text:
    William M. Peck et al. v. Nashville Marine and Fire Insurance Company.
    The assured are not entitled to abandon and recover for a total loss, from the mere fact of there having been a sale of the vessel; but the right rests upon the ship’s being reduced to such a state as to justify the sale.
    The power of a master to sell a vessel whioh has been damaged at sea, has been wisely circumscribed to very narrow limits. It is limited to cases of extreme necessity, and where, by reason of the distance from the scene of disaster, there is not an opportunity of consulting the owner or underwriter. The same is to be observed with regard to the power of the master to arbitrate or compromise a claim for salvage.
    The report of surveyors as to the necessity of the sale of a damaged vessel, is not conclusive as to that necessity, or as to the right of the assured to abandon.
    Where a vessel was damaged at Tampico, so that her salvage and cost of repairs at that place were estimated at a sum sufficient to justify an abandonment, and she was sold and brought to New Orleans, where she was repaired at comparatively a small sum, not sufficient to justify an abandonment; Held: That the assured could not abandon and recover for a total loss, without advising with the underwriters; as it was practicable to have brought the vessel to New Orleans, where she could be repaired upon much better terms than at Tampico.
    from the Third District Court of New Orleans, Kennedy, I.

      Jacob Barker and T. A. Clarke, for plaintiff.

      L. Hunton, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs sue for a total loss upon a policy upon one-half of the bark Mopang, “with liberty of ports in the Gulf of Mexico, warranted by the assured free from any loss or damage resulting from war or hostility between any nation or people, for three months.” The vessel was valued at $10,000. The defendants insured the one-half at $5,000, and another office took a similar amount. The policy contained a clause that in case of capture, ai’rest or restraint, the insured should not abandon therefore until proof to the insurers of condemnation, or of the continuance of the capture, arrest or restraint, for at least ninety days. Also, that in case of loss or damage, the repairing and replacing of loss or damage should only be estimated or charged against the insurers, after excluding all losses or damages requii'ing to be repaired or replaced in consequence, in whole or in part, of wear and tear or natural decay. Also, that in case of stranding without the breaking up of the vessel, no abandonment should be made until after thirty days from its occurrence, and notice thereof to the insurers; nor unless the right to abandon should then exist. It was further stipulated, that in case a total loss should be claimed for or on account of any damage or charge to the vessel, the only basis of ascertaining her value should be her valuation in the policy.

On the 29th November, 1846, the vessel departed from New Orleans for Tampico, laden with Government stores and supplies for the Army of the United States in Mexico. On the 6th December she arrived at the bar off Tampico, about six miles from that town, and there grounded. Unsuccessful exertions were made to get her off by the crew, and also by officers and men sent to her assistance by two war steamers of the United States. The. weather became boisterous. Huffington, the master, and the crew, except one man, deeming it unsafe to remain on board at night, left the vessel and went ashore. They returned the next day, and in the evening again went ashore. During the second night the vessel was driven by the winds and waves over the bar, and was discovered next morning near the beach. A quartermaster of the United States Army employed a man named Clifton and one Frederick to proceed to the Mopang to save the cargo. For this purpose, vessels and men in the employment of the Government of the United States were used. Clifton was paid by the Government for his services. Thus employed, Clifton went on board the Mopang, after she had drifted over the bar. Huffington with his crew reached the vessel soon after. Clifton then asserted that he was a salvor, and refused to allow Huffington to exercise any authority as master. He was armed; and when asked by Huffington for his authority to hold the vessel, exhibited his bowie knife. The vessel was lightened by Clifton and the rest, and was then got off the beach and towed to Tampico. The expense incurred by the Government for services of men and the use of a steamboat in lightening and bringing the vessel to Tampico was about two hundred and fifty dollars. Clifton retained possession of the vessel, and claimed a salvage of fifty per cent. At this time, the communication between New Orleans and Tampico was frequent. Huffington, without waiting for any instructions from his owner and underwriters, although he was advised to do so by a merchant from New Orleans, to whom the consul referred him, had a survey called. The surveyors, three shipmasters and a master carpenter named by the consul, gave it as their opinion, on the 11th December, that it would cost more to put the vessel in complete order at Tampico than she would afterwards be worth. They therefore recommended that she should be sold at auction for account of whom it might concern. On the 14th December he agreed with Clifton to submit his claim for salvage to arbitration after the sale of the bark. The vessel was sold at auction for $3200. The arbitrators awarded Clifton fifty per cent of the proceeds of sale. They were not sworn; no witnesses were examined before them; and they acted upon the verbal statements made to them by Clifton and Huffington. The purchaser put a temporary rudder in the vessel at an expense of about $100, and without any other repairs at Tampico, she being perfectly tight, he left that place in her about fifteen days after the sale, and brought her in safety to New Orleans. She was then thoroughly repaired here, at a cost of about $800. What portion of these repairs was rendered necessary by the damage suffered in the stranding is not shown. On the 8th January, 1848, the plaintiffs presented their claim to the defendants for a total loss, and tendered an abandonment, which was rejected. In the court below there was judgment against the plaintiffs as in case of non-suit; and they have appealed.

The plaintiffs contend, that they are entitled to recover for a total loss, in consequence of the vessel having passed from them by a necessary and justifiable sale ; and our first inquity will be whether the sale was necessary and justifiable. For it is not the mere fact of a sale by the master which entitles an assured to abandon; but the ship’s being reduced to such a state as to justify the sale.

The power of the master to sell the vessel has been wisely circumscribed within very narrow limits, and its exercise is always jealously scrutinized. The authorities are conclusive in limiting it to cases of extreme necessity. And it seems also to be necessary for its justification, that there should not be an opportunity of consulting the owner or underwriter, by reason of their distance from, the scene of disaster or the pressing imminence of the danger. In the present case, the vessel was completely rescued from danger at the time of sale. The means of early communication with New Orleans were at the master’s command. No loss could occur by waiting two or three weeks for instructions from New Orleans, but the expenses of the vessel during the delay. It is impossible, therefore, to consider this a case of such necessity as left the master no alternative, as a prudent and skilful man, acting bond fide for the best interests of all concerned. Much stress is laid upon the recommendation of the surveyors. But it is obvious that it would be a most unsafe doctrine to hold such a recommendation conclusive. It ought not to excuse the duty of communicating with the parties interested, where such communication is convenient; nor are the proceedings themselves unimpeachable. It may be shown that the statements of the surveyors were untrue, or that their examination of the state of the ship was insufficient, or that the inferences drawn by them were incorrect. In the case before us, the surveyors are perhaps censurable on the face of their report itself, for acting upon an imperfect examination and conjectural inferences. But at all events, it is now clearly shown that they were mistaken as to the true condition of the vessel, and that their investigation must have been imperfect. See Gordon v. Massachusetts Fire and Marine Insurance Company, 2 Pick. 264.

What we have said with regal'd to the sale applies also to the conduct of the master, touching the claim for salvage, which is invoked as one of the causes which rendered a sale necessary. This claim was grossly exorbitant. Its exorbitance is indeed admitted in arguments by the plaintiffs. Even if Clifton was entitled to any salvage at all, considering the circumstances under which he was employed and took possession, and his conduct towards the master, such salvage right was far below his extravagant pretensions ; and the course of the master, in agreeing to submit to arbitration without writing for instructions, and the manner of conducting the proceedings are manifestly censurable, and can give no additional color to the sale. The power of a master to arbitrate or compromise a claim for salvage appears to be regarded with a jealousy similar to that with which courts scrutinize his conduct in selling. See Housemain v. Schooner North Carolina, 15 Peters, 45.

Disregarding, therefore, the sale, as unjustifiable, let us inquire what was the extent of damage done to the ship. This, it is obvious, was far below one-half of her value in the policy. She was fully repaired in New Orleans for about $800 ; the cost of repairing her rudder at Tampico was $100 ; and these added to the highest amount reasonably due Clifton for salvage, and all other proper allowances, would not have reached even a third of $10,000. It is said the expense of repairing at Tampico would have exceeded the moiety. But, under the circumstances of this case, we think the cost of repairs at the place of the disaster ought not to control the'rights of the parties. New Orleans, the vessel’s home port, was but a few days’ sail from Tampico. The vessel was able to keep the sea with the partial repairs put on at Tampico, and did actually make the voyage in safety. In Hall v. Franklin, 9 Pick. 467, the vessel which was insured at Boston, and owned partly there and partly at New Orleans, had struck on a shoal on the cost of Florida; but by the assistance of wreckers was got off and carried into Key West. Upon survey, she was condemned, upon the ground that her repairs there would, when finished, cost more than her value, and was thereupon sold at auction. It appeared in evidence at the trial, that although the expense of repairing her at Key West would have exceeded fifty per cent on her value, yet at New Orleans and Boston, to either of which she might- have proceeded, the expense would have been less than fifty per cent. The court said, “We cannot yield to the argument that the repairs should be made atpihe place or port where the injuiy was received, if there are no reasonable means of making them at that place, and the vessel can safely be navigated to a port where the repairs can be made, so that the whole expense will be less than fifty per cent. It would in such case be the duty of the master to navigate the ship to the port where she might be repaired, and not incur the expenses of bringing men and materials from other ports to the ship.”

The plaintiffs have a claim against the defendants'for a partial loss, but we have not the means of giving a judgment. It has not been shown with sufficient certainty, especially in view of the stipulation in the policy respecting repairs, what was the cost of repairing the injuries sustained by the stranding.

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


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Peter G. Mourain et al. v. Charles Poydras, Executor.
    Where the testatrix died in France, charging by will immovable property in Louisiana with the payment of certain legacies, and the property was not sufficient after the payment of the debts to discharge those legacies in full, Held: That as there was nothing which required that the debts contracted in Louisiana should be paid out of the property situated in this State, the legacies should be paid in full out of the property here, leaving the debts to be paid out of the property left by the testatrix in France.
    The practice of remitting the funds belonging to a succession to a foreign country to be distributed in the course of administration there, is a matter of discretion in the courts of this country, and depends upon the established comity of nations. But where there are creditors and parties in interest seeking to enforce their rights here, our courts have the power of enforcing those rights on the property within their jurisdiction.
    APPEAL from the District Court of Pointe .Coupée, Farrar, J.

      T. J. Cooley, for plaintiffs.

      A. Provosty, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal .taken by the defendant, Charles Poydras, dative testamentary executor of Mme. Bonneau, from a judgment of the Court of the Ninth District, by which he was ordered to retain in his hands the funds produced by the sale of the property of the succession of Mme. Bonneau in this State, a sum sufficient to satisfy a legacy in the last will of the deceased in favor of Marie Victorine Mourain, of the sum of forty thousand francs, until the said legacy should become payable.

Mme. Bonneau resided at .Nantes in France; she died there on the 3d of February, 1846, leaving a large estate and a plantation and slaves in the parish of Pointe Coupée, in this State. Her last will contained several legacies which were to be paid out of her Louisiana property. That which gives rise to the present suit is contained in the fifth clause of the will, and is to this effect; “I bequeath to Miss Marie Victorine Maurain, my grand-niece and god-daughter, residing in Louisiana, a sura of forty thousand francs, which shall be paid out of the proceeds of the movable and immovable property, which I may possess at the day of my death in Louisiana, and not out of any of my property in France. My succession shall only deliver this sum to the said Marie Victorine Maurain at her majority, or on her marriage, if it should take place before she shall have attained the age of majority. My succession shall be charged with it until then. This sum shall produce interest from the day of my decease, which may be received by the father and mother of my legatee until the time for the delivery of the principal.”

The father and mother of the legatee, who is a minor, have instituted this suit. The succession of the testatrix was opened in France. All her heirs and legatees, except Miss Maurain, reside there. The property in Louisiana, consisting of lands and slaves, must be considered as all immovable; the value of the movables being too small to require notice.

Poydras, the defendant, obtained his appointment of dative testamentaiy executor of the deceased, as attorney in fact of the heirs, under the 1038th article of the code, which requires the judge, on application for the administration of a succession, to give a preference to the attorney in fact of the absent heirs over the creditors.

The property of the succession, after having been inventoried, was sold according to the forms of law. After the payment of debts, a sufficient sum is not left in the hands of the executor to pay all the legacies which are required to be paid out of the Louisiana property; and it is contended that they are consequently to be reduced pro rata. This question necessarily leads to an inquiry as to the principles upon, which this court must act in determining on the matters submitted for its decision.

In relation to the power of the court to direct the funds of this succession to be retained or remitted for distribution, under the sanction of the tribunals of the domicil of the testatrix, we consider there can be no question. Its exercise is a matter of discretion depending on the circumstances of each case, and on the established comity prevailing between nations in amity with each other. In pursuance of this comity, the funds of the successions of foreigners have been remitted to their representatives abroad, in cases in which there were nq creditors or parties in interest asserting their rights in our courts. Gravillon v. Richard’s Executor, 13 L. R. 299. But the power of courts in this country to enforce these rights on the property of the foreign succession within their jurisdiction, we belive has always been maintained. Harvey v. Richards, 1 Mason, 381. Dawes v. Head, 3 Pickering, 143. Gravillon’s case cited.

This case does not present any difficult or intricate questions growing out of the conflict of laws. The will itself furnishes a guide which will enable us to secure effectually the rights of all the parties in interest.

We have stated that the proceeds of the Louisiana property have been reduced by the payment of debts, so that there are not sufficient means in the hands of the executor to satisfy the legacies with which the Louisiana property was charged by the will. This deficiency must be made good by,the succession in France. The debts of the succession ought to be paid by the funds of the succession; there is nothing in the will which subjects the Louisiana property exclusively to the debts contracted here; the creditors here can exact the payment from the proceeds of the property in this State, ' but the legacies charged Upon that properly must be paid without reduction. In this state of things, the property upon which the legacies were charged, having been invested in money, as we are bound to consider it, at the instance of the heirs of the testatrix, it is no more than a just protection of the interests of the legatee, who is a minor and residing in this State, at the domicil of her parents, to direct the retention of the funds appropriated to the payment of her legacy within our jurisdiction.

The other legatees, whose legacies are to be paid from the Louisiana property, reside in France, and have not been made parties to this suit. As the succession in France is rich, their right cannot be jeoparded by the retention here of the whole amount of the legacy in favor of the party before us.

If the heirs were to come prepared, and offer good security for the payment of the legacy and interest, the funds might be delivered to them and the whole succession be liquidated under the direction of the tribunal at Nantes. The arguments of the counsel for the executor would then be applicable; but without that security for the rights of the legatee, this courtis under no obligation of law, conscience or amity, to direct the delivery of the funds unconditionally to the heirs, after they have changed for their benefit the original security which the immovable property of the Louisiana succession afforded her for the ultimate payment of her legacy.

It is the duty of all the parties, under the direction of the district court, to see that this fund be judiciously invested, with mortgage security on landed property until the legacy becomes payable by the terms of the will. We do not go out of the case to give directions on this subject, inasmuch as we have no reason to question the good faith of those who have the control of the funds, and think that the interests of the minor will be safe under the protection of the court where the law has placed them.

The interest of the fund, we think, under the terms of the will, is payable to the parents of the minor; but we cannot provide for its payment by a formal decree in this case.

The judgment of the district court is therefore affirmed, with costs.


author: Etjstis, C. J.

text:
    Peter G. Mourain et al. v. Charles Poydras, Executor.
    Where a testatrix left a legacy to be paid with interest from the date of her decease, the ■ succession is bound to pay the interest although the sum may not have been invested so as to have yielded interest.
    APPEAL from the District Court of Pointe Coupée, Farrar, J.

      T. J. Cooley, for plaintiffs.

      A. Provosty, for defendant.
   The judgment of the court was pronounced by

Etjstis, C. J.

This case arises from the clause in the will of Mme. Bonneau, quoted in the proceeding cause. The facts in both are the same, The appeal is taken by the executor from a judgment of the district court, by which the succession of Mme. Bonneau is condemned to pay to the plaintiffs, who ai-e the father and mother of the minor legatee, interest at five per cent on the sum of 40,000 francs, from the 15th day of March, 1846. The clause of the will provides for the payment of the interest from the day of the decease of the testatrix. The rate, it is conceded, is authorized by the law of France as well as of this State.

It is contended by the counsel for the executor, that not being bound to invest the fund of 40,000 francs, he cannot be answerable for the interest the fund could produce. But the judgment is not against him: it is against the succession represented by him, and will bind those who succeed him as its representative. The succession, by the terms of the will, owes the interest from the decease of the testatrix; ample means are in the hands of the executor to pay it; and we do not see on what grounds payment of it can be refused. Our reasons given in the preceeding case, apply to this; and this judgment would be rendered inoperative on the heirs giving security as we stated in that case.

The judgment of the district court is therefore affirmed, with costs.


author: SniDEix., J.

text:
    Taylor and Rayne v. Pedro de Sotolingo.
    A printed bool:, proved by the Spanish consul to be the laws of Spain, and that by usage Spanish consuls have power to certify the laws of Spain, is admissible in evidence to prove the laws of that government.
    A party may prove by parol the signification of the Spanish phrase “Socio Industrial," and that such a partner is not responsible for the losses and debts of the partnership.
    APPEAL from the Fourth District Court of New Orleans, Strawhridge, J.

      Winlhrop and Mayhin, for plaintiffs.

      H. II. Strawhridge, for defendant.
   The judgment of the court was pronounced by

SniDEix., J.

This action is brought by process of attachment upon two bills of exchange, dated in Havana and drawn by Carlos Cruzat 8f Co., a mercantile house there,, on Andrews and Cunningham at. Boston, in favor of, and endorsed by Andrews and Dewey, from whom the plaintiffs purchased them in New Orleans. They were accepted, but protested for non-payment; and due notice of protest is alleged to have been given to the drawers. The defendant, a resident of Havana, is sued upon the alleged ground that he was a member of the house of Carlos Cruzat 8f Co. His principal defence is, that he was only a “ socio industrial ” of the firm, and that under the laws of Spain, which govern the island of Cuba, such a partner is not responsible for the losses or debts of the partnership. The district judge sustained the defence ; and the plaintiffs have appealed.

There were several bills of exception taken by the plaintiffs. We will notice such of them as seem to require attention.

At the trial of the cause, the defendant offered in evidence a printed book in the Spanish language, purporting to be the official edition of a Code of Commerce, adopted and promulgated in Spain, in 1829. This book was produced by the consul of Spain, resident at New Orleans, who proved it had been published by authority of the Spanish Government; that it had been delivered to him when he was appointed consul, with the archives of his office, and had been furnished by the Spanish Government. The consul also testified that the consuls of Spain have power as such to certify the laws of Spain; and that this authority is not derived from any written laws, but from usage. He further testified, that if a copy of the code were presented to the Queen of Spain for her signature, to certify the same as the laws of Spain, she would refuse it as infra dignitatem. He also certified, as consul, another copy of the same work. Under these circumstances, we think the book was properly received in evidence, for the purpose of showing the commercial law of Spain upon the subjects which the code professes to comprehend; and that in the absence of any countervailing evidence, the court below properly considered it as proving that law.

By this code, art. 269, it appears, that a person employed in a commercial house may receive in compensation for his labors a share of the profits, without being liable as a partner either to the firm or to third persons.

At the trial of the cause, certain articles of agreement between Carlos Cruzat, J. M. Isaacks and Sotolingo, the defendant, were offered in evidence. They are in the Spanish language, and literally translated, run as follows: “ I, Don Carlos Cruzat, declare, that I have agreed to interest Don J. M. Isaacks and Don Pedro Sotolingo as industrial partners (socios industriales,) in the commercial house which, under my name, deals in this place, and on the terms and conditions following: 1. The said Isaacs and Sotolingo shall receive, the first fifteen per cent, and the second ten per cent on the liquidated profits that may result from the operations which the commercial house may do, from the 1st day of October, one thousand eight hundred and forty-seven. 2. Moreover, I will give them each for their private expenses, a monthly salary of a hundred dollars. 3. For the funds they may wish to place with the firm, I will pay them nine per cent yearly. 4. The operations of the house shall be exclusively that of commissions. 5. It is not permitted to any one of the industrial parties to make any mercantile speculation on his private account, they promising to devote all their labor and industry to the firm. 6. All operations that may be .done shall take place with my knowledge, and by my good pleasure. The duration of the partnership shall be for three years, which shall terminate on the-1st day of October, one thousand eight hundred and fifty; at which time it shall proceed to liquidate, and the partners be at liberty to do as they may hold convenient. And that this may appear, we sign three documents of one tenor, that each party may preserve his own. Havana, May 29th, 1847 "

The defendant offered several witnesses who had been connected with Spanish commerce, and were familiar with the Spanish language, (among others, the Spanish consul) to prove the popular and technical meaning of the words “ socio industrial,” found in these agreements, and that a “ socio industrial ” was not responsible, in Cuba, for the losses or debts of the partnership in which he was such industrial partner: to which the plaintiffs objected, on the ground that no parol evidence could be received to show such meaning and such exemption from responsibility; which objection was overruled, and the witnesses were permitted to testify.

We do not think there was such error in the ruling of the district judge, particularly as he was trying the cause without a jury, as would authorize a reversal of the judgment. The legal exemption from liability of an employe who receives a share of the profits of a commercial house was proved, independently of those witnesses, by the written law of Spain, which the district judge had before him. The testimony of the witnesses was clearly admissible, to show that those expressions of a foreign language were used in common parlance to designate such an employé.

The execution of the agreement above mentioned, and the relation of Sotolingo towards the house of Carlos Cruzat Sf Co. are satisfactorily proved ; and under the law of Spain, we think the court below properly held he was npt liable to the plaintiffs.

Judgment affirmed, with costs,


author: Preston, J. Edstis, C. J. and Slidell, J. Rost, J.

text:
    Marie L. Dupre v. C. W. Caruthers et al.
    Natural children cannot take by inheritance the property of a deceased parent, unless they have been duly acknowledged; but natural brothers and sisters may prove their relation, and inherit from each other, although they have never themselves been acknowledged by their parents. C. C. 913, 916.
    A judicial recognition of the paternity of a natural child, never acknowledged by the parent, does not entitle the child to the inheritance of the parent’s succession.
    APPEAL form the First District Court of New Orleans, Larue, J.

      C. Morel and Filleul, for appellant.

      Preaux and C. Dufour, for appellees.
   The judgment of the court was pronounced by

Preston, J.

Louis Dupré, a colored man, departed this life in New Orleans without legal ascendants or descendants. C. W. Caruthers and others claim his succession, alleging that they are his natural brothers; and a niece of the deceased by a natural brother, claims through him. In opposition to them fhe estate is claimed by Marie Lorenza Dupré, who alleges that she is the natural daughter of the deceased. She was neither acknowledged by him in baptism nor before a notary public and two witnesses, but offered to prove her paternity by parol and other testimony not amounting to a formal acknowledgment.

If any one of the collateral claimants have shown their relation to the deceased, it raises the question, whether they or the unacknowledged natural daughter shall inherit the estate.

The deceased, Louis Dupré, and Honoré Caruthers were baptised as sons of the same mother; and Armantine Dupré was baptised as the daughter of Celeste, whom her uncle, deceased, buried as his sister, declaring her before the recorder of deaths to be his sister.

The case therefore clearly raises the question, whether the natural brothers and niece of the deceased, or his unacknowledged natural daughter are entitled by law to his inheritance.

An article in the old code, precisely similar to article 916 of the present code, gave the estate of a natural child deceased without posterity to the father or mother who has acknowledged him. In the case of Pigeau v. Duvernay, a contest arose between the natural brothers and sisters and the natural father of a deceased child, for his succession. The father had incontrovertible evidence of his relationship, but had not acknowledged him before a notary and two witnesses, nor in baptism.

Judge Martin, in delivering the opinion of the late Supreme Court, said: “The acknowledgment is required to be formal: the manner of making it is pointed out by law. This formal or legal acknowledgment differs from the incontrovertible evidence of natural paternity resulting from the res judicata. The latter gives a right to alimony; the former to that, and sometimes to the inheritance of'the parent, in others to legitimation. As the evidence on which courts of justice are authorized to pronounce the natural parentage is weaker than that which results from a formal acknowledgment, and is not always morally conclusive, the legal consequences of adjudged and acknowledged parentage are thus different,” 4 M. R. 266.

That was the case of a natural father claiming the estate of his unacknowledged child. In this case an unacknowledged child claims the estate of her natural father. The 913th article of the Civil Code declares, that “natural children are called to the inheritance of their natural father who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations nor surviving wife, and to the exclusion only of the State. In all other cases they can only bring an action against their natural father or his heirs for their alimony.”

This provision of law, that acknowledged natural children can inherit only to the exclusion of the State, is equivalent to the declaration, that natural children not acknowledged, cannot inherit at all. Indeed, inheritance is the creature of express law; and there is no law declaring that an unacknowledged natural child can inherit from his father. So, to enable the natural child to take by donation or by the will of his father, our code expressly requires that the child shall have been acknowledged by the parent. Article 1473. It is true, a general impression exists, that the natural child not acknowledged may receive by donation inter vivos or by will, from his parents, the proportions of his property mentioned in this article, in the cases mentioned. Whether this impression would be sanctioned by the decision of our courts it is not necessary now to say. It may be remarked, however, that there is a clear distinction between the capacity to receive by inheritance and by donation. The first is the creature of law— without which it could not exist; the last is the creature of will, when not prohibited by law. Still, if the decision should be in accordance with the general belief, it must be acknowledged that the term aclcnmvledged in this particular article of the code would be surplusage.

But if any other interpretations were given to the articles of our code than that given by our late Supreme Court, the terip acknowledgment, so often used in the code, would have no meaning in any article. The articles above mentioned, in relation to inheritance, are so clear and free from ambiguity that it is impossible to yield to the conclusions of the French tribunals upon similar articles of the Napoleon Code, that a judicial recognition is equivalent to the voluntary acknowledgment of the parent. And, carrying out the idea of Judge Martin, we can well conceive that, there being no absolute certainty of the father of the natural child, the Legislature would not permit the laws of inheritance to depend on such uncertainty; and especially when the proof of the descent leads to disreputable investigations in court, aggravated by all the indelicacy which cupidity can excite.

That the latter consideration had great weight, can be inferred from the 7th law, 15th tit. of the 4th Partidas. This law authorizes the parent to legitimate his natural child by writing; but forbids him to state that he is a natural child, under the penalty that the legitimation shall be invalid. It contains other curious provisions of the same kind, and was reenacted in toto by our Legislature in 1831, although not reported by the compilers of our digests.

The case of Lange et al. v. Richoux et al., 6 L. R. 560, is greatly relied upon to show, that the natural child may prove his paternity in order to inherit his father’s estate in preference to the natural brothers and sisters and their descendants. And our late Supreme Court certainly use general expressions to that effe'ct. But those general expressions are to be referred to the case then before the court. In it natural sisters were allowed to prove their maternal descent, for the purpose of inheriting from each other under article 917 of the code, which prescribes, that “if the father and mother of the natural child died before him, the estate of such natural child shall pass to his natural brothers and sisters or to their descendants.”

The same proof was allowed on behalf of the natural brothers and sisters of the deceased in the present case. It seems strange, it must be confessed, that natural children may inherit from each other through their common mother, when they could not inherit from the mother herself, unless she had duly acknowledged them; and absurd, that a natural child should be prohibited from proving his maternal parentage, except by his mother’s avowal of her shame, on record, or by baptism before the church, as required by article 912 of our code, in order to inherit to the exclusion of ascendants and collaterals. But we know the objects of the Legislature : in the first place, to honor matrimony, which is of such incalculable importance to society; and, in the next place, to discourage concubinage, which is the cause of so much dissoluteness and evil. To prevent it, the Legislature hold out the strongest motive which can influence a parent— the legal disinherison of his offspring, unless he avows his shame before a notary public and witnesses, or in the face of the church.

It is true, the legislation has ever failed in this object; for, probably no one was ever deterred from concubinage by the consideration that his innocent offspring would be the victim of his guilt. And the only effect has been, that the guilty parents have eaten the grapes, while the innocent children’s teeth, with tears in their eyes, have been set on edge. But still, it is the law, and must be obeyed until it is repealed.

The judgment of the district court is therefore affirmed, with costs.

Edstis, C. J. and Slidell, J.

concurring. We concur in the legal results presented in the opinion and decree prepared by Judge Preston.

Rost, J.

dissenting. This is a contest for the succession of Louis Dupré, f. m. c., who was never married and had no legitimate ascendants, between Lorenza Dupré, who alleges herself to be his natural daughter, his natural brothers, and one of his nieces.

Lorenza Dupré has not been acknowledged by the deceased, either in an act of birth or baptism, or by an act before a notary and two witnesses. But on the trial of the cause, she offered to prove her natural paternal descent, under the provisions of arts. 226 and 227, C. C.

The counsel for the adverse parties objected to this evidence on two grounds : 1. That natural children must have been acknowledged by their father in the registry of birth or baptism, or by an authentic act, before they can inherit his succession, and that the proof offered to be made in this case only entitles them to alimony. 2. That if this rule should not apply to white natural children, art. 221 of the code expressly ordains that no other proof of acknowledgment shall be admitted in favor of children of color.

The court sustained the objections, and the counsel fori. Dupré took several bills of exception, which come up with the record. The evidence of Lorenza Dupré having been excluded, her petition was dismissed, and she has appealed.

Many questions both of law and fact were argued at bar; but the only ones which I will examine, are those presented by the bills of exception. The first of those question came before our predecessors in the case of Lange et al. v. Richoux et al., 6 L. R. 570, and it was then held that the words used in aiticle 221, C. C., are not prohibitive; and that so far from saying that a declaration before a notary, or in the registry of birth or baptism, shall be the only proof permitted, the code expressly permits other modes of proof both of paternal and maternal descent, without any restriction as to the purpose for which it may be allowed. ,

The court, in that case, would not recognize the distinction pressed upon us, that the voluntary acknowledgment of the father, made in one of the forms prescribed by law alone, enables natural children to inherit, and that the judgment establishing the filiation under art. 226, 227, C. C., only entitles them to alimony. This distinction was unknown to the former laws of the country, and has been proscribed by the courts and jurisconsults of France in the application and interpretation of the analogous articles of the Napoleon Code. 2 Toullier, p. 226, No. 936. Delvincourt, vol. 1, note 8 to p. 94 and p. 237. 12 Serey, 2d part, p. 418. Marcadé, vol. 2, p. 46. Ib. vol. 3, p. 119, 120. The rule there is the same as was adopted by our predecessors.

As there is no material difference between the provisions of our code and those of the code of France, the authority of the French commentators and courts is entitled to great weight. I think that the Legislature of 1824 did not intend any radical change in the previous legislation on this subject. The very article (917) of the code, under which the natural brothers and sisters of the deceased claim the succession, is inconsistent with that hypothesis. It provides that if the father and mother of the natural child die before him, the estate of such natural child shall pass to his natural brothers and sisters, or to their descendants. That article must be taken in connection with the one which precedes it; the latter is in these words: “The estate of a natural child deceased without posterity, belongs to the father or mother who has acknowledged him, or in equal portions to the father and mother, when he has been acknowledged bj both of them.”

The same rule as to the proof of filiation must be applied to both; otherwise we would be led to the absurd and unnatural conclusion, that natural brothers and sisters may inherit from their natural brother to the exclusion of his own children. If natural brothers can, in such a case as this, prove their filiation under arts. 226 and 227, Lorenza Dupré must be permitted to make the same proof. If, on the other hand, her filiation is'to be established under art. 221, the same proof of the filiation of her opponents is necessary; and as it has not been furnished, they cannot inherit.

It is urged, that the words “duly acknowledged” have a technical meaning which we must look for in the code itself. Perhaps they have, but their meaning should be gathered from all the articles of the code which treat of the same subject. The construction put upon art. 913, by the appellees and by the district judge, will not bear the test of examination. That article provides that natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife ; and that in all other cases, they can only bring an action against their natural father or his heirs for alimony.

The words, in all other cases, do not refer, as erroneously assumed, to the single case in which the natural child has not been duly acknowledged, but most clearly to the cases in which the father has left legitimate descendants or ascendants, or collateral relations, or a surviving wife. Under that article, the only requisite is that the natural child should have been duly acknowledged.

It is said that art. 258 recognizes the distinction contended for between the voluntary and the judicial or forced acknowledgment. That article provides, that in order that natural children may have a right to sue for alimony, they must have been legally acknowledged, or their filiation must be established by a judgment. It draws the distinction between the voluntary and the forced acknowledgment ¡ but it is to be observed that this and the other articles which refer to the voluntary acknowledgment, invariably designated it by the name df legal acknowledgment.

Article 913, under which Lorenza Dupré claims, does not require the legal acknowledgment. It calls to the succession of the natural father, the natural child who has been duly acknowledged. The words made use of, so far from keeping up the distinction between the two kinds of acknowledgment, are of general import, and include them both.

The case of Jobert and Anne Claudine v. A. Pitot, in 4th Ann. 305, was rightly decided. But the reasons given for the decision are not satisfactory to me. Further argument and the new authorities cited in this case have convinced me that in all cases in which proof of paternal descent is admissible, it may be made under the provisions of arts. 226 and 227 of the code.

It may be conceded that the decision in the case of Lange, to which I adhere, conflicts with the previous decision in the case of Pigeau v. Duvernay, 4 M. R. 266 ; but it must be observed, that this decision was made under the Old Code, which dbes not contain the provision found in art. 221 of the New Code, that no other proof of acknowledgment but that derived from an authentic act or from the registry of birth or baptism, shall be admitted in favor of children of color. -This reservation says, as plainly as language can say it, that other proof of acknowledgment shall be admitted in all cases not excepted, without regard to the object for which the proof is made. It is a legislative interpretation of which our predecessors had not the benefit when they decided Pigeau’s case. The other proofs of acknowledgment authorized, are those mentioned in article 227 as making proof of filiation; and the acknowledgment thus established is, under the law, a due acknowledgment which entitles the natural child to inherit, as well as the legal or voluntary acknowledgment. The opposite construction leads to the consequence that the child who has been reared by his mother and is known to be the issue of her body, who has dwelt with her all his life as her child, and been faithful in the discharge of filial duties, cannot inherit from her without an acknowledgment in an authentic form. Such a state of things has no foundation in motives of public policy, is repugnant to the enlarged humanity of the age, and shocking to reason and common sense.

It is said, that the judicial or forced acknowledgment only entitles the natural .child to alimony. The la-w does not say so; but, in my opinion, says the very reverse. The fair intendment of art. 914 of the code is, that bastard, adulterous and incestuous children, are the only ones who do not enjoy the right of inheriting the estates of their fathers and mothers in the cases provided for by the two preceding articles.

Lorenza Dupré is neither an incestuous nor an adulterous child; and if she can make proof of the acknowledgment alleged, her father is not unknown and she is not a bastard. C. C. 220. Where is the law, then, which renders her incapable of inheriting.

The error which I combat originated in the misinterpretation of the words in all other cases, in art. 913, to which I have already alluded. The correct interpretation of those words harmonizes with and supports the view I have taken.

The authentic forms of acknowledgment which the law establishes, are designated by the code as legal acknowledgments. Acknowledgments resting in pays and to be verified by a judgment are judicial or forced acknowledgments, both are alike due acknowledgments. The lawgiver does not distinguish between them; and I am at a loss to discover upon what authority we can do so.

The avowed purpose of this construction is to honor matrimony and to discourage illicit connections. But its inevitable result must be the very reverse of what is intended. Arts. 1470 and 1473 C. C., which create incapacities against natural children to receive by donations inter vivos or mortis causa, limit the incapacity to such natural children as have been acknowledged. Now, it must be conceded, that the expression acknowledged natural children has the same meaning in those articles, as in those which limit and regulate the capacity of natural children to inherit ah intestato. If the latter articles are interpreted as having exclusive reference to acknowledgment made in the registry of births or baptisms, or by authentic act, the other articles must be understood in the same sense ; and as legal incapacities are stricti juris, and can never be extended from one person to another, the necessary consequence is that natural children not thus acknowledged, are placed under no incapacity and may receive from their father, by will, all that a stranger could receive. So that under this construction, while the natural child is deprived of the right of inheriting his father’s succession, in the rare cases in which the father leaves no relations and no surviving wife, a state of things is created under which the father may give his natural child, in all cases, his entire estate, if he leave only collaterals; two-thirds of it, if he leaves but one legitimate child; one-half if he leaves two; and one-third if he leaves a greater number.

It is further contended, and it was held by the court below, that Lorenza Dupré, being a child of color, and article 221 making no distinction between children of color' descended from white or colored parents, no other but a voluntary acknowledgment in due form is admissible under that article.

The error of this argument consists in isolating art. 221 from other articles in pari materid, and applying it without regard to the limitations and exceptions which those articles contain. It is true, that art. 221 ordains, that no other proof of acknowledgment, except of a voluntary acknowledgment in due form, shall be admitted in favor of children of color. But art. 226 also provides, that free illegitimate children of color who have not been legally acknowledged, may be allowed to prove their filiation from a father of color. This disposition undoubtedly limits the application of art. 221 to children of color descended from a white parent. This interpretation is founded in justice and meets the policy of the law.

It has been argued at bar, that Lorenza Dupré should have proved her filiation in a separate suit, and that until she complies with that formality, she cannot stand in judgment.

The appellees answered to the merits without excepting to her capacity. It is now too late to do so; her paternal descent may be proved in this suit as any other fact.

I am, therefore, of opinion that the judgment in this case should be reversed; that the intervention and opposition of Lorenza Dupré should be reinstated, and the case remanded for further proceedings according to law, with directibn to the district judge to allow Lorenza Dupré to prove her paternal descent in conformity with the provisions of art. 226 and 227 of the Civil Code.


author: Slidell, J.

text:
    Maunsel White v. Union Bank et al.
    The vendor of an immovable or slave only preserves his privilege on the object sold when he has caused his act of sale tobe duly recorded in the office for recording mortgages. C. C. 3238. This requisition of the law is not dispensed with by proving that the person contesting the privilege had notice of the sale.
    It is not sufficient for a person holding a mortgage or privilege to deposit the acts to be recorded with tne recorder of mortgages; he must see that they are recorded; otherwise the mortgage or privilege will not avail against innocent third parties.
    APPEAL from the District Court of Carroll, Selby, J.

      E. Sparrow, for appellees.

      Ogden and Duncan and A. N. Ogden, for appellant.
   The judgment of the court was pronounced by

Slidell, J.

White purchased certain lands and slaves, under execution in the suit of the Union Bank v. Payne, and then brought this suit against the defendants, who claimed to have mortgages and privileges, in order to settle the question of priority among them, and determine to whom the purchase money was to be paid. The judgment of the district court classed the creditors as follows : 1st, the Union Bank : 2nd, Halsey: 3rd, J. M. January : thus giving them all precedence over Merrill, who claimed a privilege as vendor. Merrill has appealed.

The appellant in argument here questions the right of White to maintain such an action. But no such exception was taken in the court below; each creditor tacitly assented ■ to the discussion of his rights in this form, and claimed a final decree in his own favor. All technical objections to the mode of proceeding must be considered as waived. The appellant’s claim of privilege was resisted principally upon the ground that the act of sale upon which it depends was not duly recorded in the mortgage book.

The material facts presented by the evidence are as follows: In May, 1837, McDonald mortgaged to the Union Bank a plantation and slaves in the parish of Carroll, to secure a loan of $50,000. In June, 1837, he executed another mortgage on other slaves in the same parish, as security for the same debt. Both mortgages were, in June, 1847, inscribed in the mortgage book kept in the office of the parish judge of that parish. At the time of executing these mortgages, all the property was unincumbered, and McDonald appeared on the public records as its sole owner. In 1836, McDonald had given a bond sous seing privé to J. M. and B. H. Payne, to make them title to half of the plantation and slaves; and a few days afterwards the Paynes and McDonald formed a partnership as cotton planters, which lasted until 1841. On the 21st June, 1837, immediately after McDonald had completed his loan from the Union Bank, he, in compliance with his bond, executed before a notary public a deed of sale to the Paynes of an undivided half of the plantation and slaves, for the price of $60,000, namely, $10,000 cash, and the balance in six notes. It is as holder of one of these notes that Merrill claims the vendor’s privilege. The deed declared that McDonald was to pay one-half of the loan of $50,000 obtained from the Union Bank, and the Paynes the other half. No mortgage for the price was stipulated in the deed, as is usually done. This conveyance was recorded in the record book of alienations in the proper office of Carroll Parish, but was not inscribed in the record book of mortgages. It is proved that a separate book for recording mortgages had been kept in the office of the parish judge since 1833. In 1841, soon after the dissolution of the partnership between the Paynes and McDonald, the former executed to the Union Bank a mortgage for $31,656 45, upon the portion of the property which fell to them in the partition of the property made with McDonald. This mortgage was given in pursuance of the stipulations of the act of partition, and of the undertaking in the deed of purchase in 1837, by which they promised to pay one-half the Union Bank debt. It was accepted by the Union Bank upon a certificate of the recorder of mortgages of the parish of Carroll, that there was no mortgage upon the property in the name of the Paynes, and none in any other person’s name, except that of McDonald to the Union Bank for $50,000, above mentioned. It was duly inscribed in the book of mortgages in Carroll Parish, in August, 1841. Under this mortgage, the property was seized and sold to White, the plaintiff. By subsequent deeds, duly recorded, J. M Payne and B. H. Payne mortgaged the property to Halsey and January.

We have been invited by the appellants’ counsel to reconsider the opinions given in the case of Ells v. Simms, and Penolt v. Chambers, 2d Ann. 253 and 801; and this mainly upon the ground of the strong equity of a vendor to whom the price of the thing sold has not been paid. We have duly considered the arguments of counsel, and have not been able to reconcile a departure from those decisions with the express requisitions of the code, nor to distinguish the facts in this cause from those of the cases referred to. It is the privilege of vendor which Merrill claims; and we could not have decided the cases referred to in favor of such a claimant, without expunging from the code the article 3238, which declares that the vendor of an immovable or slave only preserves his privilege on the object, when he has caused his act of sale to be duly recorded at the office for recording mortgages in the manner thereinafter directed.

It is said, however, that the bank had notice of the existence of the privilege ; and this the appellant attempts to deduce from the requisitions in the bank’s charter respecting the examination of titles. With that requisition, it is said, it must be presumed that the bank complied. We find in the charter a clause requiring subscribers to stock to furnish evidences of title to the property to be mortgaged to secure the stock of the bank. This provision was made for the protection of the State touching its bonds, and does not in its terms extend to ordinary mortgages. But if the deed of partition by which the Paynes acquired the property from McDonald, and which is referred to in the mortgage, was submitted to the bank when it took a mortgage from them, instead of the original mortgage given to it by McDonald in 1837, that deed would not have warned them of the privilege in question ; while, on the other hand, they had the certificate of the proper officer that there existed no mortgage in the name of the Paynes, nor any mortgage whatever upon the land, except that which the bank itself had formerly received. If we suppose the bank to have investigated still further the chain of titles; to have gone back to the sale of the undivided moiety by McDonald to the Paynes in 1837 ; and to have there learned that they gave notes for the price, the recorder’s certificate would have justified them in believing they had been paid. It would be much more natural to suppose this than to suppose the vendor had neglected to record his privilege. It would be unreasonable, therefore, to hold the bank to further inquiry.

It is contended, that a party holding a deed of mortgage, or act from which a privilege results, has done all that the law requires of him to preserve his rights, when he has deposited the act for record in the proper office and with the proper officer. But this proposition is inconsistent with the article 3238, which requires the creditor to cause his privilege to be duly recorded. Supposing a prior and a subsequent mortgagee to be both innocent parties, upon one of whom the consequences of the negligence of the public officer must fall, it is more equitable that they should be borne by the former than by the latter; because by diligence he could have assured himself that the mortgage was inscribed; whereas, the second mortgagee has in general nothing to rely upon but the officer’s certificate of freedom from incumbrance.

It is propel-, however, to add that the argument just noticed assumes a fact not proved, to wit, that the omission to record in the mortgage book was attributable to the negligence of the parish judge. It does not appear that he was ever requested so to record the deed. He may have been merely requested to register it as a conveyance, under the act of 1810.

In deciding this cause upon the point of non-registry, we are not to be understood as intimating that if the requisitions of the code were out of the way, the equity of the case would be in favor of Merrill. On the contrary, under the svidence in this cause, it would probably be found that the superior equity was in the bank. A decision, however, of the case in that view of it is not necessaiy.

We also desire it to be understood, that our opinion is limited to the question of the existence of the vendor’s privilege, which is the only claim set up by Merrill. Whether a vendor who has neglected to record his privilege is remediless against subsequent mortgagees, or whether, on the other hand, he may still relieve himself through the resolutory condition, is a point not before us in this cause.

Judgment affirmed, with costs.


author: Rost, J.

text:
    Ann W. Winston et al. v. Joseph Prevost et al.
    The proof of the loss of an instrument, which authorizes the introduction of secondary evidence, must depend upon the particular circumstances of each case; but in all cases it must be such as to satisfy the mind that no better evidence is within the reach of the party offering secondary evidence.
    A presumption as to the contents of a lost act of sale, sustained by an open, peaceable, and long-continued possession in conformity with it, might be sufficient, when it would not be against an adverse possession' of forty years. „
    Where the party in possession holds under a private act of sale, it is not essential that the act should be recorded to show the extent of the possession under it. The possession alone is sufficient to put adverse claimants upon inquiry as to the extent of the possession.
    APPEAL from tlie District Court of Terrebonne, Randall, J.

      C. and A. Beatty, for plaintiffs.

      A. R. Splane and J. J. Roman, for defendants.
   Tlie judgment of the court was pronounced by

Rost, J.

This is a petitory action. The defendants have pleaded title, and also the prescriptions of ten, twenty and thirty years. There was a verdict and judgment in their favor, and the plaintiffs appealed.

On the 6th of April, 1829, H. O. McNeil sold to Samuel L. Winston, whom the plaintiffs now represent, thirteen and a half arpents of land front on the Grand Caillou by eighty arpents in depth. McNeil had acquired this land from James Bowie, on the 19th December, 1827. Boioie had acquired it, with other lands, at a forced sale of the property of John Gravier, made on the 17th March, 1827. John Gravier had acquired it from F. Pothier, on the 30th April, 1818. The act of exchange by which it was acquired, contains a declaration that Pothier exhibited and delivered to John Gravier a private act of sale of this land from Jumonville Devilliers to him. Devilliers held for it, at the time, an inchoate Spanish grant, which has since been confirmed by the Government of the United States. The sale from Devilliers to Pothier is wanting to complete the chain of the plaintiff’s title, and our first inquiry must be as to the sufficiency of the evidence adduced to supply its place.

The record contains a written statement by the plaintiffs’ counsel, which was received in evidence, and is to the following effect: That on being employed to bring this suit, he commenced a search to trace the chain of title from Winston to the grantee. He then goes on to describe several unsuccessful searches made by him for the sale from Devilliers to Pothier, and finally states, that he applied to R. E. Butler, executor of R. G. Ellis, who had bought a part of the Devilliers claim, to ascertain if this act was not among the title papers delivered to Ellis by his vendor; that all the papers in Mr. Butler’s possession were handed to him; and from a memorandum found among them it appeared that the private act referred to in the exchange between Pothier and Gravier, had been once submitted to the inspection of Charles M. Conrad, for his opinion on the title.

Mr. Beatty states, that he then applied to Mr. Conrad to ascertain whether that paper was still in his possession, but that Mr. Conrad was unable to find it, or to inform him what had become of it.

The plaintiffs rely upon the statement in the act between Pothier and Gravier, to establish the existence of the private act; and upon the proof of its loss, deduced from Mr. Beatty’s statement, they offered as secondary evidence, to supply its place and complete their chain of title, a notarial act between Devilliers and P. B. Coche, having reference to other lands covered by the same grant, in which Devilliers recognized that he had previously sold the land in dispute to Pothier.

The defendants objected to this evidence on the following grounds : 1st. That the loss of the private act had not been proved ; that it had not been sworn to, and it was not shown that diligent search had been made, or any legal steps taken to justify the admission of secondary evidence to prove its contents. 2. That the document offered had not the legal requisites of a recognitive or confirmative act, and that it was irrelevant, being between other parties and for other lands. The district judge admitted the evidence, and the defendants took a bill of exceptions.

The evidence of the loss is far from being satisfactory. It is true that in the case of Sexton v. McGill, 2d Ann. 194, we held that the proof of loss which will authorize the introduction of secondary evidence, must depend on the particular circumstances of each case. But the evidence adduced must, in all cases, be such as will satisfy the mind that no further or better evidence was within the reach of the party offering it. We are of opinion, that further evidence might have been obtained from Mr. Conrad. It might have been ascertained from him for what purpose the title of Mr. Ellis was submitted to his examination; and if, as is highly probable, it was for obtaining a mortgage loan from some of the banks, and the loan was obtained, the muniments of title must have been deposited, and might have been found in the vault of the creditor bank. It is, therefore, extremely doubtful whether the evidence offered should have been received ; but, admitting that it is properly before us, we are of opinion that it does not supply the link wanting in the plaintiffs title. The declaration of Devilliers relied on is, that he had made an abandonment or cession of the land to Pothier, by an act not valid in form, and upon certain conditions not fulfilled by Pothier. This is the only evidence of the contents of the act, which the plaintiffs were bound to prove affirmatively. There is nothing in the record to show the nature of the defects, or of -the conditions referred to by Devilliers. It is urged, that more than thirty years have elapsed since the cession, and that defects' of form and omissions to fulfill conditions in the contract are cured by lapse of time. It is impossible to say whether they are or not. The act may have been a mere memorandum, not signed by Devilliers, or the inexecution of the conditions may have had the effect of avoiding it ipso facto.

These doubts might have been cleared up by the testimony of Mr. Conrad, who had had the paper in his possession and had been consulted professionally upon its validity. As this evidence has not been resorted to, although within the knowledge of the plaintiffs, we must conclude that it would have been unfavorable to their case.

The evidence adduced raises but a remote presumption of the true contents of the title. If that presumption was invoked to sustain an open, peaceable and long-continued possession, it might, perhaps, when joined to the presumption of ownership resulting from such a possession, be held sufficient. But in this case the plaintiffs rely upon their naked title, against an adverse possession of forty years, and we would not be justified in making that presumption in their favor. 1 Greenleaf’s Evidence, par. 46. Delahoussaye v. Delahoussaye.

The defendants have proved that they held the land under a private act, the date of which is made certain as far back as 1818. This action was not commenced until April, 1848, thirty years after that date. Our impression is, that it was not necessary that this private act should be recorded in the parish where the land is situated, in order to enable the defendants to regulate their possession by it. They were in actual possession of a portion of the land ; this was sufficient to put the plaintiffs upon inquiry as to the nature and extent of that possession. The acknowledgment of Cyril Prévost, upon which the plaintiffs rely as having interrupted the possession of the defendants in 1829, appears to us entitled to little weight. But, if considered good evidence, it would only have interrupted the possession as to Cyril Prévost, and could not affect the defendants, so far as they possessed at the same time in their own right, and as owners.

The inchoate title of Jumonville having been confirmed by the United States, under our uniform jurisprudence, the land was susceptible of alienation by him, and a title by prescription could be acquired against him. Rightor v. Kohn et al. 16 L. R. 506. Guidry v. Green, 1 N. S. 475. Bessy v. Pintado, 3 L. R. 491. The plea of prescription appears to us satisfactorily made out.

It is therefore ordered that the judgment be affirmed, with costs.


author: Preston, J.

text:
    The State v. Joseph Havelin et al.
    The voluntary confessions of persons accused of crimes, received by the committing magistrate without promise or threats, are admissible in evidence against the accnsed on his trial; and in order to exclude as evidence any voluntary confessions made by the accnsed, it must be proved that the confessions were made under a promise of advantage, and that a mere hope resulting from a conversation in which a promise was neither expressed or implied, is not sufficient.
    The confessions of one of two persons indicted for a crime, is not evidence against the other.
    from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the State.
    Ii. Hunt, for appellees.
   The judgment of the court was pronounced by

Preston, J.

The defendants, accused of preparing combustible matters and putting them in a place with intent to set fire to a building, were convicted and sentenced, and have appealed.

In the course of the trial, the district attorney offered in evidence the following document as the voluntary confession of Otterson: “This certifies that having been a party concerned in setting fire to the grocery store at the corner of Hevia and Phillippa streets, on the morning of the 22d instant, and wishing to make amends as far as possible for the wrong I have done, I make the following voluntary statement: I was engaged by Joseph Havelin, shout the first of the present month, as an assistant in his grocery store, at the corner of Hevia and Phillippa streets; and a few days after, in speaking to me of. the hardness of times, said if he did not succeed better soon, he would try some other plan to make money. About the 10th, he got his stock insured. After returning from the insurance office he remarked to me, that it was all right now; that now, if he did not get along, he had a plan by which he could make $1500. He then proceeded to tell me that he had got his stock insured for $1500, and intimated his intention of setting the store on fire. We spoke frequently on the subject after this, and he wished me to set fire to the store; for which it was understood I was to receive a handsome reward. On the 21st instant, it was agreed between us that the fire should take place that night. About ten o’clock at night Havelin went to his room, leaving me in the store; about half past twelve o’clock, I took two candle boxes and a small tub, and after placing a quantity of combustible matter in each, I poured some camphine on it, and placed one under a gin barrel, one under a brandy barrel, and the other under an oil barrel; set fire to them, and went into an adjoining kitchen, set fire to a quantity of shavings which I had previously placed there, and went to my room. I found Havelin lying on the bed with his coat and shoes off, but not asleep. In about five minutes the alarm of fire was given, and myself and Havelin went down and remained about the store untill we were arrested. New Orleans, December 24, 1849. (Signed) Samuel Otterson. Witnesses: D. Busbt. E. Criswell. James O’Sullivan.”

The district court admitted it as evidence, and the following bill of exceptions was taken: “ Be it remembered that on the trial of this cause, S, S. Ricker<, a witness for the prosecution testified, that he is a police officer, and that when the defendant, Otterson, was in custody, he told said Otterson that he might have been instigated by Havelin to act as he had done, and that it might be best for him to make a statement; that it was possible he might be permitted to turn State’s evidence, if he would make a confession; that some days after, while said Otterson was still in custody, said Ricker conversed with him again on the subject of a confession, and then reduced the substance of Otterson’s statement, and not his express language, to writing, in the watchhouse, amid several interruptions of persons coming into the same, and conversing with him; and that he, Ricker, before and after writing the statement, informed Otterson that the statement might be used against him, and that he, Ricker, had no power to make him any promises of freedom; and that thereupon said Otterson voluntarily signed the same. That the.district attorney then offered in evidence the statement referred to as the voluntary and legal confession of said Otterson. Defendants objected to the admissibility of this evidence, but the court overruled the objection, and allowed the written statement to go to the jury. Whereupon, defendants tendered this bill of exceptions to the ruling of the court.”

By the court: “ Daniel Busby, a witness on behalf of the State, stated, that he was present when the confession was signed, and when it was read over to Otter-son ; and when he was notified that it might be used against him, that he answered he did not care whether it was used against him or not, the confession was true; and that Ricker also stated that Otterson said the confession was true, after it was written, and before he signed it. John McHenry, Judge.”

On this bill of exceptions the accused rely for a reversal of the judgment against them, on the grounds: 1st. That the court erred in permitting the confession of Otterson to be received in evidence, because it was not voluntary; and 2d. Because the confession should have been expressly confined by the judge, in its effects, to Otterson alone.

It is well settled, that a free and voluntary confession by a person accused of an offence, whether made before his apprehension or after, whether on a judicial examination, or after commitment, whether reduced to writing or not, and made to any person, at any time or place, is strong evidence against him. It is laid down, however, by elementary writers, that the confession must not be drawn from the prisoner by means of a threat or promise; for however slight the promise or threat may have been, a confession so obtained cannot be received in evidence; and that if a confession has been obtained from the prisoner by undue means, any statement afterwards made by him under the influence of that confession cannot be given in evidence. And cases are cited in support of these principles, in which the confessions of prisoners have been rejected when offered in evidence on their trial, in consequence of having been drawn from them by language addressed to them by public officers, very similar to that which was used by the police officer to Otterson in the present case: “It might be best for him, for possibly he might be permitted to turn state’s evidence if he would make a confession.” But Mr. Archbold, probably the most accurate writer on criminal law, adopts the following conclusions : “ The only questions in these cases are : Was any promise of favor, or any menace or undue terror made use of to induce the prisoner to confess ? and if so, was the prisoner induced by such promise or menace to make the confession attempted to be given in evidence? If the judge be of opinion in the affirmative on both of these questions, he will reject the evidence. If, on the contrary, it appear to him from circumstances, that although such promises or menaces were held out, they did not operate upon the mind of the prisoner, but his confession was voluntary notwithstanding, and he was not biased by the promise or'threat in making it, the judge will admit the evidence.” Archbold, 112.

Our Territorial Legislature adopted the principles of the common law in the prosecution of crimes, so far as not altered by statutes. But statutes were passed in 1805 and 1807, by which it was established, that the voluntary declarations of persons accused of crimes, received by examining magistrates without promise or threats, should be evidence on the trial. Judicial and extra-judicial confessions have always been placed upon the same footing as to the question whether they should be considered voluntary confessions or not. It would seem, therefore, that, under our laws, a promise of advantage should be proved, in order to exclude confessions; and that a mere hope resulting from a conversation, in which a promise was neither expressed nor implied, is not sufficient.

Indeed, the eagerness with which any pretext was seized upon at common law to exclude their confessions, upon the trials of persons accused of crimes, probably grew out of the rigor of the Criminal Code of England; and it is questionable whether so much strictness should be adhered to under our milder code. For, the only principles upon which confessions are rejected in any case is, that they may have been obtained by such promises or threats as render it uncertain whether or not they are true. It would seem reasonable, then, and conformable to principle to allow the confessions, if not extorted, to be laid before the jury as proper judges to determine what credit is due to them under the circumstances of the case. At least, there is no reason for courts to exercise great strictness in excluding them from the consideration of the jury as being worthy of no credit; and in doing so the judge is to exercise a legal discretion, which must be governed by the circumstances of each particular case, and with regard to which it is difficult to lay down any general rules. In exercising his discretion, he may consider the age, • situation and character of the prisoner, and the circumstances under which his confession was made. In the present case, for example, he might consider how far the confessions conformed to facts stated by other witnesses, as, that on an alarm of fire, combustible materials were found in candle boxes under brandy, gin and oil barrels, diluted with camphine, or otherwise. For it appeal's to have been decided in Tennessee, in the case of the State v. Hudson, that confessions obtained by such threats and promises as would have excluded them, yet if they are attended with extraneous facts which show them to be true, they are admissible in evidence. 9 Yerger’s Rep. 408. So the judge may have considered the prisoner capable of reasoning with himself: that, as he had no apparent motive to set fire to the building, and Havelin had the pecuniary interest growing out of his insurance, and the promptings of his embarrassments, that the public officers, to insure the conviction of the latter as instigator of the crime, would allow him to turn States’ evidence if he made confession of the facts. Considering, then, that no promises Were in fact made to him by the police officers, and that he was fully informed that his statements might be used against him, he may have persisted in making the confession from the promptings of his own hopes founded upon the nature of his case, and not from any promises, which he was expressly informed could not be made. We cannot, therefore, say, that the court erred in admitting the confessions as evidence against him.

• It was not, however, evidence against Havelin; and the bill of exceptions affords us no reason to believe, that the court did not receive it as evidence against Otterson alone. Havelin did not specially except to it as evidence against himself, but joined Otterson in opposing it as evidence in the case, and took a joint bill of exceptions.

We must suppose that the judge knew and did his duty, until the contrary is made clearly to appear by the record. We are bound therefore, to believe that the judge in receiving the confession as evidence, and his final charge to the jury informed them, that it was evidence against Otterson alone, who made it, and not against Havelin. We are sure the able counsel of the accused must have invoked the aid of the court in these respects, and equally so that the court could not have refused it, since enjoined by the most common principles of law. Indeed, the court, in referring to Bushy’s testimony in the bill of exceptions, indicates that the confession was received in evidence against Otterson alone.

The judgment of the district court is therefore affirmed, with posts.


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    Hilligsberg’s Executors v. D. F. Burthe.
    Where two persons are interested in claims, and they are by consent of both parties placed in the hands of an attorney for collection, who was the son of one of the parties, an account rendered by him before the institution of suit between the parties is evidence against both of them, he being their common agent.
    The art. 2829, C. C., declaring a partner liable for interest on sums he has taken out of the partnership does not apply to sums received by a partner during the course of business: on such sums lie cannot be made liable for interest until he becomes a defaulter in paying them over. C. C. 2984.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Roselius, Bernard and LeGardeur, for plaintiffs.

      Micou and V. Burthe, for defendant.
   The judgment of the court was pronounced by

Preston, J.

In 1836, L. G. Hilligsherg and the defendant sold fifty-nine lots of ground, in the rear of the Second Municipality, to Richard Hagan, for the price of sixty thousand dollars, payable one-sixth in cash, and the balance at a credit of one, two and three years. For the credit payments, a large number of notes were taken, secured by special mortgage, representing the price of the separate lots. The cash payment was divided, and the notes provisionally. Some of the drawers and endorsers of the notes failed; many of them were protested, and an attorney was employed by the parties to collect them on their joint account.

It required much time to realize the proceeds; many of the lots were purchased under the special mortgages and re-sold. Considerable expenses were incurred and taxes and municipal dues paid.

The executors of Hilligsherg and the defendant having disagreed as to the final settlement and division between them and the proceeds of the notes, this suit was instituted for that purpose. The parties respectively filed accounts, which differed materially; and the court, considering that the case involved the investigation of long and intricate accounts, very properly referred them to auditors.

The auditors received all the evidence offered by the parties; examined the accounts with great care, and made a very clear and detailed report. Both parties opposed it. Nevertheless, the court after a full examination of the evidence and report, homologated it by judgment, from which the executors of Hilligsberg have appealed ; and the defendant also claims that the judgment be amended in conformity to his opposition to the auditors’ report.

We have carefully examined the opposition of the defendant to the report, and the evidence and argument of his counsel in support of it, but do not think it tenable. The items charged to the defendant by the auditors, but objected to, were admitted by him in the original account filed with his answer. The fact that he and Hilligsberg both signed an act acknowledging payment of the notes and raising the special mortgage, does not destroy the weight of this admission. It is very possible the act of acquittance and release of mortgage was signed by them at different times, and that one of them alone received the sums paid.

On the other hand, some of the grounds of opposition to the report filed by the plaintiffs are well founded, and the amendments claimed should have been allowed by the court.

As has been stated, many of the notes given for the property could only be collected by suits, and for this purpose, a common attorney was employed by the parties, being the son of the defendant. He brought many suits, and collected money, and purchased back for the parties property to the amount of upwards of thirty thousand dollai-s; for which he was paid fees by the parties to the amount of twenty-five hundred dollars. He paid over the money collected, sometimes to one and sometimes to the other party, and rendered them a final account of his collections.

The plaintiffs offered the account rendered by him in evidence, which was objected by to defendant’s counsel, and rejected by the court, on the ground that it was res inter alios acta, and not binding upon the defendant; and because further, it emanated from a son who could not be a witness against his father. It was an account of the common agent of the business of both parties, rendered. long before there was any controversy between them. It was not, therefore, res inter alios acta, but binding upon both parties until proved to be incorrect. 1 Starkie on Evidence, 42.

In this account, a sum of four hundred and twenty-one dollars forty-nine cents is charged, as having been handed over to the defendant. It being thus ascertained that the money was paid to Mr. Burthe, the auditors presume he handed it over to Mr. Hilligsberg, because the note of which it was the proceeds fell to him in the provisional partition. The suits also on this and some other notes was instituted in the name of Hilligsberg alone. These were sufficient reasons to have induced the attorney to have handed the proceeds to the latter, rather than the defendant; but as he did not, we do not see sufficient reason to presume that the defendant did so, and think he should be charged with this sum.

The defendant admitted in the account filed with his answer, the receipt of $1646 38 8-9, being part of the proceeds of lots eight, nine, twenty-six and twenty-seven; but the auditors charge him with only $1368 61, making a difference of $277 77. This is evidently an error. The counsel of the defendant has endeavored to show that there was an error only to the amount of $107 ; but he omits in his calculations two items brought to our notice by the plaintiffs, which increase the sum to the amount admitted by the defendant to have been received by him.

The defendant charged himself, in the account first rendered by him, with $1604 21 for proceeds of lots forty-six and fifty-seven. A notarial acquittance was given by both him and Hilligsberg, in order to release the special mortgage upon the lots. The light presumption arising from the act that each received jla¡£ ^0 money¡ jg not sufficient to counteract the admission by the defendant made long afterwards, that he received the whole, and not the half, as has been done by the auditors.

The defendant admitted, in his first account, a sum of $1150 received from the attorney charged with the collection of the notes. It is not stated in his account from what lots this sum proceeded. But it appears from the account of the attorney, that he paid to the defendant the sum of $938 08, being part of the proceeds of lot thirty-seven received by him, and which is not specifically mentioned in defendant’s account. The auditors charge him with the last amount. The evidence shows that the lot sold for $1050, leaving $111 92 unaccounted for. The full amount of the order of seizure for debt, interest and costs of lot number thirty-two was made, amounting to $634, whilst but $534 was accounted for, leaving a deficiency of $100. These two items, added to the sum with which the auditors have charged the defendant, make the $1150 admitted by him to have been received from the attorney, and he should be charged with the whole amount, increasing his account $211 92.

It is impossible for us to establish an interest account, or to say that the auditors erred in not doing so. The testator and his executors, if they suffer on this account, should have sought an earlier liquidation of their claims; and as the suit has been protracted by their claiming more than they have been able to establish, we think interest should be allowed to run only from the present time. •

The article 2829 of the code refers to sums drawn by a partner from the firm, not to sums received by the partner in the course of the business of the firm, and the partner receiving such sums cannot be considered a defaulter as to the share of his partner in such sums, so as to be embraced within the provisions of article 2984 of the code, until there is a liquidation of the partnership.

We think $1468 43 should be added to the balance found by the auditors against the defendant.

The judgment of the district court is therefore reversed ; and it is decreed, that the plaintiffs recover from the defendant the sum of one thousand nine hundred and fifty-three dollars fifty cents, with interest from this date, and costs.


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    Leon Falgout, Executor, v. Heirs of Pierre Daspit.
    In settling the extent of the community, receipts given by the deceased for his share of an inheritance at a time not suspicions, in the absence of any better proof, are admissible in evidence to show that the sums thus receipted for belong to Ms separate estate.
    Where the deceased husband had received, during the marriage, an inheritance, it becomes a charge upon the community, and it is not necessary to show that the community was benefited by the inheritance.
    In the settlement of a succession, the charges in favor of the wife upon the community must first be taken out of it, before the charges on the community in favor of the husband can he paid.
    from the District Court of Lafourche, Randall, L

      Miles Taylor, for appellants.

      C. A. Johnson, for appellee.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, as executor of Pierre Paspit St. Amand, filed an account of distribution of the fund in his hands, dividing that fund equally between the heirs of the testator and those of his wife Marie Leroux, who had several children by a former husband, but none by Paspit St. Amand.

The heirs of Paspit made opposition, alleging that he was one of the heirs of Louis Augustin Meuillon, who died during the marriage of Paspit and his second wife, and that he received from Meuillon’s estate $23,498 28, which was the proper estate of the said Paspit, and which the community must refund to his heirs before a partition can be made.

The only questions which the case presents, are as to the sufficiency of the receipt of this money by the deceased. The death .of Meuillon and the value of the property left by him are proved. It is shown that Paspit St. Amand was one of his heirs, and that the share to which he was entitled, must have been about equal to the sum claimed after paying the'expenses of administration.

It appears that the heirs of Meuillon were all of age, and that Pierre St. Amand, one of them, acted as the agent of the others in settling the estate. Paspit had given Pierre a power of attorney to represent him in that settlement. On the 24th April, 1815, Paspit St. Amand acknowledged the receipt of $19,498 28 from his agent, Pierre St. Amand, by notarial act. By another notarial act, bearing date the 29th July, 1816, he acknowledged to have received from his said agent the further sum of $2000. This receipt contains an agreement on the part of Paspit St. Amand, to give time for the payment of a balance, the amount of which is not stated.

The district judge gave judgment in favor of the opponents for those two sums. He also gave judgment in favor of the heirs of Marie Leroux, for a small amount, shown by them to be the proper estate of the said Marie Leroux. The tableau was ordered to be amended by deducting first these different sums from the fund to be distributed, and dividing the balance between the heirs of St. Amand and those of his wife. The latter have appealed.

It is objected by them that the heirs of St. Amand have not produced the best evidence, to wit, the record of a judicial settlement of the succession of Meuillon, and that they have not even attempted to show that no better evidence existed, which the appellants contend, should have been done, in order to let in the evidence adduced. They excepted to the admission in evidence of the receipts of Paspit St. Amand to Pierre St. Amand, on the grounds: 1. That they are res inter alios acta, and not binding upon the parties to this suit. 2. That Pierre Paspit cannot manufacture evidence in favor of himself or his children. 3. That the receipts are irrelevant and immaterial, and can have no force or effect in this suit.

.We think the evidence was properly admitted. The heirs of Meuillon were all of age, and the succession appears to have been settled extra-judicially. The receipts objected to formed part of the res gesta, and as such were legal evidence. After the death of a party, acknowledgments and declarations made by him at a remote period, and at a time not suspicious, are received as'evidence even when unconnected with other transactions. The ground upon which this evidence is received is the extreme improbability of its falsehood. The regard which men usually pay to their own interest, is deemed a sufficient security, both that the declarations were not made under any mistake of fact or want of information in the party. The apprehension of fraud is still more improbable after the death of the party, and if it exists, it may be shown. It is true that the ordinary and highest tests of the fidelity, accuracy, and completeness of judicial evidence are wanting, but the inconveniences resulting from its exclusion, are deemed greater than any which would probably be experienced from its admission. 1 Greenleaf on Evidence, 181.

We think that the evidence was admissible, and that the burthen of proof was not upon the defendants to show, that there had not been a judicial settlement of the succession.

It is argued that the opponents have not shown that this inheritance benefitted the community. This was not necessary. The receipt of the money during marriage, is sufficient to charge the community with it.

We are of opinion that the judgment of the district court has done justice between the parties. If in the final adjustment of the account, the fund should be insufficient to satisfy the claims set up by the heirs of both parties against the community, the amount allowed to the heirs of the wife will of course be first deducted, and the loss, if there be any, shall be borne by the heirs of the husband.

The judgment is affirmed, with costs.


text:
    Isham Henderson v. E. R. Travis.
    In order to dissolve an attachment, satisfactory proof should be furnished ill opposition to the oath of the plaintiff; and where the defendant has gone to California under circumstances which rendered his return doubtful, the attachment ought not to be set aside, although ho had expressed the intention of returning.
    By the Constitution of the State, all rights of citizenship shall be lost by two years consecutive absence.
    from the District Court of Carroll, Richardson, J.

      Lewis Selby, for plaintiff.
   The judgment of the court was pronounced by

Preston, J.

On the 9th of July, 1850, the plaintiff caused an attachment to be issued against the property of the defendant on the affidavit of his agent, that the defendant had left the State permanently.

On the 26th of November, 1850, the defendant, by his attorney, moved to dissolve the attachment, on the ground that so much of the affidavit as avers that the defendant had loft the State permanently, is wholly untrue and false ; and that so far from such being the case, the defendant is only temporarily absent from the State; claims never to have changed his domicil from the parish of CaiToll, and openly and distinctly avowed before and at the time of his leaving for California that his positive intention was to return soon; that he left the great bulk of his property in the parish, and placed on record in the recorder’s office a power of attorney, giving his attorney in fact full power to collect what was owing to him, to pay his debts, to sue and be sued, and transact all his business in his absence. On the 9th of December, 1850, the court, after hearing testimony in support of the motion, dissolved the attachment.

It appears that the defendant gave a full power of attorney to his brother-in-law on the 20th of May, 1850, and left with him his property and child, and went to California. The attorney in fact is of opinion that he thought his property would be sufficient to pay his debts. In leaving, he said it was his intention to return, and that he would not be gone longer than two years, perhaps not more than one. A letter had been received from him : he had been to the mines, but was returning to San Francisco to seek business, and if he did not get it he would go on to Oregon.

On the other hand, the testimony satisfies us that the defendant is insolvent; that he is a defaulter to the State and parish for taxes, with the collection of which he was charged ; that he has obtained time from the State, and was sued by the parish; and that he left the parish with no fixed determination whether to go to Cuba or California, but to leave the State in the hopes in some distant country of repairing his broken fortune; and that he left the State with the intention of engaging in business abroad ; and that he barely hoped to be able to return in less than two years, the time of his return being wholly dependant upon his success.

But few leave the place where they have long resided without the lingering hope of return, and without at least holding out that hope to their friends in parting; but with those who have been unfortunate, the hope depends upon their success in repairing their misfortunes — an event so uncertain that it can weigh but little in legal contemplation. He who is seeking business in another quarter of the globe, holds out so strong a presumption against the retention of his domicil and business here, where he has been unfortunate, that it should be rebutted by irresistible proof in order to arrest legal proceedings based upon the belief that he had abandoned his residence in the State. It has been frequently held, that satisfactory proof should be furnished in opposition to the oath of the plaintiff in order to dissolve an attachment. And in the case of Comly it was held, that his return was not sufficient, he having left under suspicion of being a defaulter to a bank. 1 R. R. 231. 3 R. R. 363. 9 R. R. 90. 12 M. R. 533. The testimony renders it probable that the defendant, in leaving Louisiana, had no specific or temporary business in view, or fixed intention ever to return. It certainly satisfies us that he had no fixed intention of returning in less than two years. Now, absence for two years is the time established by law by which residence acquired in the State shall be lost. Acts of 1818. Moreover, by the Constitution of the State, all rights of citizenship shall be lost by absence for two consecutive years.

We think the district court erred in dissolving the attachment, and that its dissolution would cause irreparable injury to the plaintiff.

It is therefore decreed, that the order dissolving the attachment in this case be annulled; the case is remanded for further proceedings according to law; and that the defendant be condemned to pay the costs of this appeal.