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Condensed reports of cases in the Superior court of the territory of Orleans online

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none such really exists. The interpretation attempted to be given
to tlie words, in public form, would introduce a kind of act unknown
to our law, which requires but two; those which make proof by
themselves, and those which do not: The former are called au-
thentic — the latter, sous seitig privL If every act to which a publio
form was given, became authentic, without witnesses, and without
the signature of a public officer, then there would, in reality be no
difference between such an instrument, and one under private signa-
ture; and tlie law would be made to mean nothing, when it directs^
that pledges shall be evidenced by an act either in public form, or by
private signature, duly registered*

This inquiry is, however, of inferior importance; because the ar-
ticle of the Code, in relation to pledges of incorporeal things, directs,
that they must be proved by a public act; and what such act is the
Code itself defines. Civil Code, 304, 317.

But it is said the French text, uses the words public act Now,
we understand this to be the same thing as authentic act. The lat-
ter, according to the article in the Code first cited, is that *< which has
been recorded by public officers, having power to record public acts
in the place where the act has been drawn up, and with the requisite
solemnities." When we inquire from the same authority, for the
definition of a public act, we do not find any given of it. We are,
therefore, forced to have recourse to the laws that governed us pre-
vious to the passage of that work; and the definition given by them,
is precisely that of an authentic act in our own legislation: Ptr in^
sJrumenio publico^ se enliende el que esta hecho par persona en
quien reside antoridad pub/ica.con lodas las solemnidades prescrip'
las par derechOj para su va/idifion y Jirmeza, Febrero^p. 2, lit^
3, cap, I, seci. 7, no, 352.

The appellants contend, this is not a public act, because notaries
public in New York have no authority by the laws of that state, to



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APRIL TERM, 1827. $S»

{Satri V. Hit Creditors;]

pa^ or record contracts sach as that presented by the plaintiff. To
this objection, We think the appellee has conclusively answered, that
as the laMTs of that state have not been produced or shown to this
court, we must presume in this case, as we have done in several
others, that they are similar to our own; and that, consequently, the
act was executed before an officer duly authorised to receive it,
because such officers have authority to do so in Louisiana.

Bat this argument returns with fatal effect upon the appellee,
when we proceed to examine the act produced; for we cannot refuse
to the appellants the safne presumption of similarity of laws which
we extend to their adversary. The instrument by which the pledge
is evidenced, would not be an authentic act in our state. It would
be nothing moi^e than one 3ou^ seing privi — by private signature:
for it wants the number of witnesses essential to the former by our
law. It is difficult, indeed, to say what it Was intended to be when
first made. It has the form of a private act; is without date, and
is signed by the parties, and th6 notary as a witness. Afterwards^
this notary, who was sole witr>es6, declares that the parties appeared
before him in his official caparcity, and executed it; and he signs ilm
declaration without any wi^nteses.

Such an instfument, if executed within tiiis state, would neither be
an atitheritio,nor public act; nor eould it be considered as duly record-
ed. Two witnesses are indispensable; and the instrument must
either be duly recorded, or be an authentic act, to enable the partjr
claimhig undier it to obtain a preference. The commands of the le-
gislatsMTC on tbis head, are not only positive, l)ut prohibitive. Th^
take away all discretion from the court. It is only when another of
these exist, that a preference is created by the pledge of incorporeal
things.

ft was, most probably, fr&th a xionvictian of tbe law being so, that
the atppeHee ca!used the instmment to be recorded in this state. This
i^cording was made in due form; but the appettants insist it was not
jnade at a >prciper tiiM.

Our Code, after dtecl^infg th«t acts under private signature, duly
registered, are sufficienttoestabli^ a preference on the thing pledged,
adds, as a condition; provided ubis recording is made at a period not
suspicious.

We are now called on, for the first time, toaffibc a meaning to these
words, not suspicious; and some little difficulty is created by the in-
definite terms ni which the prohibition is couched. It was clearly^
however, the intention of tlve legislature, to indicate some period nitm
which the instrmnent eould not be registered; and ift is equally deaor,
the interests of the parties to the contract were not the cause of this
enactmervt. The expressione therefore must be construed in rektion
to those, whom it was evidently the intenftion of the law to pi^tect;
persons who might have an interest in preventing privileges or pre-
ftflrenees being obtaii^ed on the esfote of their debtor.

Asy therefbre, the object of the law was to prevent those, who had



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084 SUPREME COURT.

[Soul V. Hii Credilon.]

not, previous to the time prohibited, obtained a privilege, from obtain-
ing one by their own act, we know of no other rule to adopt tbaa
tiiis: — that, at whatever period the debtor could not give a preference
to any of his creditors by an act of his, the creditor can not, in relation
to this contract, acquire one by having an instrument which gave
him noue, recorded. We must either adopt this conclusion, or say
the law has no meaning whatever; which would be contrary to any
rule that governs courts in the interpretation of statutes: it being their
duty, if possible, to give the statutes effect, and not to consider it made
for no purpose. The meaning attached by the appellee to these
expressions, would enable the creditor to enregister his act, one hour
before the insolvent filed his bilan; but this, we are satisfied, would
be defeating the clear and evident intention of the legislature, and
render the enactment useless. Lex neminem cogii ad vana.

Applying these principles to this case, we think the recording was
made, to use the language of our law, at a suspicious time. It was
enregistered on the 31st January, 1826, in a notary's office in this city.
It makes a part of the admissions of the parties on record, that nearly
two months previous to this recording, the insolvent had made appli-
cation to the banks for time to pay his debts; declaring his inability to
comply with his engagements — that the request had been refused —
that suits had been commenced against him before the act had been
enregistered; and that, he shortly after claimed the benefit of a ce^sio
bonorum.

Repeated decisions of this court, founded on the laws of Spain,
have settled, that a preference cannot be given by a debtor to one of
his creditors, in what is called (tempo inhabil. That, when there
exists an inability to pay debts, and a cession of property follows soon
after, the debtor can not make any change in the rights of his credi-
tors; that, actual is the same as declared insolvency. In this case we
are satisfied that at the time the act was recorded, Saul could not
have given a preference to any of the persons to whom be was
indebted; and we conclude, the creditor could not acquire one by his
own act 3 Martiriy 270; 4 Ibid. 238; 2 K S. 61.

It was ui^ed on the court, that there was an acknowledgment on
record, that the instrument was execntod in New York; and that this
must be understood to mean the act was executed according to the
laws of New York. But we are clearly of opinion, that no such
inference can be made from this fact. The admission of the execu-
tion of an act, in our understanding, means nothing more than that the
instrument was signed according to its purport, and dispenses with
any proof. But it proves nothing more. There are many acts made
and executed contrary to law in every country. It is also plain to us,
that the admission was not contemplated to have this effect at the
time it was made. If such had been the meaning of the parties, it
was unnecessary for the appellee to have followed it np in the state-
ment, by obtaining another admission from the appellants — that
Cooper who signed it, was a notary public in the state of New York,



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APRIL TERM, ia27. 688

[San] «. Hii Creditors.]

and that the attorney in fact who executed it, was duly authorised
so to do.

It was also contended, that this case came within the principle on
which this court has decided, that an act of sale of immovable pro-
perty sous seingpriv6y followed by delivery, was good against credi-
tors, unless they were injured by it. But the cases are quite dissi-
milar. In respect to the latter, our Code declares that the sale by
private signature, passes the property to the buyer. It does not, of
cour^'e, make a part of that which is transferred by the insolvent
debtor to his creditors. When they came forward, therefore, to take
it from the purchaser, they came to assert a right given by positive
law alone; and it was held that our legislation did not authorise this
claim, unless they had been injured by the transaction. But in this
case, no ground can be found on which the court could take that posi-
tion. The contract of the pledge did not transfer the property. It
passed by the cession from the debtor to his creditors, and made a
part of the effects surrendered to them; and it is the appellee who
claims a preference on it. The appellants meet this, by presenting
against the demand, a textual provision of our law which declares,
that the property of the debtor is the common fund of his creditors,
and that it must be divided r^leably, unless there exists among them
some lawful cause of preference. They show another, which declares
that this lawful cause of preference on a pledge, must be established
by an authentic act — or one under private signature, duly registered
at a time not suspicious. This act, for the reason given, is neither
authentic, nor one sous seing privS duly recorded. Our judgment,
therefore, must repeat the language of the law, and direct the pro-
perty to be divided rateably among the creditors.

The third case, that of Brown & Son, comes entirely within the ^
principles of law just applied to that of Astor, and must receive a
similar judgment.

It is therefore ordered, adjudged and decreed, thiat the judgment
of the district court, so far as it respects the claim of the children of
Joseph Saul the insolvent, be affirmed with costs; and so far as the
same confers a privilege on J. J. Astor, and A. Brown & Son, and
directs them to be paid out of the proceeds of bank stock to them
pledged, that it be annulled, avoided and reversed: and that they pay
costs in this court.

Chymes and Hennerij for Astor.

Mazureau and Rawlty for Saul tt aL

MorsCy for Brown.

Eustis and Liver more^ for the appellants.



Vol. III.— 58



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686 SUPREME COURT.



Butier V. Her Creditors* V, N. S. 624.

PARISH Court of New Orleans.

The liability of a tutor is not afiected by his neglect to give bond
and security, this would be taking advantage of his own wrong.



Purdy et al. v. Hood et al. V, N. S. 626.

A perwm who ii a partner of the defcDdant, in a particular adTentore, for which he has
adfanced the fbnda, will hare a preference, oo the object of each adventure, o? er attacbinf
creditor! of defendant

PARISH Court of New Orleans.

Mathbws, J., delivered the opinion of the court
This suit was commenced by attachment; and merchandise in the
possession of Lockhart & Arrott, merchants in the city of New
Orleans, was seized, which had been consigned to them by the
defendants from Philadelphia. The cause, as shown by the record,
was first heard and determined between the original parties, and
judgment rendered in &vor of the plaintiffs for the sum by them
claimed; and afterwards examined and adjudged in relation to the
claim of the intervening parties, which was sustained by the judg-
ment of the court below: and the plaintifis appealed.

The persons who intervened in the cause, claim as partners with
the defendants, having an equal and common right to the property
seized by virtue of the writ of attachment, alleging that they are credit-
ors of the partnership, in consequence of having paid out of their own
funds the entire pnce of the goods seized; and that as a loss was
experienced on the adventure, nothing remains to be diared and
partaken by the defendants. The testimony of the case proves the
facts alleged by the claimants; but to this testimony two bills of
exceptions are found on the record, taken by the counsel for the



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APRIL TERM, 1827. 687

[Purdy etaLv, Hood et al]

plaintiffs. First. To the admissibility of the evidence of a witness
taken on the interrogatories under a commission issued by the court of
the first instance. Secondly. To the admission of an affidavit made
by one of the defendants before an alderman of the city of Philadel-
phia, by which he acknowledged and confessed that the goods, now
in dispute, were the joint property of his firm and that of the clai-
mants. These exceptions must be disposed of before the legal ques-
tions of the cause can be discussed. The first is based solely on the
ground of the insufficiency of the answer given by the witness to the
fourth cross interrogatory. This interrogatory is divided into a
variety of questions; although the main object seems to have been
to obtain a statement of the general accounts as they existed between
the claimants and defendants.

The answer states, that the joint interest in the parcel of goods,
about which the present contest exists, is the only transaction which
ever took place between Hood & Co. and Cohen & Nisbet, aiid that
there is no general account between them.

The subdivisions of the principal question have been explicitly
answered; and we are of opinion that the testimony was properly
admitted in the court below. The affidavit of the defendant, consi-
dered as an extrajudicial confession, was also correctly received in
evidence, as it could hot in any manner affect the interest of his firm;
for it would be indifferent whether they are bound to the plaintiffs
or the intervening party; any prejudice or feeling they might be sup-
posed to have in favor of one or the other party, ought not to render
confessions on their part, incompetent.

The legal questions which arise in the case, may be considered in
the following order: — First. Whether the joint purchase of the goods
in question, by Hood & Co. and Cohen & Nisbet, for the purpose of
selling them on a profit, having relation only to a single transaction,
places the partners concerned in it on the footing of partners in trade,
and entitles them to the benefits of the rules of law relating to com-
mercial partnerships? Secondly. Whether a copartner who is creditor
of the firm, is entitled to a preference on the partnership property
over the creditors of his partners individually?

Partnership, as defined by our Code, as a synallagmatic and com-
mutative contract made between two or more persons, for the mutual
participation in the profits which may accrue from property, credit,
skill or industry, furnished in determinate proportions by the parties.
See the Liouisiana Code, art. 2, 772. According to a definition given
by Gow, a late writer on the subject, in pursuance of the rules which
govern it in England, it is said to be " a voluntary contract between
two or more persons, for joining together their money, goods, labor
and skill, or either, or all of them, upon an agreement that the gain
or loss shall be divided proportionably between them; and having
for its object the advancement and protection of fair and open tfade.^^
See his Treatise, p. 2.

This last is a definition of a commercial partnership; which, accord-



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ms SUPREME COURT.

[Pvrdy Hml.9. Hood et «l]

ing to the LoaisiaDa Code, is formed for the purchase of any peno-
nal property, and the sale thereof, &c. See art 3, 796.

It is true, that a community of property does not of itself create a
partnership, however that property may be acquired, &c. See the
art 2, 777, cited by appellant's counsel. But when personal property
is acquired jointly by two or more persons, for the express purpose
of being sold on joint account, with a view to gain, it appears to as
that a partnership is created in relation thereto, and that the rights
and claims of the parties must he regulated agreeably to rules apper-
taining to such contracts.

The owners of property held in partnership, have not separately a
particular interest in distinct portions of the common stock, but pos-
sess it each as proprietor of his undivided portion, and of the whole:
or, as expressed by writers on the common law of England, in
ancient Norman dialect, each partner is possessed per my et per iout.
See Oow's Treatise on the Law of Partnership, 49. Creditors of a
partner^ip have, according to law, a preference allowed them, on
the joint property of the concern, over creditors of the individaal
partners, in payment of debts. Same author, 317.

A partner may be a creditor of the partnership for the sums which
be has discharged for the common benefit, &c. See Code, art 2,835.

In the present case it is shown, that Cohen & Nisbet paid for the
merchandise out of their own funds, which was purchased jointly for
them and the defendants in the attachment, and thereby becune
creditors of the partnership to that amount; and in relation to the
joint stock, must be considered in the same situation with any other
creditors of the partnership, and have a claim on its funds in prefe-
rence to creditors of the partners inidvidually. Consequently they
are to be preferred to the plaintiffs, who are creditors of Hood & Co.
. alone. And as the evidence shows that nothing will remain of the
common slock after payment of partnership debts, the judgment of
Ihe parish court is correct in adjudging the fund in the hands of the
garnishees to the intervening party.

In pursusmce of the expressions of our attachment law, which are
very general, the apparent right of the defendants to the property
seized was, perhaps, sufficient to support the writ, and bring the
debtor before the court, and judgment was properly rendered against
them. After judgment their rights to the undivided stock might
have been sold under execution; and the purchaser would then as-
sume the situation of the partners, whose interest was thus sold, so
far as to be entitled to any surplus that might remain to them on a
final settlement and account, rendered at the instance of such purcha-
ser at sheriff's sale. But in the present case, the evidence taken in
consequence of the intervention of the copartners, fully establishes
the state of accounts between them and the defendants, as assumed
by the court below in its final judgment, which we believe to be l^al
and equitable.



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APRIL ITERM, 1827. 689

[Pnrdj €t oZ. 9. Hood et al]

It is, therefore^ ordered, adjudged and decreed, that the judgment
of the parish court be affirmed, with costs.
fVaits and Lobdellf for the plaintiflfs.
Siratobridge^ for the defendants.



Henry v. Hyde tt al V, N, S. 633.

A father who is not indebted, may parchaae property for bb childf and in ita name, and
■abseqoent ereditora cannot attacli the act aa fraodolent

FIRST District

Martin, J., delivered the opinion of the court.

The plaintiff obtained an injunction to prevent the sale of a lot of
hers, under a fieri facias against herfather. The defendants refused her
application on averment that the lot is her father's and not hers — that
the deed under which she claims, was made in fraud of his creditors—
that she was a minor at its date, and could not acquire property.

There was a verdict for the plaintiff, which the defendants unsuc-
cessfully attempted to set aside. The injunction was made perpetual,
and the defendants appealed.

The defendants having pleaded fraud, were bound to establish it
by proof; for fraud is never presumed. Of the evidence introduced,
which is all testimonial, the jury were the proper judges: and the
inferior court has approved their verdict. Indeed, we cannot see
bow it could have been otherwise.

The debt of the plaintiff, on which judgment was obtained in this
court, in July, 1825, 4 iVi & 51, is posterior in its creation to the date
of the deed; which is a notarial one, and is not alleged to be ante-
dated. So that it does not appear that, at that time, James Henry
had any creditor to defraud.

If he owed no debts, and de non apparenitbus and non exisienti"
btiSf eadem est lexj he might well purchase property for his minor
child, in her name.

The premises were never the father's property. If the deed was
fraudulent and void, it passed no property from the vendor. If the
fittber acquired any right by furnishing the price, he or his creditor
must exercise it directly, by an action. In Richards v. Wallace el al ,
3 N. S. 338, we held, that if the sale to the plaintiff was fraudulent,

58*



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•to SUPREME COURT.

[BMiry V. Hjr4e «l «!.]

salt should have been brought to set it aside. The sale could not
be treated by the defendants as a nullity, and the property sold as if
no alienation had taken place.

The only circumstance, which niight be of any weight, in proving
the fraud, is, that the price of the premises was paid by the father;
but of what weight can it be, when there is not the least tittle of evi-
dence that he owed a farthing at the date of the deed, which is
attacked as fraudulent

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

Preston^ for the plaintiffl

Loekeit, for the defendants.



Johnson v. Field. V, N. S. 635.

SECOND District

If a suit be brought to recover slaves which are named in the
petition of the plaintiff, and the defendant admits that he is in pos-
session of slaves as designated in the petition, it is prima facie
evidence the slaves sued lor, and possessed, are Uie same.



Zacharie v. The Orleans Insurance Company^
V, N. S. 637.

FIRST District

Insurers are responsible until the vessel is moored in good safety
at the Tfon of diaoharge.



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APRIL TERM, 1827. 6^1



Fatin v. Poydras's Executors. V, N. S. 639.

FOURTH District,

Decided^ whea the connsel who had the principal charge of the
cause, and on whom plamtiff placed his greatest reliance was unable
to attend from illness, that this was a good reason for postponing the
trial. The contrary doctrine would lead to the most intolerable
hardships.



Applegate et al. v. Morgan tt al. Y, N. S. 642.

Plaintiff cumot take a nooiait afWr general ferdiet

THIRD District.

Mathews, J., delivered the opinion of the court.

This case comes before the court on an assignment of errors, appa
rent on the face of the record. In the court below the cause was
submitted to a jury, who found a general verdict for the defendants,
and after this veraict was returned into court, the plaintiffs, by their
counsel, moved for a judgment of nonsuit, which was allowed by
the judge a quo; and from this judgment the defendants appealed.

The error alleged, is the illegality of a nonsuit, or discontinuance
of their action by the plaintiffs, after a general verdict found in favor
of the defendants. That plaintiffs have not such control over their
suits as to discontinue or claim the benefit of nonsuit after general
verdicts, is a principle settled and established by the decision of the
case cited by the counsel for the appellants, from 7 Martiriy 490.
And the doctrine therein recognised has not been altered by the
Code of Practice.

It is true that the article 491 of this work authorised a plaintiff to
discontinue his suit at any stage before judgment; but this provision
of law relates solely to tnals before the court, without the mterven-



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<92 SUPREME COURT.

[Applefate tt mL 0. Morgan et mL]

tion of a jury. The article of that Code, which governs the present case,
is 532, and relates to a trial before a jury; wherein it is declared that
a plaintiff is at liberty, on paying costs, to discontinue his suit before



Online LibraryLouisiana. Supreme courtCondensed reports of cases in the Superior court of the territory of Orleans → online text (page 70 of 91)