[Balfour v. Chew.]

vileges. The return of the officer states, the land was sold subject to the mortgage; the deed uses the same expressions; and neither makes mention that it was sold subject to the payment by the purchaser. This distinction, which at first blush appears to partake of the nature of those verbal ones we have this moment reprobated, will appear, on a close examination, to be material, and change entirely the nature of the act. If the purchaser became personally responsible for the mortgage debt, the amount of this engagement would make a part of the sum he was to pay for the land, and consequently his bid be for the absolute value. But when the land alone is made liable, there is no personal obligation on the purchaser beyond that which he promises to pay the seizing creditor; hence the bid can be viewed in no other light than one for the surplus value, and so considered, we do not think it such an one as the law sanctions or permits.

As the defendant has been deprived by the peculiar circumstances attending this case, of offering his land to satisfy the second order of seizure and sale, we think justice requires, the plaintiff should be enjoined from selling the negroes, until the defendant can exercise the right which the law confers on him, of pointing out what portion of his property he wishes to give up, to satisfy the execution.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that the sale and all proceedings which were had on the first order of seizure, be set aside and declared null and void; that the bond of the purchaser T. W. Chinn, be cancelled, and all parties be restored to the situation in which they were at the time of granting the first order of seizure and sale: it is further ordered, adjudged and decreed, that the second order of seizure and sale, and all proceedings under it, be set aside, reserving to the mortgagee's creditor the right to enforce his claims according to law; that the defendant Chew, and the interpleader Chinn, pay the costs of the court of the first instance, and the appellee those of appeal. Ripley and Conrad, for the plaintiff.

Woodroff, Watts and Lobdell, for the defendant.

Galloway v. Legan. IV, N. S. 167.

EIGHTH District.

Held, in an alternative obligation the choice is with the party promising. See Pothier on Oblig., nos. 244, 247.

Where a borrower gave, for the use of money, the services of a slave: Held, that the estimate, made by the parties to the contract of mortgage, of an equality of value between the use of the money and the services of the slave does not form so exclusively a rule for the interpretation of the jury as to exclude the application of the laws. The value of the services of the slave was a fair subject for the production of testimonial proof in the court below. The witnesses which were introduced varied in their opinions, but all agreed that her services were worth much more than the highest interest tolerated by law, on the sum borrowed by the owner. The verdict of the jury was for the borrower: it is, therefore, unsupported by the evidence. This seems to have been of the class of contracts, the intention of which is to secure to lenders of money more than a legal interest, or lawful interest upon convention, and which contracts are void by our laws. In support of the correctness of the present opinion, see the case of Herman v. Sprigg, and the authorities therein cited, 3 N. S., and also the Nueva Recopilacion, B. 8, tit. 6, law 4.

In opposition to this doctrine, assumed by the court, the counsel for the defendant contends, that the contract under which his client holds the slave in dispute, is not a mortgage or hypothecation, but a vente à remeré, or sale with the power of redemption. It is seen that in the investigation of the cause, we have in conformity with the expressions used in the instrument by the parties, considered it a contract of mortgage; it is perhaps not such, strictly speaking, but partakes more of that species of pledge known to our laws under the denomination of anticresis. It is not a vente à remeré, for no clause in the act seems to contemplate a transfer of property.

The plaintiff having demanded a jury to try the cause; and as it is a suit in which damages are claimed, this court is of opinion that the most correct judgment which can be given, under the present circumstances of the case, is to remand it for a new trial.

M'Micken v. Fair. IV, N. S. 172.

THIRD District.

Held, a witness, whose interest it is to defeat the claim, is a good one for the plaintiff. Also, a witness may be excluded as to the items of an account in which he is interested, yet he must be heard on the others. 4 Cranch, 62.

Canfield & Dixon v. Maher et al. IV, N. S. 174.

PARISH Court of New Orleans.

Insolvent's books not admissible in an action between creditors.3 Martin, 707; 12 Ibid. 157.

Goods delivered to a creditor, when debtor is on the eve of bankruptcy, and not paid for at the time of delivery, but given in discharge of an antecedent debt, may be recovered by syndic. See Ritchie et al. v. Sands et al., 10 Martin, 704. See also, 3 Martin, 277; 4 Ibid. 625.

Williams v. Hooper. IV, N. S. 176.

EIGHTH District.

A record is the best evidence of what was done in a cause, and it cannot be contradicted by parol.

Boyd et al. v. Howard. IV, N. S. 178.

FIRST District.

The court re-affirm the doctrine, that a vendor who alleges a sale at a specific price, may, if he has no proof of the vendee's assent to the price, show it is a proper one by evidence of its being the current price, although he has no mention in his petition of a quantum val.

Dupau v. Richardson. IV, N. S. 181.

FIRST District.

The merits of an action to which an injunction is accessory cannot be examined on a motion to dissolve the injunction, any more than a debt can be disproved on a motion to set aside an attachment.

Cucullu v. Manzenal et al. IV, N. S. 183.

Partnership property may be attached in a suit against one of the members of the firm.

FIRST District.

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

This suit is commenced by attachment, which seems to have been VOL. III.-23

[Cucullu v. Manzenal et al.]

laid on property belonging jointly to the defendants and another person; in other words, on partnership property.

The court below dismissed the suit, considering that no property of the defendants had been seized under the writ, and from this order of dismissal the plaintiff appealed.

The garnishee, who was cited in the case, and answered interrogatories, states, that he had property in his possession, which he obtained by the authority, and on account, of a firm composed of Cuestra Manzenal & Toso, of the Havana, which produced net on sale, the sum of 960 dollars.

On this fact a question of law arises; whether partnership property be liable to attachment for the individual and particular debts of one or more of the partners? The remedy by attachment is out of the ordinary course of judicial proceedings, as it authorises adjudication against defendants, without personal citation on a seizure of their property; which may be considered as a means of compelling the appearance in court, of persons who cannot be reached by ordinary process. The seizure of any property, however small the amount, is sufficient to give cognisance of the cause, and authorise proceedings to final judgment. Our law extends attachments to every species of property, and all rights and credits of defendants. Each partner of a commercial firm, has a right to his portion of the partnership property according to the terms of the association; all are possessors of a common property, and every one for himself and his copartners. The right and interest which each individual of the society has to an undivided share of the partnership effects, may be seized and sold under execution, and it may also, in our opinion, be seized under our attach'ment law.

The situation of property belonging to a corporation established by law, differs essentially from that of a mere voluntary association of men for the purpose of carrying on the ordinary affairs of life. Their common stock is the property of each and every individual, and not distinctly that of the whole body, as in case of a corporation established by law. The case in 7 Martin, 31, is clearly distinguishable from the present; the former related to the rights of a body corporate; this to the property of men who hold it in common it is true, but in which each is entitled to a certain share, which gives to the individual an interest that may be separated from the mass.

We are of opinion that the seizure in the present case, is sufficient to authorise proceedings in the attachment, and, consequently, that the judge a quo erred in dismissing it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be reversed, avoided and annulled, that the plaintiff's action be reinstated, and the cause sent back to the court below, to be proceeded in according to law.

Workman, for the plaintiff.

Pierce, for the defendants.