or other negotiable instrument, cannot maintain an action for the breach of its conditions, is fully supported by the English authorities-1 Chitty on pleading 5, & seq. 1 Salk. 197-and equally deducible from the rules of the civil law, in relation to the parties to, and the effects of, contracts.</p> <p>1. As to the parties to a contract. In general, a person can stipulate, in his own name, but for himself. Civ. Cod. 262, art. 19. Cases of stipulating for another. Civ. Cod. id. art. 20, 21. A person is deemed to stipulate for himself. &c. unless the contrary be expressed, or result from the nature of the contract. Civ. Cod. 264, art. 22.</p> <p>Illustrations of the rule, that a person can stipulate only for himself. 1 Poth. on oblig. n. 53, 54, 55, 74 et seq.</p> <p>2. As to the effect of contracts. Agreements have effect only between the contracting parties. Civ. Cod. 270, art. 65.</p> <p>The obligations which arise from agreements, and the rights which result from them, being formed by the consent and concurrence of intention of the parties, they cannot oblige or give a right to a third party, whose intention did not concur in forming the agreement. Poth. on oblig. n. 87.</p> <p>One of the exceptions given by Pothier, in the foregoing number, being that of a factor binding his principal, it may be proper to consider here the character of Fowler’s agency; and whether, if it had been fully declared, when stipulating with Thompson, it would have been binding on M‘Nair, and, consequently, whether he, M‘Nair, could have derived any right under it.</p> <p>By the letter of attorney from West and M‘Nair, Fowler was authorized to sell the ship Moskow, and to invest the proceeds in merchandize, to be shipped to West; and directing him, Fowler, to conform to such instructions as M'Nair might give.</p> <p>The letter of instructions does not enlarge the authority contained in the procuration-and, taken together, they merely constitute Fowler a special agent for specific purposes: he had no power of binding his principals by an instrument, under seal, unless as related to the transfer of the ship, or by a penal instrument of any kind, unless resulting usually or necessarily from the character of agency with which he was clothed. But, is there any thing in the usages of trade, which authorizes a factor, when directed to make a shipment of merchandize, to charter a vessel for the undertaking, and to bind his principals in such stipulations, and subject them to such penalties as he may deem proper? It is conceived not-nor is it conceived that there would be any necessity for such a proceeding, or any justification of it, unless the factor were specially instructed.</p> <p>"The attorney cannot go beyond the limits of his procuration.” Civ. Cod. 424, art. 24.</p> <p>An agent, constituted for a particular purpose, and under a limited and circumscribed power, cannot bind the principal by any act, in which he exceeds his power. 3 Term Rep. 757.</p> <p>If then, Fowler could not bind M'Nair by such an instrument as that on which the present action is founded, it is presumed he, M'Nair, can derive no right under it.</p> <p>But, at any rate, it was incumbent, in order to produce any privity of contract between M'Nair and Thompson, that Fowler should have declared the character in which he contracted, if intending to contract as agent, and that that character should appear on the instrument.</p> <p>The plaintiff ought to have chosen either to sue on the covenant for damage, or for the penalty: he cannot, in the same action, demand both penalty and resulting damage. This is the English rule; and our code says, that a party cannot demand principal and penalty together. Civ. Code, 284, art. 129, Ev. Poth. on oblig. n. 234, or 342. The creditor ought to elect.</p> <p>II. Upon the merits of the action, we contend-1. that the stopping at Porto-Rico was by stipulation-2. that it was necessary, or-3. that it was not such an act as forfeited the penal sum mentioned in the charter-party-4. that no damage has been shewn to have resulted from the stoppage, or-5. that if such damage has accrued, it has been removed by the affreighter's receiving his merchandize at Havana and at New-Orleans, without complaint.</p> <p>1. The stoppage at Porto-Rico was by stipulation. This is fully proven by the testimony of Cooper, the captain, and Lake, the mate, of the Oswego, who both say it was notorious at Cadiz, that they were to stop at Porto-Rico; that Fowler consented to this, and came from the shore to the vessel, in company with certain passengers, intended to be landed at Porto-Rico, But, it is said, that any parol testimony, going to shew Fowler's consent to the stoppage at Porto-Rico, was inadmissible, as it was dispensing, by parol, with the conditions of a written agreement. While the general rule is readily admitted that testimonial proof cannot be received, except under certain circumstances, to contradict a written agreement, it is denied that that rule is applicable here.</p> <p>The voyage, in this case, was from Cadiz to New-Orleans, with permission to the affreighter to stop at Havana, and exchange his cargo. Now, has an agreement to stop at Porto-Rico-a place directly on the rout from Cadiz to Havana, and, as we will shew, it is usual for vessels on that voyage to stop-any thing in it repugnant to the charter-party, or which dispenses with or annuls any of its conditions. Clearly, if operating upon the charter-party, such testimony merely operates an enlargement or explanation of its stipulation; and that this may be done by parol is, we think, supported by strong authority.</p> <p>The owner of a vessel covenanted, by charter-party under seal, to sail from the Thames to a port in the British channel, there to load such goods &c. as the freighters should tender; after- wards agreed by parol that the ship instead of loading at some port in the channel should load in the Thames. By the charter-party, more- over, the freight was to commence from the day of the vessel’s sailing from Gravesend; by the parol agreement, it was to commence from her entry outwards, at the custom-house. Ruled that there was no conflict between the charter- party and the subsequent agreement. White vs. Parkin, 12 East, 578. The case of Les- lie vs. De la Torre is cited in the foregoing case, page 583, where a party wished to prove by parol, in the face of a charter-party, that Corunna had been substituted for Portsmouth. But Lord Kenyon decided “that the agreement by charter-party being under seal, the plaintiff could not set up a parol agreement inconsistent with it.” This decision of Lord Kenyon’s is con- confirmed in the case of White vs. Parkin, but held not applicable to that particular case. Phill. Ev. 433.</p> <p>On a charter-party, dated the 6th February, conditioned that vessel should sail before the 12th, averment sustained that the charter-party was not executed until the 15th March, whereas the condition was dispensed with. Hall vs. Cazenove, 4 East, 477. If such can be averred, it is a necessary consequence that it can be shewn in evidence. 2 Ev. Poth. 208.</p> <p>Action on a charter-party stipulating that the merchant should have the exclusive use of the ship and cabin, Evidence of custom admitted, against the stipulation, to allow the master to ship merchandize. Abb. on sh. Am. Ed. 242.</p> <p>The East India Company chartered a vessel for trade and war, and sent her on a voyage of examination or discovery, in which she was lost. Lord Kenyon held that the company were bound to the owners, until it was after- wards ascertained that the master was acquaint- ed with the destination of the vessel, before he left England, without any objection on the part of the owners. Jacobson's Sea Laws, 222. The loss in the foregoing case must have been on a voyage different from that contracted by the charter-party; and the made, of the captain and owners consenting to it, must have been by parol.</p> <p>The time of performing the condition of a bond enlarged by parol; and where substantial but not literal performance, parol evidence admitted to wave any further performance. 3 Johns. 528. 1 Johns. Cas. 22.</p> <p>A receipt, although absolute, in its terms and expressing to be in full, is not conclusive, and parol evidence is admissible to shew a mistake in it, or explain it. 1 Johns. Cas. 145. 2 2 Johns. Rep. 378. 5 Johns. Rep. 68. 3 Johns. Rep. 319. 8 Johns. Rep. 389. 9 Johns. Rep. 310.</p> <p>Parol evidence may be given to contradict a written simple contract, or to shew that the whole of it was not reduced to writing. 6 Mass. Rep. 434.</p> <p>"Stress has been laid on the circumstance, that the agreement is contained in a solemn and sealed instrument. The policy of that act (the statute of frauds) in relation to certainty, and the avoiding of prejudices, is as much answered by a written as by a sealed instrument. If it were necessary to quote authorities on this point, Powell on contracts, 436, &c. states many instances in which the most solemn and sealed agreements were considered as altered and and waved by acts other than the execution of instruments deemed of equal dignity with them; the spirit of equity, especially as applying to the construction of the statute of frauds, exploding the maxim, dissolvitur eodem ligamine quo ligatur." By Roane, justice, Cringan vs. Nicholson, 1 H. & Mumford 439, 40. In which case a contract under seal was set aside, on parol evidence of its having been vacated and abandoned.</p> <p>2. The putting into Porto-Rico was necessary. It is admitted that the intention, on leaving Cadiz, was to stop at Porto-Rico: but the intention to deviate is not a deviation. Park on ins. 314, Marshall on ins. 231. The evidence is strong and satisfactory, that it was necessary to put into some place for fuel, before reaching Havana, and Porto-Rico was assuredly the most convenient place. If then, it was necessary to put into some port, and the Oswego had been lost afterwards, the putting in would not have been such a deviation as would discharge the insurers; and, a fortiori, it cannot be deemed such as would give the freighter a claim for damages.</p> <p>3. In the absence of all stipulation to that; effect, and of all necessity, the stopping at Porto-Rico was not such an act as forfeited the penal sum in the charter-party.</p> <p>In the construction of an obligation with penal clauses, the real intention of the parties ought to be sought after, and carried into effect, where it can be discovered from the instrument itself. Where it is clearly inferable from the nature and terms of the contract, that the parties have estimated and liquidated their damages, and have inserted the amount to be paid in case of non-performance, the court would be bound so to consider it. The cases in the English books, 4 Burr. 2228, 2 Term Rep. 34, where penalties have been considered in the nature of liquidated damages, are either, where it appears from the contract that the penalties have barely exceeded the damages sustained; or where, from the nature and circumstances of the case, no rule for estimating the actual damages could be adopted, or it was manifestly the intention of the parties that the sum inserted should be as a compensation, and not as a penalty. This where A and B entered into an agreement, by which A agreed to convey to B 700 aces of land, to be appraised in part payment for a farm, valued at $3750, which B agreed to sell to A; and it was covenanted that, in case either party failed to fulfil the agreement, the party failing to perform, should forfeit and pay to the party who should fulfil the agreement, the sum of $2000, as damages, it was held that the $2000 were to be considered as a penalty, and not as liquidated damages. Dennis vs. Cum-mins, 3 Johns. Cas. 297.</p> <p>But where A, in consideration of 500 dollars, covenanted to convey to B 50 acres of land by a good deed &c. or in lieu thereof to pay him 800 dollars; it was held that B was entitled to recover, on a breach of the covenant 800 dollars; the same being in thin nature of liquidated damages, and not a penalty. Slossem vs. Beadle, 7 Johns. Rep. 72.</p> <p>The decision on the first of the above two cas- es went on the ground, that it never could be presumed that the parties had the penal sum in view, as a measure of damages, it being entire- ly disproportionate to the matter to be perform- ed by the covenant, and not reciprocal-and, in the second, that "the defendant had received the consideration of 500 dollars; and at end of the year he was to convey, or in lieu thereof, pay the 800 dollars. This was an alternative reserved for his election."</p> <p>By the stipulations of the charter-party between Fowler and the defendant, the latter was to receive, in consideration of performing the porforinin the voyage, the sum of 1950 Spanish dollars; and for the true performance of all and every of the conditions of the charter-party, the parties "bound themselves reciprocally each to the other, the affreighter, the destined cargo, and the captain, his said vessel, &c. in the penal sum of five thousand dollars." Can it be seriously said, or soberly listened to, that this sum of 5000 dollars was the estimated and liquidated damages, determined upon by the parties, in event of a failure in all or any of the conditions of the contract, by either of the parties, and demandable by the other! Suppose Fowler to have declined furnishing his 120 tons of merchandize; suppose him to have failed, paying one half the freight at Havana, or the other half here; nay, suppose him to have failed "procuring his own provisions and stores necessary for the voyage," would he have been liable to pay Thompson the sum of 5000 dollars?</p> <p>Our law has two provisions relating to this subject, which it will be sufficient to recite: "When the contract specifies that he who fails to execute it shall pay a certain sum, by way of damages, the other party can recover neither a larger nor a smaller sum." Civ. Cod. 268, art. 52. "The penal clause is the compensation for the damages which the contractor sustains by the non-execution of the principal obligation.” Ib. 284, art. 129.</p> <p>In the first place, the contract under consideration does not specify that he who fails to execute it, shall pay a certain sum, by way of damages; and, in the second, the penal clause has not been forfeited, because the principal obligation has been fulfilled. The principles regulating penal clauses in obligations, are fully and satisfactorily illustrated by Pothier, Tr. on ob. part 2, ch. 5, n. 337, et seq. and are all resolvable into considerations of equity: when excessive, it may be reduced and modified, n. 345; and, where the creditor voluntarily receives his debt, it is discharged, n. 358 et seq. In the present case, the defendant received the goods of Powder at Cadiz, and transported them to New-Orleans, stopping at Havana, all in conformity with what he undertook; and, after so transporting them, delivered them, part to Fowler, at Havana, and part to M'Nair, at New-Orleans, who received them, and paid the stipulated freight. In all the actions on charter-parties, to be found in the English or American books, it is believed that no case can be cited where the penal sum, always introduced has been considered as compensation or stipulated damage, or even demanded in such cases. Two are now before me, 10 East, 295, and 12 East, 381, where penal sums are recited, but not thought of being demanded ; a charter-party, being only a covenant or agreement, shall be construed according to the intention of the parties, and the custom of merchants. 4 Bac. ab. 626, tit. Merchant, &c. H.</p> <p>4. No damage was sustained by the cargo of the Oswego, from stoppingat Porto-Rico, or runnig into the latitude of that island.</p> <p>If any such damage had been sustained, the the affirmative was with the plaintiff, and should have been established fully and precisely. Nothing of the kind, however, was attempted in the court below; on the contrary, the testimony there given powerfully negatives any such presumption. In the first place, it is proven, by a crowd of skilful mariners, that in running from Cadiz to Havavana,it is not extraordinary to go as far tothe south as 15 degrees ofnorth latitude, and usual to run into 47 degrees-that the trade winds are fresher and more certain in the low latitudes, and that a cargo of a perishable nature is not more subject to damage or decay in a transikthrough the latitudes of 17 and 18 degrees, than of 20 and 21 degrees ofnorth lat itude. The reason is obvious-the prevalence and constancy of the trade winds in the low latitudes. Secondly, it is certain that the voy age from Cadiz to Havana was a fair one, performed in the usual time : this appears from the testimony of all the witnesses interrogated to that point. Thirdly, as to damage, no evidence of any appears, except in the testimony of two persons appointed by the custom-house to appraise such of the raisins as were brought here, with a view to the estimation of duties. One of these, Mellon, an intelligent and experienced grocer, says that it was impossible to say where the damage had been sustained, or from what circumstance it arose-that they appeared to be old, and were Originally of an inferior quality-that the boxes seemed to have passed through many hands. This circumstance of their being old and of inferior quality, is confirmed by that of their cost, which, at Cadiz, was one dollar and thirty cents per box ; yet, we find, that raisins of the same species, but fresh, in new boxes, and of good quality, cost, at a market more favorable than Cadiz, two dollars and fifty cents per box. The latter sold in this market for four dollars and fifty cents-those of Fowler’s, of which any particular account is given, were sold at Havana at from two dollars to two dollars and fifty cents. That this was a fair price, even for fair raisins, appears from the testimony of Lunt, who sold a cargo at Havana, shipped a month earlier from Cadiz, at from two to three dollars in Havana. Besides, some of the raisins sold by Fowler at Havana, and bought here by Duff, were sold in this market, before the arrival of the Oswego, at four dollars and seventy-five cents per box, and afterwards re-sold at five dollars and fifty cents, by Whitmore. In the absence then, of all proof, and even presumption, of damage from the conduct of the defendant or his agents, and with as strong evidence to the contrary as the nature of the inquiry in which it appears would admit, is it not fair to say, that the allegation of M'Nair or Fowler, however they may be associated or interwoven in the cause, is fanciful and unfounded.</p> <p>5. But, admitting every previous ground to be untenable, that damage accrued, was proven, and was proven to have resulted from the misconduct of the defendant, or his agents, yet the conduct of the plaintiff, in receiving the goods at Havana, and at New-Orleans,precludes him, however, on insisting on such damage.</p> <p>It appears from the testimony of Lake, Cooper,and Fowler himself, that on arriving at Havana, he spoke oflanding all the fruit and a certain portion of the wine: he did in effect land 939 boxes of raisins, of the 1567 on board ; and 100 kegs of figs, of 110 kegs. 270 boxes of the raisins thus landed were re-shipped, and, together with the remaining 638 boxes, were brought to New-Orleans. The 10 kegs of figs brought here were put in the boat to be landed at Havana, but being in bad order, were re-shipped. At Havana, Fowler remained twenty-one days, endeavoring to disposer of his cargo, and to obtain other-he, received the larger portion of the fruit there, and paid one half the stipulated freight, without a murmur of discontent, without a single complaint, or any charge of misconduct on the defendant or his agents. Fowler at Havana, too, was in contract for the purchase of a vessel, and asked, Thompson how much he would relinquish of the stipulated freight to be discharged there. This arrangement not being consummated, Fowler shipped , additional cargo, and obtained other on freight, of which he derived the profit, and proceeded to New-Orleans, the ultimate port: there he, or his consignee, received the remainder of the cargo, without complaining of damage, and paid the remainder of the freight. This plain statement of the facts in the case shews clearly that the demand for damages was an afterthought; the result of Fowler’s cunning and management, and M'Nair’s disappointment in his market, and in his agent. And how are the damages, as thus claimed, estimated? Two-thirds of the raisins, 939 out of 1567 boxes, and ten-elevenths of the figs, are delivered to Fowler at Havana, where he chooses to dispose of 669 boxes of raisins, and the figs, and then claims damages upon these raisins at the price they would have sold at in New-Orleans, when in bringing them to the latter market he would have been subject to the payment of duty, &c. and when he had no agency in preventing his doing so! The price at New-Orleans, moreover, is rated dollars, when it is in proof that the best and freshest raisins, and which cost nearly double, the sum his did at the place of exportation brought but 4 dollars 50 cents. I refrain from continuing a task that apparently would be endless; the pointing out the inconsistencies, and the detecting the fallacies which abound so profusely, and so jostle for precedence, in the petition and demands of the appellant. One authority is here introduced which was intended to have been offered in another place, it is from a sure source, however, and cannot at any time be deemed obtrusive. “When, (says Pothier contrat de charte-partie, n. 38.) the consignee receives the merchandize without complaint, he cannot afterwards alledge that they have been damaged."</p> <p>Upon the bills of exception taken by the defedant, but little, it is presumed, need be said. They relate to the protest, and accompanying documents, executed by Fowler at Porto-Rico, and the protest at New Orleans; and to the ad mission of Fowler as a witness in behalf of the plaintiff.</p> <p>1. As to the protest, the seal of a court, act ing under the law of nations, is evidence. Peake's Ev. 72-3, and note at page 78, as to the adtuissibility of public instruments of foreign countries, as evidence; and that the admission ot protests of bills of exchange, is a relaxation of the strict rules of evidence for the convenience of the mercantile world</p> <p>Protest at Porto-Rico, not under oath, there fore, ought not to be read. 1 Dall. 317.</p> <p>• 2. As to the admission of Fowler to be a witness, Enough has been already said as to Fowler's legal relation to the contract, which he was called upon to explain and enforce. A competent witness must not be interested, directly or. indirectly, in the cause. Civ. Code, 342, art. 248. But FLowler,if considered only as an agent, profited in proportion to the profits of the voyage, and would be entitled to his commissions on any amount recovered from the defendant. Besides, he is, as an agent, liable to M'Nair: and is he not, as the person stipulating with Thompson, and as a nominal plaintiff, at least in this suit, liable to Thompson in damages, should the present suit prove to have beep improperly and injuriously brought ? Above all, on the broad principle that no man can be permitted solemnly to contract with another to-day, in his own name, and to-morrow to come forward and dispense with his engagement, or en force it on the other side, by alledging that he acted for another, and is, therefore, neither responsible or beneficially interested-Fowler’s testimony ought to have been excluded.</p> <p>It is contended, this action cannot enure to M‘Nair, he not being a legal party to the contract, as we call it: not choosing to make so free use, as the defendant’s counsel, of the technical terms, peculiar to the common law, of deed and covenant,and to which alone the authority cited applies.</p> <p>The gentleman ought to havebeen aware, that although; as we admit, none can at common law be a party to the suit, on a sealed unnegotiable instrument, but the party to the deed, yet nothing has ever been more common, than for him, who is in the form of law, the party, to sue for the use and benefit of him, who is equitably entitled to the substantial benefit of the suit. In Virginia, such is the practice every day, in recovering bonds under seal, for the payment of money. But references of this kind, to the peculiar forms of the common law, are not pertinent to the point now in dispute. Maritime concerns and the dealings of commerce, are necessarily placed on a more liberal, if I may not say, looser principle of construction. The remoteness from each other, of the real parties in interest, the,unforeseen accidents attendant on the uncertainties of the ocean, and the resulting necessity,often times, for prompt and decisive proceedings, have, by the usage of trade, imparted to a distant agent authorities and powers which, in the discussion of a feudal land tenure, would be considered totally inadmissible, This liberality of construction is seen, under certain circumstances, even through the whole law of bottomry and respondentia bonds ; safes of ships in foreign ports, insurance, abandonment and salvage, redemption from capture. seamens' wages, freight, whether by charter party or otherwise.</p> <p>In this case, however, it is shewn, that fee * defendant knew of the agency of Fowler; and he, therefore, has no right to contest the interest of the principal. One thing is certain, that if he has committed the wrong complained of, he is bound to answer to somebody; and, in a case like this, his only concern must be, that he answer to a person who is so far the true party, that a judgment in his favor will bar any future judgment in favor of another, of which, here, there can be no doubt.</p> <p>M‘Nair, in this case,’is the party really injured ; and it is as consonant to reason as to law, that he should be the party redressed.</p> <p>The authority of Fowler to contract and to bind M'Nair is disputed; but by the very argument of the defendant's counsel, it is shewn that “ Fowler was authorized to sell the ship Moskow; and to invest the proceeds.in merchandize, to be shipped to West.” Now, what more is wanting to authorize this contract ? The merchandize is to be shipped. Can that be done without a ship? Does not a power to ship goods necessarily involve a power to pay freight? And what is a charter-party, but a contract of affreightment ? Had the goods arrived safe, and properly subject to freight, no matter by whose contract, would not the defendant have had his resort to the owners, or, which is still the same, to the property on board, of those owners ? If reciprocity of obligation be all that is required, to sustain this action, surely we regain fully secure.</p> <p>It is objected that Fowler had no power to bind his principal by a penal instrument. The answer is, that a charter-party, by whatever name you call it, penal or otherwise, is an instrument usual, and of daily practice, and in which agents are permitted to bind their principals&emdash;and that the present charter-party is one of ordinary character, and not distinguished by any transgression of the established mercantile practice.</p> <p>II. As to the demand of penalty and consequential damage, at the same time, itis unne-cessaryto argue. The demands, are as separate and distinct in the pleadings, as if they were advanced in two different suits : and the court will give or refuse, one or the other, or both, according to their sense of the law and the evidence.</p> <p>III. The stopping at Porto-Rico was by sti pulation. For this fact the principal reliance is on the testimony of Cooper, a witness to whom we except as incompetent, and to whom we did object, as unworthy of credit, in the court be~ low, when we had that opportunity of observing his prevarication of manner and unblushing predetermination to serve only one party, which, unfortunately for the justice of this cause, cannot well be had, from the written evidence before this court.</p> <p>We object here to parol evidence, toprove a change of voyage. Such testimony goes to very the very essence of the contract; for if the voyage itself be not an essential constituent of a charter-party, it is not easily conceived what of essence can any where be found in such ah instrument. . But, it is said, that such testimony merely operates an enlargement of the stipulations. It merely does, we confess; and it is, therefore, that we complain of it. The written contract of charter-party would soon go out of use, if stipulations, thus solemnly made, are so easily enlarged or restricted to any extent. I say to any extent&emdash;for, if a voyage to Havant can be changed to a voyage to Porto-Rico,as well may themaster of a vessel carry you, with captain Cook, on a voyage of disovery, round the globe, and then bring himself, to prove, (for such is the case now) that it was a mere enlargement. In this case, it is the party who testifies to this mere enlargement; for, in truth, Cooper, the master of the vessel, and successor of Davis, was himself bound to the ful-filment of the charter-party, and is introduced as a witness, to prove its fulfilment.</p> <p>But, admitting him a competent witness, the facts stated by him are so improbable in their nature, as not to be believed. The universally established usage of reducing charter-parties to writing; and the course intended by these par ties, apparent from an endorsement on the charter-party of much less importance, forbid the idea, of any verbal agreement, at least until it be shewn by less equivocal testimony, and that too disembarrassed of the various circumstances which, in this case, have a contradictory tendency.</p> <p>IV. The putting into Porto-Rico is said to be necessary. This, we are satisfied, is not established by the evidence. The defendant's counsel mistakes us, when he imagines that we meant to say that an intention to deviate was a deviation; but we do say, that adeliberate, premeditated intention to deviate, without the then existence of any necessity, followed up by actual deviation, is very strong evidence that the deviation was not of necessity, and that any necessity set up is either a false pretence, or a matter of voluntary contrivance.</p> <p>V. The stoppage at Porto-Rico works no forfeiture of the penal sum. On this subject the defendant’s Counsel has made a long argument, which it only requires, we think, two sentences of his own quotation to confute.</p> <p>The penal clause is the compensation which the creditor sustains by the non-execution of the principal obligation. Civ. Code 284, art. 129. So much for the penal part of this contract; now for the damages.</p> <p>When the contract specifies that he who fails to execute it, shall pay a certain sum by way of damages, the other party can recover neither a larger nor smaller sum. Civ. Code 268, art. 52.</p> <p>But says the defendant, this contract does not specify a certain sum by way of damages. And what I Would ask, ought to follow from that? Why simply that the party injured, instead of being confined to a specific sum for damages, may recover any sum, larger or smaller, which provecto be the true measure of actual damages. It does seemto us that the defendant might have made much better use of these quotations, by contending that we had specified a certain penalty, and thus endeavoring to confine us to the amount of that penalty.</p> <p>VI. No damage was sustained, &c. On this enough has been said, and as this is matter of fact, the court will satisfy themselves thereon, on a view of such of the evidence as they think proper to admit.</p> <p>VII. The plaintiff’s receiving the goods at Havana and New-Orleans, precludes him from insisting on damages.</p> <p>The court will remember that Havana was one of the ports of discharge mentioned in the charter-party, and the act of Fowler in attempting to sell a part of the cargo at that port ought not to prejudice the plaintiff, because it was only by the discharge made there that the damage was discovered to exist, and only by the attempt to sell, that the extent of damage could he understood. Had the whole cargo been sold at its then dull value, the defendant ought not lay so much emphasis on a transaction, which whether “cunning" or not cunning in law, must have been for the benefit of all concerned, and himself among the rest, in making the least of the loss incurred, by his misconduct.</p> <p>As to the plaintiff’s having received the balanced of the cargo, at New-Orleans, the fact is expressly denied. So far from this, a survey of the port wardens was had upon it, and by them it was sold.</p> <p>It is true the freight was paid to M'Lanahan by theplaintiff, but itwas paid under an express understanding, that the payment was in no measure to prejudice the suit about to be brought.</p> <p>The bill of exceptions to the protests offered in evidence, is not considered as very formidable, or if so, as very material; but that to Fowler’s testimony, merits a more careful notice.</p> <p>It would readily be admitted, without any citation from the books, that a witness interested directly or indirectly, cannot be competent. Fowler, it is said, is entitled as agent to his commissions, on whatever may be recovered from the defendant. It might as well be said, that if this were an action against an insurance office for a loss of the cargo, he would be entitled to his commissions on what was recovered; that if it were such an action, and the ship had foundered at the moment of leaving port, the master could have recovered the whole freight on all the goods for which the insurers proved liable. The truth is the voyage, such as it is, good,or bad, profitable or unprofitable, is now ever; and capt. Fowler can have no more concern with it. And further, it is established by his evidence that his affairs with M‘Nair are settled.</p> <p>Fowler’s pretended liability to Thompson in damage for the wrongful bringing of this suit, has no bearing whatever on his competency, A judgment in this suit would not go to decide the judgment in the suit for damages, and it will be time enough, as respects matters between him and Thompson,to dispute the truth of what he now says when the suit for damages shall have been brought-he will then be party and cease to be witness, and then hispresent testimony cannot avail either to his advantage or disadvantage.</p> <p>We have not troubled the court with a review of the numerous authorities cited on the part of the defendant; because, with all due deference to the intelligence, the ingenuity and the research of the counsel opposed, we feel compelled to say that we do not consider his authorities in general as applicable to the cause, and from those Which are defined applicable we apprehend no injury to our claim.</p>

<p>Twenty years possession of freedom, in the absence of the master, are required for the time of prescription.</p>

<p>APPEAL from the court of probates of the parish 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>A planter who receives advances from a merchant, is not bound to give him the sale of his crop.</p>

The plaintiff solda tract of land to the de- fendant, the consideration of which was stated in the deed to be one thousand dollars, and to have been paid. The petition alledged that, notwithstanding this enunciation of the payment of the consideration, one hundred dollars only were paid&emdash;the exception de non numeratá pecuniâ, was not renounced, and the petition concluded that the defendant be decreed to pay the remaining nine hundred dollars.

<p>The drawee’s declaration of an intention to pay the bills, if he has the means, does not preclude him from contesting the drawer's authority to draw.</p>

<p>Although a sale in writing, was made in a place where it might have been made verbal, parol evidence of it may not be received, without proof of the loss of the writing.</p>

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

<p>If, on an injury done to her slave,the plaintiff recover his full price, the property is transferred to the defendant, on payment of the judgment.</p> <p>No interest can be given on such a price, but the damage sustained by the plaintiff by the delay in receiving it, till a fair judgment may be taken into view in valuing the slave.</p>

<p>Before the act of 1817, syndics of an insolvent could, for the purpose of effecting the sale of his property, release any mortgage exist- ing thereon.</p> <p>Whether the</p> <p>recourse of nullityagainst judgment, as exercised in Appeal from the Spain, still exists in this state?</p> <p>Under a general allegation of nullity, nothing which does not appear on the record can avail.</p> <p>A judicial mortgage cannot extend to lands out of the state.</p>

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

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

<p>APPEAL from tho court of the first district.</p>

now drew the attention of the court to this error, and prayed that the judgment might be amended. But, THE cOURT was of opinion, that this could not be done, as defendant was out of court, nearly six months having elapsed since the reddition of the judgment: declining to consent to an amendment, as he was without authority from his client, and a copy of the judgment, with the mandate of this court, to put it into execution, having issued several months ago.

<p>on motion for a re-hearing. The judgment of the court, if carried into effect, will it is apprehended, oc casion great injury to the heirs and creditors of the estate, the care of which has been entrusted to the appellant, by his testator, Chain-plin. The suit instituted against Jennings, for the recovery of the property, which he took from the body of the deceased, in Attackapas, may be abated, and he, of course, be left at liberty to walk off with his plunder, wherever he pleases.</p> <p>The provisions of the Civ. Code, 242, art. 153, will, we apprehend be found incompatible with, and utterly destitute of, the very important provision of another part of the statute, id. 109, art. 232, in favor of wills made in foreign countries. The former of those articles says expressly, that no testament can have effect in the territory until it has been presented to the judge of the parish, &c. Now this presentation, in case of most wills, made in foreign countries, will be impossible, as the originals of those wills cannot be obtained. So that, unless we admit that the concluding words, in the cases prescribed by law, have reference to the ordering the execution, as well to the opening and proving of the will, we must conclude that foreign wills can have no validity whatever in this state. The article in question consists but of one sentence. Is it not then clear, that the restriction of the concluding words is aplicable to every part, and provision of the article? article? So that it should be construed as if written thus: " In the cases prescribe by law, every testament shall be presented to the judge, &c and after being opened and proved, the judge shall order it to be executed."</p> <p>Then comes the question, what are the cases in which these formalities are prescribed by law? The answer is obvious: the cases of will, made in the state-the only wills which can be presented, opened and proved in the manner directed. Would it not be quite un necessary for the legislature to require proof of that, the proof of which was already made and admitted ? If they had contemplated any thing of this kind, in the case of wills made in fe-reign countries, they would have ordained that the probate of such wills, not that the wills themselves, should he proved here.</p> <p>The provisions of the 109th article would be completely effectual, if the executor were al lowed to sue, on presenting to the judge or the probate of the will. If a common power of attorney be sufficient to enable one man to sue for another, where would be the danger or inconvenience of allowing an executor to bring suit, under the authority of a probate; an instrument generally executed with many forms and much solemnity. In either case, forgery would un - doubtedly be impossible ; but, in that of the probate, it would be much more difficult, and liable to detection, than in the case of the power of attorney. In the one case, as well as in the other, whenever suspicious circumstances occurred, the proceedings might be suspended, until the truth could be inquired into and ascertained.</p> <p>At all events, trust that the court of probates of this parish may be authorized to appoint a temporary curator to the estate, to save it from dilapidation, until the testamentary executor can be recognized in the manner required by the judgment of the court, should their opinion remain unaltered. According to the opinion already pronounced, it would seem, that the court of probates does not possess this power, so long as there is an executor present, who is willing to act. If the executor cannot act lawfully, and if no curator or administrator can be appointed, the consequence would be, that the succession in question may be plundered with impunity.</p> <p>The provisions of our code are positive and too clear to be contradicted. A will must be proven before the judge of the parish in which the testator died, if the will was made and he died in the state.</p> <p>A curator can only be appointed by the judge of the parish in which the intestate died. Cham-plin having died within the parish of St. Mary, the judge of that parish alone can appoint a curator to his estate, or approve any will, which may be produced from any other state, provided it be clothed with the requisite formalities.</p> <p>The only question before this court, in this appeal is, had the judge of the parish of New-Orleans jurisdiction in the case? Certainly he had not, since Champlin died in another parish. All the provisions of our civil code demonstrate if inconveniences arise, under the acts of our legislature, it belongs not to this court to provide and remedy. Its province is only to interpret and enforce the laws. In no state of the union are wills, made abroad, proven with more facility than in this. It is only required that the will be executed according to the laws of the state in which it was made. On the proof of that, it has its full effect here.</p> <p>The curator appointed in one parish can act in every other, and have an inventory of the intestate’s property made wherever it is situated. So may the executor. All that the judge of this parish could do, would be to make an inventory of Champlin's property found in it.</p>

<p>A confirmation of title by the commissioners of the United States cannot avail against a complete title, Under the crown of Spain.</p>

<p>One who holds land by purchase from the Indians by a private sale, approved by the governor of the province, cannot be disturbed, on the ground that the sale was not by auction, by a person who does not claim, under them.</p> <p>Whether Indians, located by the govern- or of the province, had only the use, or the property, of the land allotted to them?</p>

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

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

<p>A certificate that the record contains all the facts on which the cause was tried is good, though made one year after judgment.</p> <p>If the executors, interrogated as to the genuineness of their testator's note, answer, they believe it to be so, but believe it paid, this will be no proof of payment.</p>

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

<p>That case turnson a mere question of fact.</p>

<p>The courts of this state cannot presume what the laws of other states orforeign countries are. Such laws must be proven.</p>

<p>The surety may be sued, without the principal.</p>

<p>On a verbal sale of land, either of the parties may recant before the conveyance be executed.</p>

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

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

<p>In a possesso-ry action, the judgment ought not to determine on the title to the premises.</p>

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

<p>If a slaveis claimed under a statute which declares him forfeited, if he be removed without the consent of the reversioner, the petition must state that he was so re- moved.</p> <p>Quere-whe- ther aslave, for- feited under the laws of a state, may be recovered in another-whether the courts of a state will carry into effect the penal laws of another? laws of another?</p>

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

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

<p>The neglect of a collector to advertise in the newspaper, does not affect the sale of land for taxes.</p>

This is an action, in which the property of the late Archibald Phillips, of the parish of Rapides, is claimed, by two different classes of heirs-by the appellant, Thomas Phillips, who is the brother of the deceased, the nearest relation in the collateral line, an alien, and subject of the king of Great-Britain and Ireland, on the one hand, and by James Rogers and others, appellees, on the other, who are admitted to be citizens of the United States, and the nearest…