Richards v. His Creditors. V, N. S. 298. The loss of credit is a good cause for a debtor to obtain relief by a cession of his goods. Section of act of 1817, relative to production of books of insolvent, commented on. FIRST District. MATHEWS, J., delivered the opinion of the court. In this case opposition was made to the homologation of the proceedings, which took place before the notary, in pursuance of an order of the court below; founded on two grounds. 1. That the insolvent has not set forth any losses. 2. That he has not presented any books of accounts. This opposition being overruled by the district court, the opposing creditor moved for a new trial, and having failed in that motion, took the present appeal. We are of opinion that the judgment of the court below was correct in setting aside the opposition of the appellant, as not being supportable on the grounds by him assumed. It is true that the unfortunate debtor in his petition, alleges no loss except that of his credit, or confidence reposed in him by his mercantile friends: His whole capital seems to have been exclusively his credit or the faith which others had in his fidelity; which, although very unsubstantial, has often been productive of great gains, and is certainly considered by merchants as a very important means of operation. The section of the act of 1817, which requires an insolvent to present his books of accounts, is applicable only to such persons as keep books of that kind, and who, from a multiplicity of business, must, of necessity, keep them. The commercial transactions of the plaintiff in the present case, appear to have been so limited, that they may have been placed in a fair and just light without the aid of books, or any great exertion of memory. The affidavit of the opposing creditor in support of his motion for a new trial, as based on the discovery of new evidence, charges on the insolvent a crime of a very serious nature. It contains an accusation, which, considered solely in relation to the offence alleged, ought not lightly to be made, or lightly to be passed over when made; being nothing less than an accusation of forgery. But considered in relation to the opponent's application for a new trial, we are of opinion that it is entitled to little weight. The facts disclosed in the affidavit, are such as might have been discovered and the evidence to sustain them, by ordinary diligence on the part of the appellant, if he had [Richards v. His Creditors.] obeyed the summons which called the creditors together; and examined the schedule of the insolvent. It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs. Maybin, for the plaintiff. Mathurin v. Livaudais. V, N. S. 301. A bequest to a master of a slave, of a sum of money in payment of the slave, is not a fidei commissum, and therefore prohibited by law. COURT of Probates of New Orleans. PORTER, J., delivered the opinion of the court. The question presented for decision in this case arises under the will of a free man of color, who, leaving one of his children a slave, made the following disposition of a part of his property: "Comme mon fils Narcisse est encore esclave, et que je disire contribuer a lui assurer sa liberté, je donne et legue a son maitre, Mr. Charles Enoul Dugue Livaudais, une somme de six cents piastres, a la charge par lui de considerer ladite somme un acompte a valoir sur le prix qu'il pourra exiger de mon fils Narcisse, pour lui donner sa liberté en bonne forme." "As my son Narcisse is yet a slave, and as I wish to contribute to his emancipation, I give as a legacy, to his master Mr. Charles Enoul Dugue Livaudais, a sum of six hundred dollars, on the condition that the said sum is to be considered by him as so much on account of the price which he may demand from my son Narcisse, to give him his liberty in proper form." This disposition is attacked by a son of the testator and brother of the slave, who was to derive a benefit from the legacy, on the ground that it is a fidei commissum, and prohibited by law. This is one of the harshest demands, and the most revolting to every principle of equity and justice that has, as yet, fallen under our consideration. Nor do we think it supported by law. Our Code, it is true, declares that substitutions and fidei commissa are abolished. But the object of this change in our jurisprudence was, as it is well known, to prevent property from being tied up for a length of time in the hands of [Mathurin v. Livaudais.] individuals, and placed out of the reach of commerce. The framers of our Code, certainly never contemplated to abolish naked trusts, uncoupled with an interest, which were to be executed immediately. If they had, they would not have specially provided in a subsequent part of the work for testamentary executors, described their duties, and recognised the validity of their acts. The obligation imposed on the legatee by the will of the testator in this case, cannot be distinguished from that of an executor, except in the name; and it is the duty of the court to look to things, rather than to the words. But the question does not require to be decided on this ground. By another provision of the Code, it is declared that slaves cannot dispose of or receive by donation inter vivos or mortis causa, unless they have been previously and expressly enfranchised agreeably to law. Civil Code, 208, art. 5. Being thus made incapable of receiving, this legacy cannot be considered as a fidei commissum. It is not a charge to one to receive for, and render to another; because that other has not in the eye of the law a legal existence: until the slave is emancipated, he cannot demand the thing bequeathed. It may be objected to this reasoning, that as the slave has a legal capacity to maintain an action for his freedom, he, of course, could have an action to enforce the application of the money left to another to purchase his freedom. But this right to sue for freedom is an exception from the general rule, and far from supposing any legal capacity to own or receive property in the slave, the object of the suit is to acquire it. By the Roman law, a bequest of the kind now before us, was considered as a fidei commissum. We must guard, however, against adopting and applying rules of that jurisprudence which were introduced for the purpose of giving effect to last wills and testaments to cases, where under new statutory provisions these rules would defeat the will of the testator. This distinction has been taken in France, in the construction of that article of the Napoleon Code which abolishes substitutions; and the correctness and wisdom of it is placed beyond doubt by the decisions of their courts, and the able development given of the reasons for introducing such a distinction by their jurisconsults, particularly Merlin & Toullier. The last mentioned author states that it is the spirit of their law, and of their jurisprudence, not to annul a testamentary disposition made under the Code, except it necessarily presents a substitution, and cannot be supported and interpreted in any other manner. Nouveau Repertoire, verbo Substitution, fidei commissaire, sect. 8, no. 7; Toullier, 5 N. S. lib. 3, tit. 2, cap. 1, no. 10-50. For the balance in the hands of the executor, the plaintiff has no claim. The amount is shown to be less than the sum which Rosette, one of the children deceased, is entitled to by the will. It is, therefore, ordered, adjudged and decreed, that the judgment of the court of probates be affirmed, with costs. Derbigny, for the defendant. O'Brien v. Louisiana State Bank. V, N. S. 305. The teller of a bank, who has overpaid a check, is a good witness without a release. FIRST District. MARTIN, J., delivered the opinion of the court. The plaintiff and appellant complains that, having deposited in the defendant's banking house a sum of 1400 dollars, and procured from their teller a corresponding entry in his bank books, they now refuse to restore it, and their officer fraudulently struck out the entry and substituted one for a very trifling sum, viz: 55 dollars. They pleaded the general issue, and averred the plaintiff had deposited the latter sum only, and the first entry was made through error and was afterwards corrected. They had a verdict and judgment, and the plaintiff appealed. There is a bill of exceptions to the opinion of the inferior judge, admitting the testimony of the teller. It is urged that the release the defendants gave him was not under the seal of the bank, and that they released him from the consequences of his error, but not of his fraud. We are of opinion no relief was necessary. This point was inquired into and disposed of in this court last year, in Jordan v. White, 4 N. S. 340. And we held that "agents and servants may be received as witnesses, for their principals and masters without a release of responsibility for apparent misconduct and negligence, and where the affairs conducted by them have been in the ordinary course of business. Starkie, in his admirable treatise on the Law of Evidence, has collected all the English authorities on this head, and in Metcalf's edition of that work, the American have been added. 2 Starkie on Evidence, 753. The testimony fully establishes the averred mistake, and that another customer having at the same time deposited the large sum, the smaller was entered in his book, and the larger in the plaintiff's. It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs. Hoffman, for the plaintiff. VOL. III.-47 Caldwell v. Townsend. V, N. S. 307. Whether an attorney for an absent debtor can confess judgment. Quære. The money in the garnishee's hands, cannot be taken from him before final judgment against the defendant in attachment. PARISH Court of New Orleans. PORTER, J., delivered the opinion of the court. The appeal is taken in this case from a decision of the judge a quo on a rule taken by the plaintiff on the garnishee, to show cause why judgment should not be rendered against the defendant. The court was of opinion that the garnishee was discharged by the answer which he had made to the interrogatories propounded to him. The correctness of this opinion, and the propriety of the judge refusing the plaintiff permission to obtain testimony from New York, to prove that there were funds in the hands of the garnishee, have been both discussed by the counsel, but we do not find it necessary to go into them; for we are of opinion that the cause is not before us in such a way as to authorise us to do so. The garnishee is only responsible to the plaintiff in attachment, through the claim which he has enforced to judgment against the defendant in the cause, and no such judgment appears on record in this case. There is an agreement which we presume was intended to have the effect of one, in the following words: "It is agreed in this case, that defendant's counsel shall permit the plaintiff to take a judgment according to the prayer of petitioner, upon the condition that the plaintiff will consent to open the judgment again, provided the defendant so wishes, and shall desire to have a regular trial of the case. And it is further agreed that any sum of money, in which the garnishee shall be adjudged to be indebted to the defendant, shall remain deposited in court, subject to any judgment to be rendered in the premises, either by consent or otherwise; and that said sum of money shall be subject to all the conditions above specified." Admitting that an attorney of an absent debtor has power, under the appointment held from the court, to confess a judgment (which we strongly doubt) there is nothing in the agreement just set out, which can authorise the plaintiff to take out of the hands of the debtors of the defendant, the moneys due to him. It is not the judgment of the court, but an agreement that the plaintiffs should take one, and non constat that the court would have sanctioned by its |