text:
    George Bischoff v. Gaspard Theurer.
    T. sued his wife for a separation from bed and board, and in the same action sought to have annulled certain notes which he alleged had been given by him. to her without consideration. lie made B., who held the notes, a party, and charged that B. had notice that the notes were given without consideration. Subsequently B. sued T. on the notes, and T,pleaded Mspmdem; Held: That the plea was good.
    Appeal from the Fifth District Court of Now Orleans, Buchanan, J.

      Schmidt, for plaintiff.

      Dufov/r, for defendant.
   Rost, J.

In this case, the plea of litis pendente must be first noticed.

The defendant being sued upon three promissory notes made by him payable' to his own order, pleaded in limine UUs, as an exception, the pendency of another suit between the same parties, and for the same cause of action in a court of concurrent jurisdiction, which plea was overruled by the Court.

The action pleaded in bar to this suit, was instituted by the defendant against his wife, for a separation from bed and board, and also to annul the notes sued upon, on the ground that he had originally given them to his wife, without consideration, and that if the donation had been valid,, his wife’s misconduct and ingratitude entitled him to have it revoked.

The plaintiff and the house of Dufour, Durand & Co. were also made defendants, and the prayer against them was that they be compelled to return the notes, on the ground that they acquired them in had faith. Of the merits of that controversy we know nothing, but we have no doubt of the right of the defendant, to plead the want of consideration of the notes, and the bad faith of the holder, as he has done, and if the defendants in that suit fail to falsify those pleas, and the case should be decided in his favor, the judgment there rendered, would form the thing adjudged, in the present litigation. Under the view we took in the case of Dick et als. v. Gilmer, administrator, 4 Ann. 520, this is the proper test of the exception of litis pendente.

This case does not materially differ as to facts from that of Kline v. Freret; the plaintiff Kline had brought suit on promissory notes given for land, the defendant pleaded the pendency of another suit in a Court of concurrent jurisdiction, brought by him to annul the sale and recover back the price, on the ground of fraud.

The plea was sustained by the District Court, and on appeal the judgment was affirmed. 5 Ann. 494. O. P. No. 335.

We are of opinion that the District Judge erred in overruling the exception.

It is therefore ordered that the judgment be recorded and the petition dismissed. It is further ordered that the plaintiff pay costs in both Courts.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Same Case on a Rehearing.
    Schmidt, for plaintiff, filed the following argument for a rehearing :
    The facts of the case show: That the petition of Theurer against his wife, mother-in-law, Dufour, Durand & Co. and Bischoff, was filed in the Second District Court of New Orleans, the day preceding the plaintiff’s filing of his petition in the Fifth ; but that the copy of that petition and citation did not issue till the day after the issuing of plaintiff’s petition and citation.
    It may therefore be well contended, that plaintiff’s suit was first in order of date since citation is the judicial action of the tribunal, and until it issues, there is no evidence that the Court intends to entertain the cause. Oitation is in all cases the judicial commencement of a suit, and the mere filing of a petition has never boon considered as such, inasmuch as the latter is the mere act of the party, while the former is the act of the Court, giving its official sanction to the act of a private individual. This principle is elementary and recognized in all systems of pleading.
    Let us, however, suppose for argument’s sake, that this principle has been discarded in Louisiana, and look to its Code of Practice as our guide, and we will there, I think, find principles of law laid down for the government of cases of this kind, equally plain, and which have been disregarded, or misunderstood in this instance.
    The plea of lis pendens is a declinatory exception; and exceptions of this kind, which retard the trial of the merits of a cause, are never favored in law. They are therefore to he judged of strictly, and unless they conform in every respect to the letter of the law, they will not be listened to.
    To maintain the plea of lis pendens, the following circumstance must concur, viz :
    There must be another suit pending ;

    1st. between the same parties ;
    2d. for the same object, and growing out of the same cause of action, and
    3d. before a Court of concurrent jurisdiction.
    But in this suit, I have already shown that the suit of Thewer cannot be considered as pending when the present suit was brought, as no citation had issued. But be this as it may; the suit of Thewer v. his wife and others was not a suit between the same parr ties, and no decision of any tribunal can make it so.

      In the next place, the cause of action was not the same, unless a suit for th? payment of negotiable notes be identical with one for divorce, &c., which will hardly be contended.
    Tho above facts show conclusively, that the judgment of the Court is contrary to law.

    I now proceed to prove it contrary to principle.

    The objects which all systems of pleading aim to attain, are two-fold, viz :
    1st. The reduction of the controversy to a few single facts ;
    2d. The saving of time and expense to the parties litigant. See Carré, Boncenne, Stephens, Lawes, Story, etc., passim.
    Hence, every effort of a defendant to retard the final decision of a cause is looked upon unfavorably.
    In this cause this principle is recognized and invoked, although in practice entirely disregarded ; for it is obvious, that by sending us to the Second District Court to await the trial of a complicated controversy involving questions of adultery, &c., we are dependent on our co-défendants, and the final decision of tho cause much protracted, while the contrary would be the case, if sent to the Fifth District Court. Besides, we have a right to have this cause tried summarily, and without the intervention of a jury, of which privilege we are also deprived, contrary, as we believe, to the spirit and intention of the law.
    Having thus shown the judgment contrary to law and erroneous in principle, I now proceed to show that it is against all precedent.

    This plea of lis pendens was known to the Roman law, and exists in France, and from the systems of jurisprudence in Rome and France, we may obtain some aid in its correct application. In refering to these sources, the Court will find, that it is not the mere filing of a petition which constitutes the lis pendens, for Yoet sa3rs: “ Capta autem esse, atque ita pondere lis alibi censetw, non modo si litis eonstestatio jam facta sit, sed sola aitatio, seninjus vocation Ad Pandectas, book 44, tit. 2, Ño. 7. See also Boncenne, vol. 2, p. 64.
    In France, the same question has been frequently decided, and the Court of Cassation of France, in the case of Quillot v. Beculot, determined 1st July, 1817, that, “Iln’y await pas litis pendance si les affaires pendantes devamt divers tribunaax, &e., ne présentaient pas identiquement les mémes dificultes.”— Journal du Palais, vol. 14, p. 320.
    In the case of Hampton v. Barrett, 9 L. 338, 12 L. 159, the Supreme Court held, “ that the pendency of a suit for one installment in a Court of concurrent jurisdiction, in which it was sought to rescind the sale, and consequently annul all claim for another installment, could not debar plaintiff from suing in another Court for the second installment.
    The above reasons and authorities justify, in the opinion of the undersigned, the application for a rehearing, since they show, that the judgment is contrary to law, principle and precedent.

      Dufour, for defendant.
    There has never been any question as to the service of the citations in both cases. There was such a difference in point of dates, that no question could be raised thereon with propriety.
    I regret that professional gentlemen should labor to mislead the Court on this simple point of fact.
    The annexed certificate of the clerk of the Second District Court shows :
    1st. That the defendant’s petition in suit No. 5201, was filed on 5th April, 1852 ;
    2d. That the citations were issued on the 7th April, 1852, received by the Sheriff on same day, and served on same day upon Bisehoff and the other defendants ;
    3d. That the writ of injunction was also served on the same day, viz: 7th April, upon Bisehoff in person.
    On the other hand, the record in the present case shows that Bisehoff’s petition was filed on the 6 th April, 1852, that is to say, one demy after the defendant’s petition in the Second District Court.
    And further, that the citation was served on Theurer on the 10th of April, 1852, that is to say, three days after service in the case already pending in the Second District Court.
    After this authentic statement of facts, the Court will surely stare at the boldness of the asseverations made in the name of Bisehoff.

    The Court is, in conclusion, respectfuEy informed that the case pending in the Second District Court, is ready for trial; but the Judge has signified his desire to await for the final acüon of this Court in the present case, before taking it up for trial.
   Eustis, C. J.

It is ordered, adjudged and decreed that the judgment rendered by this Court, on the 6th December last, be maintained.


author: Rost, J.

text:
    François Jure v. N. Ballatin.
    Sheriff sequestered live stock. The question being what allowance he should receive for keeping them. Helcl: The stock was kept in a pasture, and if any feed was given, there is nothing to shew the quantity and cost of it; besides this, it is shown that at the time of the sequestration the cows gave the defendant from forty to forty-live gallons of milk per day, for which sheriff does not account. His claim was therefore reduced.
    Appeal from the District Court, Second District, Parish of St. Bernard, Rousseau, J.

      Collins, for plaintiff and appellant.

      Jcmin & Taylor, for defendant.
   Rost, J.

This is a rule taken by the plaintiff upon the sheriff to show cause why he should not pay over the balance of the money made upon the execution in this case and remaining in his hands.

The sheriff claims, and the District Court allowed him, the amount of that balance, say $341, for keeping the live stock sequestered in the suit during thirteen days and for the taxed costs to which he is entitled.

The plaintiff has appealed from the order discharging the rule.

We have perused the record with great care without discovering evidence upon which the judgment can be sustained. The stock was kept in a pasture, and if any feed was given, there is nothing to show the quantity and cost of it; besides- this, it is shown that at the time of the sequestration, the cows gave the defendant from forty to forty-five gallons of milk per day, for which the sheriff does not account.

We are of opinion that $200 will be an ample compensation for the risk and expenses incurred by the sheriff and the legal fees to which he is entitled.

It is ordered that the judgment be reversed and the rule reinstated, that the sheriff be allowed $200 for his fees and compensation in the suit, and that he pay over to the plaintiff the sum of $140 now in his hands.

It is further ordered, that the defendant in the rule pay costs in both Courts.


author: Dunbar, J.

text:
    Frame A. Woods v. Wylie & Egana et al.
    On the dissolution of an injunction staying the execution of a judgment bearing 8 per cent., 20 per cent, damages may be allowed. But a further allowance of 8 per cent, interest, would be giving 16 per cent, interest, which is illegal.
    Appeal from the Sixth District Court, Parish of West Baton Rouge, Robertson, J.'

      Ela/m & Herron, for plaintiff and appellant.

      Le Gardeur, for defendant.
   Dunbar, J.

The plaintiff sued out an injunction against an execution in favor of the defendant which had been levied on his property. The District Judge dissolved the injunction and further decreed that Wylie & Fgaña recover of Frame A. Woods and his surety on the injunction bond eight per cent, interest and twenty per cent, damages on the amount of the judgment, the execution of which had been enjoined. Upon referring to this judgment, we find that it also bears eight per cent, interest, which would give together, to Wylie & Fgaña, sixteen per cent, interest on the judgment and execution enjoined, besides the twenty per cent, damages. Under our laws at present the rate of interest cannot exceed eight per cent. The District Judge therefore erred in awarding any interest in addition to what the judgment enjoined bears. Aillet v. Henry, 2 Ann, 140. We think, however, that there was no ground whatever for the injunction and that it was properly dissolved. It is, therefore, ordered, that the judgment of the District Court be avoided and reversed, so far as it allows eight per cent, interest on the judgment enjoined and in all other respects affirmed. The defendants to pay the costs of this appeal.


author: Eustis, O. J.

text:
    Wills & Rawlins v. Caspar Auch.
    Under the well-established jurisprudence of this State in relation to sales of land for taxes, no title passes, by a forced sale, under a defective description.
    Under the Act of 1847, the Tax Collector is required to give a certificate in writing to the purchaser of lands sold for taxes. Held', that so to interpret the act as to malee this certificate operate asa conveyance from the State, so as to vest an absolute title in the purchaser, and to establish it as evidence that all the formalities required by the Statute had been complied with, the language of the Statute must be imperative, and free from all ambiguity. Such a power, given to subordinate ministerial officers, would be in derogation of private property, and ought to be construed strictly, and not enlarged by intendment.
    All proceedings for the recovery of State taxes are in the name of the State, and whether the conveyance is in the name of the State, or of the tax gatherer, the conveyance is a sanction, and if not a legal one, it can touch no man’s property.
    Appeal from the District Court, Third District, Parish of Jefferson, OlaFke, J.

      Bonford and Finney, for plaintiff.

      B. 'N. Ogden, for defendant and appellant.
   Eustis, O. J.

This is a petitory action for the recovery of a lot of land situated on Rousseau street, between Jackson and Josephine streets, in that part of the city of New Orleans formerly called Lafayette. There was judgment of the District Court in favor of the plaintiff, and the defendant has appealed.

The case turns on the validity of a sale for taxes, made by the Sheriff and Collector of Taxes of the Parish of Jefferson, on the 29th November, 1848, under an assessment for State taxes for the year 1847.

The only description under which this lot was sold, is the following: “ Nathan Rogers’ property situated in Lafayette, sq. 9-2, lot 63, S. T., 8.53%.”

On the assessment roll, and in the sale from the Sheriff, the word square is not abridged, but the number is left uncertain as to whether it is 9 or 2, and the defective description is not at all mended.

This lot having sixty feet front on Rousseau street, and valued on the assessmentrollat $3200, was sold to the defendant and William Dalton for twenty-five dollars. In March, 1851, the defendant bought Dalton's interest in the lot for $600.

Under the well-established jurisprudence of this State in relation to sales of land for taxes, no title passed by a forced sale under such a description. Jacques v. Klopman, 6 Annual Reports, 542, and cases there cited.

The plaintiff’s claim under an act of sale from Nathan Rogers, of date the 17th of March, 1851. The price stipulated is less than half of its assessed value, and the act makes mention of its having been sold for taxes to Auah and Dalton, and of the purchase of Dalton’s interest by Auchi There is a clause of non-warranty in the act.

There is no objection to the validity of sales of this kind. Pothier Contract of sale, 186. We are of opinion that, by this act, the plaintiffs acquired all the interest and title of Rogers in the property, and can recover it, if he could recover it, and not otherwise. We are also of opinion that the defendants having acquired Dalton's undivided interest in the lot by a subsequent purchase, places him in no better situation in relation to his partner’s share than ho occupied as to his own, and that, so far as the plaintiffs are concerned, he -is to be considered as a purchaser for the whole at the sheriff’s sale.

It is admitted that the decisions are against the validity of a sale for taxes under a description like this—but, it is contended that, they were made in cases different in essential particulars from the present case, and under rules widely differing from those established by the act of 1847, which have never yet received the interpretation of this Court.

By the 58th section of this act, p. 175, it is provided that, “ The collector shall give to the purchaser of any lands sold by him for taxes, a certificate in writing, describing the lands purchased, the sum paid, and the time when the said certificate shall have the force and effect of a deed.” By section 59th of the same act, it is provided, “ That the owner or occupant of any land, or any share of any lot or piece of land sold for taxes, or any creditor or agent of the ownerj claimant or occupant, may redeem the same any time within two years after the day of sale, by paying to the purchaser, or the Treasurer of the State, for the use of the purchaser, his heirs and assigns, the sum mentioned on the certificate, with interest at the rate of twenty per cent, per annum from the date of such certificate.”

And by section 60th, it is provided, “ That if no person shall redeem such lands within two years, the said certificate shall, at the expiration thereof, operate in favor of the purchaser, his heirs and assigns, in the name of the State, as a conveyance of the real estate so sold, which shall vest in the grantee an absolute estate, subject to all claims which the State or parish may have thereon, for all taxes or other liens and incumbrances; and such certificate to be a good and valid title after that time, shall be acknowledged, proved and recorded, as all other sales of immovable property at judicial sales, and have the like force and effect.”

It is contended that this introduces a radical change in the rules governing tax sales. In none of the former statutes do we find it declared that the sheriff’s deed or certificate of sale shall, after a certain lapse of time, home the force and effect of a deed, “and shall operate in favor of the purchaser, in the name of the State, as a conveyance of the real estate, &e., which shall vest in the grantee an absohote estate'' &e.; and further, “that such certificate to be a good and valid title after that time," Sc.

To give full legal effect to those ex23ressions, it is said, that the Legislature, seeing how futile tax sales had been, and how insufficient former legislation had proved, and possessing the power to declare what should constitute proof of ti-tie in tax sales, determined, in order to correct an evil and an abuse, to enact, that for the future, in all such sales the sheriff, instead of making a deed at the time of sale, should grant a certificate, which, unless the owner redeem his property on prescribed conditions, within two years, should become itself frill proof of title, and, per se, vest in the purchaser an absolute estate.

The proceedings .under which this lot was sold were -against Nathan Rogers as a non-resident proprietor, and his residence is proved to have been out of the State. By the revenue act of 1847 referred to, it is provided, under the title of assessment and duties of assessors, that the lands of non-residents shall be designated in the same assessment roll, but in a part thereof scperate from the other assessments, and in the manner described hereinafter. Section 25.

If the land be assessed as a tract or lot which is known by a name, or if the owners name be known, they shall designate it by those particulars, and by its boundaries. If it have no name, or the name be unknown, and if the owner be unknown, they shall designate it by bounda/ries alone. Section 26.

They shall set in a separate column the owners name, if known, the description of the tract or lot, and the valuation as directed in the case of other lands. Sect. 27.

It may have been competent for the Legislature, as contended by counsel, to make the certificate of the collector operate as a conveyance from the State, and vest an absolute title in the purchaser, and to establish it as evidence that all the formalities required by the statute had been complied with, and to have limited the time within which a tax sale could have been set aside at the instance of the owner.

The analogy urged in argument between this Act and the Act of 1834, concerning judicial sales, does not maintain itself, for in that Act express provision is made for the evidence and for the limitation. And construing this statute according to the rules established in jurisprudence, in order to give the certificate the effect contended, the rvords of the law ought to be imperative and free from all ambiguity. Such a power given to subordinate ministerial officers would bo in derogation of private property, and ought to be construed strictly, and not enlarged by intendment. Dwarris on Statutes, 750.

"We do not think that this part of the Act of 1847 materially changes the jurisprudence on the subject of the validity of tax sales. Nothing can be inferred from the insertion of the authority of the State and the name of the State. All proceedings for the recovery of State taxes are in the name of the State, and ■whether the conveyance is in the name of the State, or of the tax gatherer, the conveyance is a sanction, and if not a legal one, it can touch no man’s property. The statute must be looked to throughout, divested of its verbiage, and construed with reference to the existing laws, and a regard for private right.

There is nothing that we perceive in the facts of this case which will prevent the plaintiffs from recovering. They were the agents of the owner, Nathan Sogers, and had their commercial domicil in New Orleans. They collected his rents and paid his taxes in New Orleans and the taxes in this bill. They neglected his business in not paying this tax of 1847, and fearing they might be responsible for their neglect, they bought it. Notwithstanding this, we think their right of property to the lot has not been defeated by the tax sale, or lost by their own acts.

Thejudgment of the District Court is, therefore, affirmed with costs.


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    J. B. Lepretre et al. v. General Council and the Three Municipalities.
    In 1849, a crevasse occurred on defendants’ land. Plaintiffs, who lived above and below the land, contracted with James Flemming to have tho crevasse stopped, and brought this action to recover the price from the defendants, on whose land the crevasse was. Held: That the defendants cannot be held liable for the amount claimed, unless there was an express or implied assent on their part to pay. The crevasse was the result of overpowering force—the act of God, which does nobody harm.
    Appeal from the Fifth District of New Orleans, Buchanan, J.
    Lamergne, for plaintiffs and appellants.
    Bayne, for T. B. Wolfe, for defendants.
   Rost, J.

In 1849, a crevasse occurred on a tract of land belonging to the defendants, situated on the right bank of the Mississippi River, in the Parish of Orleans.

The plaintiffs, who own plantations above and below that point, entered into a contract with one James Flemming, by which they agreed to pay him $4500 if he succeeded in stopping it. The Police Jury of the parish agreed to pay Flemming the additional sum of $1000 on the same condition.

The plaintiffs now seek to recover from the defendants the amount paid by them under this contract, on the ground that it inured to their benefit, and that, as owners of the land, they are absolutely liable for all the expenses necessarily incurred in closing the breach in the levee. There was judgment for the defendants, and the plaintiffs have appealed.

There is no allegation in tho petition that the crevasse occurred through the fault or neglect of the defendants, and the evidence clearly shows that they cannot justly be charged with either. Under that state of facts, the defendants cannot be held liable for the amount claimed, unless there was an express or implied assent on their part to pay. The crevasse was the result of overpowering force; the act of God, which does nobody harm.

The assent of the defendants to pay cannot be implied from the advice given by the Mayor to the plaintiffs, to do for the best, especially when their counsel admits that no instructions were ever given by any city authority in relation to it.

The Act of 1829 relative to roads and levees, relied upon by the plaintiffs’ counsel, ceased to be in force in all the parishes bordering on the Mississippi River in 1833. The repealing Act was not brought to our notice in the case of Deben v. Girod, and was overlooked by us. 4 Annual p. 30, Sess. Acts 1833, p. 91.

The judgment is affirmed with costs.


text:
    Villere, Fazende et al. v. the Mayor and Commissioners of the General Sinking Fund.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      La'oergne, for plaintiffs and appellants.

      Bayne, for T B. Wolfe, for defendants.
   Rost, J.

This case rests upon the same principle as that just determined, Lepretre et al. v. General Council and the Three Municipalities, No. 2891 of the docket of this Court. The case of Williams & Savage v. Narcisse LeBlanc, 5 Annual, 125, upon which the plaintiffs rely, occurred in the Parish of Lafourche ' * j. a *'■' Interior, where the Act of 1829, concerning roads and levees, was at that time in force. That Act was repealed in 1833, for all the parishes bordering on the Mississippi River, and in those parishes there is no law under which a party can be held liable for labor and materials furnished in stopping a crevasse upon his land, unless the crevasse occurred through his fault or neglect. Acts of 1838, p. 91. The judgment in favor of the defendants must be affirmed.

Judgment affirmed with costs.


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    David S. Rhea, Testamentary Executor, &c., v. Isaac S. Taylor.
    Writ of seizure and sale of property situated-in East Feliciana, mortgaged by defendant, who subsequently removed to West Baton Rouge, was issued, and personal service was made by the Sheriff of East Feliciana on the defendant in E. F. Held: That the service was sufficient.
    The personal service on the defendant in East Feliciana rendered unnecessary a service in West Baton Rouge. Defendant being personnally served by a competent officer, within the parochial limits of that officer’s functions, could not plead ignorance of the seizure of his property, or that the mortgage debt was demanded of him.
    In the absence of positive proof to the contrary, the Court is bound to presume that the District Judge did not issue an order of seizure and sale without the production of the evidences of debt required in such cases.
    Service of anorder^of seizure and sale interrupts prescription.
    Appeal from the District Court of the Sixth Judicial District, Burhe, J_

      W. D. Winter, for plaintiff and appellant.

      J. M. & J. B. Blcm, for defendant.
   Dunbar, J.

On the 8th of August, 1838, John Shea, of the parish of East Feliciana, whose estate is represented by the plaintiff as his testamentary executor, sold to defendant, then also a resident of the same parish, certain real estate, situated there, for the sum of one thousand dollars payable in three equal annual installments thereafter, with ten per cent interest after their maturities, for which the vendee executed his three promissory notes, secured by special mortgage on the property sold. On the 1st January, 1840, a payment of $160 was made and credited on the note which was then due.

On the 13th November, 1844, the plaintiff obtained an order for the seizure and sale of the mortgaged premises, setting forth in his petition, that the notes above given were all due and unpaid, except the sum of $160, credited as before stated; that one John Slater had become the owner of a portion of the property, the remainder being still owned by the original vendee Taylor, who had removed to the parish of West Baton Rouge. On the 20th November, 1844, the sheriff of East Eeliciaua, to whom the writ of seizure was addressed, gave personal notice to the defendant, who was then present in the parish, that unless the debt, interests and costs were paid in five days, he would proceed to seize and sell, etc. On the 25th of same month, personal notice of the seizure of property in Slater's possession, was served on him.

The Sheriff’s return further states that on the 27th December, 1844, he enclosed a written notice of the seizure of the property to the Sheriff of West Baton Rouge, to be served on Taylor ; that on the 7th January, 1845, he personally notified Taylor to appear, and appoint an appraiser, and that Taylor informed him he would attend to the sale. No return is to be found in the record of service of the notice by the Sheriff of West Baton Rouge. On the 1st March, 1845, the property was sold on a credit of 12 months, and brought $115 00, a nett credit of $77 80 on the writ.

On the 21st June, 1847, the present action was instituted to recover from the defendant, Taylor, the balance due upon the notes originally given for the property which had been thus seized and sold; and on the 1st July, personal service of the citation was made. To this, the defendant filed a general denial, admitting specially his execution of the notes, but pleading an open account of $157 43, “m compensation of any amount which may be found to be due the succession.” In March, 1852, he filed an amended answer, pleading the prescription of five years.

The Court below sustained the plea of prescription and rendered judgment against the plaintiff, from which he has appealed.

In support of this plea, the defendant’s counsel relies—

1st. Upon the want of proof of the service of the notice of seizure and sale b3r the Sheriff of West Baton Rouge, where Tmjlor resided;

2d. That the mortgage notes were not filed with the petition praying for the order of seizure and sale, and that the order issued improperly upon the production of the act of mortgage alone; and

3d. That even if the proceedings were legal, the order of seizure and sale did not interrupt prescription; cites case of Harrod v. Voorhies, adm., etc. 16 Lou. R. p. 254.

As to the first ground of defence, we are of opinion that the personal services made by the Sheriff of East Feliciana, upon Taylor, who was then present in that parish, dispensed with service of the same notice by the Sheriff of West Baton Rouge; the object of the law was fulfilled, which requires such a notice to be given to the defendant, by being personally served upon him by a competent officer, within the parochial limits of that officer’s functions ; he could no longer plead ignorance of the seizure of his property, or that the mortgage debt was demanded of him.

Upon the second ground, an examination of the Record satisfies us that the notes were filed with the petition, which states, “ All of which will more fully appear by reference to a duly certified copy of said act of sale, to the abone deseribed three promissory notes, and to the certificate of record hereto annexed. Copies in full of the notes are attached to the transcript of those proceedings, which are duly certified by the Clerk, and the Judge’s order recites that upon consideration of the petition, affidavit and documents annexed, it is ordered, etc.” Moreover, in the absence of positive proof to the contrary, we are bound to presume that the District Judge did not issue his order without the production of the evidence of debt required in such cases ; if further proof were wanting, we find it in the receipt of plaintiff’s attorney for the notes filed, which is embodied in the transcript of the proceedings under the order of seizure.

The third and last ground of defence is, that the proceedings by the nia executi/oa, did not interrupt the prescription. This question received from us an elaborate examination in the case of Stanborough v. McCall, 4 An. 322, and has been subsequently affirmed in Fortier v. Zimpel, 6 An. 54.

■ Service was made on Taylor of the notice of seizure on the 14th December, 1844, seventeen days before prescription had accrued on the first note of the series. The executory proceedings terminated on the 1st March, 1845, and on the 1st July, 1847, the defendant had notice of the present action. Prescription had net therefore been acquired. This renders it unnecessary for us to examine how far the defendant’s first plea of compensation operated as an admission of the debt.

It is therefore ordered, adjudged and decreed that the judgment of the lower Court be reversed; and it is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff against the defendant, for the sum of one thousand dollars with ten per cent interest on one third of said amount, from the 8th day of August, 1839, till paid, and like interest on one other third of said sum, from the 8th of August, 1840, till paid, and like interest on the remaining third of said sum, from the 8th of August, 1841, till paid; subject to a credit of one hundred and sixty dollars, as of the 1st January, 1840, and a further credit of one hundred and fifteen dollars, as of the 1st March, 1845 ; and that defendant and appellee pay costs in both Courts.


text:
    John R. Shaw & Co. v. John Nolan.
    The holder of a promissory note bearing five per cent, interest, took a new note bearing eight per cent, interest, payable one day after date. Held-: The endorser was discharged.
    Appeal from the Second District Court of New Orleans, Lea, J.

      Stanton & Bradford, for plaintiff.

      JR. IT. JMJa/rr and Miles Taylor, for defendant and appellant.
   Rost, J.

The petition in this case sets forth two distinct causes of action; one growing out of a contract for a sugar-mill and engine, the other on account of a promissory note made by Lobdell and endorsed by the defendant.

It is alleged, that on the 26th day of November, 1845, a contract was made between defendant and James Goodloe, of Cincinnati, by which Goodloe undertook to deliver to Nolan, at his plantation, in West Baton Rouge, a mill and engine of certain dimensions and specifications, to be finished 1st September, 1846 ; that the said contract was committed to writing by John JR. Shaw & Go. acting as the agents of the parties for that purpose; that the mill and engine was furnished according to contract; that other machinery was also forwarded, and that Nolan was indebted on that account in the sum of $7,267 47, with interest from 31st March, 1847, and in the further sum of $203 83, the wages of an engineer; that James Goodloe assigned and transferred to plaintiffs, on the 29th January, 1851, all his rights, interest and claims against Nolan, under and by virtue of that contract. Plaintiff also avers that defendant is indebted to him in the sum of $5,000 on account of his endorsement of Lobdell's note, which was protested.

The defendant in his answer, insists that the mill and engine were not delivered according to contract; that it was imperfect and defective; and, in consequence thereof, he had sustained damage to a large amount, and assuming the character of plaintiff asks for judgment in his favor for $30,000. lie pleads also, in substance, that he was not, as endorser, liable to pay the said note, because the plaintiff had taken a new note from Lobdell, the maker, giving time for the payment.

The District Court rendered judgment against the plaintiff on the note, and in his favor on the contract for mill and engine for the amount demanded, with interest from the day of 1851, and the defendant appealed.

The claim of the plaintiff's for the mill and engine, and that of the defendant in reconvention, turn upon questions of fact. The District Judge has reviewed the evidence in relation to them, with his usual discrimination and care, and the conclusions to which he has come meet our entire concurrence.

It cannot be seriously insisted that the contract sued upon was not entered into between Nolan and Goodloe, or that the mill and engine in controversy were not delivered in execution of it. Nolan, therefore, owes the price he agreed to pay, unless he establishes, at least'partially, his claim in reconvention. On that claim he stands as plaintiff, and it is not enough that he should make his case probable, he must maleo it certain. We think he has failed to do so.

The machinery is shown to have been made in conformity to the contract and the evidence in relation to the manner in which it was put up, though conflicting, preponderates in favor of the plantiff. But even if it did not, we could not act upon it, because it would bo impossible to ascertain from the other testimony, whether the breakages which occurred wore caused by the machinery being put up out of line and out of level, or by overfeeding and other ill usage of the mill, and the unusual length of the cane and bagasse carriers, which Nolan required to be attached to the mill, and one of which he has since found it necessary to reduce, so as to be but a few feet in length.

But if all the facts alleged in the defence had been established, the defendant could not recover, because the damages he claims resulting from the loss of a portion of his cane by cold weather, are not shown to have been the necessary consequence of the breaking of the mill. He did not begin to grind until the 28th of November, and it is clearly proved that the delay was not caused by Goodloe, and that he finished putting up the mill and engine when Nolan permitted him to do so, and long before the sugar-house and bagasse chimneys were ready. There is nothing in the record to justif3r the belief that if Nolan had commenced at the usual time he could not have saved his crop, notwithstanding the accidents which occurred. There is no pretence for sa3dng that the loss on the second crop was the result of defective machinery. The broken parts of the mill were all replaced by Goodloe without charge, and it seems now to be in all respects in conformity with the contract. We think it must be paid for.

The note of Lobdell, endorsed by the defendant, was protested at maturity for non-pa3rment, and due notice was given to the endorser. More than two years after its maturity, the drawer paid the plaintiffs one thousand dollars on account, and some time after settled with them for the balance and gave them his due bill, payable one day after date, bearing eight per cent, interest from its datej the plaintiffs retaining the original note, until final payment. It is urged, in their behalf, that the taking of this note was not, under the facts of the case, a giving of time for payment, and that if it was, the stipulation was without consideration and therefore void.

Without conceding that the want of an apparent consideration, would be sufficient to avoid a promise to give time, we dissent from these two propositions.

It is settled by the highest authoritjq that the giving of a new note payable one day after date is giving time for payment, even when the original note remains in the hands of the creditor, and the cases in which this question has been decided differently are not satisfactory to us.

“Thomson on Bills, ch. 6, § 537, 513 (2d edit) In Gould v. Robson, 8 East. R. 516, 579, which was the case of time being given by the holder to the acceptor on a bill of exchange, Lord Ellenborough said: ‘How can a man be said not to be injured, if his means of suing be abridged by the act of another? If tho plaintiffs, holders of the bill, had called immediately upon the defendants for payment, as soon as the hill was dishonored, they might immediately have sued the acccoptor and the other parties on the bill. I had some doubts at the trial, but am inclined to think now that time was given. The holder has the dominion of the bill at the time; lie may make what arrangements he pleases with the acceptor; but ho does that at his peril; and if ho thereby alter the situation of any'other person on the bill, as to the prejudice of that person, he cannot after-wards proceed against him. As to the taking part payment, no person can object to it, because it is in aid of all the others who are liable upon the bill: but here the holder did something more: he took a new bill from the acceptor, and was to keep the original bill until the other was paid. This is an agreement, that in the mean time the original bill should not be enforced: sutíh is at least the eifeet of the agreement; and therefore I think time was given.’ ”

See Story on promissory notes, page 529.

There was a clear and apparent consideration for the now note in this case. It is made to boar eight per cent, interest, when the original note only bore interest at the rate five per cent, after the protest, and we would infer from the amount acknowledged by Lobdell to be dire, after the payment he had made, that the interest charged in the settlement exceeded the legal interest. Mr. Lobdell is evidently mistaken when he says that the last note was given merely to show the amount of his then existing indebtedness; he did not owe interest at the rate of eight per cent, and the amount of that noto exceeds his indebtedness on tho original note, after deducting -the payment made.

We are of opinion that the defendant is released from his endorsement.

The amount charged for extra work and materials furnished by Goodloe to Nolan, as well as the transfer of the account and of the sum due under the contract for the mill and engine are fully proved. But we think there is error in the allowance of $203 83 for the wages paid to the engineer who took off the first crop agreeably to the contract between Nolan and Goodloe. It was stipulated that the wages should not exceed one hundred dollars per month, and the grinding only lasted thirty-one days. There must be therefore a deduction of one hundred dollars on the judgment.

It is ordered that tho judgment be amended so as to bo in favor of the plaintiffs and against the defendant for the sum of $7,371 2G, with interest at five per cent, per annum from the 24th of February, 1851, till paid, and that, as amended, the judgment be affirmed, the plaintiffs and appellees paying the costs of this appeal.


text:
    A. and F. Remy v. Municipality No. Two.
    Plaintiffs offered in evidence an instrument purporting to be a will of their father, made before a notary public and three witnesses, for the sole purpose of showing an acknowledgement therein by the testator that the plaintiffs were his natural children. Held: That the will was admissable for the purpose for which it was offered, although never probated.
    Plantiffs offered in evidence a transcript of the proceedings of the Second District Court of New Orleans, putting the plaintiffs in possession as heirs of tlicir father. Held: That the document was admissable to prove rem ipscom.

    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Durant & Horner, Elmore <& King and J. Lambert, for plaintiffs and appellants.

      T. 77. Wolfe- and 0. Boselius, for appellees.

      Durant & Horner, for appellants,
    contended that the instrument offered in evidence, though not as good as a will, was admissable to show an acknowledgment of the parentage of plaintiffs, and cited Lartigue v. Baldwin, 5 Martin, 193. Breedlove v. Turner, 9 Mart. 380. Smoot v. Bussel, 1 N. S. 522. Fouga/i'd v. Tourregard, 3 N. S. 466. Thompson v. Oha/ceau, 4 N. S. 461. Jones v. Bead, 1 Annual, 200.
    Boselius, cont/ra,

    cited Stewart v. Boise, 10 L. R. 533. Marcos v. Barcas, 5 A. 265. Landry v. Duaren, lb. 612. 0. C. 1637.
   Rost, J.

This case comes up on a question of the admissibility of evidence, decided adversely to the plaintiffs and appellants in the' Court below.

On the trial, the plaintiffs offered in evidence an instrument purporting to be a will of their father, made before a notary public and three witnesses, for the sole purpose of showing an acknowledgement therein by the testator that the plaintiffs were his natural children.

The Court rejected this instrument, on the ground that it was a will and had never been admitted to probate.

We are of opinion that the Court erred. It is true that a will not probated can have no legal effect as a will, and is inadmissible as evidence in support of any claim under the testamentary dispositions it contains. But the plaintiffs’ claim is not one of that kind. They claim as heirs at law, and offer the will as a notarial act to prove the acknowledgment of their father that they are his natural children. Had the will been in any other form, a similar acknowledgment in it would have been inoperative. Its legal effect results exclusively from the form of the act and no satisfactory reason has been given to sustain the ruling of the Court below.

In France, a will can only be revoked by a posterior will, or by an act before a notary containing a declaration of the change of intention. It is held there, that a will by public act, void for defects of form, is valid as a notarial act to revoke a previous will, provided it contains a declaration of the change of intention.

The plaintiffs farther offered in evidence, a transcript of the proceedings of the Second District Court of Now Orleans putting the plaintiffs in possession as heirs of their father. It was rejected by the Court, on the ground that it was res inter alios acta.

We are of opinion that the document was admissible to prove rem ipsam.

It is ordered, that the judgment in this case be reversed and the case remanded to be proceeded in according to law, and in conformity with the opinion of the Court.

It is further ordered, that the defendants pay the costs of this appeal.


text:
    Barelli & Co. v. Lytle & Huntington.
    On a previous trial, this case was remanded because the Court had erred in admitting in evidence a commission taken by a magistrate of the State of Texas, whose official capacity was not properly certified. Subsequently, the commissions and documents were withdrawn and a new certificate as to the magistrate’s capacity, in proper form, was obtained and appended. Held: That for all the purposes of this inquiry, the commission and documents might be considered as not having been removed.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.
    On the trial of this cause, “ Plaintiffs offered in evidence all the evidence given by them on the former trial, together with a certificate of the Governor of the State of Texas, as to the official capacity of J. M. Baker, Justice of the Peace.”
    Objection was made to the admissibility of the testimony of J. T. O'Reilly, which being overruled, the following bill of exceptions was taken by the defendants :
    “Bill of Exceptions.
    “ Be it remembered, that on the trial of this case, plaintiff offered in evidence the testimony of J. T. O’Reilly, taken under a certain commission, under an order of this Honorable Court, dated 28th day of February, 1848, to the reception of which in evidence, B. W. Huntington, by his counsel, objected, on the grounds following, to wit:
    1st. That the return of said commission is not properly authenticated, for the reasons set forth in the Bill of Exceptions taken by the defendant on the former trial of this cause, dated the 19th of January, 1849, and which reasons are sustained by the opinion and decree of the Hon. the Supreme Court. This said decree of the Supreme Court determines, said testimony to be illegal, and the same ought therefore to be rejected ;
    2d. That there is no order of Court directing any new commission to any Judge, Justice of the Peace, or other commissioner in the State of Texas, subsequent to that ordered on the 28th February, 1848, and that the return of a commission which has been decreed to be inadmissible in evidence, as not being properly authenticated, in order to have its defects supplied by a new authentication, is not good evidence in law, when, as in the present case, there has been no new order directing another, or the same commission to issue, and when the same commission has never left the files of the Court; and when there has been no service of the interrogatories made upon the defendant, or other opportunity given him to cross such interrogatories; that the return to the commission now offered in evidence, has been pronounced illegal testimony, and is res judicata; and that if plaintiffs desired to take O'Reilly's testimony, they should have issued a new commission, and cannot supply the defects of the first by simply obtaining a certificate such as that offered in evidence on the 1st of May,
    1851, without any order of Court authorizing an application for the same, and by a proceeding ex parte and in pais.

    3. That said commission ought not to be received in evidence for the reasons set forth in the Bill of Exceptions, dated 17th January, 1849, and which reasons -are now again urged as objections thereto.
    But the Court overruled the objections,” etc.

      Josephs, for plaintiff.

      W. I. Hennen, "for defendant and appellant.
   Eustis, C. J.

This appeal is taken from a judgment of the Court of the Fifth District of New Orleans, by which the defendant, Huntington, is condemned to pay the plaintiffs the sum of one thousand and twenty-five dollars with interest.

This case was before this Court in November, 1849, on an appeal of the defendant, and was remanded for a new trial on a bill of exceptions taken by him to the admission in evidence of a commission taken in the State of Texas, on the ground that the certificate of the Governor under the seal of State, did not establish the official capacity of the magistrate executing the commission at the time of its execution, the terms of the certificate relating to his capacity at the time of its being granted and not to an anterior period. 4th Annual Rep. 557.

It seems that the commission and documents were withdrawn by the plaintiff’s attorney, and have been returned with a new certificate, under the great seal of Texas, certifying that John R. Baker, before whom the deposition purports to have been taken, was a Justice of the Peace at the time of the execution of the commission, to wit: on the 5th June, 1848.

We think it is an answer to the objections taken by the counsel, founded on the irregularity of the removal of the commission and documents from the files, that for all the purposes of this enquiry, they may be considered as having remained there and not been removed.

The new certificate of the Governor establishes the official capacity of the magistrate; it certifies that John li. Baleer was a duly authorized Justice of the Peace in and for the county of Calhoun, State of Texas, at the time of the execution of the commission. Baleer, the commissioner, executes the commission in that capacity and so signs himself in a return. His signature is not drawn in question in the bill of exceptions. This is a sufficient authentication of the official capacity of the magistrate, under the authority of Thacker v. Goff, 13 Louisiana Rep. 362. '

The judgment of the District Court is, therefore, affirmed with costs.


author: Slidell, J.

text:
    Morgan W. Brown, Guardian of Mary McNeil, a minor, v. John S. Crockett, Lucinda Crockett, and Edward Chapman, and Esther Chapman, his wife.
    By the Statute of Tennessee, a testamentary guardian may maintain an action of ravishment of ward, or trespass against any person who shall wrongfully take away, or detain the person of the ward, and may recover damages for the same in such action for the benefit of the minor.
    The tutor of a minor, deriving his authority from the law of their common domicil, has a right to exercise his personal actions everywhere.
    By the Statute of 1843, guardians of minors residing in other States of this Union, and duly appointed and qualified in such States, are entitled to sue for and recover any property, rights, or credits belonging to such minors within this State, upon producing satisfactory evidence of their appointment) without being under the necessity of qualifying as tutors according to the laws of Louisiana.
    A will admitted to probate in another State, and nominating a guardian to the minor heirs, and who has been duly recognized there, need not be probated in our Court, to allow the guardian to maintain an action for the wrongful abduction of his ward.
    Under the law of Tennessee, the father of a minor child has a right by last will and testament to name a guardian for her.
    A married woman is liable in damages to the injured party for any offence {debit) committed by her, and she is not relieved from liability by the fact of her husband’s presence, or concurrence.
    In an action for the wrongful abduction of a minor, the jury has a right to consider the mental pain inflicted upon the child as a legitimate subject of amend.
    The testimony of the plaintiff—suing for the benefit of the minor, and who has no pecuniary interest in the event of the cause, was admiss&ble. The objections would go only to his credibility.
    Appeal from the Fourth District Court of Now Orleans, Stn'ambridge, J.

      Finney and Benjamin & Mieou, for plaintiff.

      Qrymes, for defendant and appellant.
    As to the right of plaintiff to maintain the action, plaintiff’s counsel cited Acts 1848, 97. Burbeahaux v. Burbechaux, 7 L. R. 43. 8 L. R. 88. Bailey v. Morrison, 1 An. 523. Johnson v. Runnels, 6 N. S. 622.
    As to the jurisdiction of the Court below for a tort or trespass committed in Tennessee, Somes et al. v. Barclay et al. 4 An. 63.
    As to the liability of a married woman for a tort or trespass : Dalloz, Dictionnaire de Jurisprudence, vol. 4, verbo ResponsabiliU, Nos. 495 to 509. Marcadé, Cours de Droit Civil, 286 liv. 3, tit. 4, art. 1384. 2 Roper on Husband and Wife, 127. Civil Code 2304, and Revised Statutes 151, sec. 31.
    As to the competency of plaintiff as a witness, 1 An., 227. 2 An., 1017.
   Slidell, J.

The plaintiff in his capacity of testamentary guardian of Man'y McNeil, a minor, sues for the benefit of his ward, for damages for a wrongful abduction of her person, and various personal wrongs suffered by her at the hands of the defendants. There was a verdict against the defendants in solido for $5,000, and from a judgment rendered thereon the defendants have appealed.

Much of the argument for the defence was directed to the right of the plaintiff to bring this action.

If the plaintiff was the lawful guardian of Mary McNeil, we have no doubt that under the law of Tennessee he was the proper person to bring suit for her benefit, and recover damages for injuries inflicted upon the person of his ward, or any violations of her personal rights. Indeed there is in evidence a statute of that State which is directly applicable to the case, and by which it is provided that a testamentary guardian may maintain an action of ravishment of ward, or trespass, against any person who shall wrongfully take away, or detain the person of the ward, and may recover damages for the same in such action for the benefit of the minors.-

With regard to the right of the plaintiff to bring this action for damages in the tribunals of this State, we entertain no doubt. In Burbeehaux v. Burbeehaux, 7 Louis. 547, it was recognized as a well settled principle that the tutor of a minor, deriving his authority from the law of their common domicil, has a right to exercise the personal action of his pupil everywhere. By the Statute of 1843 it was enacted, that guardians of minors residing in other States of the Union, and duly appointed and qualified in such States, shall be entitled to sue for and recover any property, rights or credits belonging to such minors within this State, upon producing satisfactory evidence of their appointment, without being under the necessity of qualifying as tutors according to the laws of Louisiana.

Under both systems, such injuries to the person of the ward, as are alleged to have been inflicted in this case, creates a right to damages, which, when recovered, enure to the benefit of the ward; and under both, the actions for their recovery may be maintained by the guardians appointed in conformity to the law of the minors’ domicils.

We see no difficulty in the objections that the plaintiff claims to bo guardian under the will of his ward’s father, and that the will has not been probated in this State. Under our statute and jurisprudence, the right to maintain the present action depends not upon the particular source of the authority of the foreign guardians, but upon its lawful existence at the place of their domicil.

This brings us to the inquiry, whether the plaintiff is really invested, under the laws of Tennessee, the domicil of the minor and his own, with the office of guar, dian. And upon this point wo entertain no doubt. It is abundantly established by the evidence that under the law of Tennessee the father of the minor had a right by last will and testament to name a guardian for her; that ho exercised that right by naming the plaintiff; that his will was duly probated in 1844; that such probate was, under the then existing law, the only step necessary to confer the right of guardianship upon the plaintiff so named; that he immediately accepted the trust, received the custody of the minor’s person, and was the only person from that time to this, who under the law of Tennessee was the lawful guardian of the minor. It is true that under certain judicial proceedings, in evidence in this cause, it appears that he was ordered by a court in Tennessee to give security for his administration, a duty which under the laws in force at the time when he entered upon the guardianship, was not incumbent upon him; but there is nothing in the evidence to establish a divestiture of the guardianship; and the order to give security has been complied with.

"We pass, therefore, to a consideration of the fact of the abduction, upon which depends the question whether the assessment of damages made by the jury, and which the District Judge refused to disturb, has done injustice to the defendants.

Mary McNeil is the daughter of Dr. Win. McNeil, formerly a resident of Nashville, where he died in 1844. He left two children, Mary, then about ten years of age, and her brother William, about three years younger-. By his will he directed his whole estate, with the exception of a small portion, to be divided between them, and nominated his friend, Morgan W. Brown, their testamentary guardian. The fortune thus left to the minors amounted to about $150,000. On his death-bed he earnestly requested Judge Brown to accept the guardianship of of his children, and informed them that he had committed them to Judge Brown’s care. Soon after his death the will was probated, Judge Brown accepted the guardianship and entered upon the discharge of its duties. The children were taken into his family, received from his wife and himself the most sedulous care, and were treated by them in the same manner as their own children. They have always received all the advantages of education suitable to their condition, appear to have regarded their guardian and his wife with filial affection, and to have been entirely contented and happy under their care. These facts are substantiated in the most satisfactory manner by witnesses of unquestioned standing and credibility, who lived at Nashville, and were well acquainted with Judge Brown and his family. One of these witnesses, Mr. Justice Catron, a member of the Supreme Oourt of the United States, besides attesting these facts, deposes as to the intimacy and great mutual regard which existed between the father of Ma/ry and her guardian, and his suitableness for the charge entrusted to him. Other witnesses living in Nashville, who appear to be equally entitled to credit, concur in this estimate of his character and qualifications.

McNeil appears to have left no blood relations except his two children; and the nearest blood relations they have, so far as the evidence informs us, are the defendants in this suit, Mrs. Chapman, Miss Lucinda Crockett and Dr. Crockett, their natural aunts and uncle.

Since the death of the tutor various efforts have been made in the courts of Tennessee by the relatives of the minors to deprive Judge Brown of the guardianship, but without a successful result. It also appears that some of the relations of Man'y had, soon after the father’s death, expressed to the guardian their desire to have charge of her person, and Mr. Chapmcm had sent a letter to him to that effect by the hands of Miss Crockett some years since, which request he declined to accede to, explaining the sacred obligations to Dr. McNeil which he had assumed, but informing them that every opportunity, consistent with his duty, should be afforded them to see the children, and to cultivate relations of kindness with them.

In 1848 Miss Crockett and her brother, Dr. Crockett, visited Nashville, and called at the house of Judge Brown. They asked to see the children, and were permitted to do so. They represented that they intended to spend several weeks in Tennessee, and requested that Mwry might be permitted to dine with them on the next day at the house of a friend. Judge Brown assented, and on the following day Dr. Crockett and his sister came for the child, and took her to their friend’s house. After dinner they went out with the child in a hired coach, representing that they were going to make a visit to a friend who lived two or three miles from Nashville. Having thus by stratagem and false representation obtained possession of the child, they traveled with aE haste in the direction of Memphis, Dr. Crockett taking seats in the public stages under a feigned name; and at length by the usual conveyances he and his sister arrived at New Orleans with Mm-y. Several witnesses, who saw them on the route through Tennessee, describe the child as being in great distress, imploring her abductors to take her back to Nashville, and soliciting protection at the inns where they stopped. Her conduct, as described by the witnesses, manifested throughout a strong desire to return to her home, great attachment to those whom she had been accustomed to regard as her parents, and such resistance as a child could make under the extraordinary circumstances in which she was placed.

On the arrival of the parties at New Orleans, the child was taken t$ the house of Mrs. Chapman. Her movements there would seem to have been in some degree guarded, but there is no reason, from the evidence, to infer any unkindness on the part of her relations at New Orleans.

As soon as it was found that the child had been carried off, great alarm and distress were manifested by the plaintiff. Measures were taken, at much expense and trouble, to discover the fugitives, and a gentleman of the bar was despatched to New Orleans in search for the child here. After an interval of a few days, he ascertained that she was at the house of Mr. Chapman, and applied to one of our courts for writs of habeas corpus, which were served upon Lucinda Crockett, Dr. Crockett and Chapman. After service on the 2d May upon the latter, the child was taken by Mrs. Chapman out of the parish, to the plantation of a friend. Ohcvpman appeared on the 3d May, and answered under oath that it was impossible for him to comply with the order to produce the child,, “as the said Mary McNeil is not in his custody, nor has she ever been in his custody or under his control.” Lucinda Crockett answered under oath that she did not know where Mary was. In an amended answer, made on the 4th of May, Chapman declared that Mary had left his house on the previous day, and that he did not know with whom she left, where she went, or whore she was. His answer was excepted to as evasive; he was required to answer further, and an order of arrest was issued against him. On the following day, having been arrested, he filed a further answer under oath, in which he says he may have suspected that his wife had left his house with Mary McNeil, but that he did not know, nor had ho any means of knowing the fact, as every thing relating to the departure took place during his absence from homo, and was concealed from him; that the first information he had of the fact that his wife had left with the said Mary McNeil, was derived from the testimony of a witness examined before the Court on the previous day. That he had despatched a messenger to the adjoining parish, whither they had gone, urging their return. Dr. Crockett in his answer admitted the abduction, set up various matters in justification, and declined to obey the order of the Court. The place of concealment of the minor in an adjoining-parish being ascertained, further writs were issued, and on the 6th May Mrs. Chapman appeared in Court with the child. She answered under oath that she had not held the child in confinement, but that being her neico, and having been placed in her possession by her brother, Dr. Crockett, she had taken the best possible care of her, and in doing so believed she had acted for the best interest of the minor; but that as soon as the writ was served upon her, she had returned with the child to New Orleans from the residence of a friend in an adjoining-parish, where they were on a -visit which the minor expressed a desire to make.

The District Judge being of opinion that stratagems and violence had been employed to take Mary from the custody of her lawful guardian in a sister State, ordered her to be delivered to the plaintiff's agent, which was accordingly done, the child declaring, in the presence of the Court, her anxiety to return to tho plaintiff, and manifesting much delight at her release.

Such is substantially the state of facts upon which the plaintiff relies for an affirmance of the verdict. We deem it our duty to say that a more extraordinary violation of law and personal liberty has never been presented in the annals of our civil jurisprudence; and no terms of censure of the conduct of Dr. Crook- aft an¿ his sister, however strong, could be considered undeserved. The only Pa^a^on which counsel has attempted to offer, is in the suggestion, that they were prompted by a strong impulse of natural affection. But a court cannot listen favorably to a suggestion of good motives from parties whose conduct in the transactions which they attempt to defend is stained by disreputable artifice.

But it is said that the verdict is unjust as to Mr. and Mrs. Chapman, who did not participate in the forcible abduction of the minor from Tennessee, and merely opened their doors to her on her arrival at New Orleans.

It is true that there is no direct evidence that-the abduction was committed at their suggestion, or that they had advised or encouraged it; but it was distinctly charged in the petition, that Mr. and Mrs. (Chapman were accessory to the abduction, and the jury seemed to have inferred that the charge was true, inasmuch as they have found the same amount of damages against all the defendants. When we look to the conduct of these two defendants, after the minor’s arrival here, and the surrounding circumstances, we are constrained to say that they are not of such a character as to permit us to disturb the verdict of the jury. Considering the relation by blood, or marriage to the two principal actors in this strange drama, and to each other, the previous desire manifested by Mr. Chapman to have possession of the child, the reception of the plaintiff’s ward at their house, the grossly unjustifiable attempt to evade the writ of habeas corpus, the painful disingenuousness, to use no harsher term, of their answers under oath, we are not prepared to say that the charge of complicity is unsupported by_the evidence.

The exception separately pleaded by Mrs. Chapman was properly overruled. That under our jurisprudence a married woman is liable in damages to the injured party for an offence (d&lit) committed by her is clear, and she is not relieved from liability by the fact of her husband’s presence or concurrence. See Merlin, verbo Autorization Maritale, No. 18. Whether marital coercion would excuse her, or go in mitigation of damages, is a question which does not arise in this cause.

It is said the damages allowed by the jury are excessive. We do not think so. In the first place, expense to more than half of the amount allowed, has been actually incurred, as the evidence shows, in the effort made to search for the ward and restore her to the custody of her guardian. In the next place, the jury had clearly a right to consider the mental pain inflicted upon the child, a legitimate subject of amend. See Civil Code, Art. 1928. In doing so, “much discretion must be left to the jury,” ib.; and the exercise of this discretion a court will not disturb on light grounds, but will restrict its control to cases of manifest excess. We have no reason to consider the verdict in this case passionate or capricious; on the contrary, when the aggravated circumstances of the wrongs complained of are considered, it seems to us that the jury used their power with moderation.

The testimony of Brown was properly admitted. He sues for the benefit of the minor, and does not appear to have any pecuniary interest in the merit of the cause. Doubtless the court in Tennessee, to which he owes an account of his administration, would allow him credit for the moneys he has reasonably expended in his efforts to recover the person of his ward, even if he did not succeed in collecting their amount in the form of damages from the wrong-doers. That he feels a deep moral interest in the success of this suit may be assumed; but this would go only to his credibility. See DeKerlegand v. Robins, 1 Annual, 227. Parker v. Moore, 2 Annual, 1017.

Judgment affirmed with costs.


text:
    Chapman & Goodloe v. Jesse Hart.
    After answer filed, it is too late to compel plaintiff, who sues on an account, to filo a detailed bill.
    Appeal from the Sixth District Court, Parish of West Baton Rouge, Robertson, J.

      Brunot, for plaintiffs.

      J. G. &P. II. Morgan, for defendant and appellant.
   Rost, J.

The judgment in this case appears to us to bo authorized by the evidence.

The putting up of a sugar mill and engine, is one entire job, of which planters and mechanics know the details. The defendant evidently knew them, and did not ask in his answer, that the plaintiffs be compelled to file a detailed bill of the work; this is unusual and unnecessary, and under the pleadings, the Court did not err in refusing subsequently to compel the plaintiffs to file such a bill.

We are of opinion that the Court exercised a sound discretion in refusing a now trial.

Judgment affirmed with costs.


author: Bustis, 0. J.

text:
    Sarah Haynes, alias Mielkie, v. Henry Forno et al., C. Y. Hutchinson, and H. R. W. Hill, Curator.
    Milltie, whose domicil was in Vicksburg, gave the plaintiff, his slave, in April, 1843, the following permit: “ My negro woman Sarah Haynes, about thirty years old, has permission to pass unmolested to Cincinnati and the State of Ohio generally, or any other free State she may choose.” By the Cow't. Her passage was provided for by her master, and she was sent to Cincinnati for the purpose of being made free. It does not appear that she remained longer than several days in Cincinnati, and she came to New Orleans in the same spring. The testimony shows that she has remained here since, with this exception, that in 1S44, or 1845, she went to Vicksburg. We infer that she remained there hut a short time. As the plaintiff has violated the law by coming into and remaining in this State in direct disobedience of its provisions, she cannot be considered as having acquired any rights, dependent on domicil or residence here, and her status must be determined by the laws of the domicil of her master. We cannot distinguish this case from that of /finds v. Bntaealle, 2 Howard’s (Mississippi) Rep. 841; Mary v. Broion., 5 A. 2T1. On the principles recognized by this Court in TJzay. jp-ivisscmt, T Annual, 83, the plaintiff would not be considered as having acquired her freedom by her presence in Cincinnati.
    Appeal from the First District Court of New Orleans, Lea, J.

      Tappan, for plaintiff,
    cited: Arsene v. Pigneguy, 2 A. 621; Eugenio v. Preval, 2 A. 181; Josephines.Poultney, 1 A. 324; Smiths. Smith, 13 L. R. 444; Marie Louise s. Marot, 0 L. R. 475; Frank s. Powell, 11 L. R. 500; Thomas s. Genens, 16 L. R. 483; Ideas. Puissant, 7 A. 83 ; Lumsfords. Ooquillon, 2 N. S. 403; Black-man s. Powell, 7 Yerger, 452.

      Ma/rr, for defendant.
    It is evident that Srn'ah did not go to Cincinnati with the intention of remaining; and as the Court decided in Idea s. Puissant, 7 A. 83, it would require such intention to operate the freedom of the slave under the laws of Louisiana. See also Jane s. Oarsoro, Opinion Book 22, p. 106.
    But the status of the slave must be tested by the law of Mississippi, where the owner resided, and where the writing under which she claims her freedom, was executed. The law of that State forbids the emancipation of slaves otherwise than by an instrument in writing duly proved or acknowledged, and proof to the General Assembly of some meritorious act by the slave, followed by an Act of the General Assembly, sanctioning the emancipation, and a compliance by the owner with the conditions imposed by that Act. Hutchinson’s Code, p. 523, No. 75.

      It has been decided by the Supreme Court of Mississippi, that a deed of emancipation, executed in Ohio by the master, who went there with his slaves for that purpose, and afterwards returned to Mississippi with the slaves, was in fraud of the laws of Mississippi, and totally void, although the master recited in his will the fact that he had executed such a deed, and declared his intention to ratify it, and acknowledged one of the slaves to be his son. Hinds et al. v. Brazealle et al., 2 Howard’s Miss. Rep. 841,42,43. If all these solemnities were in vain because they were in contravention of a law established for wise purposes of public policy, surely a mere permit to go to a free State, cannot be more effectual.
    The true rule is laid down in the case of the Blame Oraee 2 Ilagg, Adm. Rep. 04, and, although more liberal views once prevailed in Louisiana, we have been compelled to return to the English doctrine. The slave who goes, by the permission of his master, to a free State, does not thereby become free. He merely ceases to be subject to the coercion of his master, so long as he remains in free territory; but the moment he returns voluntarily to his master’s domicil he is again subject to his authority, and resumes his former condition. Actl84G, p. 163.
   Bustis, 0. J.

The defendant is the guardian of Constance MieTkie, a minor under the age of pubeity, appointed by a Court of competent jurisdiction, in Galveston county, Texas, where the parties reside.

The plaintiff, a negro woman, sues the defendant for her freedom. The judgment of the District Court is in favor of the defendant, and the plaintiff has taken this appeal.

The minor is the legitimate child of Hckocml C. MieTkie, whose domicil and residence were in Vicksburg, Mississippi; he died there in February, 1846.

It is proved that the plaintiff, who was the slave of Mielicie, left his service in April, 184'3, for Cincinnati, in Ohio, under the following permit:

“ My negro woman, Sarah Haynes, about thirty years old, has permission to pass unmolested to Cincinnati and the State of Ohio generally, or any other free State she may choose. [Signed] Edward C. Mielicie.”

Her passage was provided for by her master, and she was sent to Cincinnati for the purpose of being made free. It does not appear that she remained longer than several days in Cincinnati, and she came to New Orleans in the same spring. The testimony shows that she has remained here since, with this exception, that in 1844 or 1845, she went to Vicksburg. We infer that she remained there but a short time.

As the plaintiff has violated the law by coming into and remaining in this State, in direct disobedience of its provisions, she cannot be considered as having acquired any rights dependent, on domicil, or residence here. Jane Ross v. Andrew Carson, 7th Annual. Her status must be determined according to the laws of the domicil of her master. We cannot distinguish this case from that of Hinds v. Brazealle, 2d Howard’s (Mississippi) Reports, 841, and Mary v. Brown, 5 Annual Reports, 271.

On the principles recognized by this Court in Liza v. Puissant, 7th Annual Rep. 83, the plaintiff would not be considered as having acquired her freedom by her presence in Cincinnati.

The judgment of the District Court is, therefore, affirmed with costs.


author: Slidell, J. Rost, J.,

text:
    Armand and Alfred Mercier v. J. F. Canonge et al., Citizens’ Bank of Louisiana, and Union Bank of Louisiana.
    It is true, that by the Code, the property of the tutor is tacitly mortgaged in favor of the minor from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it. But an interpretation of this provision, independent of other principles of our laws and jurisprudence, is inadmissible.
    Ordinary mortgages are required to be created by the formal, written consent of the parties, for specific sums, and to be inscribed upon the public records. But the tacit mortgage operates secretly, and by a legal fiction. It is in derogation of common right. It should, therefore, be strictly construed. The propriety of such strict construction is aided by the consideration that the system of tacit mortgages is one which tends to impair public confidence, and check that free circulation of.property which is so conducive to the general prosperity.
    As against innocent third persons, purchasers, or mortgagees for a valuable consideration, the language of the Code may be properly interpreted as applying to the ostensible property of the tutor, and as not extending to that in which he has only a covert, equitable interest.
    The law treats minors as a privileged class in certain respects; but its protection is not to be strained to the detriment of the great mass of society, or to the sacrifice of that well-settled rule which regards with favor the rights of an innocent purchaser, and refuses to affect him by a secret equity.
    It would be a doctrine fraught with the most dangerous consequences to stockholders, and inconsistent with the theory of corporations, to hold that the private knowledge of two Directors, not clothed with any special authority in the premises, and constituting a small minority of the Board—and which knowledge was not disclosed to th‘e Board—should destroy the rights of the Corporation.
    There is nothing in the Code to limit the minor’s tacit mortgage to the property which stands upon the public records in the name of the tutor. The Article of the Code is general in its terms, and embraces all the property—tous Jes Liens—which can be shewn to belong to the tutor.—Host, J., dissenting.
    The tutor has himself acknowledged that he placed the property in the name of his sister, to keep it from the minor’s mortgage. He could not do indirectly, what he could not have done directly.
    Appeal from the Eifth District Court of New Orleans, Buchanan, J.

      SouU, for plaintiffs.

      Denis and Pitot, for defendants and appellants.
   Slidell, J.

The plaintiffs are creditors of J. F. Oanonge, their former tutor, who was appointedin 1S32, and gave the usual bond, with a surety. The object of the present suit is to enforce their alleged right of tacit mortgage upon certain real estate, which was mortgaged in the years 1837, 1838, and 1889, by Miss Aimee Ganonge, to the Citizens’ Bank and the Union Bank. Their pretensions are resisted by the Banks, who are the appellants in this cause, from a judgment according a preference to the tacit mortgagees.

The real estate in question never at any time stood upon the public records in the name of J. F. Oanonge. It was conveyed by other parties to Miss Ganonge, by deeds in the usual form; and in these deeds, and in the mortgages executed by her in favor of the Banks, she appeared as the unqualified owner. But under the parole evidence, (the exceptions to which we deem it unnecessary to consider,) it appears that Miss Ganonge had only the apparent title. The whole of the property was, in reality, purchased by Jean Frangois Ganonge, her brother, for his own account, and with his own funds. The titles of the property were made to her for his convenience, and with a view to its easy use for the purpose of future sale or mortgage; which could not have been effected with the same facility, if they had been purchased in -his own name, in consequence of his holding the office of tutor, which would have involved the incumbrance of a tacit mortgage in favor of his wards. Ganonge, in his answer, asserts that he believed at the time, that his other property was amply sufficient for the protection of his wards, and the evidence tends to justify the sincerity of that opinion, Ilowever-important this may be, so far as the mere moral aspect of the transaction may be involved, we'have not considered it as materially affecting the legal questions presented for our solution.

The District Judge was of opinion that the tacit mortgage of the minors operated upon the property to the detriment of the Banks, even considered as third persons.

It is true that by our Code, “ the property of the tutor is tacitly mortgaged in favor of the minor from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it.” Civil Code, art. 3782. If these terms are tobe interpreted in their largest and most liberal sense, and without reference to the provisions and principles of our laws and jurisprudence, the conclusion might be drawn from them that all the tutor’s-property, legal or equitable, open or concealed, was affected by the tacit incumbrance in preference to all the world. But an interpretation thus isolated seems to us inadmissible.

Ordinary mortgages are required to be created by the formal, written consent of the parties, for specific sums, and to be inscribed upon the public records. But the tacit mortgage operates secretly, and by a legal fiction. It is in derogation of common right. It should, therefore, be strictly construed. The propriety of such strict construction is aided by the consideration that the system of tacit mortgages is one which tends to impair public confidence, and check the free circulation of property, which is so conducive to the general prosperiy.

Keeping these principles in view, we are of opinion that as against innocent third persons, purchasers, or mortgagees for a valuable consideration, the language of the Code may be properly interpreted as applying to the ostensible property of the tutor, and as not extending to that in which he has only a covert, equitable interest.

It is said by counsel that minors are the favorites of the law. The law does treat them as a privileged class in certain respects; but its protection is not to be strained to the detriment of the great mass of society. If the doctrine for which the plaintiffs contend he sanctioned, what becomes of that settled rule of jurisprudence which regards with favor the rights of an innocent purchaser, and .refuses to affect him by a secret equity ? See the case of Pike v. Monget, 4 Annual. Sayton v. McGill, 2 Ann. 196. Mills v. Fahey, 1849—not reported. Stockton v. Craddick, 4 Ann. 286.

The next inquiry is, whether these mortgagees, as is charged, knew when they took their mortgages that, although apparently held by Miss Oanonge, the property was, in truth, her brother’s?

It is obvious that, on this point, the burden is upon the plaintiffs.

As to the Citizens’ Bank, it appears that when Miss Oanonge applied to become a stockholder, which involved a mortgage to secure the stock and stock loans. her titles were submitted, in the usual course, to the attorneys and counsel of the Bank, and were approved. In addition to them report, the Bank was fortified in its confidence by the affidavit of Miss Ocmonge, according to the usual formula prescribed to applicants, that she “ was truly and ~bona fide owner of the property by her offered to be mortgaged to the Citizens’ Bank of Louisiana to secure the stock she had subscribed for in said institution.”

The parole evidence is entirely insufficient to affect the first mortgage given to the Citizens’ Bank, by establishing a knowledge of the simulated title of Miss Ganonge. In relation to the subsequent incumbrance in favor of that “Bank, it is proper to enter into a more detailed notice of the evidence.

J. M Ganonge deposed as follows: “When I found it impossible to meet my engagements with the several institutions mentioned in the petition of Armancl and Alfred, Herder, I wrote to them in order to obtain some indulgence, and by turning to my letters, which must be in existence, it will be seen, if my memory serves me well—I believe it does—that I offered to give them mortgages upon the property placed in the name of my sister, and I actually informed them that the property was mine.”

To rebut this testimony, as may be reasonably inferred, the defendants offered in evidence, at the trial before the Judge of the Third District Court of New Orleans, the letters of Ganonge to the Banks. It is not asserted by the counsel for the plaintiffs that these letters revealed the true condition of the property ; and the recollection of Ganonge, who does not profess to speak positively, is probably inaccurate. That they did not, is asserted by the counsel for the Bank, and at present, for the purposes of argument, we will assume that they did not.

Erom the other testimony in the cause, it appears that two Directors of the Citizens’ Bank were aware, at the period, at least, of some of the mortgage transactions with that Bank, that Miss Ganonge held property for her brother. But, on the other hand, it is proved affirmatively that others of the Directors were ignorant of it, and that the subject was never brought before the Board. The Board consisted of — Directors, and there is no evidence that the two Directors above referred to were specially charged with the business of these mortgages, or had authority in the affairs of the Bank, other than that which pertained to them nirtute officii under the charter. It would be a doctrine fraught with the most dangerous consequences to stockholders, and inconsistent with the theory of corporations, to say that the private knowledge of those two Directors, (not clothed with any special authority in the premises, and constituting a small minority of the whole number,) which knowledge was undisclosed to the Board, should destroy the rights of the corporation. This would be attributing to such minority a power to do indirectly, what directly they would be incompetent to do. See the Louisiana State Bank v. Senecal, 13 La. Rep. 525. Commercial Bank v. Cunningham, 21 Pick., 216. National Bank v. Norton, 1 Hill, 578. Ex-parte Walkins, 2 Montegut, 348, Cited in Angel & Ames on Corp., chap. ix. p. 301.

With regard to the Union Bank, it is in eviueuce, mar two oi its ¿/¡rectors were aware that the property standing in Hiss Ganonge’s name belonged to her brother. One of them states that he is unable to say whether he derived this information from a conversation with Ganonge, or from a letter written by him to the Bank; but that it was from one or other of those sources. This letter, addressed by Ganonge to the Bank, was offered in evidence by the defendants. It contains no suggestion that the property, which he states that his sister will mortgage to secure his liability to the Bank, belongs to himself; and we must, therefore, conclude that the Director derived his information from a personal conversation with Ganonge, which, it is not shown, was communicated to the Board, or to his associates. The other Director was the person who made the conveyance to Miss Ganonge, some years before, at the request of her brother, for whom he had previously held the title. The corporation is not, in our opinion, affected by the knowledge of these two Directors, who do not appear to have had any special authority in the matter. The same opinion, a fortiori, applies to the knowledge of the Notary before whom the act, or mortgage, was executed, and who was a mere ministerial officer, employed to clothe in notarial form the'contract between the corporation and the other parties.

After a tareful consideration of the testimony and documentary evidence in this cause, we are of opinion that the mortgagee dealt with Miss Ganonge upon the faith of the apparent titles, and without direct or constructive notice of the simulation of those titles; and that, as innocent third persons, who have given a valuable consideration, they are to be preferred to the minors. The latter must look for their indemnity to their tutor, and to his official surety.

It is proper, here, to observe that some of the letters of Ganonge to the Citizens’ Bank, which were oiferred in evidence by the Bank, have been mislaid since the trial. It is asserted by the counsel of the Bank that these letters did not disclose the fact that Ganonge was the real owner of the property mortgaged, and we do not understand the counsel of the plaintiffs as asserting the contrary. Under all the circumstances of the case, and there having been no application to have the cause remanded, in order to supply the loss of these letters by evidence of their contents, we have assumed that they did not disclose the real ownership. If the plaintiffs’ counsel had differed with the counsel of the defendants in his recollection of the contents of the letters, we should have considered it a sufficient cause for remanding; and, if there be any difference of recollection now, we should be disposed still to consider it, on an application for rehearing, accompanied by a representation of counsel to that effect.

It is, therefore, decreed that so much of the judgment of the Court below, as in any wise affects the said Citizens’ Bank of Louisiana and the said Union Bank of Louisiana, be reversed, and that there be judgment in favor of the said Citizens’ Bank of Louisiana and the said Union Bank of Louisiana, and against the said plaintiffs, the costs, in both Courts, of the proceeding against said Banks to be paid by the said plaintiffs.

Dunbak, J., concurred in the opinion delivered by Slidell, J.

Rost, J.,

(dissenting.) It is true that the petition and answers present all the issues of a revocatory action, and it is in that aspect that the case has been almost exclusively argued in behalf ef the appellants. The authorities cited by their counsel from the French commentators have exclusive reference to the Aetio Folliana, and the cases of Thomas v. Meade, and Foster v. Foster, were, also, revocatory actions. Toullier, vol. 8, Nos. 50, 57, 146. Chardon, de la Fraude, p. 129 to 132. Duranton, 10, Nos. 581, 582,583. Tolon, Théorie, &c., vol. 2, Nos. 183 to 172. 8 N. S. 341. 11 L. R. 401.

The rule to be deduced from those authorities is, that if a suit be brought to set aside a conveyance obtained by fraud, or made in fraud of creditors, and the fraud be proved, the conveyance will bo set aside between the parties. But the rights of third persons, acquired in good faith on the property after the date of the fraudulent conveyance, will not be disregarded. This principle will never be departed from, and if the mortgages in this case were taken in good faith and for a valuable consideration, it is clear they could not be set aside in a revocatory action. I do not doom it necessary to go at large into the question of good faith, as if there was bad faith. I incline to the opinion of the District Judge, that the action would be barred by the prescription of one year, under Art. 1982, 0. 0. Injustice to the defendants, however, it is proper to state that the evidence does dot justify the imputation of an intention on then- part to commit a fraud. against the plaintiffs. The knowledge of the Notary and of some of the Directors of the Union Bank, is not the knowledge of the corporation, and although it seems conceded that the Citizens’ Bank was aware of the real ownership of the property when they took the last mortgage, it is nowhere shown that they wore aware at the time, of the claim of the plaintiffs, or even of the fact that Ganonge was their tutor.

But, as well observed by the District Judge, there is another light in which the claim of the plaintiffs is set forth. They claim a legal mortgage upon this property on the ground that it was, in reality, owned by their tutor while they were under his guardianship. It is not necessary, under this view of the action, that the subsequent mortgages be revoked. It is sufficient to establish the existence and priority of their own.

To arrive at a correct solution of the important question thus presented, I will first examine what the rights of the plaintiffs were, in relation to that property after Miss Ganonge purchased it, and before she gave a mortgage upon it to the appellants. Art. 3280, 0. 0., provides that minors have a legal mortgage on the property of their tutor from the day of his appointment, as a surety for his administration. The appellants’ counsel urge, that this article only includes the property standing in the name of the tutor on the public records. Under this interpretation, property acquired by inheritance, or by prescription, and held without title, would never be affected by legal mortgages. There is nothing in the Article of the Code to authorise such a limitation. It is general in its terms, and embraces all the property, tous les Mens, which can be shown to belong to the tutor.

The evidence placed the fact beyond all doubt, and it was admitted in argument, that the property in dispute was purchased and paid for bj Judge Ganonge, and that it belonged to him. I fully believe that the title was not thus taken with any' fraudulent intent; but Judge Ganonge himself has stated that his object was to keep the property from the minors’ mortgage, and it is elementary that he could not do indirectly what he could not have done directly. So long as no right in the property, adverse to that of the plaintiffs, had been created, they had nothing to do but to remove the shadow cast upon the title, and their legal mortgage would affect the property by operation of law. The property would, in that case, have returned to Ganonge free from the ordinary debts of his sister, and in a contest with his creditors the plaintiffs would have been entitled to be paid by preference, according to the date of their legal mortgage.

Let us now proceed one step farther, and ascertain whether the legal mortgage does not also affect the property to the prejudice of the appellants. It is said, in their behalf, that they acted with due diligence in their dealings with Miss Ganonge, and that as they had, and in the nature of things could have no notice of the legal mortgage of the plaintiffs, it cannot be exercised to their prejudice.

If this was one of the mortgages for which the law requires publicity, the argument would be unanswerable. The mortgage would unquestionably have lost its rank for want of inscription. But the legal mortgages which the law gives to minors are not thus affected by non-inscription. No publicity is required as to them, and I can make no distinction between this case and another very similar to it, which naturally suggests itself to the mind. Suppose that notes belonging to the minors had been placed by the tutor in the hands of his sister for collection, and that after collecting them she had invested the proceeds in houses and lots. This would have been such an interference in the administration of the minors’ property, as would have created a legal mortgage on all the property of Miss Ganonge under Art. 3183 0. 0. The origin of the funds used in those purchases would have been, between the purchaser and her brother, a family secret, impossible to discover. The record of mortgages would have shown no lien upon her property, and in subscribing for stock of the Citizens’ Bank she might have sworn, with perfect truth, that she was the owner of the property, and also that she never had been tutrix of minors. The Bank must, therefore, in that case also have been satisfied with her title, and yet the legal mortgage of the plaintiffs would remain in full force, and take precedence of all others. Ward v. Brandt et ad., 11 Martin 331. Nolte & Co. v. their Creditors, 8 N. S. 367. Art. 3283 C. C.

If there be any difference between the two cases, the case put would be harder than the present upon the defendants.

It should not be lost sight of, that there are cases in which the registry laws themselves are inadequate to the protection of innocent third persons, even where registry is required. It is so, for instance, in cases of resolution of sales for the non-payment of the price. The property returns to the vendor free from all incumbrances which affected it in the name of the purchaser, either by convention, or by operation, of law, and it is no defence for a subsequent mortgagee that he had no notice of the right of the vendor to claim the resolution of the contract. Chrétien v. Richardson et al., 5th Annual.

It has been urged that part of the money borrowed by Miss Oanonge went to pay the price of the property mortgaged; but there is no satisfactory evidence of that fact.

The Royal street property, although purchased before the appointment of Judge Oanonge as tutor, belonged to him during the tutorship, and is, like the other, subject to the plaintiffs’ mortgage.

I am of opinion that justice has been done between the parties, and that the judgment ought to be affirmed.

         Mistis, 0.1., did not sit in this case,having an interest in the event, he being a stockholder of the Union Bank.