author: Taliaeebbo, J.

text:
    No. 3164.
    Lewis & Gist v. S. B. Daniels, Sheriff, et al.
    A motion ia made to dissolve the injunction in this case on the ground that there was no affidavit made, as required hy law. It appears that the order granting the injunction was rendered by the district judge. It apx»ears, also, that the affidavit was made on the same day and signed by the party making it, and that both the affidavit and the order were written on the petition, the affidavit immediately preceding the order. The words “sworn to and subscribed before me,” etc., are not followed by the signature of the judge. The order, which recites: “ The foregoing petition and affidavit being considered,” etc., is signed by the judge.
    Hold — That the non-appearance of the judge’s signature to the jurat was a more omission; that the signing of the order of injunction, which made special reference to the petition and affidavit, was one continuous act, and that the judge acted on the affidavit as having been made before him. 12 Bob. 132.
    .An injunction will not be set aside for informality or irregularity in issuing it, if it is manifest from the record that the plaintiff in injunction would be immediately entitled to another writ in case the one wliich had been granted, were dissolved. 12 An. 92; 18 An. Ill; 21 An. 324.
    APPEAL from the Seventh Judicial District, Parish of Pointe Coupée.

      Miller, J. Samuel J. JPowell, for plaintiffs and appellees.

      Colling <6 JLealce, for defendants and appellants.
   Taliaeebbo, J.

This is an injunction suit. Rudman, a judgment creditor of Lytle, seized under execution, as the property of Lytle, four hundred head of cattle, ten head of horses and a wagon. Lewis •& Gist enjoined the sale of the property, alleging themselves to be the owners of it, and specially denied that Lytle had any right or title to, ■or interest in, any of the property seized. The plaintiff had judgment, •and the defendant appealed.

The defendants moved to dissolve the injunction on two grounds: First, that there was no affidavit made as required by law; second, that the bond was insufficient. The objection to the affidavit is, that the jurat is not signed by an officer authorized to administer oaths. It ■appears that the order granting the injunction was rendered by the district judge of the proper district on the fourteenth of July, 1870. It appears, also, that the affidavit of one of the plaintiffs was made on the same day, and that both the affidavit and the order were written •on the petition, the affidavit immediately preceding the order. The words sworn to and subscribed before me,” etc.,, are not followed by the name of any official. The order is signed by the judge, and it recites that “the foregoing petition and affidavit considered, it is ■ordered,” etc. The affidavit is signed by Lewis, one of the plaintiffs in injunction. It is clear that the non-appearance of the judge’s signature to the jurat was a mere omission. Both the affidavit and the ■order have the same date, and we regard the whole as a continuous act. A case nearly identical with the present came before this court in 1845. The objection there was that the judge had not signed the jurat of the affidavit made to obtain an attachment. The order and the unfinished jurat bore the same date.' In that case Judge Bullard said: “ The order recites that the judge had read the petition and documents annexed. He therefore acted on it as an affidavit sworn to before himself, and in signing the order containing that expression, by the strongest implication, certified that it had been sworn to before himself.” See 12 Rob. 132. In that case the motion to dissolve was overruled, and we think the same ruling should be made in the present case.

A bill of exceptions was taken to the admission of the judge’s testimony invoked by the plaintiffs to explain the omission. The objection is, that as the motion was to dissolve on the face of the papers, no evidence was admissible except as to the question of damages. It is unnecessary to pass upon this objection, as we consider the validity of the affidavit sufficiently established without extrinsic evidence.

On the second ground, that the bond is insufficient, we are not satisfied that the objections to it are tenable, but it is manifest that the plaintiffs would be entitled to renew their injunction, if the present writ were dissolved. We deem it proper to follow in this case the well established usage and reject the motion. 18 An. Ill; 21 An. 324, and cases there cited.

On the Merits.'

iWe think the evidence establishes that Lytle was not a part owner of the property seized. He, it seems, superintended the driving of the .stock from Texas, where it was purchased, to the Mississippi river. near the mouth of Red river, whence it was the intention of the owners to send them by steamboat to Tennessee. In the character of manager or head drover, he had charge of the business of transporting the cattle and horses, and it is shown that on several occasions, not, however, in presence of the owners, he spoke of the stock as being his own. On one occasion, in New Orleans, some months previous to tho seizure, Lewis, in a casual conversation in presence of Lytle and others, remarked that he and Lytle had a stock farm in Tennessee, and that they wore then on tlieir way to Texas to purchase stock to carry there. It is shown, wo think satisfactorily, that Lytle’s interest in the adventure was contingent and remote, depending upon the ultimate net profits of the enterprise which contemplated the fattening and improving the animals for market after they reached Tennessee. ¡ The operation might finally turn out advantageous, or, in the event of losses and unforeseen casualties, it might prove abortive. There was not, when the seizure was made, any appreciable right or interest of Lytle in the stock that could make it the subject of seizure under execution.

We can not regard the loose declarations which are proved to have been made in respect to Lytle’s having any interest in the property as entitled to have serious consideration against the positive evidence to the contrary. We think the defendants, by seizing imprudently the property in question, have unfortunately, yet properly incurred the penalty in damages which has been adjudged against them.

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


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 3212.
    Zenon Areaux v. Valery L. Mayeux et als.
    If moro tlian five years have elapsed between the date of credits placed on. a note, the latter credit must bo shown to be in the handwriting of tho debtor in order that it may bo urged as an interruption of 'prescription. Evidence that it is in tho handwriting of tho creditor with the knowledge of the debtor, will not suffice to interrupt prescription. 21 An. 748.
    APPEAL from tho Seventh Judicial District, parish of Avoyelles.

      Miller, J. Edwards & Eueoté, for plaintiff and appellant.

      Waddill & EarUn and Irion Overton, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues on a promissory note, dated January 9, 1859, made payable one year after date. Several credits are indorsed on the note, the second on the ninth of January, .1862, the third and last on tho twenty-fourth of August, 1867, more than five years intervening. Suit was brought and citation acknowledged on the third February, 1870. Tho plea of prescription was made by the defendant, which being sustained by the court below and judgment rendered against the plaintiff, he has appealed.

It seems the indorsement of the last credit is in the handwriting of the plaintiff, who testified that “it was made with the knowledge and Consent of Valery J. Máyeux, one of the defendants, who promised to j)ay and offered to pay the balance of the note, but the witness, thinking the debt well secured, left it in the hands of the defendant,” etc. •

Prescription had accrued prior to the date of the credit last appearing on the note, and, the act of 1858 requiring a written promise of tho debtor to pay the debt in order to revive the obligation, we think the judgment correct.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs. 21 An. 740.


author: Wyly, J.

text:
    No. 3153.
    Bertrand Drogre v. Charles Moreau and Wife.
    In a proceeding under the act of thirtieth of April, 1833, to revive a.judgment, the question whether the judgment was rendered on insufficient evidence, can not he inquired into.
    APPEAL from the Seventh District Court, parish of Avoyelles.

      Miller, J. Irion & Overion, for plaintiff and appellee.

      Waddill & JBurbin, for defendants and appellants.
   Wyly, J.

This is a proceeding to revive a judgment under tho act of the thirtieth of April, 1853. It was before this court in September, 1869, at Opelousas, and was remanded because the record did not contain satisfactory evidence of the existence of the judgment and tho ■ownership thereof by the plaintiff. See 21 An. 630.

The court at the trial on the rehearing gave judgment for the plaintiff, and the defendant, Mrs. Moreau, has appealed. Proper evidence •of tho existence of the judgment sought to be revived and of tho assignment thereof to the plaintiff seems to have been adduced, and wo think the judgment of the court below, ordering tho revival of the judgment, is correct.

Tlie defense urged by the appellant is no ground to resist the revival of the judgment. The act of 1853 is a statute, fixing the prescription of judgments at ten years and providing the proper mode of averting the said prescription. It is not a statute authorizing a proceeding to annul a judgment on the ground that it was rendered on insufficient evidence.

Whether the judgment sought to be revived was rendered on insufficient evidence or not, is a question foreign to the issue in this case.

We think the plaintiff has complied with the statute prescribing the mode of reviving judgments, and the grounds taken by the appellant are unworthy of serious consideratiou. Let the judgment be affirmed with costs.


text:
    No. 3214.
    Succession of Melissa Robinson, Deceased.—On Opposition to Administrator’s Account.
    The revenues of property which belongs to the husband, situated in Mississippi, who resides-in Louisiana, do not belong to, or form a part of, the community. Therefore the husband who administers on the estate of his deceased wife, is not required to account to the heirs for the revenues derived from property thus situated during the marriage.
    APPEAL from the Parish Court, parish of East Feliciana.

      Boedielcer, Parish Judge. Gross & Hardee and Race, Foster & F. T. Merriek,. for administrator, appellant.

      Kernan <& Lyons, for opponents and appellees.
   Taliaferro, J.

The administrator of the estate of Melissa Robinson, deceased, having filed his final account of administration, one of the heirs of the deceased presented an opposition, in wMcn he charges, that the administrator has failed to account for several items of property which had belonged to the succession, and for moneys received from various sources on account of the estate. The opposition takes-a wide range, embracing much the greater part of the account. It was sustained as to a portion of the several pieces of property specified, as unaccounted for, and also in respect to several sums of money, alleged to be proceeds of property of the estate and not set down upon the account. The deficiencies complained of were estimated to-amount to $5930, which sum the administrator was adjudged to charge himself with, in addition to the amount with which he charged himself *n the account.

From this judgment the administrator has appealed.

The contest in this court is limited to the following items: Ons wagon, $25; two niules, $180; proceeds of cotton on hand, $5000; one carriage, $200.

It appears that the administrator, who is the surviving husband of the deceased, who died at Jackson, Louisiana, in the year 1863, removed to that place in the year' 1851 from the State of Mississippi, where he owned a plantation which he continued to cultivate and derive revenue from after his removal to Jackson. It is shown that he had a large business to attend to in Mississippi besides that of his plantation there; that Ms purpose in making Ms residence at Jackson was to avail himself of the benefit of the schools at that place, having-children of his own by a former marriage and those of his wife by a former husband to educate; that it was the custom of the family annually to return to Mississippi to spend the school vacations. It does not appear that the administrator carried on business to any great extent in Louisiana. He, however, acquired some property in the State. This, of course, was community property, and the property he administered was community property. But the evidence-does not establish the property which the administrator is ordered. to account for, except the carriage, was community property. The cotton, the proceeds of which he is required to charge himself with, was produced on his own plantation in Mississippi. It is proved that the wagon and the two mules also came from that plantation, where they properly belonged, the wagon being used frequently at .Jackson, as occasion required, and then sent back to the plantation. The mules, it is established, were paid for by the administrator after the death of his wife and out of his own funds. The family carriage was purchased in 1856, and, after being much used, he gave it in payment of a debt of his own in 1863. The $200, proceeds of the carriage, should be charged against him.

It is therefore ordered, adjudged and decreed that as relates to the value of the wagon and mules, estimated at $205 and the proceeds of cotton, $5000, the opposition be overruled and rejected; but sustained as to $200, alleged value of the carriage. It is further ordered that that sum be charged on the administrator’s account against him, in addition to the amounts with which he has charged himself, and that the account, as thus amended, bo approved and homologated.


author: Wtlt, J.

text:
    No. 3142.
    Peter Anderson v. Carroll, Hoy & Co.
    Real property in possession of a party, under a recorded title translative of property, cam not Re seized Ry a judgment creditor of tRe former owner, unless it Re shown that the sale was simulated. The question, whether the judgment under which the sale was-made, is nidi Recause it was revived on insufficient evidence, and whether the sale is nidi Recause the sheriff failed to observe all the forms of law in making the seizure, etc., can not Re inquired into, collaterally, Ry a judgment creditor, who has caused the property to Re seized without any reference to the sale. Such questions can only Re examined in a direct action brought to annul the judgment or the sale made under it.
    APPEAL from the Ninth District Court, parish of Rapides.

      Osborn, J., Thomas O. Manning, for plaintiff and appellee.

      2i. A. Hunter and B. J. Bowman, for defendants and appellants.
   Wtlt, J.

The plaintiff enjoined the sale of a plantation in the parish of Rapides, seized by the defendants as the property of their judgment debtor, Mrs. Eliza Seip, on the ground that the same belonged to him, having been purchased several months previous, under the judgment of A. J. Dennistoun & Co. v. Eliza Seip, which said judgment the plaintiff avers is superior in rank to that which the defendants are attempting to execute.

The answer is the general denial; the allegation, that the sale to the-plaintiff was a simulation; and also that its nullity should be declared for the following causes, to wit:

First — Because the sheriff never made an actual seizure by taking, possession of the property.

Second — Because tlie pretended bid of tlie plaintiff was made for him by tho sheriff as his agent at the sale.

Third — Because the judgment of the defendants is based on a special mortgage, superior in rank to that under which tlie plaintiff purchased, the bid bjr the latter being less than the amount of this special mortgage.

Fourth — Because the judicial mortgage of A. J. Deunistoun & Co. was not properly rcinscribed and the judgment was revived under the act of 1853 on insufficient evidence.

The court perpetuated the injunction and the defendants have appealed.

The evidence shows that tho plaintiff was in possession under a recorded title and there was no simulation as charged; that he purchased under a judgment and mortgage ostensibly valid and superior in rank to that of the defendants. Such a title can not be treated as an absolute nullity; it can not be attacked collaterally. Actual contracts, even though made in fraud of the rights of creditors, can not be annulled, except by a direct action.

Whether the mortgage under which tho plaintiff purchased, was properly reinscribed, or whether tho judgment was revived upon insufficient evidence or not, are questions that can not be inquired into in this form of attack.

The defendants must proceed by a direct action, if they wish the grounds of nullity set up by them to be inquired into.

Let the judgment of the court below be affirmed with costs.


author: Ludelino, C. J.

text:
    No. 3189.
    D. G. Walker v. Succession of D. C. Hays—E. B. Towne, Public Administrator.
    A judgment becomes final from the, date <■< {.ho signature of the judge a quo, and if ten years are allowed 1o elapse from the date of such signature before citation of revival is served on the defendant, it is prescribed. Tho delay caused by a suspensive appeal will not be counted in favor of tho judgment creditor in defeat tho plea of proscription.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Hough, J. J. 0. Seale, for plaintiff and appellant.

      F. 1). Farrar, for defendant and appellee.
   Ludelino, C. J.

D. G. Walker obtained a judgment in the district court of Madison parish tor $1375 against D. C. Hays on the twenty-ninth day of October, 1859. Hays took a suspensive appeal from this judgment and on the seventeenth of December, i860, the Supremo Court affirmed the judgment.

Proceedings wore begun to revive the judgment, and citation was issued on tho fourteenth of November, 1870. Tho defendant pleaded the prescription of ten years, which was sustained by the court a qua.

Tlie only difference between this case and the case of Arrowsmith v. Durell, Pontalba subrogated, reported in 21 An. 295, is that a suspensive appeal was taken in this case, whereas a devolutive appeal had been taken in the case decided. We can not perceive how tha1! difference can affect the prescription of the judgment.

“The rendition of the judgment” is the' signing thereof by the judge; at least that act fixes the date of the judgment and the period from which prescription begins to run. C. P. 545, 546, 547 and 555.

The act of 1853, page 250, is clear and emphatic': “ Hereafter all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten .years from the rendition of the judgment.” 21 An. 295.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed, with costs of appeal.


author: Ludeling, C. J.

text:
    No. 2206.
    Jules Tuyes v. Avegno & Willoz.
    •Julos Tuyos and Avegno & Willoz, brokers, purchased on joint account three hundred shares of the stock of the Commercial Waterworks Company for the aggregate sum of $20,625. Kor the payment of this amount Avegno & Willoz paid $625 in- cash and Tuyes executed his notes for the balance, $20,000, on time, and gave as collateral security the three hundred shares of stock. The stock, subsequently and before the notes wore paid, depreciated in valuó. The notes, with the collaterals, wore held respectively by the Bank of America, tho Merchants Mutual Insurance Company and the Mutual Insurance Company. The collaterals having depreciated in value, the holders called on the maker of the notes for a margin, which was for a part payment. The maker failed to pay and the shares of stock were sold according to law by the pledgees. At this sale the stock failed to bring tho amount of tho notes by a deficit of $9029 80.
    Held — That, tho maker of the t notes having purchased the stock on joint account with Avegno & Willoz, brokers, and having paid the notes or become liable for their payment, they, the brokers, were liable to him for the one-half of the loss resulting from the sale of tho stock by the pledgees, less tho amount of the cash which they paid in at the time of the purchase.
    APPEAL from the Seventli District Court, parish of Orleans.

      Collens, J. Oyprien JDufour, for plaintiff and appellee.

      W. H. Hunt, for defendants and appellants.
   Ludeling, C. J.

On the eighth of April, 1867, Avegno & Willoz, brokers, purchased, on joint account with the plaintiff, three hundred -shares of the Commercial Waterworks Company, at $68 75 per share,,, amounting in the aggregate to $20,625. For the payment of these shares, Avegno & Willoz advanced $625 and the plaintiff, in accordance with the agreement of the parties, executed three promissory notes, one in favor of the Bank of America for $6000, one in iavor of the Merchants’ Mutual Insurance Company for $7000 and one in favor of .the New Orleans Mutual Insurance Company for $7000, all. bearing eight per cent, per annum interest; and as collateral security for the payment of the notes, the three hundred shares of the Commercial Waterworks Company were given to the bank and insurance companies respectively.

Ceveral months after the maturity of the notes and after the notes, nad been renewed several times by the plaintiff, tbe pledgees notified the pledgor tüat, the stocks pledged having depreciated in the market, they would require a margin, that is, the payment of a part of the notes, and failing to do this the three hundred shares of the Commercial Waterworks Company were sold according to law to satisfy the notes held by the pledgees. Tbe loss incurred by tbe parties in this venture was $9029 80, one-half of which must be borne by the defendants. The whole amount was paid by the plaintiff and he claimed from his partners their proportion, less the sum advanced by them. This he is clearly entitled to recover. C. C. 2865 [2836]; Pothier, Contrat de Sociétó, c. 1, sec. 4.

It is therefore ordered that the judgment of the court a qua be affirmed, with costs of appeal.


text:
    No. 3131.
    Tutorship of the Minor, Mary C. Osborn.
    If the appellee bo cited in bis individual capacity, when be occupies only a representative-capacity in tbe suit, tbe fault is imputable to tbe appellant, and tbe appeal will be dis* missed on motion.
    APPEAL from the Parish Court, parish of Rapides.

      Barlow, Parish. Judge. William A. Seay, for appellant.

      M. S. Bosee, for appellee.
   Wyly, J.

The motion to dismiss this appeal must prevail, theappellee having been cited in his individual capacity, when the record shows that he occupies a representative capacity only, and the fault being attributable to the appellant, who only asked that he be cited in> his personal capacity in the petition for appeal. 20 An. 35.

It is therefore ordered that the appeal herein be dismissed at the-cost of the appellant.


author: Howe, J.

text:
    No. 2208.
    Michael Carvin v. Philip Drumm et als.
    Plaintiff took a rule on defendant to cancel a note and erase a mortgage given to secure its-payment. Tbe defendant set up a reconventional demand for money wbicb bo was forced to pay as garnishee in a suit against tbe plaintiff in rule.. To tbis form of proceeding no exception was taken.
    Held — That the plaintiff could only be condemned to pay tbe amount on tho reconventional demand wbicb tbe defendant was obliged to pay as garnishee.
    APPEAL from the Seventh District Court, parish of Orleans..

      Collins, J. JE. W. Huntington, for plaintiff and appellant.

      Cotton & Levy, for defendant and appellee.
   Howe, J.

The plaintiff took a rule on the defendant and the-Recorder of Mortgages to have a note and mortgage held by defendant. Drumm, canceled.

The defendant, Drumm, in his answer set up a reconventional demand. No exception was made to the form of action.

The court below decided in favor of the demand of the plaintiff for the cancellation of the note and mortgage, and in favor of defendant, Drumm, on the reconventional demand, to the extent of $2000, for which j udgment was given against plaintiff. The plaintiff has appealed.

The principal item of the defendant’s claim is for money he was forced to pay as garnishee in case of Mrs. Caroline Carvin v. Michael Carvin, plaintiff at bar. We think the amount should be reduced to $1816, being the sum that defendant was actually obliged to pay, and that it should bear interest by way of arrearage, from October 27,1864.

It is therefore ordered that the judgment appealed from be amended in favor of plaintiff, by reducing the amount of the money judgment against him to $1816, with interest from October 27., 1864; that in all other respects the said judgment be affirmed, and that the defendant, appellee, pay costs of appeal.


text:
    No. 3216.
    Emily C. Hopgood and Husband v. Penelope A. Dawson, etc.
    The failure to cite a party in lier proper capacity in a suit to revive a judgment will render void the judgment of revival. Therefore, if it be shown that tho judgment of .revival is null because no proper and legal citation was served on the defendant), the heirs who have appeared in tho suit by way of intervention, may plead that it is prescribed because it has not been revived.
    APPEAL from the Fifth District Court, parish of East Feliciana.

      Posey, J. Cross & Hardee, for plaintiff and appellant.

      Charles He Yea, for defendant and appellee.
   Howe, J.

I® this case two actions were consolidated in the court below; the one begun in 1869 to enforce against the defendant in her own right and as tutrix the payment of a judgment against her deceased husband. W. W. Dawson, rendered on the twenty-second November, 1860; the other to revive the said judgment as against the succession of W. W. Dawson. The petition to revive was filed on the twelfth September, 1870, and the prayer asked for the citation, of the defendant in her capacity of administratrix, and not otherwise. The citation was issued, addressed to her “personally and as tutrix,” and was served September 21, 1870. Mrs. Wildblood and Mrs. Wicker intervened on the nineteenth January, 1871, alleging themselves to be major heirs of W. W. Dawson, and made the plea of prescription of ten years. On the twenty-seventh January, 1871, the defendant coming in. as administratrix, and for this purpose only, made what was called a “motion to strike out a default,” upon the ground that there had been no proper citation against her as administratrix. On the same day the cause was tried, and judgment was thereafter rendered against plaintiff and in favor of defendant on the ground, that “the judgment on winch, the suits are based, had not been revived in accordance with law and for want of proper citation.” The plaintiff appealed. The defendant, personally and as tutrix, has filed in this court the same plea of prescription of ten years made by the intervenors in the Court below.

The plea of prescription is well taken. The judgment was prescribed November 22, 1870, and was not revived by citation to the “defendant” in the judgment “or his representative,” as required by law. R. S. 2813. The citation served on Mrs. P. A. Dawson, personally and as tutrix, was not a citation to W. W. Dawson “or Lis representative.”

Judgment affirmed


text:
    No. 2184.
    Enoch J. Barksdull, for the use of his minor child Charles Ranson Barksdull, v. The New Orleans and Carrollton Railroad Company.
    A street railroad company is responsible in damages if, through, the negligence or carelessness of the driver of the street car, a boy is run over and injured. The measure of the damages in such cases is to be determined by the extent of the injury dono. If the finding of the jury is supported by the evidence in the record both as to the fact of the infliction of the injury through the carelessness and negligence of the driver of the car and the extent of the injury done, their verdict fixing the amount for which the company is liable, will not bo disturbed on appeal*
    If tbe evidence shows that the boy wbo was run over by the car, was physically and mentally able to take care of himself on the street, and that he was in the habit of traveling tbe public streets alone, the driver of the car or the company owning the road will not be permitted to set up in defense to the action for damages, that tlio accident occurred’ through the negligence or want of consideration in the father in allowing the child to go on the streets alone, nor will the fact that the child tailed to got out of the way be allowed to weigh in favor of the company in. mitigation of damages, if the evidence shows, as in this case, that the driver was driving the car at the time of the accident at an unusual, if not an unlawful, rate of speed. But in such case the company will bo held liable to the full extent of tbe damages caused by the injuries which the boy has sustained.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Gibson c6 Austin, liufns Wciples and IF. S. Sunt, for plaintiff and appellee.

      L. S. Simonds, for defendant and appellant;
    This case was tried by a jury in the court below.
   Taliaferro, J.

This is an action brought by a father for the use of his minor child against the defendants to recover damages for alleged injuries of a most serious character inflicted upon the child, a hoy of about the age of five years and a half, through the gross and culpable carelessness and negligence of a car driver, an agent and employe of the company, by which negligence the child was run over by one of their street cars and horribly mangled, having both his legs crushed, making it necessary to amputate “both, one above the knee, thus rendering him a hopeless cripple for life. The plaintiff prays damages to the amount of fifty thousand dollars.

The answer is a general denial. The defendants specially deny the culpable negligence charged and say they are not liable in damages to the plaintiff.

The case in the lower court was before a jury which gave a verdict of fifteen thousand dollars as damages, and from the judgment, responsive to the verdict, the defendants have appealed.

We gather from the evidence that the deplorable accident happened on the nineteenth of June, 18C6, at the intersection of St. Charles and St. Mary streets in the city of New Orleans. There is much difference in the statements of witnesses as to the precise spot where the car ran over the child. Not long before the accident he was seen sitting on the end of one of the cross-ties which projected several feet beyond the car track and partly over the ditch on the right hand side of St. Charles street in coming down from Carrollton. The distance between the centre of this tie and the upper crossing of St. Mary street is shown to he six feet. But the inquiry regarding the locus in quo is satisfied by the concurrence of the witnesses in relation to where the child was lying after the car passed over him. He was found lying in St. Mary street near the upper crossing of that street over St. Charles street, which crossing is the first passed over at St. Mary street by cars coming down from the direction of Carrollton. The testimony of the newsboy, Confort, who was the first upon the spot after the accident and who took uj) the child, is very clear and distinct on this subject. He says: “Just as soon as he was run over I ran to him. There was nobody else with him. He was in the middle of the track on St. Mary street. He was lying where he was run over, lying in the same place.” It is-in proof that at the time of the occurrence two horse cars and a train, of steam cars were coming down St. Charles street and were near each other. One of the witnesses says the horse cars were racing, and four of the witnesses at least say that the car which ran over the boy was moving rapidly. One of them states that “the driver was whipping his mule;” “on this occasion the mule was put to his best.” An other-says: “He was whipping the mule very fast; the mule was in a gallop; both horses were in a gallop in the other car.” A third witness says: “-I do know the two cars were running, Mr. Burke (the name of the driver implicated) and another car; it was one of those-long cars.” A fourth said: “-The mule was going pretty fast because the driver could not stop it; he would not stop it altogether, hut he was going to stop it some; I knew he was behind time because ho had plenty of passengers.” The driver himself on the stand said: “I put on the brakes and the harder I put on the brakes tlie harder the mule pulled; the brake did not have the desired effect on the car or account of having so many passengers; if it was not for that, I might have stopped the car before the child was run over.” In answer to the question: “ How many passengers had. you ? ” he replied: “ Seventeen or eighteen, perhaps twenty, I can not exactly say; I had four on the platform, the two sides were full and they were standing up inside.”

The testimony establishes clearly that the car was going at a greater speed than usual and greater, we infer, than that permitted by the city •ordinances, for we ñnd that the steam cars were not allowed within the city limits to run at a faster rate than four miles per hour. One of the witnesses thought that the car, as it passed him between Jackson and St. Andrew streets, “was going at the rate of eight miles an hour.” The mule it seems was not a safe and properly trained animal for the business. The driver stated that the steam cars passed him about half a square back from where the accident happened; that he saw the mule begin to shy and become excited on seeing the steam train, and it was then he put on the brakes but ineffectually.

There are two bills of exceptions in the record to the charge given by the judge to the jury on the trial of the case in the lower court. It is not necessary in determining this case to pass upon them specially. They relate to the rules in regard to what is termed contributory negligence. These rules have no application to the facts shown in this case. It is proved that the boy who was overtaken by this terrible •disaster, is a child of more than ordinary activity and intelligence; that he was capable of taking care of himself; that his parents frequently sent him about on errands and on several occasions to get things at the Magazine Market, many squares off from the place of their residence. There is no question that he was run over while endeavoring to cross St. Charles street on the upper crossing of St. Mary street. He had a right to be on the streets, and it was no carelessness in his father to permit him to be upon them.

On the other hand the evidence does show on the part of the driver, if not a malicious carelessness, at least a negligence and want of care highly culpable in a man whose duties require him to be constantly on the alert and to exercise judgment and caution in the performance of those duties. Apart from its responsibilities for the acts of its .agents, we are not prepared to say that the company may not have been remotely at fault in the matter of supervision over the manner in which their business was conducted. The developments of this case, we will further remark, present in our opinion matter of grave consideration for iho law maker and which should suggest to him things dignas lege regí.

The judgment of !hc lower court, we think, was properly rendered, and it is therefore affirmed.


author: Howell, J.

text:
    No. 2059.
    J. D. Thompson, Liquidator v. D. Edwards.
    If the tender of the amount admitted to be due be not made by the debtor in the manner provided in article 407 of the Code of Practice and the creditor brings suit, the debtor must be condemned to pay the costs.
    APPEAL from the Fourth District Court, parish of Orleans.

      lheard, J. Bentwielc Egan, for plaintiffs and appellants.

      M. Grivot, for defendant and appellee.
   Howell, J.

The only error we find in the judgment appealed from is in making the plaintiff pay costs in the lower court. The suit is for the balance due on a contract for constructing a boiler and extra work in altering it. The defendant admitted the balance due on the contract, but did not make a legal tender thereof in accordance with the provisions of article 407, C. P., and hence he must pay the costs.

On the question of the extra work, the evidence, in our opinion, sustains the conclusion of the judge a quo.

It is therefore ordered that the judgment appealed from be so ■amended as to condemn the defendant to pay costs of the lower court, and, as thus amended, it be affirmed. Defendant and appellee to pay costs of appeal.


text:
    No. 2032.
    Irby, McDaniel & Co. v. J. E. Fore & Co.—P. Hambleton et als., third opponents. Hancock & Co. v. J. E. Fore & Co.—P. Hambleton et als., third opponents.
    If more than ton (lays aro allowed to elapso before application is made for an appeal, the judgment of tbe court below, if rendered in tlie parish of Orleans, becomes executory, .and a‘devolutive appeal only can betaken there after. In such a case a motion made, .after the lapse of ten days from the signing of the judgment, to quash the execution in the case, on the ground that the bond given for the appeal is sufficient in amount for a .suspensive appeal, will be dismissed, because a suspensive appeal will not lie after ten days from the signing of the judgment.
    APPEAL from, the Fifth District Court, parish of Orleans.

      Beaumont, J. Says & Hew, for plain tiffs and appellants.

      John M. Bonner, for third opponents, appellees.
   Howell, J.

Two appeals are taken in these proceedings, one by the plaintiffs from a judgment in favor of the third opponents, awarding to them the proceeds of the cotton which plaintiffs sought to .attach as the property of the defendants.

There is no error in the said judgment. The evidence shows the cotton to have belonged to the third opponents and not to the defendants.

The second appeal is taken by the third opponents from a judgment on a rule to quash the execution issued by them on their judgment against the plaintiffs. The rule was based on the ground that the appeal bond was sufficient in amount to operate as a suspensive appeal. It appears, however, that the appeal was applied for after the lapse of ten days following the signing of the judgment which thereby became executory.

It is therefore ordered that the judgment in favor of Peter Harnbleton and others, rendered on the second November, 1868, and signed on the second December, 1868, be affirmed, and that the judgment rendered on the fifth and signed on the twelfth January, 1869, quashing vhe fieri facias issued herein, be reversed and the rule to quash taken by plaintiffs be dismissed with costs in both courts


text:
    No. 3168.
    Warren & Crawford v. Ann E. Childress, Tutrix.
    The acknowledgment (by the executor) of the correctness of notes, held by a creditor of the succession, need not be made on tlie notes themselves but may be made on a separate piece of paper.
    Suck acknowledgment, to work an interruption of prescription, must in all cases bo made in, writing.
    APPEAL from the Seventh District Court, parish of Avoyelles.
    Miller, J. Irion c& Overton, for plaintiffs and appellees.

      Waddill' <& Harbin, and 8. H. Thorpe, for defendant and appellant.
   Howell, J.

The only question for decision in this case is whether an interruption of prescription is proven. Plaintiffs offered the follow-lowing document to show the interruption:

“Big Bend, Louisiana, October 11, 1866.

Hessrs. Warren & Crawford, How Orleans:

Gentlemen — I hereby obligate and bind myself to furnish you the first mortgage note, when my place is sold, for the sum of five thousand dollars, being for the payment of the indebtedness of my late husband, W. B. Marshall, to your house. If the property is sold on time, the notes will draw eight per cent, interest from the date of sale or the execution of the notes. ANN E. MARSHALL.”

On this document was a memorandum at tiie time it was signed, showing the said indebtedness to consist of three notes, corresponding-with those in suit, and an account, the amount of each being specified. To its introduction the defendant objected on the grounds that it was at variance with the obligations in plaintiffs’ petition; that it was offered and accepted by the parties to it as a compromise; that it was a personal obligation binding on Mrs. Marshall only and in nowise affecting the succession of her husband, and can not be used to bind the succession or interrupt prescription running in its favor. The judge overruled the objections for the reason that Mrs. Marshall was i»t the time administering the succession as tutrix, and the document was admitted to prove that plaintiffs had presented their claim and obtained its acknowledgment before prescription accrued. We think the ruling correct. The document contained a direct acknowledgment of the debt of the succession, and was not offered to fix any personal liability upon the defendant. In the case of the succession of Yarborough it was held not to be essential that such acknowledgment should be upon the evidence of the claim or a paper annexed to it, provided it be.in writing.

The judge sustained the plea as to the open account and overruled it as to the notes, and gave judgment for the latter. In this there is no error.

Judgment affirmed.


text:
    No. 3145.
    Lehman, Newgass & Co. v. Mrs. E. E. Barrow and Husband.
    A written agreement by which the wife separated in property from her husband is to become the purchaser of property seized under judgments against her husband and to execute her notes to the respective judgment creditors for the amounts due, is admissible in evidence on the trial of a suit to enforce payment of the notes or note thus given by the wife. Parol evidence is also admissible to show the circumstances and manner of completing the agreement, as set forth in the written instrument.
    The wife, separated in property from her husband, has the right to become the purchaser of his property under seizure at a price sufficient to cover the judgment against him, and the note given by her, with the authorization of her husband to sign it, in payment for the price, is binding upon her, notwithstanding it went to the payment of the debts of the husband.
    The husband is not bound on a note which he has signed only for the purpose of authorizing his wife to make and sign it, even though it be a joint and several obligation. The words, “we jointly and severally promise,” are qualified and restricted by the word • “authorizing,” placed before the signature of the husband to the note.
    APPEAL from tbe Seventh District Court, parish of West Feliciana.

      Miller, J. Thomas JButlar, for plaintiffs and appellees.

      Collins & Lealce, for defendants and appellants.
   Howell, J.

The plaintiffs ask judgment against the defendants in solido, with a recognition of mortgage upon the following note:

“ West Feliciana, La., July 7, 1866.

One day after date, for value received, we jointly and severally promise to pay Hilliard B. Barrow the sum of ten thousand two hundred and eighteen dollars and nineteen cents with interest thereon at the rate of five per cent, per annum from date until paid, payable and negotiable at the- ELEANOR E. BARROW.

Authorizing, JOHN J. BARROW.”

The note is identified with an act of mortgage of same date and has on it a credit of $500.

Mrs. Barrow answers that said note and mortgage were executed for a debt of her husband in favor of said H. B. Barrow, being the amount due by him as tutor of the latter, of which the sum of $8133 35 was for the price and hire of slaves.

Tlie husband, John J. Barrow, answers that he signed the note only for the purpose of authorizing his wife, as was well understood by the payee, and that the consideration was as stated by his wife.

Judgment was rendered against the defendants in solido and they appealed.

In 1801 John J. Barrow filed accounts of tutorship showing balances due the minors, Mrs. A. R. Barrow, wife of W. H. Richardson, for $7083 16, Hilliard B. Barrow $10,493 19 and Emily R. Barrow $10,-344 69. These accounts were homologated in December, 1865. In 1866 Mrs. Richardson and H. B. Barrow issued fi. fas. on their judgments and on the seventh July, 1866, the entire property, real and personal, of John J. Barrow, the tutor, was sold at sheriff’s sale and Mrs. E. E. Barrow, his wife, separated in property, purchased it at its appraisement, $13,735, as shown by the sheriff’s return. On the same day she gave her notes secured by mortgage on said real property to Mrs. Richardson, H. B. Barrow and J. J. Barrow, tutor of E. R. Barrow, for the sums due them respectively by the said tutor and amounting to $27,646 04, payable one day after date, J. J. Barrow, the husband, authorizing the execution of the mortgage and signing the notes, as shown above.

To show that the note sued on, being one of the three so given and acquired after maturity, was made for the separate interest of Mrs. E. E. Barrow, the plaintiffs introduced in evidence the following document:

“State of Louisiana, parish of West Feliciana — Articles of agreement entered into, made and concluded on this the-day of-, A. D. one thousand eight hundred and sixty-six, between Mrs. Amanda R. Barrow, wife of Wade II. Richardson, herein duly aided, assisted and authorized by her said husband, Wade H. Richardson, and Hilliard B. Barrow of the first part and Mrs. Eleanor Barrow, wife of John J. Barrow, duly and legally separate in property from her said husband and also duly aided, assisted and authorized by him to make this agreement, party of the second part as follows to wit: Now it is understood and agreed between the said parties that, as the said Amanda R. Barrow and Hilliard B. Barrow of the first part have a judgment against the said John J. Barrow who was their tutor during their -minority, as will appear from the records of the Seventh Judicial District Court in the parish of West Feliciana, each respectively for the following amounts of money, to wit: Mrs. Amanda Barrow for the sum of seven thousand and eighty-three dollars, with five per cent, per annum interest thereon from seventh day of May, 1866, and Hilliard B. Barrow lor the sum of ten thousand two hundred and eighteen dollars and nineteen cents, with five per cent, per annum interest from -day of-, which said judgment operates and carries with it a tacit mortgage upon all the property of the said tutor, John J. Barrow : Now the parties of the first part, as aforesaid, agree with the party of the second part that the said Mrs. Eleanor Barrow, wife of John J. Barrow, separate in property as aforesaid, and herein duly aided and authorized by her said husband to enter into this agreement, shall become the purchaser of the property seized and now in the possession of the sheriff by virtue of a writ of fieri facias issued at the instance of Hilliard B. Barrow and Amanda Barrow, aided and atitliorized, as aforesaid, by her husband, Wade H. Richardson, and by her bidding the full amount due the said Hilliard B. Barrow and Amanda Barrow and Miss Emily R. Barrow from the said John J. Barrow, tutor as aforesaid, and that the said Eleanor Barrow, purchasing as aforesaid, shall then and there execute a mortgage in favor of the said Hilliard B. Barrow, Amanda Barrow and Miss Emily R. Barrow, being and to be the first mortgage upon all of the property of the said Mrs. Eleanor Barrow for the full and entire amount and sum of the indebtedness of the said John J. Barrow, tutor, to the said Hilliard B., .Amanda and Emily R. Barrow, which said mortgage is to have the full force and effect of and import a confession of judgment, as if rendered in any court of competent jurisdiction, the said Mrs. Eleanor Barrow, aided and authorized as aforesaid, executing her several notes, due and payable one day after date to the order of the parties of the first part, each respectively for the amounts due them from John J. Barrow, said notes to be executed and properly identified with said act of mortgage.

ELEANOR E. BARROW.

Authorizing, JOHN J. BARROW.

H. B. BARROW.

AMANDA R. RICHARDSON.

W. H. RICHARDSON.”

Witness: W. W. Leake.

To this document and the testimony of several witnesses in connection with it, the defendants excepted on the grounds that they were not admissible to contradict or explain the sheriff’s transfer and return on the writs in the case of II. B. Barrow and Mrs. A. R. Richardson and Husband v. John J. Barrow, and to show that, besides the price stipulated in the act of sale to Mrs. E. E. Barrow, she was to pay another and further sum. The objections do not apply to the written instrument, which is the evidence of the contract between the parties, and the sale by the sheriff was a part of the mode or means of carrying out that agreement, and the parol evidence is in aid of the written, showing the circumstances and manner of completing the agreement between the parties. Besides, the giving of the notes and mortgage after the sheriff’s adjudication warrants the admission of the instrument and the oral evidence to show how the apparent discrepancy occurred, and good faith on the part of the purchaser forbids the exclusion of such proof. The evidence was properly admitted. The authorities cited by defendants do not apply.

It is manifest that the parties intended that Mrs. Eleanor E. Barrow should become the purchaser of her husband’s property under seizure, at a price sufficient to pay the debt for which it was to be sold, and the evidence is clear that she did so — an act perfectly legal. It is shown that, had she not thus purchased the property, the plaintiffs in the execution would have themselves become the purchasers. The note sued on was therefore given for a valid legal consideration, the price of the property purchased by her, and not simply for the debt of her husband as alleged. The fact that the price was appropriated to the payment of her husband’s debt does not affect her obligation to pay it.

We think, however, the husband is not bound on the note. He seems to have been careful to explain the capacity in which he signed the note, and there is nothing in the written agreement between the jiarties and the two notarial transfers of the note in suit from the jiayee to one A. Levy; and from the latter to plaintiffs, to show that he was-held liable. On the contrary, they indicate that Mrs. Barrow alone was to pay the price. The transfers above alluded to describe the note as “made by Eleanor E. Barrow, and authorized by her husband, John J. Barrow.” The words, “we jointly and severally promise,” are controlled'by tho restricted signature of John J. Barrow, and the title of plaintiffs confirms this restriction.

This view of the case renders it unnecessary to inquire into the character of tho debt due by the tutor to his wards. The consideration of the note sued on, being a jiart of the price of tho projierty purchased by the maker, is valid and legal, and she has no interest to inquire into the validity of the debt for which said property was sold.

It is therefore ordered that the judgment, as against John J. Barrow, be reversed, and that there be a judgment in his favor against plaintiffs, and that in other respects the judgment appealed from be affirmed, with costs.-


text:
    No. 3132.
    Ar. Miltenberger v. John R. Taylor, Executor.
    The authority of an executor to carry on a plantation, furnish it with supplies, etc., must he shown; otherwise the estate is not liable for the supplies furnished, -by a merchant under his direction.
    APPEAL from the Ninth District Court, parish of Eapides.

      Osborn, J. Byan <& White, for plaintiff and appellee.

      T, O. Manning, for defendant and appellant.
   Howe, J.

This action was instituted against the defendant as executor of Carey H. Blanchard, deceased, to recover the amount of two accounts, the one against “ Blanchard & Bro.,” the other against “ Estate C. H. Blanchard.”

The defense was a general denial, prescription of three years and a special denial of the liability of the estate of C. H. Blanchard.

There was judgment in favor of plaintiff for a part of the claim, the sum of $3574 95, with interest from August 13, 1867, being the amount of the second account. The defendant lias appealed.

A large portion of the plaintiff’s claim appears to be prescribed; the whole of the account “A” against “Blanchard & Bro.,” and a part, at least, of the account “ B.”

The amount for which the court below gave judgment is made up of items dating from November 10, 1865, to August 13,1867. Carey H. Blanchard, whose executor is the defendant in this case, died in 1861. There is the usual testimony as to the correctness of the account, it being chiefly for supplies to the plantation; but by what authority the defendant, as executor, was carrying on, in 1866 and 1867, the plantation of a man who died in 1861, does not appear. The record does not justify us in affirming the judgment. See Carroll v. Davison, lately decided; also, Woodbridge v. Pope, 22 An. 293; Succession of Decuir, 22 An. 372; Bank v. Dejean, 12 R. 16.

It is therefore ordered that the judgment appealed from be avoided and reversed; that as to the accountA,” for-the sum of $2066 91, there be judgment in favor of defendant; that as to the account “ B,” for which there was judgment ih the court below for $3574 95, the claim of plaintiff be dismissed as in case of nonsuit; and that the plaintiff pay costs of both courts.


text:
    No. 3138.
    McDonald & Co. v. J. Wells, Curator, etc.
    The testimony of a witness residing out of the State, when taken before a notary public of the place where the witness resides, under a commission from the court directed to any notary public in said county where the witness rosides, is inadmissible in evidence until the capacity of the notary who takes it is? duly shown in the mode provided by law. The certificate of the county clerk of the county, where the notary resides, is not sufficient attestation of his capacity as notary to authorize the courts of Louisiana to receive the testimony taken under a commission which does not name the commissioner.
    APPEAL from tbe Ninth District Court, parish of Rapides.

      Osborn, J. K. B. hosee, for plaintiffs and appellants.

      JRyan & White, for defendant and appellant.
   Howe, J.

This suit was brought to recover from the curator of Mrs. Martha L. Wells, an interdicted person, a bill for board, medical attendance and clothing furnished to her as an inmate of a private asylum for the insane. Upon the trial of the .case and of a rule to show cause why the commission issued to take testimony in Flushing, Queens county, New York, should not be used on such trial, the defendant made several objections to tbe use of tbe testimony thus-taken. Tbe objections were in time, for tbe rule was returnable on tbe day of trial. Tbe only objection wbicb had any merit was that tbe official character of tbe person before whom tbe testimony was taken, was not properly established, be being ostensibly á notary public in Queens county, New York, and tbe certificate of this fact being made only by tbe clerk of that county. This certificate was not sufficient as evidence in Louisiana, tbe commission having been directed “to any notary ” and not to tbe notary in question by name. 5 N. S. 460; 4 La. 119; 5 La. 265; 13 La. 362; 4 An. 557. A simple method of authentication in such a case (wbicb is entirely governed by tbe law of tbe State) is provided by statute. R. S., 1870, sec. 598.

The case for plaintiffs is not fully made out without tbe testimony thus erroneously admitted, and tbe judgment in their favor must be reversed.

It is therefore ordered that tbe judgment appealed from be reversed and tbe cause remanded for a new trial, and that plaintiffs pay costs, of appeal.


text:
    No. 3158.
    Orens Capmartin v. Police Jury, parish of Natchitoches.
    Kotos, given "by the Police Jury without an ordinance of that body authorizing their issue,, impose no legal obligation on the parish to redeem them.
    An ordinance of the Police Jury, passed subsequent to the issuing of notes, authorizing their issue, will not render valid those notes which were issued without the authority of the ordinance and before it was passed.
    tTnder the act of 1853, the Police Juries are prohibited from contracting a debt against the parish they represent without providing in the same ordinance for the payment of the> principal of the debt so contracted. Therefore, the notes authorized to be issued by ordinance of the Police Jury, can not be enforced against the parish, if the ordinance' that authorizes their issue, does not provide the means for paying the principal an& interest on such notes.
    APPEAL from tbe Ninth District Court, parish of Natchitoches.

      Osborn, J. Chaplin, Morse & Ohaplin, for plaintiff and appellee..

      O. A. JBullard and J. M. JB. Tucleer, for defendant and appellant.
   Wyly, J.

Tbe plaintiff alleges that tbe parish of Natchitoches is indebted to him twenty-one hundred and eighty-five dollars, with five-per cent, per annum interest thereon from judicial demandfor this, that be is tbe bolder and owner of thirty-five notes issued by the Police Jury of said parish,- dated Natchitoches, Louisiana, August twelfth, 1862,. each for tbe sum of five dollars, each payable to bearer in current funds, and each signed by P. M. Backen, President of tbe Police Jury, B. J. Bouis, Clerk, and paraphed, “Receivable for all parish dues,, parish taxes of 1861, 1862 pledged;” that tbe petitioner is also the owner and bolder of one hundred and sixty-one promissory notes, also made by tbe said Police Jury, dated Natchitoches, Louisiana, August the twelfth, 1862, each for the sum of ten dollars, each payable to bearer in current funds, and each signed by P. M. Backen, President of the Police Jury, B. J. Bouis, Clerk, and paraphed, “ Receivable for parish dues, parish taxes of 1861, 1862 pledged;” that the petitioner ,,is also the owner and holder of forty promissory notes made by the said Police Jury, dated Natchitoches, Louisiana, January 6, 1863, each for the sum of ten dollars, each payable in current funds, and each signed by P. M. Backen, President of the Police Jury, B. J. Bouis, Clerk, and paraphed, “Receivable for all parish dues, parish taxes of 1861, 1862 pledged.”

The prayer of the petition is for judgment against the parish of Natchitoches for said $2185 with interest and costs.

The defense is the general denial, an averment that the notes sued on were issued in aid of the rebellion; that the Police Jury had no authority to issue said bills or notes, because such power had not been given them by the State; that they were intended, as “ bills of credit,” to circulate as money, which the State itself was prohibited from issuing by the Constitution of the United States.

The court gave judgment for the plaintiff and the defendant has appealed. The prescription of five years urged in the brief was not pleaded in the court below, and it has not been filed in this court; however applicable it may be to most of the notes sued on, we are not permitted to supply the plea which the parties have not seen fit to file.

The defense that the Police Jury had no authority to create the indebtedness evidenced by the notes sued on, urged by the defendant, we think, is well taken.

The notes seem to have been issued without any ordinance whatever of the Police Jury. There is, however, in the record, the copy of an ordinance allowing the issuance of notes of the character before us, but this ordinance was passed subsequent to the issuance of these notes. But if they had been issued under the ordinance in the record, they are illegal, because that ordinance creating the debt does not provide “ the means for paying the principal and interest of the debt so contracted.” Acts 1853, 234.

Police Juries are the creatures of the Legislature, and their powers are limited. They can not bind the parish by their acts or contracts further than they are permitted to do so by express law. We know of no law which permitted the parish of Natchitoches to issue the bills or notes sued on, and which for a time were circulated in that parish as bills of credit or money. The judgment appealed from is erroneous.

It is therefore ordered that the judgment of the court a qua be set aside and annulled, and that there be judgment for the defendant} plaintiff paying costs of both courts.


text:
    No. 3219.
    Widow Louis Delacroix v. Mary M. Hart.—Martha J. Barrow, Garnishee.
    2<To judgment can bo legally rendered against the wife on interrogatories that have been served on ber as garnish.ee, until she has been authorized by her husband or the judge to '■appear and make answer to the interrogatorios. A judgment taken against her, pro confessis, without hoc being properly authorized, is null.
    APPEAL from the Fifth District Court, parish of Iberville.

      Po.sey, J. S. Matthews, for plaintiff.

      Barrow & Pope, for garnishee and appellant.
   Howell, J.

Mrs. Martha J. Barrow, a married woman, has appealed from a judgment recovered against her as garnishee under a garnishment process issued upon a writ of fieri facias herein, and urges as error that she was not authorized by her husband or the court to appear and stand in judgment.

A careful examination of the record shows this error to exist. No writ or process of any kind was served upon the husband; no order was made to authorize Mrs. Barrow to stand in judgment, and her husband made no appearance to authorize his wife, until they both appeared to ask for an appeal from tbe judgment rendered upon interrogatories taken jpro confessis.

The case must be remanded, to enable the plaintiff to remedy the defect. As the appellant was not properly before the court, we can not pass ou any other questions presented.

It is therefore ordered that the judgment appealed from he set aside and this cause remanded to the lower court, to he proceeded with according to law; plaintiff and appellee to pay costs of appeal.


author: Howell,' J.

text:
    No. 3175.
    Geo. H. Sallis v. McLearn & Mason.
    An injunction will not lio to stay the execution of a judgment on the allegation that the judgment has been novated by giving a note, if the evidence shows that tlio note was placed in the hands of the judgment creditor before the judgment was obtained and that the judgment oroditor has offered to. return it before execution was ordered. In such a-case, the injunction will ho dissolved, with damages against the plaintiff in inianction and his surety on the bond in solido.

    APPEAL from the Ninth District Court, parish of Rapides.

      Osborn, J. W. A. Seay, for plaintiff and appellee.

      IP. S. Posee, for defendants and appellants.
   Howell,' J.

On the twenty-ninth February, 1868, the defendants herein obtained judgment, ou the confession of the plaintiff, dated eighteenth December, 1867, for $2512 40, with eight per cent, interest from nineteenth March, 1867, subject to a credit of $711 17' on first January, 1868. A further credit of $601 was( indorsed on this judgment on seventh March, ,1868, and on twenty-sixth May, 1870, the plaintiff obtained an injunction against the execution of a fieri facias upon the balance, on the allegation that the judgment had been novated by a note given by him to the defendants, and which had passed into third hands.

Tlie defendants allege that the note referred to was given by the plaintiff before he confessed judgment, was afterwards tendered to him by their attorney, and they now tender it in court.

On the trial, said note was tendered and filed in open court, and it was shown that council offered it to plaintiff before issuing execution. It is dated first December, 1867, and due at twelve months, for $1410, ■with eight per cent, interest from date until paid. No other note is shown to have been given by the plaintiff, and if this be the one relied on by him as novating the judgment, he is mistaken. It is anterior to the date of his confession and the payment of $601 in March, 1868, and does not correspond with the balance due on the judgment. It seems probable, as stated by one of the defendants, that it was taken in prospect of obtaining a judgment on the debt. However this may be, as it is surrendered to the plaintiff on a judicial admission by defendants that it no longer binds him, he has no cause to complain, and defendants are entitled to a dissolution of the injunction and the execution of their judgment.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, dissolving the injunction herein, and that plaintiff and his surety be condemned, in solido, to pay ten per cent, on the amount of the judgment enjoined with costs in both courts.


text:
    No. 3159.
    Pauline Flanner v. Ambroise Lecompte and S. Parsons, Sheriff.
    If prescription has heen acquired in favor of an estate, parol evidence will not ho admitted to show an interruption, nor will the written acknowledgment hy the executor, made after prescription has been acquired, he allowed to establish an interruption. 21 Ail. 373. When, therefore, a judgment has heen rendered against a party in his individual capacity and as executor of his co-dehtor, and the proof shows that the written acknowledgment hy the executor of the obligation of his co-debtor was not made until after proscription was acquired, then, and in that case, the injunction against the seizure on the judgment thus rendered will he perpetuated in so far, as the estate is concerned, on the ground and for the reason that the debt was prescribed as against the succession.
    APPEAL from tire Nintb District Court, parish of Natchitoches.

      Osl>orn, J. II. Safford, for plaintiff and appellee.

      Pierson & Levy, for defendants and appellants.
   Howe, J.

The injunction obtained by plaintiff should be maintained in part, viz: as to the undivided half of the tract of land about to be sold by defendants, which belongs to the succession of Eleazar L. Hyams. The mortgage note held by defendant, Lecompte, was clearly prescribed before the written acknowledgment made by Samuel M. Hyams, executor, in January, 1866. The executor had no authority to renounce an acquired prescription. 21 An. 373.

The note, as to the other maker,-Samuel M. Hyams, seems to have been kept alive by repeated acknowledgments, so that prescription as to him was never acquired.

There is no force in the objection of plaintiff to oral testimony to prove these acknowledgments, it appearing that at the time of trialS. M. Hyams was also deceased. The Statute of 1858, page 148, prohibits the reception of such testimony “ against a succession.” This contest is between two creditors, their claims, respectively, against the succession having been closed some years ago by judgmeiit. Nor can the objection of plaintiff to the testimony of Mrs. Mary E. Hyams, the widow of S. M. Hyams, as to acknowledgments by him, be maintained. She was not testifying for or against her husband, but in behalf of one creditor against another.

It is therefore ordered that the judgment appealed from be reversed. It is further ordered that there be judgment in favor of plaintiff, perpetuating the injunction issued herein, so far as to restrain the sale by defendant, Lecompte, under his judgment, of that undivided portion of the tract of land, described in the petition and .exhibits, which belongs to the. succession of Eleazar L. Hyams. It is further ordered that in other respects the said injunction be dissolved j that the defendants pay the costs of the lower court and the plaintiff those of the appeal.


text:
    No. 3197.
    State of Louisiana v. George W. Clark, alias Biossat.
    Tlie objection ‘by the accused that lie was not served with, a true copy of the venire and indictment, is not good ground for a motion in arrest of judgment.
    APPEAL from the Ninth District Court, parish of Kapides.

      Osborn, JS. JBelden, Attorney General, for the State.

      II. Ryan and W. A. Seay, for defendant and appellant.
   Howe, J.

The defendant, having been indicted and tried for murder, found guilty without capital punishment and sentenced to hard labor for life, has appealed. There are no bill's of exceptions in the-record, nor any assignment of error. There appears to have been a. motion filed in arrest of judgment. What disposition was made of it,, does not distinctly appear and perhaps in strictness it might be deemed to have been abandoned. However, granting that it was urged and overruled, we see no error in the judgment. The motion was founded on the allegation that the prisoner was not served with a» true copy of tlie venire and indictment. This was no ground for a motion in arrest.' 8 Bob. 513. The record shows that the prisoner was duly served with copy of indictment and venire and does not show that he made any complaint in such form that we can pass upon it, until.after conviction. 6 An. 690; 12 An. 679; 14 An. 667. Judgment affirmed.


text:
    No. 3152.
    Auguste Voinche v. Fielding Edwards.
    An order given for tlie price or value of a lot of cotton, together with, the judicial admission made by the party who gave the order, in a suit for the recovery of another lot, which includes the lot for which the order is given, is sufficient to establish that the cotton for which the order was given, was in the possession of the person who gave the order for the payment of its price. Under this showing, the person giving the order for the payment of a certain lot of cotton can not escape his liability for the price on the ground that it was shipped to another house or establishment without his knowledge or consent, and that he is not, therefore, liable.
    APPEAL from the Seventh District Court, parish of Avoyelles.
    Miller, J. Taylor <& Irion, for plaintiff and appellee.

      Waddill & Barbin, for defendant and appellant
   Howell, J.

Plaintiff claims of defendant the sum of $2086 25, upon the following order:

New Orleans, May 20, 1865.

At sight, please pay to Ivír. Voinchá or order the net proceeds of eighteen bales of cotton I have iu your hands, nine bales of which are marked thus: ‘A Voinché,’ and nine hales marked ‘A. V.’

F. EDWARDS.

To C. A. Weed & Co.

New Orleans, comer Common and Tchoupitoulas streets. — The weight of the eighteen hales is 8200 pounds (Indorsed) New Orleans, May 20, 1865.

Pay to the order of Thomas C. Payan.

THOMAS C. PAYAN.”

The defendant answers, substantially, that he never had possession or control of tlie cotton; that it was shipped to his commission merchants, C. A. Weed & Co., without his knowledge or consent, by one Todd, who represented himself as his agent; that he never received the amount of its sale or that of his own cotton sold by said Weed & Co.; that he has instituted suit against them for said cotton, but is not responsible to plaintiff. From the judgment against him he has appealed.

A- careful examination of the evidence does not bring us to a .inferen t conclusion from that arrived at by the district judge.

After giving the above order, the plaintiff instituted suit against C. A. Weed & Co. for $17,000, value of one hundred and twenty-seven bales cotton, including the eighteen hales involved in this controversy, and introduced proof that lie liad, through one Todd, shipped said cotton to Weed & Co. in a lot of forty-one halos, on which, at a date after it was received by them, he was entitled to supplies to the amount of $700, besides what had been advanced. The order itself recognizes Ms control and ownership of the cotton, and the evidence introduced by Mm in this suit does not countervail his judicial admissions and the effect of the orders.

We will here remark that the ground for the motion to dismiss this appeal is insufficient.

Judgment affirmed.


author: Taliaeerro, J.

text:
    No. 3163.
    William V. Keary et al. v. Sylvert Ducote.
    Parol evidence is inadmissible to prove an agent’s authority to soil immovables. Buildings and other constructions attached to the soil are immovables by tlioir nature. O. C. 464. (Therefore, in a suit to cause the return of a building that has been demolished and removed, parol evidence -will not be admitted to show authority in the agent of the owner to sell, nor to show a sale from the agent.
    APPEAL from the Seventh Judicial District, parish of Avoyelles.

      Miller, J. Irion & Thorpe, for plaintiffs and appellees.

      Edwards <& Ducote, for defendant and appellant.
   Taliaeerro, J.

The plaintiffs sue the defendant for a house which, they allege, he demolished aud removed from their land, upon which it was erected, to his own premises, where it was reconstructed. They pray that defendant be required by decree of the court to restore the building to them and to pay them five hundred dollars for its wrongful use j two hundred and fifty dollars, the cost that would necessarily be incurred by them in removing it from defendant’s land and rebuilding it on tlieir own; and, in default of defendant’s restoration and delivery •of the bouse to them after judgment, that be be condemned to pay them the value thereof viz: five hundred and fifty dollars and •costs, etc.

The answer is a general denial. The defendant avers that he bought the property in controversy and which he calls a “ common shed ” from one Melina Brownson, who was living in the house when he purchased it and who represented to him that she was authorized to sell it. The defendant pleads the prescription of one, two and three years. There was judgment rendered in favor of the plaintiff, responsive in the main to the prayer of the petition, and the defendant appeals.

On the trial of the case the'defendant offered to provo by the testimony of two witnesses the sale of the house to him by Melina Brownson and also ber authority to sell as agent of the owners. This was objected to on the ground that parol, evidence is inadmissible to prove authority to sell real estate and immovable property. The objection was sustained and the defendant reserved a bill of exceptions. We think the evidence offered was properly rejected. “Lands and buildings or other constructions, whether they have their foundation in the soil or not, are immovable by their nature.” C. C., art. 464. Transfers of immovable property must be in writing. C. C. 2275. Enrol evidence is inadmissible to prove .an agent’s authority to sell immovables. 9 An. 178. The plea of prescription can not avail. The action is not for damages. The plaintiffs sue to recover property. The building was removed in the year 1865 or the year 1866. Citation in the present suit was served in December, 1869. The judgment of the court a qua decreed the plaintiffs to be the owners of the house and ordered, in the alternative., that the defendant restore the building or pay the plaintiffs the value thereof, viz: one hundred and twenty-five dollars and one hundred and fifteen dollars for the use and detention of it. It further ordered the defendant to pay the sum of two hundred dollars to cover costs of removing and replacing the building-in its former position on Bayou du Lac. We think the court erred in awarding the last named sum for covering costs of removal.

It is therefore ordered, adjudged and decreed that the judgment of ¡ the district court so far as it decrees the defendant to pay two hundred dollars as cost of reinstating the building upon the land of the plaintiffs, b annulled, avoided and reversed. It is further ordered that in all other respects tho judgment be affirmed, the plaintiffs and appellees paying.costs of this appeal.


text:
    No. 2686.
    Maria T. Trudeau v. Julia C. Row et al.
    A married woman is not personally liable on a note executed in solido with ber husband, when at the time of Its execution a community of acquets existed between her and her husband and the latter had the exclusive administration of her paraphernal property.
    Where there is a community of acquets, and the husband has the exclusive administration of the paraphernal property of tho wife, purchases made during the marriage fall into-tho community, and debts contracted, whether by tho husband or the wife, are community debts, and must be discharged by the husband.
    APPEAL from tbe Seventh Judicial District, parish of West Feliciana.

      Miller, J. W. D. Winter, Thomas Builar and Oollins & Bealce, for plaintiff and appellee.

      WielcKffe & Fisher, for defendants and appellants.
   Taliaferro, J.

The defendant and her husband, John S. Row, are sued on a promissory note executed by them iu favor of L. II. Trudeau or order for $1781 66, dated fifteenth April, 1867, and due first March,, 1868.

Separate answers were filed. The wife denied specially that she is bound by her signature to the note, having signed it through error and at tlie instance of her husband; that the consideration for which it was given, did not inure to her benefit individually nor to the benefit of her separate estate.

The husband’s answer is a general denial, and an averment that the plaintiff is not the owner of the note sued on.

Judgment was rendered against Mrs. Bow for $876 22, with eight per cent, interest from fifteenth April, 1867, until paid, and against John S. Bow for the amount of the note, with the same interest from ,the same time. The wife alone appealed.

The indebtedness for which the note was given was for merchandise of various kinds, chiefly dry goods such as are usually required for the use of families. The goods were purchased by Bow and wife indifferently, sometimes by the husband, at other times by the wife, and •occasionally by both together. The accounts were kept in the name of the husband alone. The purchases were made from L. II. Trudeau, siuce deceased, who kept a store in the parish of West Baton Bouge, where the debt was contracted, which was made, on running accounts driving parts of the years 1861 and 1862.

It appears that Mrs. Bow and a sister of hers wore the only heirs oí their father, J. II. Collings, who owned a plantation on Poydras Bayou, in the parish of West Baton Bouge. Against the estate of Collings L. H. Trudeau had an account also, which amounted to $294 19. This entered into, and made a part of, the amount for which the note sued on was given. The plantation of J. II. Collings, after his decease, was in charge of a manager until Bow and his family-went upon it to reside, which was about February, 1862. They resided there until the close of that year. This place was under the control and administration of John C. Bow, the husband, who ran the saw mill on the place in connection with another person. It is not shown that he owned any property or controlled any other than that belonging to his wife and her sister, derived to them from the succession of J. II. Collings.

The plaintiff’s ownership of the note on which this suit is founded, is fully established.

Under the state of facts shown by the record, we do not see how the plaintiff can recover against the wife. It is not alleged or shown that she is separate in property from her husband. Neither does it appear that sho had the administration of her paraphernal property. On the contrary, it is established that the only property she owned was managed solely by her husband; the accounts of Trudeau were all made out in his name. In like manner, purchases of things not included in the accounts were made by him in his own name and on his own account; in one case, he purchased from Trudeau an engine boiler which was placed in the saw mill on the place on Bayou Poydras. It ia well settled that in such cases debts, contracted in the manner these •were, are community debts, whether contracted by the husband or the wife, and that the husband is alone responsible for them. The case of Wyly v. Hunter, 2 An. 806, is very closely in point with the one under consideration; and so also is that of Scanlan v. Warinck, 10 An. 30; also Kelly v. Robertson, 10 Rob. 303; Civil Code, article 2412.

None of the articles entering into these accounts are shown to have been such as the husband was not bound to furnish, or that they went to ■the benefit of her separate estate. See 8 An. 512; 10 An. 554; 14 An. 169.

It is therefore ordered, adjudged and decreed that the judgment of the district court, so far as it relates to the defendant, Mrs. Julia C. Row, be annulled, avoided and reversed; that she be released from •the obligation upon which the suit was brought; that the judgment, as rendered against her husband, John S. Row, remain undisturbed, and that the plaintiff and appellee pay costs of this appeal.


text:
    No. 3151.
    J. A. Blanc, Syndic, v. Fred. Hertzog and Amire Hertzog.
    ^Prescription is interrupted on a note so long as the holder is in possession of collaterals pledged by the maker to secure its payment.
    An order or draft given on another, not negotiable in form, for the accommodation of a third party, without consideration, can not be enforced against the maker, even if it be in the hands of a pledgee. In such a case the pledgee would have no other or greater rights than the original payee himself would have.
    APPEAL from the Ninth District Court, parish of Natchitoches.

      Osborn, J. Pierson cfi Levy, for plaintiff and appellee.

      O. P. Lranguet and Jaelc cC Pierson, for defendants and appellants.
   Howell, J.

Plaintiff, as syndic of B. Toledano & Taylor, sues -the •defendant, F. Hertzog, on a note made by Hertzog Brothers, of which firm he was a member, and Mrs. Amire Hertzog on a draft drawn by her in favor of Hertzog Brothers on Ar. Miltenberger, but not accepted, for tbe amount due on tbe note of said Hertzog Brothers And for which it was pledged as collateral security. She excepted to bringing suit in the same action, the obligations, if any, being exclusive And independent and there being no privity of contract between tbe defendants. The exception was overruled and each defendant filed separate defenses. That of Frederick Hertzog was a general denial and tbe prescription of five years; and that of Mrs. Amire Hertzog was, in substance, that she gave tbe order to Hertzog Brothers solely •for their benefit and accommodation, they being lier sons, and not as commercial or negotiable paper, to be paid on the sale of her then .growing crop, which was destroyed by the Confederate army without .any fault on her part, and that she never recovered any value for said •order. Judgment was rendered in favor of plaintiff and defendants Appealed,

As to Frederick Hertzog the case is fully made out. Prescription may be considered suspended as to him, while the creditor held tlw collateral pledged by him. The case is different, however, in regard to Mrs. Hertzog. The order given by her was not negotiable or commercial paper and was without consideration. The pledgee, therefore, acquired no greater right than the payees had, and they could not •' have recovered on it. And, besides, it is not shown to have been 'presented for payment and notice of non-payment given to the drawer. We think she is not liable on the order, and that it is unnecessary to inquire into the regularity of the action.

It is therefore ordered that the judgment, as to Mrs. Amire Hertzog, be reversed, and that there be judgment in her favor against the plaintiff, and that the judgment against Frederick Hertzog be affirmed, with the costs of appeal.


text:
    No. 3217.
    Julia A. Dixon, Executrix, v. T. H. D’Armond.
    To give eifbcfc to a testament, made in another State of the Union, on property situated in this. State, the testament must bo registered and its execution ordered by the judge having-jurisdiction over the place whore the property is situated. C. 0.1688-9.
    The order of the judge, admitting a will made in another State to registry and directing its execution, necessarily vacates the former order of the same judge appointing an administrator to take charge of the prox>erty situated in this State.
    APPEAL from the Parish Court of East Feliciana.

      Boediclcer, Parish Judge. Kernan cG Lyons, for plaintiff and appellee.

      Gross <& Hardee and Race, Foster & F. T. Merrielc, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment recognizing and confirming the plaintiff, as testamentary executrix in Louisiana of the last will of B. F. Dixon, who died at his residence iu Mississippi, already duly registered and its execution ordered, directing letters testamentary to issue to her on her taking oath and giving bond, and rescinding the order appointing him administrator of the succession of said deceased in the parish of East Feliciana.

According to articles 1688 and 1689 of the Code of 1870, section 1460 of Revised Statutes of 1870, and the decisions in 17 La. 486; 18 La. 570; 2 R. 427; and 13 La. 224, it was the duty of. the probate judge, upon due application, to cause the will from Mississippi, duly proven, to be registered here, its execution ordered, and the testamentary executrix named in it to be recognized and letters testamentary issued to her upon taking oath and giving bond. Such an order would necessarily supersede the appointment of an administrator appointed here.

Judgment affirmed.


text:
    No. 3147.
    Stewart, Hyde & Co. v. Buard & Dranguet.
    A stipulation in a contract “between a planter and a commission merchant, by which the ibrmer agrees to secure the latter in a certain amount in any event, is not illegal, and may therefore be enforced against the planter, notwithstanding he has failed to make a crop.
    Where no stipulation for interest is made in the agreement, only legal interest can be recov- q erod on the amount found to be due. The fact that a note pledged as collateral security boars eight per cent, interest per annum, does not entitle the creditor to that rate of interest on an obligation that only draws five per cent.
    APPEAL from tho Ninth District Court, parish of Natchitoches.

      Osborn, J. O. Chaplin <& Son, for plaintiffs and appellants.

      Fierson <& Levy, for defendant and appellee.
   Howe, J.

In the early part of 1867, the defendants entered into a contract with the plaintiffs, which was afterward reduced to writing and signed by defendants, by which the plaintiffs, as commission merchants and factors, were to furnish plantation supplies to an amount not to exceed $6000, and the defendants, planting partners, agreed to ship to plaintiffs the entire crop of their plantation, “ which,” to quote from the agreement, “ the said Buard & Dranguet warrant to amount to four hundred bales of cotton, of lour hundred and fifty pounds to the bale, and if the number fall short of that number, the commission shall be paid upon the deficiency at the rate of five dollars per bale, liquidated amount.”

To secure payment of the advances, interest and charges on the crop, the defendants furnished their joint note for $8000, due December 31, 18G7, and each pledged as collateral certain mortgage notes; and both defendants also agreed to pay five per cent, attorney’s fees on any balance due and sued on. The defendants having failed to make a crop, suit was brought against them and judgment obtained against Buard at the January term, 1869, of the district court, for the sum of $4000, being one-half of the plaintiffs’ account. The case was continued as regarded Dranguet, the other defendant, and at the December term of court, 1869, judgment was rendered against Dranguet for $2530 49. Erom that judgment the plaintiffs have appealed, and now ask lor a reversal and amendment, decreeing the liability of the defendant in the full amount asked for in the petition.

The defendant resists this demand on the following grounds:

First — He denies having entered into the contract at the date stated, but avers that he signed the same, having been compelled to do so from the force of circumstances, and that the contract is usurious and an extortion.

Second — He admits the indebtedness for one-half the supplies furnished, but objects to the commission on cotton not shipped, as contrary to law.

Third — He alleges error in the mortgage given as collateral, which he says should have been only for $3000.

Fourth — He pleads in compensation the one-half value of four mules, worth, as he alleges, in the aggregate $600, returned to plaintiffs, and the sum of $100 for their hire.

Fifth — He pleads also in his amended answer that the rate of interest should be only five per cent., and reiterates the illegality of the contract entered into to pay five dollars per bale as commission on ■cotton which they guaranteed to ship.

First — The evidence shows that the contract was voluntarily executed by the defendant, Dranguet, as well as by Buard. The negotiations commenced in New Orleans by conversations between the plaintiffs and Buard, and afterwards with Dranguet. The within agreement was afterwards prepared and sent up to the plantation. The defendants returned it with a letter, dated March 1,1867, objecting to the portion in regard to a commission on cotton not shipped and threatening to settle for supplies already received, and, we presume, find some other factors. To this plaintiffs replied by letter of March 25, 1867, arguing the matter at length and intimating that, if the ■defendants did not choose to sign the agreement, they were at perfect liberty to withdraw from the arrangement and find other factors upon paying for what supplies they had actually received. Thereupon the ■defendants both signed the agreement and acknowledged it to be their voluntary act before a notary, and it was recorded May 16, 1867. The ■defendant, Dranguet, testified that he was forced to sign it by the fact that the poverty of his partner prevented the latter from settling his share of supplies in March, 1867, and withdrawing from the arrangement, and therefore he, Dranguet, did not settle aud withdraw. We see nothing in this testimony or in the record elsewhere to invalidate the written, signed and recorded contract.

Second — The agreement being established, it seems to follow that the ■clause quoted above, by which defendants warranted the crop to bo four hundred bales, and agreed, in effect, that the plaintiffs should have $2000 commission in any event, is binding ■ on the appellee, Dranguet. The contract may have been rash, but it was not unlawful; nor was it without consideration. The facts cited already clearly show that the plaintiffs would not furnish the advances and supplies, and take the risks of what afterwards proved to be a total failure of the crop, without this special clause. In this respect the ■case differs from Taylor v. Wooten, 19 La. 518.

Third — The point of error as to the amount of the collateral mort,gage note seems to be abandoned.

Fourth — The evidence shows that the defendant, Dranguet, is ■entitled to credit for one-half the value of the four mules returned, which one-half we fix at $200.

Fifth — -The plaintiffs, in the absence 'of any agreement to pay eight per cent, interest, are only entitled to recover five. The fact that one of the collaterals bears eight per cent, interest, can not affect the question. The agreement and the principal note of $8000 make no provision for any more than the legal rate.

We compute the amount due by Dranguet to be $3440, with five per cent, interest from July 31, 1867, and five per cent, attorney’s fees.

It is therefore ordered that the judgment appealed from be reversed, and that the plaintiffs, Stewart, Hyde & Co., recover from the deiendant, C. F. Dranguet, the sum of three thousand four hundred and forty dollars with legal interest from July 31, 1867, and the further sum of one hundred and seventy-two dollars and twenty cents, attorney’s fees and costs 'of both courts, with recognition of the special mortgage on the property mentioned in the petition and in the act of mortgage on file, with right to seize and sell the same.


text:
    No. 3146.
    Eleanor E. Barrow v. Amanda R. Richardson.
    An affidavit, though legal in form, is void if it bo shown that the affiant was not sworn by an officer competent to administer oaths.
    If it be shown that the party claiming the injunction was not present and did not take the oath, as certified by the clerk who issued tlio writ, it will be dissolved and set aside, because no affidavit lias boon made, as required by law.
    APPEAL from the Seventh District Court, parish of West Feliciana.

      Cooley, J. Collins <& Leake, for plaintiff and appellant.

      MeVea & Kilbourne, for defendant and appellee.
   Taliaferro, J.

The defendant having seized under execution the property of the plaintiff, the latter took out an injunction to restrain the sale, alleging that the judgment under which the execution was issued, is invalid; that the note and mortgage upon which the judgment is predicated, were given without any valid consideration, having-been executed for a debt of her husband to the defendant, which plaintiff was in no manner bound for. She therefore prays to be relieved from the obligation thus contracted and that the injunction be perpetuated.

The defendant moved to dissolve the injunction on the following grounds:

Mrst — The affidavit on which the injunction issued, is insufficient in this, that the plaintiff and affiant was not legally sworn; that no oath was ever administered to her; that she was not before or in the presence of the clerk of the court before whom it purports she was present, and by whom it is stated she was sworn.

Second — That the bond is insufficient in amount and not in compliance with law.

The injunction was dissolved on the first ground stated in the motion, and the plaintiff condemned to pay the defendant five hundred dollars, special damages. The plaintiff has appealed.

The clerk, after writing below the name of the plaintiff, at the foot of the affidavit, the words “Sworn and subscribed to, this sixteenth of June, A. D. 1870,” and subjoining his official signature, appears as a witness and swears that the affidavit was not signed in his presence; that he don’t think he ever saw Mrs. Barrow; that he did not administer that or any other oath to Mrs. Barrow; that the affidavit was brought to him by one of the attorneys in the case who told him that Mrs. Barrow signed the affidavit.

This, we suppose, is a fair statement of the case, but it discloses a method of getting up affidavits, not contemplated by law.

Mrs. Barrow, the plaintiff, not having taken the oath required to enable her to obtain an injunction, her case fails. Code of Practice, art. 304.

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


author: I-Iowe, J.

text:
    No. 3182.
    William L. Wynn v. Eliza C. Patrick, Executrix.
    A third purchaser of promissory notes, after maturity, stands in no better position than the original owner. Therefore, if the facts show that the original maker received an illicit currency for the notes, the third holder, after maturity, can not recover, even though he show that the maker used the illicit currency which ho received for them in the payment of a valid obligation.
    APPEAL from the Pifth District Court, parish of West Baton Rouge.

      Posey, J. Favrot & Lamon and Clifford Belcher, for plaintiff and appellant.

      Clarice, Bayne <& Benshaw, for defendant and' appellee.
   I-Iowe, J.

This action was instituted against the executrix of J. C. Patrick upon two notes of the decedent. There was judgment in favor of defendant in the court below, and plaintiff has appealed. ,

The record clearly shows that Patrick made the notes in suit to the order and for the accommodation of A. D. Kelly & Co.; that A. D. Kelly & Co. pledged them to the Bank of Louisiana as collateral security for a loan by the bank of Confederate money,” and that, about three years afterwards, and long after maturity, they were purchased by the plaintiff from the bank.

It is certain that A. D. Kelly & Co. could not have successfully sued Patrick on these notes. It seems certain that, under the decisions of this court since 1865, the bank, giving nothing but Confederate paper for notes to which the obligations in suit were collateral, could not have recovered from Patrick on those collaterals. It follows that the plaintiff, purchasing long after maturity and legally put on his guard, can have no better rights than the bank. •

It matters not that the Confederate notes, loaned to A. D. Kelly & Co. in December, 1861, and March, 1862, by the bank, on the pledge of the obligations in suit, were used by Kelly & Co. to take up previous valid obligations of the pledgers. The jurisprudence of the State on the subject is founded on the theory that Confederate notes were an illicit currency; that the dealings in them were contra tonos mores, and that the parties so dealing would be left by the court precisely where they had placed themselves. It is immaterial, then, what A. D. Kelly & Co. did with the reprobated currency which they received from the bank by discount on pledge of notes in suit.

Judgment affirmed.

Rehearing refused.