HEWITT v. WATRRMAN. case, the usual rate of good unmatured acceptances. All the circumstances of the which it is not necessary to detail at length, justify the conclusion, which must have been adopted by the district judge, that the defendants knew at the time that Rayburn, Scott & Co. were insolvent. No representation of their solvency appears to have been made at the time to the plaintiffs by the broker. There is no reason to believe that the plaintiffs had any ground for suspicions. The embarrassment of Rayburn, Scott & Co. does not appear to have been publicly known. The district judge gave judgment for the plaintiffs; and the defendants have appealed. The legal conclusion resulting from the case stated is free from difficulty. In the earliest edition we have found of Mr. Chitty's work on Bills of Exchange, he lays down the law as follows: "When a transfer by delivery, without endorsement, is made merely by way of sale of the bill, as in the case of a discount, or where the assignee expressly agrees to take it in payment, and to run all risks, he has in general no right of action whatever against the assignor, in case the bill turns out to be of no value." 66 But," adds that auther, there can be no doubt that, if a man were to assign a bill for a good consideration, knowing it to be of no value, he would, in all cases, be compellable to repay the money he had received." More than thirty years afterwards, he reiterates (with a qualification,) the same doctrine: "There can be no doubt that if a man assign a bill for any sufficient consideration, knowing it to be of no value, and the as. signee be not aware of the fact, the former would in all cases be compellable to repay the money he had received." Mr. Story recognizes the same doctrine as the commercial law of our own country. He who transfers a note by delivery, "warrants that he has no knowledge of any facts which prove the instrument, if originally valid, to be worthless, either by the failure of the maker, or by its being already paid, or otherwise to have become void or defunct; for any concealment of this nature would be a manifest fraud. Thus, for example, if the instrument be a bank note, and, at the time of the transfer by delivery, the party knows the bank to have become insolvent, and conceals it from the other party, it will be deemed a fraud, and the consideration for the transfer may be recovered back." Story on Notes, § 118. See also Camedye v. Allenby, 6 B. & C. 373. This doctrine, which rests upon the firm basis of good faith and mercantile honor, must be taken as the settled rule of the commercial law. We are not aware that it has been disputed since the time of Lord Kenyon, who observed in very strong language, in Fenn v. Harrison (3 Term Rep. 757): “If the holder of a bill of exchange sent it into market without endorsing his name upon it, neither morality, nor the laws of this country, would compel him to refund the money for which he had sold it, if he did not know at the time that it was not a good bill; if he knew the bill to be bad, it would be like sending out a counter into circulation to impose upon the world, instead of the current coin." It is not improper to observe that this principle of the commercial law as to bills and notes, accords with the doctrine of the civil law, as we find it expounded by Pothier. In speaking of the obligations which spring from the good faith required in the contract of sale of a debt, he observes: La bonne foi oblige 66 le vendeur, dans ce contrat, de même que dans le contrat de vente des choses corporelles, à ne rien dissimuler de tout ce qu'il sait, et de ce que l'acheteur à interet de savoir, concernant la créance qu'il vend. C'est pourquoi, s'il était justifié que le vendeur d'une créance, lors du contrat, avait connaissance que le débiteur était entièrement insolvable; putà, si ce débiteur avait été discuté dans tous ses biens meubles et immeubles, et que le créancier eût fait opposition et n'eut rien touché; ce créancier, qui, depuis, vendrait sa créance, en dissimulant cette insolvabilité, qu'il ne pouvait ignorer, à l'acheteur qui n'en aurait pas eu connaissance, pecherait contre la bonne foi qui doit régner dans le contrat de vente, et serait obligé, envers l'acheteur, à reprendre la créance, et à lui restituer le prix, quoiqu'il n'y eut pas de clause dans le contrat, par laquelle il se fut obligé à la garantie de fait." To the like effect is our own Code. The seller does not warrant the solvency of the debtor, unless he has agreed to do so. Art. 2617. But if it be proved that the assignor, who has not warranted the solvency of the debtor, knew, or had strong reasons to suspect, that the debtor was insolvent at the time of the assignment, the contract may be rescinded, and the assignor compelled to restore the price. Art. 2619. Judgment affirmed. HEWITT v. WATERMAN. NOTE. The following cases, decided during the period embraced in this volume, presenting only questions of fact, have not been reported. AT NEW ORLEANS: Moreno v. Welman; Cole v. Poole; Shaffer v. Green; Levy v. Forrest; Martin et al. v. Selleck et al; Brown v. Featherstonh' et al; Jordy et al. v. Warfield; Curry et al. v. Freligh; Merle v. Bowman; Montfort v. Gontier; Meyer v. Speyer; McLorinan v. Williams; Yale v. Nolan; Chanslor v. Stetson; Talley v. Blanchard; Rich v. Valentine; Julien v. Chevet; Phillips v.Rousseau et al.; Woodruff v. Bailey; Drummond v. Akin; Guesnard v. Her Husband; Oxley et al. v. Waters et al.; Oakey et al. v. Lewis et al; Castro v. Claiborne et al; Gorman v. Imboden; Taylor v. Fitzpatrick; Davis v. Bondurant; Anderson v. Peirce; Owen v. Barker; Sterry v. Bailey; Brander et al. v. Smith; Perkins v. Coons et al; Larche v. Hood; Martin v. Amis et al.; Copley et al. v. Miller; Watt v. Dunlap; McCallister v. Gant et al.; Avart v. Newcomb et al; Davidson v. Kinchen; Stephens v. Hackett; Same v. Same; Wilkins v. Parish of East Baton Rouge; Union Bank v. Hardesty; Harrell v. Kneely et al.; Hyland v. Lambeth et al.; Riley v. Wilcox; Gresham v. Fonbené; Conrey et al. v. McKee et al; Hebrard v. Curtius et al.; Chiapella v. Lefebvre; Freeport v. Lacroix et al; Borgstede et al. v. Mooney; Ganucheau v. Bach; Pennock v. Sparrow, Curator; McKinney v. Steamer Yalla Busha; Commercial Bank of New Orleans v. Sexé; Kirwan v. Heath; Tucker v. Agricultural Bank of Mississippi; Commissioners of Merchants' Bank v. Yorke; Succession of Church; Hardy v. Zacharie et al; State v. Atchafalaya Railroad and Banking Company; Ducongé v. Harker; Beguet v. Videau; Lee v. Hodge; Le Blanc v. Lallande; Bullard et al. v. Lewis et al; Same v. Same; Powell v. Kellar; Sutton v. Hines; Davezac v. Paulding; Mitchell et al. v. Mills; Byrne v, Fonbené et al.; Forman v. St. John; Frazier et al. v. Denton; Freeman v. His Creditors; Burbank et al. v. Lane, Tutor; Hays et al. v. Noonen; Randolph et al. v. Tourné; Vitta v. Brehier; Succession of Wurzschmitt; Davis v. McCargo; Succession of Argote y Villalobos; Gridley et al. v. Conner; Pargoud v. Weaver et al; Robertson et al. v. Thompson; Peterson et al. v. Hagan et al.; Hiestand v. Forsyth. AT OPELOUSAS: Fanning v. McCaskell; Todd v. Saunders, Dartest v. Dungan; Walker v. Walker; Kemper v. Merriman; Fagot v. Briant; Brous. sard v. Duhon; Segura v. Segura; Deas et al. v. Pritchard et al; Moore v. Bowles. AT ALEXANDRIA: Esté, Executor v. Boyce; Lynch v. Cuny et al.; Same v. Same. AT MONROE: Copley v. Moore; Copley v. Dosson; Jones t. Holmes; Taylor v. Collins; Tutorship of Bonaventure; Copley v. Mullins et al; Atkinson v. Johnson; Floyd v. Gaster; Thompson et al. v. Martin; Gilmer v. Craig; Hailey v. Pitts et al.; Emsweller v. Holland; Jenkins v. De Graffenreid, Tutrix; Little v. Copley; Dosson v. Ward; Slater et al. v. Ward; Hill v. Head; Thompson v. McFarland; Cruger, Syndic v, Persons; Canfield r. Brice. THE CASES of Hartson v. Coleman: Murphy r. Wright; Roussel r. Wright; Welsh v. Barrow; New Orleans and Carrollton Railroad Company v. Hood et al.; Riddell v. Howard; and Donnell v. McMaster, decided at New Orleans, during the period embraced by this volume, are not reported, damages having been allowed in each for a frivolous appeal. INDEX. ABSENTEE. 1. No judgment can be rendered against 2. A minor, whose father is dead and AMICABLE DEMAND. The failure to make an amicable demand See EXECUTORY PROCESS, 5. ANSWER. See PLEADING, II. APPEAL. incapable of representing him. C. C. 328. See CRIMINAL LAW, 5, 6, 33, 34. Tu See APPEAL, 17. ATTACHMENT, 9. ABSENT HEIRS. ACTION. TORSHIP, 3. I. Will lie When. 1. An appeal must be dismissed where 2. Where a plaintiff who had appealed Actions do not abate by the death of the ing a bond with surety for the costs only, parties. C. P. 21, 361. Hawkins v. Dar- subsequently causes a fi. fa. to be issued 3. An appeal must be dismissed, where 4. Where after obtaining an order allow. 5. Where a creditor, who had obtained why he should not be condemned to pay devinted from in the case of merely nominal the debt, and appeals from a judgment dis-parties, who are without interest. Gibson missing his rule, his subsequently issuing v. Selby, 317. an alias fi. fa. will not be considered a voluntary execution of the judgment, authorizing the dismissal of the appeal. The judgment from which the appeal was taken is wholly distinct from that rendered in the principal cause, and in which the fi. fa. was issued. Clements v. Cassily, 358. 6. Where a judgment has been rendered without citation, the party agrieved is not restricted to an action of nullity, but may be relieved on appeal. C. P. 608, First Municipality v. Christ Church, 609. 453. 7. Where an injunction, arresting the sale of property seized under a fi. fa. is dissolved on motion as to a portion of the property, but, after a trial on the merits subsequently had, is maintained as to the remainder, the creditor will not, by executing his fi. fa. against the portion as to which the injunction was dissolved, deprive himself of the right to appeal from the subsequent decree perpetuating the injunction as to the remaining portion. Mitchell v. Lay, 593. 8. The jurisdiction of the Supreme Court as to fines under $300 in amount, imposed by municipal corporations, is limited to cases in which the constitutionality or legality of the fine is contested. Ex parte Travers, 693. 9. Where a judgment rendered in favor of the defendants, in an action to set aside an adjudication made at a sheriff's sale, and dissolving an injunction restraining the sheriff from putting the purchaser in possession, is affirmed on appeal; and the purchaser afterwards, before taking out a writ of possession, takes a rule on a third person, who is alleged to detain the property unlawfully, to show cause why a writ of possession should not issue, and the rule is made absolute on the failure to answer, the defendant in the rule cannot be relieved by appealing from a judgment refusing him a re-hearing of the rule, which was asked for on the ground of the pendency of an action between himself and the purchaser for the property. There can be no objection to the issuing of the writ; but if it be attempt ed to be executed adversely to the right of the appellant, he must resort to his remedy aa in ordinary cases. Jacobs v. Augustin, 703. See COURTS, 5. II. Parties. 10. The rule that all the parties to a judgment from which an appeal is taken must be made parties to the appeal, is only 11. Where, on dissolving an injunction, judgment was rendered against the plaintiff and his surety in solido for interest and damages, and the former appeals, the latter must be cited as an appellee, or the appeal must be dismissed. He is not a merely nominal party. 1b. 12. The judgment of a court of the first instance, rendered in an action instituted by the owner of a building praying for a distribution of a balance due by him to the builder among the laborers and furnishers of materials who had presented him with their accounts under the provision of the stat. of 18 March, 1844, admitting any claimant to a participation in the fund, cannot be examined on appeal, where the party dissatisfied has not appealed from the decision. Hale v. Wills. 504. 13. Where a judgment has been render. ed against one of two defendants, but in favor of the other, and the former appeals, but, asking no judgment against his co-defendant, does not make him a party to the appeal, and the plaintiff acquiesces in the judgment in favor of the latter by suffering it to become final without appealing therefrom, he cannot have the appeal dismissed on the ground that the defendant, in whose favor judgment was rendered, was not made a party to the appeal. Campbell v. Arcenaux, 558. 14. Where several terms have elapsed since the suggestion of plaintiff's death, and the making of an order authorizing the revival of the action in the name of her heirs, without any appearance by them or any one authorized to represent the succession, the court will, on motion, order a dismissal of the appeal at the next term, unless an appearance be entered before that time. Martin v. Williams, 582. 15. Where a plaintiff, after obtaining judgment, causes a fi. fa. to be issued, and propounds interrogatories to a third person under the stat. of 20 March, 1839, and obtains a judgment against him, in case of an appeal by the defendant from the judg ment against the person interrogated, be must be made a party to the appeal, or it will be dismissed. Being interested in the judgment, it can neither be affirmed nor reversed without giving him an opportunity of being heard. Copley v. Snow, 623. III. Bond and Surety. 16. The surety on an appeal bond will not be discharged by the failure of the Supreme Court to affirm for its whole amount, a judgment rendered below in favor of the appellee. The surety is bound for ** what |