text:
    No. 6271.
    Lawrence F. Barrett vs. City of New Orleans.
    The action of the Common Council of the city of New Orleans receiving and accepting the report of one ot the city administrators, that he had employed a certain person for a certain month, at a stated compensation, will not hind the city for a longer period than that month.
    A discharged employee who lets five months elapse after his dismissal without mailing any complaint, and spends several of those months in foreign lands, is estopped from claiming compensation for that time.
    •Clerkships established by authority of the corporate authorities of New Orleans, prior to the * 29th of December, 1874, were abolished by the reorganization, nnder the ordinance passed that day.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Geo. L. Bright for plaintiff and appellant.

      Sam. P. Blanc, assistant city attorney, for defendant.
    Geo. L. Bright, for plaintiff and appellant, contended:
    That under the acts No. 7 of 1870, and No. 48 of 1871, a clerk is to be recommended for appointment by the administrator, and the appointment made by the Council, and he can only be removed by the Council. The Council makes the appointment and the removal. There is no power in the administrator to appoint or remove. That plaintiff was employed and not removed by the Council.
    Sam. P. Blanc, assistant city attorney, contra, contended :
    That plaintiff was not employed by the Council, and that the action of the Council was not necessary to his discharge. That he did not
      hold position by any legal tenure; but on the contrary was subject to be dismissed at the pleasure of the administrator under whom he served.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff claims to have been appointed on 24th November, 1874, a clerk in the Department of Public Accounts, “ to examine judgments and matters in litigation,” at a salary of $150 per month. He alleges that having been so appointed, he could be removed only by a majority vote of the Council. That the Administrator of Public Accounts discharged him 1st December, 1874, without the authority of the-Council; and, therefore, that he has never been discharged', and is entitled to be paid for one year from 1st December, 1874, at $1800 per annum. The answer is, that plaintiff was not appointed by the Council, but by the administrator, and during his pleasure; that plaintiff made no objection to his discharge for several months, and was absent from the city for a long time after his discharge, and did not offer to discharge. the duties of office.

The only evidence of any appointment of plaintiff that we find is as-follows : On 24th November, 1874, the Administrator of Accounts, Mr. Calhoun, reports to the mayor, etc., “that the following officers and clerks are employed in this department for the month of November,. 1874; * * * L. E. Barrett, examining judgments and matters-in litigation, $150.” * * * *

This report was “ received and accepted” on 24th November, 1874, by the mayor and Council.

A new city government coming in, the new administrator, Brown, notified plaintiff that he was discharged December 1st, 1874. About May, 1875, Barrett says he informed Brown that he was ready for work and would claim his salary. He admits that during this year he was absent in Europe three months.

On 29th-December, 1874, the Council as directed by the city charter proceeded by ordinance to reorganize the several departments and fix the number, pay, and duties of clerks to be appointed. Among those-of the Department of Accounts, there was to bo “ one legal process and general clerk at $1000 per year.”

Under this state of facts, we think plaintiff fails to show a right of recovery.

First — The report of Calhoun only shows his employment for the month of November. We do not see how the Council’s receiving and accepting that report can be construed into a permanent appointment. It might well have approved such an act of the administrator for the-month of November, without thereby committing itself to a permanent. appointment of such a clerk. If Barrett was not appointed by the Council for the year, its authority was not necessary to his dismissal.

Second — If there ever was established by authority of the Council a clerkship “for examining judgments and matters in litigation,” ata salary of $1800 (of which there is no proof), the reorganization under ordinance of 29th December, 1874, abolished it.

Third — Plaintiff let five months elapse before complaining, and spent several months in Europe. With what show of right can he claim $150 per month for this time ?

The judgment below rejected his demand. It is correct, and is affirmed with costs.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    No. 7658.
    State vs. Ulger Chenier.
    One wlio is indicted for a capital offense must bo arraigned, and must plead to the indictment before tlie case can be set down for trial, or be tried.
    APPEAL from the Third District Court, parish of St. Martin. Fonte-lieu, J.

      H. N. Ogden, Attorney-General, for the State.

      Jas. F. Mouton for defendant.
    No brief filed on behalf of the State.
    Jas. E. Mouton, for defendant, contended :
    That an arraignment of the accused before the trial had begun was necessary. He cited in his support State vs. Epps, 27 A. 227 ; State vs. Ford, 30 A. 311; State vs. Christian, 30 A. 367.
   The opinion of the court was delivered by

Spencer, J.

The defendant having been indicted for rape, was convicted without capital punishment, and sentenced to hard labor for life. He appeals, and relies upon several bills of exception as grounds for reversal. It will only be necessary to notice one of them. •

The case having been called for trial by the State, a jury having been empaneled and sworn, and the trial proceeded with, the attorney for the State, suggesting that the defendant had not been arraigned and had entered no plea, moved that he be arraigned and that he be required to plead. The accused objected that the arraignment and plea must precede the trial, and that the jury drawn was incompetent to try the cause. The court overruled the objection, caused the prisoner to be arraigned and his plea made, and directed the trial to proceed.

We cannot sanction such a departure from ancient landmarks in criminal procedure. The prisoner must be arraigned, and must plead to the indictment before the case can be set down for trial or tried.

It may be that in this particular ease no prejudice was wrought to the accused. Still we think it unsafe to sanction such irregularities in capital cases.

The verdict and sentence are set aside, and this cause is remanded for a new trial according to law.


author: Manning, C. J.

text:
    No. 7556.
    City of New Orleans vs. New-Orleans Canal and Banking Company.
    XJig charter of the New-Orleans Canal and Ranking Company, granted in the year 1831, which exempted its stock from taxation, did not exempt it from the payment of a license tax.
    No legislative act or charter can exempt any particular hank or company from license taxation, under the constitution of 1868. If any exemption he claimed, it must he of a class, not of any individual of a class.
    REPEAL from the Third District Court, parish of Orleans. Monroe,

      Sam. Blanc, assistant city attorney, for plaintiff and appellee.

      John & W. S. Finney for defendant and appellant.
    Sam. P. Blanc, assistant city attorney, for plaintiff and appellee, contended:
    First — That since the adoption of the constitution of 1868 no exemption from taxation can be conferred on any special individual of a class. See 31 A. 292, 440, 519, and 637 ; 27 A. 646, 648, and 376.
    Second — That the original charter of the New-Orleans Canal and Banking Company did not exempt it from the payment of license taxes. See section 26 of that charter.
    John & W. S. Finney, contra, contended :
    First — There is nothing in the constitution of 1868 which prohibits the legislature from exempting a class of occupations.
    Second — Taking the free banks as a class, the legislature might exempt them from a license on their business. If it could do so, it has done it, by section 307 of the Revised Statutes. Section 315 is not in conflict ; on the contrary, it supports this construction of art. 307. It recognizes the exemption of banks from paying license, when the legislature thinks proper to do so.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues for nine thousand dollars, the amount of municipal licenses for the years 1870-1878 both inclusive, which it is claimed the defendant owes as a Bank.

The defence is that by an act of March 5,1831, this Bank in its charter was exempted from all State, parish, and municipal taxes in consideration of certain acts to be done by it, all of which have been done, and that this exemption from taxes includes licenses ;

That by act of March 16,1870, its charter was extended twenty-ñve years from and after that year, and its capital stock was then made subject to taxation at the same rate as other personal property, and that this in legal effect excluded the right of exacting a license.

The questions presented by this defence are no longer open, and have been decided adversely to the defendant. New Orleans v. St. Anna Asylum, 31 Annual, 292. La. Cotton and Manufac. Co. v. New Orleans, Ibid. 440. State v. Southern Bank, Ibid. 519. New Orleans v. La. Savings Bank, Ibid. 637.

The lower court, on the authority of those cases, gave judgment for eight thousand dollars, the amount of licenses sued for except that for 1870, but considered that the Bank was exempt under its old charter from- a license tax, which charter did not expire until the last day of that year. The plaintiff, answering the appeal, has prayed an amendment of the judgment so as to include the license for that year.

The old charter reads, in consideration of certain property vesting in the State after a specified period, “ the stock Qf said company shall be exempt from taxation by the State, or by any parish or body politic under the authority of the State, for the whole term of this charter.” Sec. 26 sess. Acts 1831, p. 56.

Primarily every thing is liable to taxation. Exemptions are construed strictly. They apply only to what is specially enumerated. A law that declares the stock of a company shall be exempt from taxation implies that nothing but the stock shall b© exempt.

This court has repeatedly held that no act or charter can exempt any particular bank or company from license taxation under the constitution of 1868. If any exemption be claimed, it must bo of 'a class, and we have just now sustained an exemption claimed by the People’s Bank because 'it, with others constituted a class, distinguishable by well-marked features from others. It is not pretended that the defendant can come under the rule applied in that case. Therefore

It is ordered and decreed that the judgment of the lower court dismissing the claim for the license of 1870 is avoided and reversed, and that the judgment of that court be amended by inserting nine thousand dollars instead of eight thousand as the sum recovered, and by inserting also “with legal interest on one thousand dollars from February 28, 1870,” and as thus amended, that it be affirmed with costs in both courts.

Rehearing refused.


text:
    No. 7552.
    Edward E. Stockmeyer & Co. vs. Daniel Weidner and Jacob Weidner.
    In actions of rescission, it is proper and necessary to make all parties to the transaction* parties to tlie suit, and tMs may "be done by amended petition, if not originally done.
    Evidence taken in another suit, between other parties, is not admissible if objected to. lykero one surrenders his debtor’s note to a-third person for the latter’s check, and the check, is dishonored, that fact alone entitles the party to a resolution of the transaction.
    APPEAL from the Sixth District Court, parish of Orleans. Mghtor, J.

      E. W. Huntington, Thomas Gilmore & Sons for plaintiffs and appellants.

      William S. Benedict and Charles IP. Buck for defendants and ap-pellees.
    E. W. Huntington and T. Gilmore & Sons, for plaintiffs, contended: Eirst — The giving of a check (not paid upon presentation) is not.payment ; nor is it novation. 11 A. 28 ; 1 Hall’s N. Y. Rep. 68.
    Second — The receiving of the check in this case did not operate as an extinguishment of the mortgage note. Pothier on Obligations, p. iii. c. 2, sec. 4, p. 354; 2 N. S. 543 ; 4 A. 281.
    Third — Estoppel does not apply. One cannot avail himself of an es-toppel who would not have been estopped by it had it been the other way. Bigelow on Estoppel, p. 46 ; Robinson’s Practice, vol. 7, p. 250.
    W. S. Benedict and C. F. Buck, for defendant, contended:
    Eirst — The word indorse imports a delivery and transfer to the indorsee-, Byles on Bills, 6th American edition, marginal, p. 150.
    A note payable to order may be transferred without indorsement. In-dorsement proved by parol, 2 L. 89. Delivery will pass a good title-. 29 N. J. Eq. 547.
    Second — D. Weidner cannot be held on the note which Stockmeyer gave up for the check which the Hibernia Bank paid him.
    Third — -The immediate legal effects of Stockmeyer’s suit and recovery1 on the- check received from J. Weidner are obvious. They work an estoppel. 22 A. 429 ; 28 A. 139.
    Fourth — A party cannot do an act which he is at liberty to abstain from, and by a mere reservation screen himself from the consequences, 18 A. 59.
   The opinion of the court was delivered by

Spencer, J.

The substance of plaintiffs’ original and amended petitions, may be stated briefly as follows:

That plaintiffs held a mortgage note of Daniel Weidner, dated March 27th, 1873, and due twelve months thereafter, for some 14000. That o.n the 7th of September, 1874, Jacob Weidner (a son of Daniel) tendered to plaintiffs his check for $3924 45, on and certified by the Hibernia Bank, in payment of said note and in discharge of the drawer. Said check was received by plaintiffs, who surrendered to Jacob Weid-ner the mortgage note of Daniel. The check was drawn by Jacob to his own order, and when he gave'it to plaintiffs he neglected to indorse it. Plaintiffs presented the check to the bank, and payment was refused, on the alleged ground that it was not indorsed. Thereupon the check was protested, and this suit brought for the double purpose, first, of enforcing against Daniel Weidner the original debt evidenced by the mortgage note, and, second, to have rescinded and annulled for fraud and error the transaction whereby the plaintiffs surrendered that note for the check, which last is annexed and tendered back to Jacob Weidner. Jacob Weidner, having absconded and left the State, he was cited through a curator ad hoc. Jacob Weidner was made party by supplemental petition, and it was excepted to by D. Weidner, on the ground that it altered the substance of the issue. We think that it was necessary to have Jacob Weidner as a party, and that the rescission of the transaction with him was a necessary incident to the enforcement of plaintiffs’ demands against Daniel Weidner. That while the transaction with Jacob remained unrevoked no enforcement could be had of the note' by and for the benefit of plaintiffs. We see no objection to the cumulation of these demands in one suit.

It is very clear that the note was surrendered and given to Jacob Weidner in error by plaintiffs, and that the non-payment of the cheek entitled them to rescind the transaction and retake the note.

There is also in this record full proof that Jacob Weidner procured the certification of his check by the Hibernia Bank by the grossest fraud; but that evidence consists of the, testimony of witnesses taken in another suit, to which neither of the defendants were parties. The court manifestly erred in admitting it against the exception and objection of defendants. It cannot, therefore, be considered in this case. But we think that the fact of non-payment alone of the cheek entitles plaintiffs to the resolution and rescission of the transaction with Jacob Weidner, whether the latter was guilty of fraud or not. This results from the resolutory condition implied by law in all synallagmatic contracts.

But it is asserted by the defendants that the check has been paid, and that, therefore, plaintiffs are without right to maintain this suit. This defense rests upon the following state of facts :

Some time after the present suit was brought against Daniel Weid-ner, the plaintiffs sued the Hibernia Bank on the check. The bank resisted that suit upon the grounds that the check, not being indorsed, was subject in Stockmeyer & Co.’s hands to all the defenses that the bank could urge against Jacob Weidner. It alleged and conclusively proved that its certification of the check was procured by the fraud and rascality of Jacob Weidner. The court below gave judgment, however, against the bank, and the bank took a suspensive appeal. Pending that appeal, an adjustment was effected between the bank and Stockmeyer & Co. The document evidencing that adjustment is certainly very inartis-tically drawn, and its meaning obscure. But the defendants put Stock - meyer’s attorney on the stand, and obtained from him an explanation of its meaning, which may be summarized thus :

Stockmeyer & Co. had great doubt of getting their judgment against the bank affirmed on appeal. The bank agreed to and did buy one half-interest in Stockmeyer & Co.’s claim against Daniel Weidner, at its face value, and were subrogated thereto to that extent. In consideration of this transaction, Stockmeyer & Co. abandon their claim against the bank on the check, which they produce in the present suit and tender back to Jacob Weidner. We do not find in this transaction any payment of the check. We see no wrong to anybody. Jacob Weidner gets back his check, and if the bank is bound on the check he can enforce its payment. Daniel Weidner is not made liable for one dollar beyond what he owed on the note, which he in his answer expressly avers he has never paid, or authorized to be paid. If the note was not given up to him by Jacob, as plaintiffs allege, it was at least passed due, and there is no danger of any transferee of Jacob, or of Jacob himself, ever enforcing it a second time against him. If Daniel will pay the judgment we shall render against himjthen Stockmeyer & Co. will have received enough to fill the measure of their rights, and to refund the bank the sum expended by it in the purchase of a share in the Daniel Weidner debt. In a word, everybody will get what belongs to him, and no more. It is rare that such an opportunity offers for setting everybody even, and saving them harmless from the effect of so bold a swindle as that perpetrated by Jacob Weidner.

The judgment appealed from is erroneous, and the same is hereby annulled and reversed; and proceeding to render such judgment as should have been rendered below, it is now ordered, adjudged, and decreed that the plaintiffs, Stockmeyer & Co., do have and recover of the defendant, Daniel Weidner, the sum of four tfiousand dollars, with eight per cent interest thereon from 27th day of March, 1874, until paid, and also the further sum of five per cent for attorney’s fees on amount of the above judgment, and also the further sum of thirty-eight 25-100 dollars for insurance paid on the mortgaged premises hereafter referred to, as well as costs of suit.

It is further decreed that the special mortgage claimed by plaintiffs, and contained in the act annexed to their petition, and passed before Cuvellier, notary public, on the 27th day of .March, 1873, be and the same is hereby recognized and rendered executory against the property therein described, and that the same be seized and sold to pay the above judgment.

It is further decreed that the delivery of the mortgage note described in plaintiffs’ petition to Jacob Weidner, in exchange for the latter’s check on the Hibernia Bank, be decreed null and void, and plaintiffs are declared the owners of said note, and Jacob Weidner the owner of said check.

It is further decreed that plaintiffs have judgment against Jacob Weidner for the costs of this suit.

Rehearing refused.


author: Marr, J.

text:
    No. 7630.
    Succession of Hardy Boisblanc. On Rule of McCulloch & Sons.
    The presumption of ownership resulting from possession, is not applicable to factors, brokers, and other avowed agents, with respect to money or property intrusted to them for the special purposes of their vocation.
    Longbotfcom’s Executors vs. Babcock, 9 La. 44, and Stetson <fc Avery vs. .G-urney, 17 La. Ifi2, reviewed and explained.
    ■Where the principals, merchants of Louisville, Kentucky, intrusted to their agent, a broker of Eew Orleans, a bill of exchange specially indorsed by them to the broker, to be used by bíni in purchasing sugar’and molasses for them, and the agent caused the hill to be discounted and the proceeds to he placod to his credit in bank, the money did not thereby become the property of the agent; and his succession acquired no better title to it than the deceased agent himself had.
    The principal may pursue and recover his property or proceeds in the hands of the legal representative of the deceased agent, whenever it can he identified and distinguished; but the burden of identification and of proof of ownership is on the principal.
    REPEAL from the Second. District Court, parish of Orleans. Tissot,

      W. W. King and McOloin & Nixon for plaintiffs in rule, appellees.

      Robert Mott and Francis B. Lee for D. Wilson, public administrator, appellant.
   The opinion of the court was delivered by

Marr, J.

In the latter part of December, 1878, McCulloch & Sons, of Louisville, Kentucky, remitted to Boisblanc, a broker of New Orleans, to be invested by him in sugar and molasses for their account, a bank-check on New York, for $1500, to their order, which they specially indorsed to the order of Boisblanc. On the 26th December, Boisblanc had this check discounted, and the proceeds, $1494 38, carried to his credit at the Germania -National Bank, where he had an account; and, on the same day, he deposited $316 80 in the same bank. After this he made no deposit, and he drew no check except one, on the 27th December, for $491 15. Shortly after he was taken sick ; and, on the 2d January, he died insolvent., His bank account was balanced on the 31st December ; and there remained, to his credit, $1398 46 ; so that of the proceeds of the check remitted by McCulloch & Sons, $95 92 were used in paying the check for $491 15.

McCulloch & Sons claimed this balance as belonging to them; and the administrator claimed it as belonging to the succession of Boisblanc. The bank paid the money to the administrator; and he is appellant from the judgment condemning him to restore it to McCulloch & Sons.

Two decisions of this court are relied upon in support of the claim of the administrator : Longbottom’s Executors vs. Babcock, 9 La. 44, and Stetson & Avery vs. Gurney, 17 La. 162. In the first case, Henry had given to his attorney in fact, Longbottom, a cheek for $1300, to be disbursed for his account, of which Longbottom had disbursed $200. After the death of Longbottom, $1100 in money were found in his store; and Henry claimed that this sum was the balance of the money deposited by him with Longbottom, and that he was entitled to it, by preference, out of the funds of the succession. It does not appear what length of time elapsed between the giving of the check and the death of Longbottom, nor whence the money came which was found in his store. The court said: “There is no evidence to show that this sum is the same money received by the testator; and Henry was ranked as an ordinary creditor for the balance due him, $1100.

In the second case, Gurney had deposited in bank, in his own name, $10,000, in city notes ; and Stetson & Avery, his judgment creditors, seized in the hands of the bank. Bobertson intervened, claiming that this money was part of a large sum, $350,000, intrusted by him to Gurney, a cotton-broker, to be used by him in the purchase of cotton for account of Bobertson. At that time the law did not permit parties to testify ; and, of course, Bobertson was not heard as a witness. We infer from the report that Gurney was the only witness called to .prove that the money belonged to Bobertson ; and on his testimony the court of first instance decided that no part of the money was subject to seizure by the creditors of Gurney, except the amount due to him for his commissions. This court decided that Gurney was not competent, because he was a party to the record. Without his testimony it was not possible to identify the money as part of that received by him from Bobertson. The court recognized the doctrine, which we do not consider questionable, that the principal is entitled to recover whenever he •can trace Ms own property, and distinguish it or its proceeds from the mass of the property of Ms agent.

Manifestly both these cases were decided upon the conviction of the court that the persons claiming the money had failed to identify it, or to prove that it belonged to them, respectively.

la general, possession is presumptive evidence of ownership; but this is not true with respect to factors, brokers, and avowed agents, whose vocation, whose daily business, is to deal with the property of others, intrusted to them for the special purposes of their vocation. Their possession misleads no one; and they cannot pledge the property •of their principals, since their special business is to sell, and not to pledge or dispose of otherwise than by sale. The possession of the «gént is the possession of the principal; and the principal may reclaim his property or the proceeds, in the hands of the agent, or of his executor, or administrator, or other legal representative, succeeding merely to his rights; or in the warehouse, or bank, or other depository in which eithi r the property or the proceeds may have been placed by the agent. Of course, in all such eases, the burden is on him who asserts the ownership of that which is not in his actual possession to prove Ms right and title; and if he cannot do this he cannot be judicially recognized as the owner. "We think the cases of Longbottom and Gfurney are to be understood in this sense, and in this sense alone. They would otherwise be in conflict with well established principles, and with previous and subsequent decisions of this court. See Story on Agency, secs. 229, 231, and cases cited in notes ; 2 Kent. 624.

In Clay vs. His Creditors, 9 Martin, 519, decided in 1821, the pledgor was permitted to recover, by preference, the proceeds of his property, in the hands of the syndics of the insolvent pledgee; and this was shown to be in accordance with the Eoman law, the French law, and the Spanish law. It is the law of common sense, and of common honesty.

In L’Hommedieu vs. Penny’s Executors, 6 La. 599, Penny, a factor of New Orleans, received the note of the purchaser, payable to his order, for a quantity of lime consigned to him by L’Hommedieu. After Penny’s death this note came into the possession of his executors ; and. they collected the amount. L’Hommedieu claimed the money; and this court, affirming the judgment which condemned the executors to pay it to Mm, said that the object of the suit was to have the amount of the note separate from the estate of Pen@$; that* the note belonged to L’Hommedieu; and that the proceeds must be returned to him. And yet, the legal title to the note was in Penny, and in his executors after his death. The court recognized, respected, and enforced the beneficial title, the right of the actual owner, against the legal title and apparent right of the mere holder for his benefit.

Ia Beatty vs. McLeod, 11 An. 76, one Jordan, oí the parish of La-fourche, died at Tuscumbia, Alabama. He had a considerable sum of money with him, which, a short time before his death, he handed to a gentleman at Tuscumbia for safe keeping, informing him that it belonged to his minor daughter, whose natural tutor he was. McLeod qualified as tutor of this minor, and he received the money from the gentleman in whose hands it had been left by Jordan. The creditors of Jordan sought to recover it, as belonging to the succession of Jordan. The evidence satisfied the court that this money was part of a larger sum which had come into Jordan’s hands as tutor, proceeds of notes which belonged to his daughter as heir of her mother ; and-the demand of the creditors was rejected.

The money in this case is fully identified. The check remitted by McCulloch & Sons to Boisblanc was produced on the trial; and the cashier of the Germania Bank testified that it was discounted by the bank, and the proceeds carried to the credit of Boisblanc. The bankbook of Boisblanc and the stub of his check-book were also offered in evidence ; and they prove, beyond doubt, that Boisblanc had not to his credit in bank on the 27th December, independently of the proceeds of the check remitted by McCulloch & Sons, a sum sufficient to pay his check of that date for $491 15. As the balance remaining in bank, after the payment of this check, was $1398 46, and the proceeds of the check deposited 26th December amounted to $1494 38, it is evident that Bois-blanc had not a dollar of his own money in bank after the 27th December ; and that the entire balance to the credit of his account belonged to McCulloch & Sons. The identification is as complete as it could have been if an equal sum of money had been placed in a sealed package, and specially deposited.

The succession of Boisblanc can have no better right or title to this money than Boisblanc had. By indorsing the check to his order, McCul-loch & Sons transferred the legal title to Boisblanc, for a special purpose, which could not otherwise have been conveniently accomplished; but they did not divest themselves of the real, beneficial ownership. A bill of lading, consigning goods to a factor, for sale, for account of the consignor, vests the legal title and possession in the factor; but no one imagines that this legal title impresses on the property all the consequences of beneficial ownership ; or that it subjects it, in the hands of the factor, to the pursuit of his creditors; or that it divests the beneficial title of the real owner.

We know of no process by which the agent can become the owner of the money or the property of his principal, intrusted to him for a special purpose. The unfaithful or imprudent agent may so deal with the property of the principal as to subject it to the rights of his creditors or other innocent third persons: he may make the tracing and identification of it, and the proof of ownership difficult, even impossible: he may illegally convert it to his own uses, and subject himself to criminal prosecution, under the statute, for embezzlement or breach of trust with respect to it; but ho cannot, as against his principal, make it his own; nor can he transmit it to his succession by will, or ab intestate.

The judgment appealed from is, therefore, affirmed with costs.

Eehearing refused.


text:
    No. 7638.
    Raphael Landry et als. vs. Eugenie Tomatis et als.
    "When the notary who 'reduced to 'writing, and the three witnesses who subscribed to what purports to be the nuncupative will by public act of a decedent, unite in testifying in the most formal manner that the writing was dictated to the notary by the decedent in the presence of the subscribing witnesses; and there is nothing to show that the notary or the witnesses had any interest in the dispositions made by the decedent, or that they are unworthy of belief, the effort to show that the decedent did not dictate the will (which was written in English) because she did not sufficiently understand or speak English to he able to do it, will not be successful when the evidence as to her sufficient understanding of English is conflicting.
    It is no cause of nullity of a will that the testator, not accustomed to use the technical language of testamentary dispositions, has availed himself of the advice and assistance of counsel in selecting the words and shaping the phraseology which he has immediately dictated to the notary as the expression of his will.
    REPEAL from the Second District Court, parish of Orleans. Tissot,

      Richard Shackelford and James Graham for plaintiffs and appellees.

      Edward Bermudez and W. B. Lancaster for defendants and appellants.
    Merrick, Eace & Foster, Eichard Shackelford, and James Graham, for plaintiffs and appellees, contended :
    1. That a nuncupative will by public act must be dictated by the testator to the notary, and written by the notary as dictated. O. 0.1578.
    2. That it cannot be said that a will was dictated by the testator, when it appears that the words of each clause of the will were suggested to Mm by another person. Laudais’French Dictionary., word Dieter. Also the case of Hamilton vs. Hamilton, 6 N. S. 146.
    3. The formalities prescribed by law must be observed, otherwise the testament is null and void. 5 L. 105 ; 11 L. 365 ; 12 L. 114; 13 L. 106 ; 15 L. 28 ; 20 A. 203 ; 21 A. 116.

      E. Bermudez and W. B. Lancaster, contra, contended :
    1. That the dictation of a will refers to its substance, and not to its style. Where it appears that the real intent or will of the testator is expressed in the testament, its validity is not affected by the fact that the language used was suggested by another, or that the words employed by the notary were not in all respects identically those used by the testator. Coin-Delisle D. & T. p. 368, No. 2 ; J. P. 1823, 21, vol. 18, p. 136 ; J. P. 1806, 23 July, and 24 Nov.; do. 1807, March 4, vol. 6, p. 70; do. Eeb. 1, vol. 13, p. 257 ; Journal du Palais, 1841, wol. 1, p. 707; J. P. 1850, vol. 2, pp. 13,14, and notes ; do. December '7,1849,Meynier vs.Meynier; J. P. 1845, vol. 1, p. 403, 404; Miguel vs. ■Gervais, 15 January ; Maleville, vol. 2, p. 438 ; Grenier D. & T. vol. 1, p. 535, No. 237; Toullier, vol. 5, p. 389, No. 419 ; Duran ton, vol. 9, p. 110, No. 76-77 ; Poujol D. vol. 2, p. 62, No. 17 ; Zacharies, vol. 5, p. 100; Marcadé, vol. 4, p. 16 ; II. on act 972 ; Demolorabe, vol. 21, p. 265,1. iii. t. 2, c. 5.; Troplong D. & T. vol. 3, p. 80, Nos. 1525,1526 ; Rep. J. P. vo. Test. Nos. 494, 511, 512, 513 ; Hamilton’s case, 6 N. S. 146; Chardon’s case, 9 L. 471; Segur’s case, 12 L. 28; Gonzales’ case, 13 L. 106 ; Hebert’s case, 11 L. 365 ; 11 A. 676 ; 14 A. 233 ; 7 A. 100.
   The opinion of the court was delivered by

Marr, J.

Defendants are appellants from a judgment declaring to foe null the writing which had been admitted to probate as the nuncu-pative will, by public act, of Mrs. Tomatis. The single question to be solved is purely one of fact: “Was this writing dictated to the notary by Mrs. Tomatis ?”

Immediately following what purports to be the dispositive part of this writing is this statement; “ This will ha? been thus dictated to me, notary, by the testatrix, in presence and hearing of said three afore-named witnesses, and written by me, notary, as dictated, in presence and hearing of said three aforenamed witnesses, and afterwards read in a loud and audible voice by me, notary, to the testatrix in presence and hearing of said three aforpnamed witnesses, whereupon the.said testatrix declared that she perfectly understood the same, and persisted therein, in presence and hearing of said three aforenamed witnesses.”

The three witnesses were, Father Messardier, a minister of religion; Theo. Brummer, a given neighbor and friend of the testatrix; and W. B. Lancaster, a member of the bar, her legal adviser. The notary, the priest, and Brummer were examined as witnesses ; and they all testified, •on the trial, as they had already attested, in solemn form, that the testatrix pronounced, dictated to the notary, the precise words which wére written by the notary as her will. Mr. Lancaster represented the defendants in the suit; and he was not called as a witness.

The notary and the two witnesses just mentioned are the only persons present at the making of the will who testified at tho trial; and there is no direct proof to contradict their statement and testimony that the testatrix dictated the precise words written by the notary. The will is written in good English ; and the vernacular of the testatrix was such French as is spoken by the uneducated Oreóles of Louisiana. She knew but little English ; and she could neither read nor write. Fifteen witnesses were called to prove her ignorance of English, and her inability to use that language as the medium of ordinary conversation ; and the exigencies of the case require the deduction, from this testimony, that she did not dictate the words purporting to have been used by her, because she could not; and that the official certificate of the notary, the attestation by the three witnesses, and the testimony given by the notary and two of the witnesses, are absolutely false.

There is nothing in the record tending to show that the notary, or any one of the witnesses to the will, had any interest in the disposition of her property by the testatrix. Not one of them has been shown to be unworthy of belief; and the solemn act, attested by them, makes full proof of itself. The notary did not speak or understand French; but all the witnesses understood English and French. Neither the notary nor Mr. Brummer had any previous knowledge of the intention of Mrs. Tomatis ; but the priest knew, beforehand, from frequent conversations with her, precisely what disposition she designed to make of her property. It must be presumed that she had consulted her legal adviser on this subject; and up to tho evening before her death, which occurred six months after the making of the will, he represented her as her attorney. These facts would, ordinarily, be regarded as affording the highest .assurance that no imposition would be practiced or attempted ; and that the will, as written by the notary, would be in accordance with the wishes and intention of the testatrix.

Of the fifteen witnesses for plaintiffs, one, a very old woman, eighty-one years of age, who is entirely ignorant of the English language, never heard Mrs. Tomatis speak a word of English. She is the great aunt of some of the plaintiffs. Four others are parties to the suit, two of them aiding and assisting their wives; and another is the father of two of the plaintiffs. One of the witnesses always used the French language in conversation with Mrs. Tomatis, because he took it for granted that she spoke no other language; and another never addressed a word to her in any language. One of them visited her shortly after the death of Mr. Tomatis to collect a sum of money which he had lent him; and she spoke English well enough to make him understand that she did not have the money, at that time, to pay him; and that she would pay as soon as she had the money.

Another witness proves that Mrs. Tomatis gave her testimony in French on one occasion, because she said she could not speak English. On another occasion, the evening before her death, her deposition was taken in a case in which she was plaintiff, which was a suit to eject some of the plaintiffs from a house which they occupied. The questions were translated to her, and her answers were, translated into English. The justice who took this testimony, says : “It struck me the lady didn’t understand much of what was going on when spoken French or English to. It struck me she was so weak that she wasn’t capable of giving good testimony.” And, again, he says : “In fact she was so weak she could hardly open her mouth.” In another place he says: “ She did speak a work or two of English,1 Turn them out,’ or something like that.” No great importance is due to any thing that occurred at that time. She was probably in articulo mortis; and she actually died the next morning. But it is somewhat remarkable, when she had her attorney and a female member of her family as interpreters, that she should have used the English words, “ Turn them out,” the very best that could have been chosen to express her wishes, and the precise object of the suit.

Another of the witnesses spoke German and English only. He had occasion to see Mrs. Tomatis frequently, when he called to see her husband on business. He always addressed her in English, because he knew no French. He says she spoke a little English; “but I did not understand her very well.” When asked : “ Do you speak very well English yourself ?” he answered “ No, sir; I speak it so I can make myself understood to a person.”

It was also preven that Mr. Tomatis had told one or more of the witnesses that his wife could not speak English well enough to carry on conversation. Several witnesses testify to the same effect; and it is manifest that her knowledge of English was very limited.

The witnesses on the part of defendants, Brummer, Messardier, and Hippier, had conversed with Mrs. Tomatis frequently in English. Hip-pier did not speak French. He had known Mrs. Tomatis from his childhood; and Brummer and Messardier had known her for ten years. Thomas, formerly a slave, who had been brought up in the family, says she could speak almost any thing she felt like saying, “ that is in regards to English, but badly spoken.” Amelia Muller, who lived in the family for about two months, could not speak French. She used the English language in daily conversation with Mrs. Tomatis; and understood every thing she said. Apolina Ernst lived next door to Mrs. Tomatis for eighteen years; and she saw and talked with her in English, almost every evening in summer, sitting before her door. Their conversations were general, sometimes about business, sometimes about family matters. It is not probable that these two persons could have been brought into such intimate association, for so many years, without finding means of talking together about any thing that might happen to interest them.

Mrs. Sherman, a neighbor, did not understand French; and she had frequent conversations with Mrs. Tomatis, in English, during a period of about twenty years. Smith, a merchant, had conversations with Mrs. Tomatis almost daily, as she was passing his store returning from market. He did not speak French; and their conversations were always in English. Mrs. Breene lived a neighbor for nineteen years, and for four or five years next door. She spoke no French ; and her conversations with Mrs. Tomatis were frequent, and always in English. Dimitry visited the family frequently. He did not speak French; and he and Mrs. Tomatis conversed always in English. He had no difficulty in understanding- her or in making her understand him.

The witnesses who testified that Mrs. Tomatis could speak only the words of ordinary salutation in English are contradicted by unim-peached witnesses who actually conversed with her, some of them almost every day, for a series of years, on different subjects, and always in that language, which was the only medium of communication between them. Much of the testimony in behalf of plaintiffs is of a negative character, the opinion, the belief of the witnesses, that Mrs. Tomatis could not do, what witnesses of equal respectability say she did do, express her ideas intelligibly, and for ordinary social and business purposes, in English.

Certainly Mrs. Tomatis spoke very poor English. She habitually used the objective “me” for the nominative “I;” and she did not always observe the difference in genders. No doubt she said, on many occasions, and to different persons, that she could not speak, or could not understand, English : her husband said she could not converse in that language; and all the witnesses called for the plaintiffs may have believed that she was not capable of expressing herself in English, or of understanding what was said to her in that language; but such testimony cannot prove the falsity of a solemn notarial •act, or outweigh the testimony of the witnesses who habitually used that language for ordinary social and business purposes, and who understood what Mrs. Tomatis said to them, and made her understand what they said to her.

The will of Mrs. Tomatis is very simple: I give, devise, and bequeath unto Adolphe Tomatis the property corner of Felicity and Liberty streets, being a double house.” Bepeating the formal words, in the second clause, she bestows on Elizabeth another property, being a double cottage; and repeating them again in the third clause, she gives to Eugénie her residence and all her movable property, even money. In these three bequests there are but two words, “ devise ” and “ bequeath,” which are not in general use, in the daily business of life. These two words are of no real value. They add nothing to the familiar word “ give;” and to give, by will, is to devise and bequeath.

By the fourth clause Eugénie is appointed executrix, with “ seizin;” and is instituted “ universal legatee;” and the fifth clause revokes any former will. It cannot be assumed, as a matter of fact, that Mrs. Tomatis was ignorant of the use and effect of the words “ seizin” and “universal legatee;” because, in 1850, she and her husband had made wills, each in favor of the other. Between the date of her husband’s death, 25th June, 1878, and the making of her last will, 15th August, 1878, the will of her husband, which constituted her title to the property disposed of by her, was admitted to probate. A copy of her will of 9th July, 1850, is in the record, written in French; and her entire disposition was expressed by appointing her husband “ légataire universel,” and “ exécuteur avec saisine.” It cannot be presumed that her husband, making at the same time a similar will in her favor, left her in ignorance of the meaning and effect of these words 'in her own language; and they differ so slightly from the corresponding English words in her last will, “ executrix,” “seizin,” and “universal legatee,” that it was only necessary to inform her that they were identical in meaning and effect,' to enable her to use the English words intelligent!}'. As to the word “ revoke,” it is barely distinguishable, in sound, from the corresponding French verb in the expression “ Je révoque,” and there is no difference in the meaning.

Many persons, not illiterate, who speak the English language only, are wholly ignorant of the technical words used in this will; and yet they occur in almost every will by public act, written in English, in the State of Louisiana. Necessarily, most of the persons who use these words for dictation must have learned them for the purpose, since they are used only in testamentary dispositions. -

It is evident that Mrs. Tomatis could not have used some of the words written by the notary, nor could she have understood their meaning and effect, without first having had them taught and explained to her. Immediately after .the death of her husband she had determined to dispose of her property in favor of the defendants, a's she told Father Messardier in many conversations. Her counsel spoke French and English; and it is neither impossible nor improbable that he had taught her in advance the use and meaning of these technical words. It could not have been a very difficult task for her to learn to use the formula “ I gives devise, and bequeath;” or that the English words seizin, universal legatee, and revoke meant the same, respectively, as the French, words saisine, légataire universél, and revoque. She might, without any extraordinai’y labor, have learned, not only to utter these words so that she could dictate them, but that, when embodied in her will, they would accomplish the purposes which she intended.

By our law, R. C. C. art. 1492, “ proof is not admitted of the dispositions having been made through hatred, anger, suggestion, or captation.” There is no corresponding article in the Code Napoleon; and a will may be annulled in France for suggestion or captation ; and yet Marcadé, vol. 4, p. 14, commenting on art. 972 of that Code, which, like art. 1578 of our R. C. C., requires the will to be written tel qu’il est dicté, as it is dictated, says :

“ Bien n’empéche le testateur de se faire renseigner avant la redaction, par tel conseil qu’il voudra choisir, fut-ce le notaire qui doit rece-voir’ l’acte, et de dieter ses volontés en lisant les notes que ce conseil lui aurait remises, ou méme un modéle qu’il aurait fait rédiger par ce méme conseil. Bien n’empéche non plus le notaire d’addresser quelques. questions ou observations pour faire développer et rendre plus claire les volontés exprimées par le disposant; il peut méme lui suggérer des mots exprimant mieux la pensóe, mais il doit se garder de lui suggérer des idees nouvelles.”

Still more to the purpose is what Coin-Delisle says, commenting on the same article, p. 371, No. 12; “ Qu’il ne soit pas défendu au testateur de s’aider (comme le dit Bicard No. 55,) des lumiéres d’un conseil aw temps méme du testament, non pour dieter ses dispositions, mais pour prendre avis sur la forme a donner aux dispositions, et lui préter le se-cours des termes legitimes, de sorte que la disposition partit toujoura de l’esprit du testateur, qui se servirait ensuite dans la dictée du tour que son conseil lui aurait indiquée.”

No illiterate person, few persons, not lawyers, however learned, could dictate, without some such assistance, all the words necessary to express the most common testamentary dispositions; and Mrs. Tomatis was assisted in making this will by her chosen counsel. The notary says : “ She was assisted in dictating by Mr. Lancaster. The words they would speak on the subject I took down — the words ‘ I give ’ — ‘ devise ’ and ' bequeath.’ ”

“ Did not Mr. Lancaster express these English words ? ”

“No, sir, not to me.”

“Did not he speak them out?”

He might have spoken to her.”

“ Did not Mr. Lancaster tell you in English what she said to him in French ? ”

“ No, sir.”

It was proven that while the testatrix was dictating no other per-son spoke a word to the notary. After testifying that he wrote the will section by section, the notary was asked:

“ After she made one disposition, what then would occur ? ”

He answered : “ Then I would make another, after Mr. Lancaster would speak to her.”

“After she had a conversation with the other parties present, and after she got through that conversation ? ”

She dictated to me.”

“In that dictation did anybody put in and assist her in the dictation ? ”

“ I think so ; I think Mr. Lancaster assisted her.”

We think the entire testimony on this subject shows that no one suggested any new ideas to Mrs. Tomatis ; and that the assistance which she received consisted in the suggestion to her by her counsel of words suitable to express her will and intention. We know no good reason why she should not have been so assisted, as Ricard says, at the time of the making of the will. She might have had a model or form prepared for her by the notary or by her counsel, after she had informed them perfectly of her intended dispositions ; and from such model or form she might validly have dictated her will. But she could not read, and must have depended solely on her memory for the words, not familiar to her, necessary to accomplish her purposes. If these words might have been written by her counsel before the work of dictating and writing commenced, there is no reason why they should not be suggested for each separate clause, immediately after the completing of the preceding clause.

The will must be the work of the testator alone, so far as the disposition of his property is concerned ; and he must dictate, address to the notary, the words to be written by the notary as the will. It is no cause of nullity that the testator, not accustomed to use the technical language of testamentary dispositions, has availed himself of the advice and assistance of counsel in selecting the words and shaping the phraseology which he has immediately dictated .to the notary as the expression of his will.

There is no cause to suspect that this will is not precisely that which the testatrix intended to make. It was not made in extremis; she was not in bad health; and she lived six months after it was made. She must have known that by that will she had given one house to Adolphe, another to Elizabeth, and another, and all her movables, even money, to Eugenie. If she had not been satisfied, if she had changed her mind, there was ample time to have revoked this will, and to have made new dispositions in accordance with her wishes.

We are constrained to differ with our learned brother of the district court in his appreciation of the testimony; and to hold that the will in question was dictated by the testatrix, and that it is valid.

The judgment appealed from is therefore annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that the demand of plaintiffs be rejected, and their suit and petition be dismissed with costs in both courts.

Rehearing refused.


text:
    No. 7745.
    J. H. Beard vs. White Cash et al.
    A creditor of a succession who has received his share of the proceeds of the sale of certain land belonging to the succession, cannot he heard to claim the annulment of the sale, and to assert his title to the land.
    The creditor of a succession cannot revendiente the property of the succession which has "been sold to pay its debts, without first tendering the price, or so much thereof as was applied to the extinguishment of those debts.
    APPEAL from tbe Tenth Judicial District Court, parish of Caddo. Boarman, J.

      Hicks & Hicks for plaintiff and appellant.

      T. T. & A. D. Land for defendant and appellee.
    Hicks & Hicks, for plaintiff and appellant, contended:
    I.
    Offer of restitution of the purchase price was unnecessary.- 13 A. 190; C. C. 3451, 3452, 3453 ; 6 R. 211; 15 A. 519 ; 24 A, 253 ; 31 A. 372.
    II.
    The decree in the mortuary proceeding is not a bar to this action. C. P. 345, 539 ; 9 M. 520-1-2 ; 7 N. S. 364-5 ; 6 R. 422 ; 1 Greenleaf Ev. sec. 530 ; 14 A. 492 ; 16 A. 198 ; 26 A. 595; 30 A. 268. But this suit is not probate in character, but of ordinary jurisdiction, for the recovery of the land sold at probate sale; and for that purpose to annul the sale for want of validity in the probate proceedings, and for want of compliance with the order of sale. There is a wide legal difference between annulling probate proceedings, which can only be done by the probate court, and are therefore probate in character, and annulling a sale ordered by that court, because of the absolute nullity of its orders and proceedings, or for want of compliance with the order of sale. The latter questions are of ordinary cognizance. 28 A. 305; 29 A. 502. It is evident the exceptions cannot be maintained.
    III.
    The decree of salé is void for want of jurisdiction :
    1. Because White’s appointment as administrator was void for want of jurisdiction in the court to appoint him. 0. 0. 1153, 4; 10 A. 547 ; 9 A. 355 ; C. O. 1158, paragraphs 2 and 3 ; C. P. 1017,1018, 1019 ; 22, A. 96 ; 25 A. 475; 12 A. 45 ; 28 A. 324 ; 8 Cranch, 9-26 ; Freeman on Void Judicial Sales, sec. 7.
    2. If his appointment was valid, he could not act as administrator till he gave bond. C. C. 1041, 1048, 1026 ; 11 L. 156; 7 B. 26 ; 9 B. 141; 12 B. 43 ; 1 Yerger, 69 ; 2 N. S. 518 ; 6 L. 586 ; C. C. 2278, 3035 ; 27 A. 435 ; Freeman on Void Judicial Sales, sec. 2 and 10 ; 7 Mass. 79 ; 23 Ill. 490; 11 Mass. 507 ; 36 Wis. 267 ; 27 Tex. 501 ; 2 Leigh. 719 ; 26 Ala. 247 ; 10 Wis. 541; 13 do. 291.
    3. For want of notice to the attorney of absent heirs. C. C. 1149, 1166, 1170 ; 11 L. 156 ; 13 L. 434; 3 B. 35 ; 10 B. 398; 18 A. 495-6.
    4. Because the sale was made to pay the expenses of administration. 29 A. 562; Borer on Judicial Sales, sec. 478 ; 21 A. 507 ; 14 A. 598, 622.
    IY.
    The sale is void because not made in conformity to the decree. 2 L. 328 ; 18 A. 728 ; 29 A. 502.
    T. T. & A. D. Land, contra, contended :
    1. It is too clear for argument or comment, that the jurisdiction of the. parish court to appoint an administrator of the succession of Wm. Nesbitt, the legality of White’s appointment and qualification, as administrator, the legality of the order of court decreeing the sale of the land in dispute, and the legality of all the proceedings in the probate court anterior to said sale, are res adjudicata.

    We further contend that the homologation of the account, distributing the proceeds of the land sold 6etioeen the heirs, concludes them as to the validity of said sale, even though there had been no order of sale. Ooiron vs. Millaudon, 3 A. 664.
    No court in this State has the power or authority to revise or annul the judgments of the parish and Supreme Courts already referred to. They are conclusive of the issues presented in plaintiff’s petition.
    If plaintiff had been no party to the judgment homologating the said account, equity would demand that he restore or offer to restore to the purchaser that part of the price which inured to the benefit of the succession of Nesbitt, before bringing a suit to annul the sale. This he did not do. The position of his counsel that such a tender was not necessary, because the purchaser was indebted to plaintiff for rents of the land in dispute from the date of the probate sale, would render nugatory the equitable provision of the law above cited. Plaintiff must make the tender as a condition precedent to suit. The liability of defendant for rents would be a consequence of the judicial annulment of the sale. Hence the sum that should have been tendered cannot be compensated by a claim or demand the existence of which depends on the successful prosecution to final judgment of the action of nullity.
    Plaintiff having been a party to the judgment homologating the final account of the administrator, and having obtained judgment as heir for a part of the purchase price of the land, is concluded from questioning the validity of the sale, as shown by the case already cited.
   The opinion of the court was delivered by

Manning, C. J.

Reuben White, one of the defendants, had been appointed administrator of the succession of William Nesbitt, and sold under order of court a tract of land of seventy acres to pay debts of the succession. Nesbitt’s heirs were three collateral relations, and the plaintiff purchased the interest of two of them in the succession. White filed an account of his administration, which was opposed by the plaintiff, and on appeal to this court, it was amended by increasing the balance against White. Opinion Book at Monroe, July Term 1878.

Cash was the purchaser of the land at the succession sale, and paid the price, which formed the principal part of the assets accounted for by White, which were used, so far as was necessary, in the payment of the succession debts and charges, leaving a residue, two thirds of which were adjudged to be due the plaintiff.

This action is to annuli the sale of the land on many alleged grounds of informalities, of invalidity of White’s appointment as administrator, of want of qualification, etc. An exception was made to the action— that the price of the land had been paid, and was used in part for the legitimate purposes of administration under and according to a decree of this court, and the residue was decreed tobe paid to the heirs of the deceased, viz.: to the plaintiff as assignee of two of the heirs, and to the third by name — that the plaintiff was a party to these probate proceedings, and obtained an increase of the balance due from the administrator on his opposition to the account — that as a condition precedent to the institution of this suit, the plaintiff should have tendered the price of the land which has not at any time been done — and that as the plaintiff has a judgment against the administrator for the residue of the price of the land, he cannot recover the land also, or any part thereof.

This exception was referred to the merits, and a trial was had resulting in a judgment for the defendants.

The plaintiff, with a final j udgment in his favour for his proportion of the balance on account due from the administrator, rendered on his opposition to that account, and increased at his instance — the proceeds of sale of the land forming the principal part of the assets accounted for, and being the exclusive fund out of which his judgment is to be paid — cannot be heard to claim the annulment of the sale which produced the assets, and to assert his title to the land. Nor can he reven-dicate the land without first tendering the price, or so much thereof as was applied to the extinguishment of the debts and charges of the succession. Coiron v. Millaudon, 3 Annual, 664.

He is estopped by his own judicial proceeding, and judgment was rightly given against him on the merits.

Judgment affirmed.


author: DeBlanc, J.

text:
    No. 7703.
    S. E. Vance et al. vs. J. D. Cawthon, Sheriff, et al.
    On the trial of a motion to dissolve an injunction on tlie face of tlioploadiDgs, every allegation of tlie petition of tlie plaintiff in injunction is admitted to be true.
    A beneficiary heir, -wlio lias only a residuary interest in tlie succession, may enjoin tlie seizure and sale of succession property -when it is admitted tlie debt due tlie seizing creditor lias been paid.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      Wise & Herndon and Duncan &' Moncure for plaintiffs and ap-pellees.
    T. T. & A. D. Land for defendants and appellants.
    Wise & Herndon and Duncan & Moncure, for plaintiffs and appel-lees, contended:
    The law gives to every person a right to claim judicially what is due or belongs to him. When the creditor has against his debtor a title importing a confession of judgment, he is entitled to have the hy-pothecated property seized immediately and sold for the payment of his debt. Art. 732, C. P., enumerates the cases in which this summary process may be resorted to, and articles 734-5-6-7 prescribe the mode of conducting it.

      The defendants in this case are strictly within the purview of all these provisions ; their act of mortgage imports confession of judgment, and in suing out executory process they have strictly conformed to all the requirements of the law. Their right to pursue this remedy can only be arrested or interfered with by the debtor or third possessor, and that only in certain enumerated cases. O. P. 739 and 749. The right to an injunction is nowhere accorded to creditor, even though he is in possession of a prior mortgage or privilege on the same property. It is not one of the grounds mentioned in article C. P. 296 and following.
    The defendants are doing nothing here that the law does not give them a right to do, and if perchance their act should operate to the detriment of the plaintiff, it would be damnum absque injuria. But even this the law has carefully provided against in articles C. P. 683, 684, 685, and in article 395 and following, which gives her the right to proceed by third opposition against the- proceeds of the sale. 7 N. S. 277 ;-5 B. 496 ; 9 B. 256 ; 10 B. 28, 457 ; 25 A. 736 ; 19 A. 59, 62,132 ; C. C. 1032, 1054, 1058.
    T. T. & A. D. Land, contra, contended :
    First — That the causes or grounds of injunction set forth in the petition are good and sufficient in law, is too clear for dispute. The extin-guishment of the debt by payment or in any other legal manner justifies an injunction by the debtor, which will be granted on affidavit without bond. C. P. arts. 739, 740, and 15.
    Second — Creditors, when necessary to protect their interests, may intervene in suits, plead prescription and other defenses, accept a succession, sue to annul sales and contracts made by their debtor, and may sue one in possession of succession property to compel its de- . livery to the administrator. 2 A. 782 ; 30 A. 160 ; 31 A. 493.
   The opinion of the court was delivered by

DeBlanc, J.

On the 13th of April 1877, Samuel Whitfield Yance subscribed a note, in and by which he promised to pay to the order of the firm of Baphael Kahn & Co. on the 1st of February 1878, the sum of $12,413 40, for necessary supplies, wares and merchandise, which — at the date of the note — had been partly furnished, and were to be furnished, to assist him in raising, on two of his plantations, crops of cotton and corn.

To secure the payment of the advances made and to be made by Baphael Kahn & Co., Yance gave them, on the 13th of April 1877, a mortgage on lands which he owned in the parishes of Caddo and Bossier, and shortly after — on the 18th of May of that year — he died. His widow qualified as the executrix of his will, and — on the 14th of June 1878 — she, in that capacity, acknowledged, in a notarial act, that the succession of her husband, was — at the date of the acknowledgement— indebted to Raphael Kahn & Co., on the note which he had delivered to them in April 187J, for a balance of $5406 68.

On the 11th of December 1878, relying on said mortgage and acknowledgment, Raphael Kahn & Co., obtained from the judge of the 10th district, an order commanding the seizure and sale of the hypothe-cated property, and the execution of that order was enjoined by Mrs. Sarah E. Yance on several grounds, two of which are :

1. That she is one of the beneficiary heirs of said deceased, and — • besides — the creditor of his succession, with legal mortgage, for a claim recognized by a judgment, and which exceeds one hundred thousand dollars.

2. That the note sued upon has been paid, and the mortgage sought to be enforced extinguished by that payment.

On motion of defendants’ counsel, plaintiff’s injunction was dissolved, because — as contended — her allegations did not authorize the issuance of said injunction ; and she and the surety on her bond were condemned to pay special and general damages. They appealed.

Defendants admit that the only question raised and presented by their motion, is “ whether or not the grounds set forth for the injunction ■are, of themselves, sufficient to justify it;” but they add: “we have nothing to do with that part of the prayer of the petition, which asks for judgment decreeing the extinguishment of the debt due defendants,” this — in their opinion — “being a question not to be inquired into in a collateral proceeding, like this.”

Eor the purposes of the trial of their motion to dissolve on the face of the papers, defendants have admitted as true every one-of the allegations on which plaintiff has based the injunction, and two of those allegations are that she is a beneficiary heir of Samuel Whitfield Yance and a creditor of his succession, and that defendants’ claim has been fully satisfied.

We are told that, as beneficiary heir, she is entitled to but a residuary interest in the estate. That is not disputed : neither can it be successfully disputed that, as such, she can — by injunction — prevent one who is not, or who has ceased to be a creditor of the estate, from selling its property, under executory process, to satisfy a claim admitted to have been paid, and a mortgage extinguished by that presumed payment.

We do not contest the correctness of the authorities cited by defendants’ counsel, but they are not applicable to this case. They would be applicable, if plaintiff were merely asking to be paid, by preference, ■out of the proceeds of the enjoined sale. Her remedy would then be by third opposition, or by opposition to the account of the executrix; but she asks more than she could have secured by such a remedy: she denies the very existence of defendants’ claim and mortgage, and charges that they could not legally have obtained an order to sell, on their own conditions — and to her detriment as a beneficiary heir and creditor of the deceased — property which is, in no way, subject to their writ.

If what she charges be true, and — under the pleadings — we are bound to consider it as true, we are at a loss to imagine how we could justify the dissolution of an injunction which — if sustained by proper evidence — would prevent defendants, who — it is tacitly admitted — are not the creditors of the succession of Yance, from selling — as its creditors — the property of that succession, and from receiving — as such — the proceeds of an illegal sale. To do that, we would have, considering that admission, to countenance and sanction that which, until now, we can regard but as attempt to perpetrate a wrong. 30 A. 160 ; 31 A. 493.

It is, therefore, ordered, adjudged and decreed that, as to both plaintiff and the surety on her injunction bond, the judgment appealed from is annulled, avoided and reversed, the dissolved injunction re-instated, and this case remanded to the lower court, there to be proceeded with according to law ; the costs of the appeal to be paid by defendants.


author: DeBlanc, J. Manning, C. J.

text:
    No. 7597.
    Succession of Michael Dietrich.
    The failure of a widow and tutrix of her children to comply with an order of court (made at the instance of a creditor of her deceased husband’s succession) calling on her to decide ■within ten days whether she will qualify as administratrix of the succession, does not forfeit her right to claim its administration; and in such a case, when the widow is present in the State, the public administrator has no light to the administration oí the succession.
    j^PPEAL from the Second District Court, parish of Orleans. Tissot,

      A. & W. Voorhies for plaintiff and appellant.

      Bobt. Mott and Francis B. Lee for defendant and appellee.
    A. & W. Yoorhies, for widow appellant, contended:
    First — There is no necessity for the appointment of an administrator.
    Second — That, in no event, can the public administrator be appointed, since the widow in community and the heirs are present, and they are represented in the mortuaria.

      Third — That in the event we are overruled on both grounds, then, but only then, and as a dire alternative, we claim for the tutrix the preference to administer.
    Robt. Mott and Francis B. Leo, contra, contended :
    First — Whenever there are debts due by a succession, an administration is necessary. 3 An. 502.
    Second — That the judgment of court ordering Mrs. Dietrich to show cause within ten days whether she would qualify as administratrix, was equivalent to an appointment of Mrs. Dietrich as administra-trix, and having failed to qualify as required by article 1041, within ten days from the rendition of the same, the judge was authorized to appoint a successor, which he did. It is not contended that Mrs. Dietrich could not have qualified under the judgment at anytime prior to the appointment of Wilson, even after the expiration of ten days ; but it is maintained that, having failed to do so, she cannot oppose the appointment of any other person. She cannot be heard to question the eligibility of an applicant for the trust. Her opposition must be based upon the strength of her own right, and not upon the weakness of that of the applicant. Upon her opposition the question is not whether Wilson is entitled, but whether she has the preférence.
   The opinion of the court was delivered by

DeBlanc, J.

Michael Dietrich died in 1878, leaving a widow and minor children. His widow applied to be confirmed as natural tutrix of the children, and to be appointed administratrix of the deceased’s estate, composed of property and effects situated in the parishes of Orleans, Natchitoches and DeSoto.

She was confirmed and she qualified as natural tutrix, but did not press her application to be appointed administratrix.

In February 1879, Samuel Friedlander, an alleged creditor of Dietrich, took a rule on the widow, commanding her to show cause “why she should not be ordered to qualify regularly as administratrix, etc., or signify her unwillingness to accept the trust.”

On the 13th of February, the rule taken by Friedlander was made absolute, and — in the words of the decree then rendered, Mrs. Dietrich “was allowed ten days to decide whether or not she would qualify, according to law, as administratrix of the estate,” etc.

That decree conforms to the prayer of the creditor’s rule, and can be construed but as a mere invitation, which could not be judicially enforced, and which — as it neither conferred nor impaired any right— could be, as it was, disregarded with impunity.

Relying on what he considers as a disobedience of the indefinite-judgment, based on the unusual prayer of the rule already alluded to, the public administrator applied for the administration of the succession of Michael Dietrich. His application was opposed by the widow, on the grounds:

1st. That Friedlander is the only party who pretends to bo a creditor of the succession, and that inasmuch as — to be acknowledged as such — he has brought a suit which is still pending, the appointment ofi an administrator is not necessary, and

2d. That, if found to be necessary, she is entitled to and claim» that administration.

Friedlander intervened in this contest in favor of the pubiic administrator, and prays — in case the latter’s application be rejected — to be, as creditor, appointed to administer upon said succession.

They both contend that Mrs. Dietrich has forfeited and lost her right to the disputed administration. The court so held, dismissed the-widow’s opposition, Friedlander’s demand, and appointed the public administrator to take charge of, and administer upon a succession opened in the city of New Orleans, where the deceased resided and where his widow and heirs are still residing.

The widow alone, in her own right and as natural tutrix, has appealed from that decree, and she and the public administrator are the only parties now before us.

Had Mrs. Dietrich been appointed administratrix and suffered ten days to elapse after her appointment, without furnishing the required' security, she might have lost and forfeited her right; but it is clear that the judicial invitation to decide whether she would accept or renounce the-tendered trust, is — neither in form nor in substance — an appointment, and her failure to comply with that invitation, did not destroy the preference to which she was and continues to be entitled.

To sustain the appointment of the public administrator, his counsell contend that, by neglecting to qualify during the ten days she was allowed to decide whether she would, or would'not accept the trust, she has forfeited even the right to oppose their client’s application. She never was appointed, and — consequently—never could qualify as admin-istratrix.

As to the public administrator, the legislative act by which his office-was created, provides : “ that in all intestate successions, when there is, no surviving husband or wife, or heir present or represented in the State, he shall be appointed to administer the same.”

Act of 1877, Ex. S., p. Ill, No. 74.

The widow of Dietrich and their minor children are every one of them present in the State, residents of this city, wherein his succession. is opened, and that widow, in her own right and as the tutrix of those children, is a party to this suit.

These facts and the law preclude the appointment of the public administrator; but, as Dietrich is represented by beneficiary heirs, and as— according to the evidence — his succession appears to be indebted, the necessity to administer upon the same is too evident to be discussed.

It is, therefore, ordered, adjudged and decreed that, in so far as it affects Emilie Lacour, the widow of Michael Dietrich, the judgment appealed from is annulled, avoided and reversed — the application of the public administrator dismissed, that of the widow allowed, and she appointed as administratrix of the succession of her husband.

It is further ordered that, in that capacity, she furnish bond and security, within ten days from that on which this decree shall become-final, and otherwise qualify, under the penalty prescribed by law; the costs of the appeal and of the lower court to be paid by the public administrator.

The widow applies for a rehearing and it is granted.

On ReheaRing.

Manning, C. J.

We went further than was necessary in passing upon the necessity of some one qualifying as administrator eo nomine, and upon the right of preference of the widow over the public administrator. We held that this officer had no right to the appointment, and we shall amend our decree so as to confine it to that matter.

It is ordered and decreed that our former decree is set aside, and it is now decreed that the judgment of the lower court is avoided and reversed, and that the application of the public administrator is dismissed at his costs.


text:
    No. 7746.
    Reuben White vs. the Sheriff and Others.
    Tlie seizure and advertising of property for sale, by tlie sheriff, is such a disturbance as authorizes the possessory action by a third person holding personally or by his tenants, although the sheriff did not actually dispossess them.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boorman, J..

      Wise & Herndon for plaintiff and appellee.

      Hicks & Hicks for defendant and appellant.
    Wise & Herndon, for plaintiff and appellee, contended :
    First — We say that Josephine Nicholson, having executed her judgment on this land, and having opposed the monition, and the sale being declared a good one, cannot again sell the identical property, the sale of which was homologated in a suit contradictorily- with herself. It is res ad judicata. 21 A. 589 ; 24 A. 545.
    Second — Owners in possession are entitled to bring the possessory action when disturbed in their possession. O. P. 47.
    Third — All judgments must be revived by suit. 0. 0. 3547 ; 24 A. 211.
    Hicks & Hicks, contra, contended :
    First — -The sheriff’s title is not full proof of what it recites until recorded in the clerk’s office. Its record in the recorder’s office without proof gives it no effect as against the creditors of the vendor, who may seize and sell it. C. P. 697, 698 ; Rev. S. 3409 ; 10 L. 522 ; 14 A. 797, 599 ; 28 A. 726 ; 6 N. S. 141; 7 R. 53.
    'Second — A sale absolutely null may be disregarded, and the property nominally sold may be seized under a ft. fa. by any creditor of the vendor. 1 A. 302-6 ; 13 L. 551; 6 N. S. 139 ; 1 A. 299 ; 23 A. 773.
    Third — A sheriff’s deed is void for uncertainty if its description will apply as well to other property as that claimed. Rorer on Judicial Sales, sections 713,716 ; 10 A. 329 ; C. P. 702; 9 L. 544; 19 L. 400 ; 10 A. 194; 7 A. 305, 579 ; 5 A. 257 ; 6 Peters, 345.
    Fourth — A sheriff has no power to sell under a ft. fa. (and third persons must take notice of his incapacity) when restrained by an injunction, or when his power has been revoked by the plaintiff. C. P. 308; Rorer on. Judicial Sales, section 710 ; Story Eq., section 405 ; 1 R. 94 ; 7. R. 77 ; 5 Tes. 306, 315 ; 13 Tex. 307 ; 13 L. 421; 11 O. S. 610 ; C. C. .2505 ; 16 A. 89 ; 2 N. S. 621; 30 A. 576; 4 A. 252 ; 10 L. 284 ; 10 R. 88 ; 11 R. 441.
    Fifth — One having no right to possess, or who fails to show the value of his possession, cannot maintain the possessory action. 22 A. 272 ; 30 A..251.
    •Sixth — A seizure by a sheriff is only nominal when he does not collect rents nor interfere with the business of the possessor. 28 A. 61.
   The opinion of the court was delivered by

Marr, J.

In November, 1865, Mrs. Nicholson received judgment •against Mrs. Willis, on which execution issued under which the sheriff •seized and advertised for sale three quarter sections, 480 acres of land. Mrs. Willis enjoined, claiming the exemption of the dwellings, and 160 acres of land adjacent, as her homestead. The sale proceeded, except as to the homestead; and the sheriff adjudicated .and conveyed to Gilmer, in February, 1865, two of the three quarter sections, that is, all ■the land seized except the 160 acres claimed by Mrs. Willis as her homestead: and In January, 1867, Gilmer sold one of these quarters to Eeuben White.

Gilmer applied for a monition ; and Mrs. Nicholson filed an opposition on several grounds, which it is not necessary to state now; and Gilmer appealed from the judgment maintaining her opposition. This judgment was reversed; the opposition of Mrs Nicholson was dismissed ; and the sheriff’s sale was confirmed. 21 An. 589.

Mrs. Willis then brought suit against Mrs. Nicholson, Gilmer, and White, to have the sheriff’s sale annulled on the grounds :

Fiest. That the sheriff had no authority to make the sale, 1st: Because it was enjoined ; 2d : Because he was instructed by the plaintiff in execution, Mrs. Nicholson, not to sell; 3d: Because he had no authority to sell less than he had seized.

Second. That there was not sufficient description of the land adjudicated.

Mrs. Nicholson admitted the allegations of the petition, and joined in the prayer to annul the sale; and Gilmer and White plead the decision of this court on the monition as res judicata. The case came before this court on the appeal of Gilmer and White, and the judgment appealed from was reversed. The plea of res judicata was maintained, and the suit was dismissed. 24 A. 545.

In July, 1878, Mrs. Nicholson obtained a writ of fieri facias on the judgment in her favor against Mrs. Willis, rendered in 1865, under which the sheriff seized and advertised for sale the quarter section sold by Gilmer to White in January, 1867 ; and White enjoined.

The petition charges that plaintiff has been in quiet, undisturbed possession, as owner, by title translative of property, since 1867, of the land in question; and he obtained an injunction restraining Mrs. Nicholson and the sheriff from further acts of trespass and disturbance of his possession. He also prayed for damages for malicious trespass, and special damages for attorney’s fees.

Mrs. Nicholson and her husband answered, alleging the nullity of the sheriff’s sale, on the grounds set up in the two suits already mentioned ; and plaintiff pleads these j udgments as res judicata. He also excepted that the judgment in favor of Mrs. Nicholson against Mrs. Willis was prescribed by the lapse of ten years, at the time the execution was issued, in July, 1878.

The judgment of the district court perpetuated the injunction, decreed that White be maintained in his possession ; and condemned defendants, Mrs. Nicholson and her husband, in solido, to pay to him one hundred dollars damages, for attorney’s fees. This is the judgment now before us for review, on the appeal of defendants.

The proof shows that White, by his tenants, has had actual possession of a part of the land in question, for several years past. When the deputy sheriff went on the place to make the seizure, he told one of the tenants that he should collect the rent. The tenants were not dispossessed, nor does it appear- that they were interfered with; but the seizure and advertising of the property for sale is such a disturbance of the possession as authorizes the possessory action. It seems that the conveyance by Gilmer to White had not been recorded ; but the sheriff’s deed to Gilmer was recorded. The date of the recording is not shown; but the copy offered in evidence purports to be a true copy from the original on file and of record, as shown by the recorder’s certificate, dated 19th October, 1866. This recorded deed divested Mrs. Willis of her title; and placed the property beyond the reach of her creditors. The only consequence of the failure of White to have his title recorded is that the land might be subject to the pursuit of the creditors of Gilmer. But this in no manner benefits or concerns either Mrs. Nicholson or Mrs. Willis.

We think that White, when his property was seized under execution had a right to protect himself by the plea that the judgment, on which the execution issued, was prescribed ; but there can be no doubt of the effect of the two solemn decrees of this court, the one in 21 An-589, dismissing the opposition of Mrs. Nicholson to the monition, the other in 24 An. 545, maintaining the plea of res judicata, interposed by Gilmer and his vendee White, in the suit brought by Mrs. Willis to have the sheriff’s sale annulled. These two decisions place that sale beyond question or attack by Mrs. Nicholson or by Mrs. Willis, for any of the causes set up and passed upon in the last resort; and the district court properly granted and perpetuated the injunction.

The proof fully justifies the allowance of one hundred dollars, special damages for attorney’s fees ; and we see no cause to disturb the judgment in any respect.

The judgment appealed from is therefore affirmed with costs.


author: White, J.

text:
    No. 7706.
    Florsheim Bros. vs. Thomas Holt, Executor.
    An executor cannot at tbe risk of tlie succession carry on planting operations, and contraot in-so doing debts so as to bind tbe estate.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      N. C. Blanchard, W H. Wise, for plaintiffs and appellees.

      T. T. & A. B. Band for defendant and appellant.

      T. T. & A. D. Land, for defendant and appellant* contended :
    Defendant pleaded that plaintiffs’ petition disclosed no cause of action. It is well settled in our jurisprudence that an executor or administrator cannot, by making or indorsing a note or draft in liis official capacity, bind the estate when not originally liable for the debt, bub that he will thereby render himself responsible, individually. Russel vs. Cash, 2 L. 188 ; Gillett vs. Rachal, 9 R. 276 ; 12 R. 16 ; 8 A. 124 ; 21 A. 285 ; 25 A. 562 ; 26 A. 660.
    It is equally well settled that executors, administrators, etc., have no power to create liabilities against the estate' or increase its responsibilities. 21 A. 287 ; 22 A. 372 ; 24 A. 83. An administrator cannot bind the estate he represents, ex contractu, without the authority of the judge. 26 A. 680.
    The authority of an executor to carry on a plantation, furnish it with supplies, etc., must be shown, otherwise the estate is not liable for the supplies furnished by a merchant under his direction. Milten-berger vs. Taylor, 23 A. 189. ♦
    N. C. Blanchard and W. H. Wise, for plaintiffs and appellees, contended :
    That when a succession owes no debts, and the heirs desire that a plantation belonging to it should not be sold, but should be cultivated by the executor for their benefit, the latter has the right to borrow the money and supplies necessary for that purpose, from commission merchants.
    The commission merchants, in that case, are entitled to all the ex- ' penses made by them for raising the crop and preserving the property in good order, and should recover the same from the succession. 19 A. 494 ; 27 A.'331. .
   The opinion of the court was delivered by

White, J.

We do not think there was error in overruling the exception ; the face of the papers showed that the indebtedness inured to the benefit of the succession ; and, taking this for true, there was a good cause of action. The -want of allegation that Harris had authority to sign the note was certainly a defect in the pleadings ; but, taking the petition as a whole, we think the inference fairly deducible that the act of Harris in signing the note was the act of the executor. The contract made with Harris we consider undoubtedly threw upon him the burden of paying the running expenses of the plantations ; the words of the contract which charge him with the duty of paying the taxes and all the “ farming and grazing expenses,” admit of but one construction. The act, therefore, of Harris in opening an account with the plaintiffs in his name, and obtaining advances as agent of Holt, executor, was clearly without warrant. The proof, we think, establishes that L. H. Holt, the agent of the executor, was aware of Harris’ conduct ; knew that the advances were being made; and was not only by his silence, but it may be by his consent and approval, the cause- of the giving of the credit to Harris, as the pretended representative of the executor. But this cannot help the plaintiffs’ case. L. H. Holt, the authorized agent of the executor, could, under the power, have no greater authority than would have had the executor. Now, we take it that it is no longer an open question that an executor cannot, at the risk of the succession, carry on planting operations, and contract in so doing debts so as to bind the estate; at all events, certainly not without previous authority obtained. Miltenberger vs. Taylor, 23 A. 189, and authorities there cited. Nor do we think the eases of Succession of Wedersti-andt and Succession of Brown teach a contrary doctrine. 19 A. 494; 27 A. 331,

The first case simply holds that where at the death of a testator a crop has been planted an executor may, unless the heirs and legatees object, cultivate it to fruition. The second, that where an executor does exceed his powers and carry on a plantation, the heirs may take the proceeds on paying the necessary expenses incurred in making it. The argument that because the debit side of the account shows that taxes were paid by the money of the plaintiffs’ firm, therefore the succession is bound pro tanto, is without force. The product of the cotton sold was more than sufficient to pay these, as well as the other items referred to in the brief of counsel. The account must be considered in one of two lights: either as an account of Harris, as representative of Holt, executor, or as that of Harris individually. If the first, then the cotton was received and sold for the account of the executor, and the credit must be imputed to that which the succession owed. If in the name of Harris individually, then the succession would not be bound at all. Of course, we are not concerned with the hardship of the plaintiffs’ case; if they acted without due precaution, or upon erroneous representations, they must look elsewhere for recovery. We cannot enforce against the succession an obligation which did not inure to its henefit, and which was entered into beyond the scope of the executor’s authority.

Judgment reversed ; and judgment be and- the same is hereby rendered in favor of the defendant, and against the plaintiffs, with costs in both courts.