The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-03-31

had once had the benefit of the testimony of a
Interested witness seems a very unsatisfactory
reason why it, should be repeated" In reply to tn
defendants argument that the plaintiff g objection
on the previous trial, did not point specifically t
the true and tenable ground of objection, to-wit
| that Jones was Winters accommodation endorser
and that if the specific objection had been made
| could have been cured by release, which now
by HE death OF the witness, had become impossible
the Supreme Court said I: s. 1t is true that if tn
| specific objection had been made, and had beef
! sustained by the Court, the defendant might hav,
| executed release in Minters favor. But to max
this argument effectual we should be obliged Il
presume that the defendant would have chosen t,
run the risk OF that sacrifice before the testmon,
was heard and ascertained. Besides, the defendan
was bound to know the law. He therefore knew
that Minter had an interest in favor of his success
and instead of removing it by release before
putting the witness the stand, he took the chance
OF benefit from that feeling of interest in the wit
ness mind, which, as is said by learned Judge
will, in spite of the utmost efforts Of the most con
scIentlous man, so often warp his memory as tc
prevent him giving an accurate account of trans
action" The judgment below was reversed, and
the plaintiff decreed to recover from the defendant
Sl2OO, with interest at seven per cent. per annum
from October u, 1912, and costs in both Courts.
The want of upon which Judgment was rendered
fatal objection to its binding force and fnality
An order obtained by defendant plaintiff to produce
certain books in Court need not be served the
venoH.. The word owners" found in the books OF
the common factors held efficient evidence prove
the interest of the paes Art 1884 C. c. is app
cable to merchants accounts. Where merchants &C.
counts are settled from time TO time interest
is allowed.
MURRAY M. THOMPSON as. VIM G.. MYLNE /;
WIDOW AND HEIRS OF DAVID URoUHART, inter-
venors; ALEX DENNIsToUN, iniervenor. :. Ap-
peal from the Fifth District Court Of New Orleans .
[Chef Justice Eustis did not sit in this case having
In limit will opIt
give an abridgment of this case. J.. :. .RosT, J..
Before the decision of the Supreme Court referred
to M the case just determined, the defendant had
filed two accounts, showing the situation of G. B.
Milligan with the firm of A. g. J. Dennistoun & Co.,
and with the Belle Chase Plantation.
Alter the case remanded the intervenors
filed an opposition on a great variety of grounds,
among which are the following:
1. The ntervenors oppose all items in the ac-
counts foreign to the concerns of the partnership,
the same not being within the jurisdiction of the
District Court.
2. They oppose the charge of S4462 IS, for Mill
gans third of the cost of 70S shares of the Union
Bank stock, secured on the plantation, on the
ground that it was the private property of the de-
fendant, who held it in his own name, and bor-
rowed money on it on his own account.
3. They oppose the manner in which the interest
is calculated ill the whole account No. 2, as it i'm
ports interest interest," contrary to all legal pri-
ciples, and in violation of art 1894, C. C..
They ask at the same time that the defendant
might be ordered to file other detailed accounts,
showing every transaction, etc.
The Court, without going into details, or giving
any reasons, ordered all the exceptions to be sus-
tanned, except in relation to bank stock which was
reserved to be investigated by auditors to be ap-
pointed by the Court. The defendant produced
the new accounts and the auditors reported thereon
The intervenors took rule upon the defendant to
show cause why the report should not be homolo-
gated, which he opposed on the following grounds:
l. That the auditors have rejected all the charges
In the account which are personal to the late G. b.
Milligan, and foreign to the partnership. q That
they rejected the charge for the cost of the Union
Bank stock. 8. That they objected to the mode of
stating the accounts, and of calculating interest,
pursued by him and the firm of A. & j. Dennis
toun & Co.
The intervenors contend that two of these grounds
have been decided in their favor by the decree
appointing the auditors, which, not having been
appealed from, forms res judicata.
There is a fatal objection to the finalitv and
binding force of this alleged judgment. 1t does not
contain the reasons upon which it rendered.
and can only be considered preparatory decree
for the adjustment of the accounts In relation to
the sum of s., SIS So due by Milligan for his pro-
portion of loss in a cotton speculation paid out of
the proceeds OF the crops, neither Mr. Dennistoun
nor the defendant ever objected to it, and the in
tervenors have no right to raise the objection for
them. Bladsworth u.s. Jacobs, I'd Ami "a. Dun
oaF Us. Dullard, "a Ami. S2I The lnteryeuOrs
complain that they had no notice of the order of
court taken by the defendant on the plaintiff to
produce the papers and accounts filed in Milligan's
succession. No law requires personal notice to be
given in such cases. The application being made
in open court the intervenors are always presumed
to be present and ready TO plead. c. p. 391.
These papers and accounts We're not objected to by
the intervenors, after they were filed, but suffered
to be received as evidence. They now contend
that not having been Photographed and numbered
as the law requires, they should not be considered
as evidence. The defendant cannot be prejudiced
by the omissions of the magistrate who made the
inventory.
1t was considered by the District Court that the
word owners" found in the books of the com
mon factors of the parties, had reference to Mylne
a. Milligan, and the Judge gave this reason for de-
Gliding that Mligan was one-third owner of the
plantation, which on appeal was affirmed. a
tort,or ii must prove his interest in the bank stock
The mode Vi stating the accounts and calcu-
!atlng interest was rejected by the auditors be-
ing IN violation OF article 1884, c. c., and the ques
ton submitted is whether that article is applicable
to merchants accounts The commercial law, as
settled in other States of the Union, has been uni
formy followed by the courts of Louisiana when
no statutory provision has prevented resort TO IT,