text:
    Balthazar Martin et al. v. Simeon Valery Martin et al.
    The settled, construction of Article 1520 of tlio Civil Code is, that a reservation of the usufruct to the donor of immovable property renders the entire donation radically null, and not simply the illegal reservation of the usufruct.
    A party may legally make a partition, either of the whole or of a portion of his estate, among his descendants, during his lifetime, by a notarial act; such a partition is, however, subject to all the formalities and conditions of donations into' vivos.

    A partition must be considered as one act, although it contain many dispositions, and it cannot subsist for one while it is annulled for anothor.
    An heir who has alienated his*share in a partition, or a part of it, is not permitted to bring the action of rescission against such partition, where there has been no fraud, violence, error or lesion.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J.

      Simon & Gary, C. H. Mouton and M. E. Girard, for plaintiff and appellant. Deblanc <& Fuselier, for defendant.
   Buchanan, J.

The late Valery Martin, deceased in 1858, and his surviving wife, Célestine Huval, had issue of their marriage four children, namely, 1st, Placide Martin, deceased in 1846 ; 2d, Balthazar Martin; 3d, André Valsin Martin; 4th, VaUrien Martin.

In the year 1841, January 5th, by act before Bryant, Notary Public in the parish of St. Martin, Valery Martin and his wife, Célestine Huval, declared that they had made to their son Placide, in his lifetime, a verbal donation of certain enumerated immovable property and slaves, which, with their consent, had been inventoried among the effects of the succession of their said son ; that having neglected to make this donation in the legal form of an authentic act, and being desirous to renounce their rights upon said property in favor of the representatives of Placide, who are his four children, they, the said Valery Martin and wife hereby renounce all right upon the immovables and slaves described, in favor of their grandchildren, heirs of their son Placide, (who are the defendants in this suit,) in the same manner as if an act of donation inter vivos had been made of the same to their son, as intended.

And in the same act, the said Valery Martin and wife made a donation inter vivos to their four grandchildren, defendants herein,-jointly, of a certain tract of land, with usufruct reserved to the donors during their lives.

The said Valery Martin and wife proceed to declare, in the same act, that their desire was, not to favor one of their children to the prejudice of the others, but on the contrary, wished, as much as possible, that full justice should be done them, and consequently, that the strictest equality should be observed between them. To effect this object, said Valery and wife had determined to make to each of their three surviving children, Balthazar, Valsin and VaUrien, separately, a donation inter vivos, with usufruct to the donors reserved, of immovables and slaves of the same value as those confirmed and given to the heirs of the late Placide Martin, and comprised under the articles 1, 2 and 3 of the act, (being the same above referred to.)

Consequently, by the same act, said Valery Martin and wife make a donation inter vivos to Balthazar Martin, of certain land and slaves described particularly ; a like donation of other described land and slaves to Valsin Martin ; and a like donation of other described land and slaves to VaUrien Martin.

These donations thus made were accepted by Balthazar, Valsin and Valérien ; by Madame Rousseau, married daughter of Placide Martin, assisted by her husband; and by Valérien Martin, tutor ad hoc of the three minor children of Placide.

The lands and slaves confirmed and donated to the several donees by this act were estimated by all the parties at an equal value for each portion, to-wit, $4,830.

The act terminates by the following clause, which we copy at full:

“ Les sieur et dame donateurs se réservent conjointement et séparément, pendant leur vie entiere, la jouissance exclusive et paisible des ierres et des esclaves donnés par le présent acte. Cette jouissance sera sans limite, et ne pourra étre interrompue que par le decés de l’un et de l’autre des donateurs. Sont exceptes de la réserve que font les donateurs, les terres et esclaves employés sous les articles 1 et 2 de cet acte.” Note, the effects they excepted are those given to Placide Martin verbally.

The present suit was brought on the 7th October, 1858, by petition filed in the name of Balthazar, Valsin and Valérien Martin, demanding that the property of their father’s estate (not including certain items of his inventory embraced in the donation of the 5th of January, 1847,) should be sold to pay debts; and that there should be a final settlement and liquidation of Valery Marlin’s succession on certain bases stated. The widow of Valery Martin, and the children and heirs of Placide Martin were cited to show cause why the prayer of the petition should not be granted.

The defendants, Simeon Martin, Albert Martin, Owen Martin, and Feliciana Martin, widow of Jules Rousseau, children and heirs of Placide Martin, have appeared and answered, by pleading that the act of donation inter vivos of the oth January, 1847, is null and void, as containing conventions which violate a prohibitory law. They pray that the property embraced in the donation of the 5th January, 1847, to the petitioners, be declared by the judgment of the court to belong to the succession of Valery Martin.

The parties went to trial upon this issue; and, on the trial, it was agreed by counsel that the sole matter to be determined by the court was, the validity of the donation made on the 5th January, 1847.

The District Court decided, that the said act of donation was null, void, and of no effect.

From this decision the plaintiffs have appealed ; and the defendants and appellees, by an answer filed in this court, join in the appeal, and pray that the judgment of the lower court be amended, by decreeing that the donation made to themselves by the late Valery Martin on the 5th January, 1847, be declared valid ; and that the rest of the judgment annulling said donation, as made to the other donees, be affirmed.

This cause, as presented to us, is substantially an action for the rescission of a donation, in which the defendants and appellees are plaintiffs, and the original plaintiff's are defendants. The prohibitory law on which the action is based, is Art. 1520 of the Louisiana Code.

“ The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reserve it for himself.” See also 5 An. 433, 11 An. 705, 12 An. 721.

These repeated decisions have settled the construction of the 1520th Article of the Code to be, that a reserve of the usufruct to the donor renders the donation radically null; and not, that it is the illegal reservation of usufruct alone which is null, as the appellants contend..

But the appellees argue, that the act of 5th January,<1847, contains donations to themselves which are not affected with the nullity spoken of, and which are, therefore, to be maintained, although the other donations contained in the same act are bad.

We are not able to concur in this view of the rights of the parties. The notarial act in question, which we have set forth above in detail, for the purpose of displaying its real character, was intended to be something more than a mere donation or series of donations. It is in fact a partition among the children of Valery Martin and his wife, of the property of their parents, as far as it goes. This is evident from the declarations of the donors therein contained, and copied above, and also from other documents in the record. They might legally make a partition, either of the whole, or of a portion of their property, among their descendants in this form, under Articles 1717, 1718 and 1721 of the Code. It is true, that the partition thus made is subject to all the formalities and conditions of donations inter vivos. But, considered as a partition, it is one act, although containing many dispositions. In fact, every partition sets forth, as this does, multifarious details of the objects and their .estimation, set off. to each co-parcener. And it would not only be a violation of the intention of the donors, but an injustice to the plaintiffs, and contrary to Art. 1450 of the Code, to maintain this act in relation to some of the donees, and set it aside in relation to others. A partition, says the law, cannot subsist for one, and be annulled for another.

The result of a decree annulling this partition inter vivos would necessarily be, to restore the property which was comprised in the partition to the succession of Valery Martin, and to his surviving wife, the donors. But the counsel of appellants argue that such restitution (of the property donated to the appellees) has become impossible by the act of the appellees; and that they are thereby estopped from demanding a rescission of the partition. And it appears from the evidence in the cause, that a family meeting of the friends of.the minors of Placide Martin was called to deliberate upon the necessity and the terms of a sale to effect a partition of the estate of their father, which partition had been sued for by the married heir; that the family duly convoked gave their opinion that the property of the succession could not be divided in kind, and advised the public sale of all the property of the succession on a credit of one, two and three years; that the proceedings of the family meeting were homologated, and the sale ordered accordingly ; and finally, that the property of the succession of Placide Martin was sold in the manner and on the terms mentioned, including the slaves which were verbally given by Valery Martin to Placide in his lifetime and confirmed to his children, without the reservation of usufruct, by the act of 5th January, 1847. The record also shows, that an account was rendered to the heirs of Placide Martin, of the proceeds of those sales; and their written receipts and discharges to their tutor and administrator are in the record.

With this evidence before us, we think the action of the appellees to rescind the partition of the 5th January, 1847, cannot be maintained. Article 1448 of the Oode bars this action to an heir who has alienated his share in the partition, or a part of it, even for fraud or violence, if the alienation was made subsequent to the discovery of the fraud, or the cessation of the violence. A fortiori must it operate as a bar when there has been no fraud, violence, error, or even lesion.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the demand in rescission of the act of donation and partition, of the 5th January, 1847, formed by the appellees in their answer to this suit, be rejected, and that the appellees pay costs in both courts.


source: Caselaw Access Project

author: Merrick, C. J. Merrick, C. J.

license: Public Domain

text:
    Azelie Breaux, Widow, et al. v. Emelien Carmouche.
    A clause in a will, dispensing an usufructuary from making an inventory or giving security, is valid.
    But if tlie usufructuary undertakes to make an inventory, ho must make an accurate one.
    An heir who acquires at a sale made to effect a partition, does not become sole owner under his ancient title as heir, but is invested with a new title as purchaser, and if ho be married, the purchase is presumed to be made on account of the community, unless he declare his intention to be otherwise in the act by which his acquisition is evidenced.
    The whole property in the thing sold including his own share as heir, passes by force of the decree to the adjudicate*}.
    APPEAL from the District Court of the Parish of Lafayette, Martel, J.

      C. H. & E. Monton, for plaintiffs.

      M. E. Girard, for defendant and appellant.
   Merrick, C. J.

The wife of the defendant died without leaving descendants or other forced heirs. She left a will in due form, containing the following clause in favor of her husband:

“ Je désire que mon époux, Emilien Carmouche prenne toutes mes propriétés, de quelque nature qu’elles soient, en usufruit pendant sa vie durant, sans qu’il soit tenu de faire faire inventaire, ni donner caution.”

He qualified as testamentary executor of the will, and caused an inventory to be made.

The plaintiffs are the collateral heirs of the deceased, and they have brought this suit against the legatee of the usufruct to cause the clause of the will which dispenses him from making an inventory, to be declared void; to cause the usufruct itself to be declared forfeited in consequence of the alleged unfaithful inventory made by him; and in the event that said Emilien Carmouche has not lost or forfeited his right of usufruct, that he be ordered to make a correct inventory.

The trial of the case in the lower court resulted in a decree annulling the clause of the will dispensing the usufructuary from making an inventory, and ordering certain property bought by the defendant during the existence of the community at the probate sale of his father’s estate, (which sale was made to effect a partition,) to be inventoried as belonging to the community.

The defendant appeals, and the questions discussed on the appeal arise directly from the two branches of the foregoing decree, viz :

Was the clause in the will null ?

Was the property omitted from the inventory separate or common?

On the first question, we know of no law which declares the nullity of a clause in a will, which dispenses the legatee of the usufruct from making an inventory, or giving security. The testatrix might have given her husband the absolute property of the things bequeathed, and have instituted him as her sole heir and universal legatee. This larger power must certainly include the lesser of dispen sing the usufructuary from making an inventory. But if the usufructuary under took to make an inventory at all, he ought to have made an accurate one. The making of an inventory might have the effect of'protecting the interest of his heirs at the termination .of the usufruct, and it ought not to prejudice the owners of the naked property, who might find great difficulty at such late period, of showing the inaccuracy of the same. See Marcadé, vol. 2, p. 481, No. 509.

The defendant was, under his father’s will, entitled to one-third of his estate. He bought, at the sale made to effect the partition, nearly to the amount of his portion of the estate, and settled with the heirs at the partition by a credit upon his said portion. The residue of his interest was arranged by his taking small claims against certain debtors of the estate.

In the act of adjudication to him, he does not say that he acquires on account of his separate estate ; hence the difficulty jvliich the question presents.

It may be urged on the one side, as the husband is the head and master of the community, he ought, at the instant of acquisition, (if he intends to defeat the presumption arising from Article 2371 C. C.,) to announce that he acquires for his separate estate; that the title is acquired at the instant of adjudication, and that a subsequent settlement with the heirs cannot make that separate which was not so acquired; that in the ease of purchases by the wife, of the hereditary effects of her ancestor’s succession, the adjudication to the wife, to the extent of her inheritance, makes the property paraphernal, because the master and head of the community, who could have transferred the same property to the wife under Art. 2421 C. C., in reimbursement of her interest in such succession of her ancestor, has declared it to be paraphernal at the. time of its acquisition, by purchasing in the name of his wife; and by analogy, he ought to make an equivalent declaration when he wishes to acquire property for the benefit of his separate estate. See 5 An. 611; 7 An. 104 ; 17 La. 251, No. 2.

On the other hand, it may be said, that although where a co-heir buys property at a probate sale made to effect a partition, he acquires the interests of his co-heirs as a purchaser who is not subject to the obligations resting upon the heir to whom an estate had been adjudicated by licitation under the former laws and Code, still, for the interest which he himself had in the property, he cannot be considered as holding by a new title, for he cannot bye from himself; and, therefore, it must be held, that as to the interest of this heir, as to one undivided third of the property, he holds by inheritance. Now, the very object of a partition is to put an end to the joint ownership of the property, and it cannot be supposed that the owner of so considerable a portion as one-third, intended to acquire subject to a claim of another person in the same property, particularly, when he took good care to pay for the whole, by giving in exchange his hereditary claims upon the succession. See 14 An.

Under the particular circumstances of this case, and without undertaking to lay down any rule upon the subject for other cases, we are disposed to give the defendant the benefit of this reasoning. Perhaps in view of the sums for which the community would otherwise be indebted to his separate estate, and his right of usufruct, the question may not be very important.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed by the court, that plaintiff’s demand be rejected, except so far as we do now allow, in the amendment of said inventory, viü : "We direct said inventory, made by said William Brandt, recorded the 5th day of April, 1858, to be amended, by adding thereto as belonging to the community, the sum of one hundred dollars cash and the one undivided half part of a tract of land of six arpents front, in said parish of Lafayette, on the west bank of the Bayou Vermillion, by eighty arpents in depth, bounded above by the lands of Pierre Rosimond Breaux, and below by lands formerly belonging to Alcide Saunier; and also the one undivided half of another tract of land situated in said parish, on the east side of said Bayou Vermillion, immediately opposite the above described tract of land, having five arpents in front more or less, by a depth of forty arpents more or less, being the same adjudged jointly to defendant and F. C. Breaux, the one-half of which was subsequently bought of said F. C. Breaux; audit is further ordered, that the plaintiffs and appellees pay the costs of the appeal, and the defendant those of the lower court.

Same Case — On a Re-heaking.

Merrick, C. J.

A re-hearing having been granted in this case, on more mature reflection we have concluded that so much of the judgment as pronounced the property bought by defendant at the probate sale of his father’s estate separate property, does not rest upon satisfactory reasons.

We have already decided, that'the heir who acquires at a sale made to effect a partition, does not become sole owner under his ancient title as heir, (as was formerly the case.) but is invested with a new title as purchaser, at least to the extent of the interest of his co-heirs. Hache v. Ayraud, 14 An. 178.

If then the heir acquires by a new title, the property is subject to the rules governing the community, if he be married. And as head and master of the community, all his purchases are presumed to be made an account of the same. It then seems reasonable that if he would except property from the operation of these general rules and would re-invest his separate estate, he should declare his intention in the act by which his acquisitions are evidenced.

It is objected, that as to one-third of this property, the defendant was owner, and that he cannot be considered as purchasing from himself.

The defendant was bound by the decree directing the sale of the common property, and we think it may be safely concluded, that the whole property in the things sold, passed by force oí the decree to the adjudicatee in his capacity of the head of community. Any other doctrine would introduce complications in the settlement of estates.

We adhere to what has been said in our former opinion respecting the clause in the will exempting the defendant from making an inventory, and what we have also said as to the obligation of the defendant to make a true one, if he undertake to make an inventory at all.

That part of the decree of the lower court annulling the clause of the will, which dispensed the defendant from making an inventory does not appear to us to be important, as the defendant is bound for other reasons, to correct the inventory which he has made.

It is, therefore, ordered, adjudged and decreed, by the court, that the decree heretofore pronounced by us, be set aside; and we do now order, adjudge and decree, that the judgment of the lower court be affirmed with costs.


author: Voorhies, J.

text:
    Aurélien Duhon, Jr., v. Théogène Landry.
    Jurors aro incompetent as witnesses to impeach, their own verdict.
    APPEAL from the District Oourt of the Parish of Vermilion, Simon, J.

      R. S. Perry and Deblanc & Fusilier, for plaintiff and appellant.

      A. Olivier, for defendant.
   Voorhies, J.

The defendant filed a general denial to the plaintiff’s petition, in which the cause of action set forth is defamation and slander of the latter and also of his wife.

The evidence shows that the defamatory language was published, as alleged in the pleadings; and we concur with the jury that the defendant should be amerced in damages.

It appears that the jurors after bringing in a verdict of fifty dollars, were offered as witnesses, on a motion for a new trial, to prove a mistake in their verdiet.

The District Judge refused,. — -and properly too, — to allow the jurors to impeach their verdict. They were incompetent for that purpose; the bill of exception taken by the plaintiff must therefore be overruled.

Upon examining the evidence, we are not satisfied with the small verdict which has been rendered in this ease. We will therefore amend the judgment for that purpose, and allow the plaintiff the additional sum of two hundred dollars.

It is, therefore, ordered and decreed, that the judgment of the District Oourt, upon the verdict of the jury, be so amended as to allow to the plaintiff the sum of two hundred and fifty dollars ($>250); and that in other respects the same be affirmed, the defendant paying the costs of appeal.


author: Merrick, O. J.

text:
    Charles G. & James M. Williams v. Donat Leblanc.
    Where an order is granted by the District Judge, allowing a devolutive appeal to all parties, upon giving bond, and ono of them only avails himself of the order in time, the others will bo considered as having abandoned their right of appeal.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      Suiayze <£• Moore, for plaintiff. John E. King, for defendant.

      Dupré & Garland, for warrantor and appellant.
   Merrick, O. J.

This case was before us last year, on an appeal between other parties. See 14 An. 757. A motion to dismiss the present appeal has been filed by the defendant.

It appears, that at the June term of the District Oourt, 1859, (viz, June 4, 1859,) an order was rendered by the District Judge, granting to all parties a devolutive appeal, on giving bond in the sum of five hundred dollars. John Close alone availed himself of the order, and prosecuted the appeal last year.

The record does not disclose what parties moved for and obtained the order of appeal. It was rendered, however, in favor of all the parties, and any of them could have availed themselves of its benefit. It must, therefore, be considered as entered with the consent, and upon the motion of all the parties to the suit, because the law made them parties to the motion, without further notice.

The present appellants neglected to avail themselves of the order thus made in their favor, and their right of appeal must be considered as abandoned. C. P. 594; Jenkin’s Curator v. Bonds, 3 An. 339 ; Collins v. Monticou, 9 An. 39 ; 4 La. 41, 1 Rob. 100.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, at the costs of the appellant.


author: Merrick, C. J.

text:
    John Tarlton v. James N. Wofford.
    Where a party obtains a suspensive appeal and fails to take it up, if there is nothing to show an inability on his part to perfect such appeal by giving the bond required, he will be held to have abandoned it, and cannot afterwards take a devolutive appeal.
    APPEAL from the District Court of the Parish of St. Mary, Voorhies, J.

      A. L. Tucker and J. A. McClarty, for plaintiff and appellant. /. G. Olivier, for defendant.
   Merrick, C. J.

This action is one of boundary. The defendant has filed a motion to dismiss the appeal.

The judgment appealed from was rendered in April, 1859. At that term, the plaintiff obtained an order for a suspensive appeal, (on giving bond in the sum of $500,) returnable to the next term of the Supreme Court, viz, the term held in August, 1859. This appeal was never perfected. Subsequently, viz, in April, 1860, the plaintiff obtained the present, a devolutive appeal, on giving bond in the sum of $300.

The plaintiff alleges himself to be the owner of a plantation containing 1200 arpents of land on Bayou Bceuf, in the parish of St. Mary, and there is nothing in the record to lead us to suppose that the neglect to perfect the first appeal arose from inability to give bond for a suspensive appeal. The case is not, therefore, governed by the case of Gibson v. Silby, 2 An., 628, but is controlled by the case of Collins v. Monticou, 9 An. 39.

The plaintiff having abandoned his first appeal, the present must be dismissed. It is, therefore, ordered by the court, that the appeal in this case be dismissed, at the cost of the appellant.


text:
    Marie Lauber v. Joseph Mast.
    It is proper, in deciding whether one single act of cruelty ou the part of the husband towards the wife, 0 is sufficient to entitle her to a separation from bed and board, to take into consideration the age, habits and mode of life of the parties.
    Although a wife fails iu an action for separation from bed and board, She is nevertheless entitled to alimony during tho pendency of the suit.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J.

      Deblanc & Fuselier, for plaintiff and appellant. Simon ds Gary, for defendant and appellee.
   Merrick, O. J.

This is a suit for a divorce a mensa et thoro, and for the recovery of the paraphernal effects of the wife. ■ The ground alleged for the divorce is, the cruelty and excesses of the husband, which render living together insupportable.

The proof shows, that the parties had lived together harmoniously for fifteen years, and the only act of cruelty on the part of the defendant was that of turning plaintiff out of doors on a single occasion, and subsequently forbidding her to return, unless he sent for her, stating, that if she did so return, he would drive her away with his cowhide.

The defendant, however, in his answer, states, he is willing to receive the plaintiff at his domicil, and live with her.

The District Judge, in view of the age, habits and mode of life of the parties, was of the opinion, that the single occurrence proved was not sufficient to establish the allegation that the defendant’s conduct was such as to render the living with him insupportable.

Under the authority of the cases of Fleytas v. Pigneguy, 9 La. 420 ; Tourné v. Tourné, 9 La. 456, and Cooper v. Cooper, 10 La. 250, we cannot say that the District Judge erred on this branch of the case, although the conduct of the defendant was wholly indefensible.

The judgment of the lower court, however, does the plaintiff injustice so far as it bai's her claims against her husband, on account of her paraphernal property. The answers of the defendant on facts and articles show an indebtedness to the plaintiff of sixty-five dollars. The note referred to in the testimony of Calais as No. 1, does not appear to have been offered in evidence, nor endorsed by the payee.

Under the authority of Rowley v. Rowley, 19 La. 557, judgment must be rendered in favor of the plaintiff for the sixty-five dollars, and a judgment of nonsuit on plaintiff’s other demands for money, except for alimony during the pendency of the suit, which it is just he should pay.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now here ordered, adjudged and decreed by the court, that the plaintiff’s demand for a separation from bed and board from her said husband be rejected ; and it is further ordered, adjudged and decreed by the court, that the plaintiff do recover of her said husband the sum of sixty-five dollars, with five per cent, interest thereon from the judicial demand until paid, and that she have a tacit mortgage on the real estate and slaves of the defendant, from the 5th day of November, 1853, to secure the payment of the game; and it is further ordered, that the plaintiff recover the free administration of said sum of money, as well as any other paraphernal property in her possession; and as to the residue of her demands against the defendant, that they be rejected as in case of a nonsuit; and it is further ordered, adjudged and decreed by the court, that the defendant pay the plaintiff the sum of one hundred and thirteen dollars, as alimony, to pay the expenses of her maintenance during the pendency of the suit, and that the defendant pay the costs in both courts.


author: Duffel, J. Duffel, J.

text:
    Succession of Joseph Daigle.
    Whore two parties purchased together certain landed property, each one undivided half, and furnished, for the price, their joint and several promissqry notes secured by mortgage on the land purchased — Beld: That these parties must be considered as purchasers and principal obligors each for one-half only of the property purchased, and as sureties for each other mutually as to the other half ; and that, consequently, the re-purchase of one-half by the original vendor, from one of these purchasers, releases the remaining purchaser from his obligation as surety, as it renders impossible that subrogation to which he would be entitled under Article 2157 and 3030 C. C.
    from tlie District Court of the Parish of St. Landry, Simon, J.

      John E. King and P. D. Hardy, for the estate.

      Theodule and P. D. Hardy, for appellant.

      Swayze & Moore, for opponent, E. H. Martin.

   Duffel, J.

This is an opposition to the homologation of the account!presented by the administrators.

1.The administrators arc sought to be made liable for all the debts due the estate, according to the proces-verbal of the inventory.

The District Judge, on this branch of the case, ordered the administrators to account for one-half of the items 67, 70 and 75 of the inventory. The administrators ask that those items be rejected; and Martin, one of the opponents, contends that the administrators should be condemned to account for all the remaining claims of the estate.

The case has been presented in such a shape, as to render it impossible to find out the debts described in the inventory, which have been paid and accounted for by the administrators ; but we are satisfied, from the evidence, that the following items cannot be realized, to-wit: items of the inventory Nos. 63, 66, 68, 69, 71, 72 73, 75, and 76 ; that item 64 must be reduced by ten dollars, and that the administrators must account, as decreed by the court a qua, for one-half of the items 67 and 70, say one-half of eighty-five dollars and twenty-five cents. With regard to all the other items of debts due the estate, as per the public inventory, including the amount apparently due on item 64, the administrators will be required to account (in their next account of administration to be rendered hereafter in due course of administration) for such of said items as are not included in the assets now ready for distribution.

2.The opposition of Theodule Daigle, for seventy dollars, was properly rejected, the evidence being insufficient to authorize a judgment in his favqr.

3.The claim of Théodule Daigle for the supplies furnished to the deceased, his wife, children and slaves, to-wit, $254 20, was improperly rejected from the account , the testimony of Zéphirin Daigle and Beauchamp establishes the facts, that those persons were maintained by Théodule Daigle, and that the amount charged was reasonable. We do not think that, under the circumstances of the caso, a detailed account was necessary, or that the value of each item should have been proved.

4. We do not think that the District Judge erred in allowing the claim of A. M. Perrauld, Notary, say one hundred dollars. The Notary would, as he did, show the expenses incurred by him, and although such expenses do not properly fall under the charges and fees of Notaries, and are wholly independent, yet, as no surprise is alleged, we do not see the impropriety of including- the same in the fees as Notary.

5. Having- disposed of all the minor objections urged against the judgment of the District Court, we will now examine the last and most important opposition.

By public act dated 4th of January, 1853, E. H. Martin sold to Jos. J. Beau-champ and Jos. Daigle, the deceased, certain landed property for $6,100, payable in 1, 2, 3, and 4 years, with interest thereon at 8 per cent, from first January, 1854, till paid. The purchasers gave, to represent said sum, their four joint and several promissory notes, of $1,525 each, all secured by mortgage on the land conveyed, and other landed property and slaves belonging to the deceased, Daigle.

At a meeting of the creditors of Joseph Daigle, (his succession is administered as an insolvent one,) held on the 21st of March, 1855, Martin, the vendor, claiming to be a creditor for $6,100, voted and fixed the terms and conditions of the sale.

The undivided half only of this land was, on the 25th January, 1855, inventoried as belonging to the succession ; and, at the public sale of said undivided halt, made on tne 26th April, 1855, the said Martin became the purchaser for $1255. Subsequently, on the 13th of May, 1856, Martin, by public act, acquired from J. J. Beauchamp his undivided half of said property for $2000, the price being deducted from the notes furnished by Beauchamp & Daigle, as above stated. The administrators, in their account, classed Martin as a mortgage creditor on the proceeds of the sale of the Bell Cheney Springs; for $3,050, with eight per cent, interest from 1st January, 1854, subject to a credit of $90.

The opponent seeks to have his claim acknowledged for $6,100, with eight per cent, interest from 1st January, 1854, till paid, subject to certain credits, with mortgage and privilege on the proceeds of all the property, lands and slaves, mortgaged as aforesaid on the 4th January, 1853. The District Judge decreed accordingly.

The creditor having voluntarily, by a private sale, acquired the undivided half interest of Beauchamp in the property, has placed himself and the property in such a position, as"to render impossible' the legal subrogotion which would take place, did the .succession pay more than one-half of tile debt, for the excess. C. C. 2157, § 3. Subrogation takes 'place of right, says this Article, “ for2 the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in "discharging it.” “ The obligation (C. C. 2099) contracted in solido towards the creditor, is of right divided among the debtors, who, among themselves, are liable each only for his part and portion.” “ The surety is discharged when, by the act of‘the creditor, the subrogation to his rights, moi-tgages and privileges can no longer be operated in favor of the surety.” C. C. 3030.

The late Daigle was in fact surety of Beauchamp for one-half of the debt; for, as between the debtors, they each acquired one-half of the property, and owed one-half of the price. [

We may well say that the opponent has, by his acts, consented to the division of the debt, and that confusion took place to the extent of the liability of Beau-champ with regard to Daigle. C. C. 2096, 2215. For, if it be true that the whole property conveyed by Martin was subject to the payment of the entire debt, it cannot be denied that the undivided half reconveyed to Marlin by Beauchamp is in his hands liable for one-half al least cf the price, and that, for the purposes of this case, Martin being the creditor and owner of the thing pledged, confusion pro tanto takes place. Baldwin v. Gray, 4 N. S. 192 ; Benton v. Robertson, 1 Rob. 101.

It appears from the evidence, that Martin received from Daigle on account $183 22, on the 1st January, 1854; the other credits were paid by Beauchamp.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended in the following particulars : 1st, that the administrators now account and pay over one-half of the accounts due by Singleton & King, say the one-half of eighty-five dollars and twenty-five cents ; 2d, that the administrators be exonerated from rendering any account of the items of the inventory Nos. 63, 66, 68, 69, 71, 72, 73, 75, and 76 ; 3d, that a deduction of ten dollars be allowed on the account, item 64, due by J. H. Overton; 4th, that the administrators be required, on the rendition of the next account of their administration, to account for such claims described in the inventory as arc not above excepted, or which have not been included in the assets for distribution now in their hands ; 5th, that the claim of Théodule Daigle, described in the account of the administrators, and classed as a debt, be maintained, — said claim amounts to two hundred and fifty-four dollars and twenty cents; 6th, that the claim of E. H. Marlin remains, as in the account, for three thousand and fifty dollars, with interest at eight per cent, per annum from 1st January, 1854, till paid, subject to a credit of one hundred and eighty-three dollars and twenty-two cents, as of the date of 1st January, 1854, and that said sum be paid, by mortgage and privilege, out of the proceeds of the sale of the mortgaged property fully described in the judgment of the court a qua. And it is further decreed, that the judgment of the District Court, amended as above, be affirmed, the opponent, E. H. Martin, paying one-half of the costs of the appeal, and the succession paying the other half, as also the costs of the lower court.

Same Case — On an Application for a Re-hearing.

Duffel, J.

The error in which the counsel of the opponent, Martin, has fallen, is, in viewing and treating Daigle simply as a purchaser and principal obligor. Can he in truth be considered in no other light ?

The whole property was sold by Martin for $6,100. Daigle only acquired the undivided half, and became therefore bound, as purchaser, for one-half of the price; yet he is responsible, by the terms of the contract, for the whole. And how can he be so bound ? Undoubtedly, for one-half as purchaser, and for one-half as surety m solido of the purchaser of the other half. C. C. 2102. This being the real and incontrovertible nature of the obligation, the administrators of the succession of Daigle rightly hold that the estate, as surety of the co-vendee, is discharged, inasmuch as the opponent, by Ms act, has rendered impossible the ubrogation resulting from the Article 2157, § 3, of the Civil Code. C. C. 3030.

It is evident, under the existing facts of this case, that the estate could only be subrogated to the personal action of Martin against Beauchamp ; but this subrogation is clearly inadequate, (and may, for ought that we know, be futile,) for the subrogation should embrace all the accessories to the principal obligation, that is to say, the mortgage and vendor’s privilege. C. C. 3251, 2157 ; Succession of Gatewood, 12 R. 206.

Re-hearing refused.


text:
    Celeste Daigle, Warrantor, v. B. C. Crow, Administrator.
    Ia a suit to liquidate the rights of a wife against the estate of her deceased husband, although the evidence shows that her paraphernal property was administered by her husband, this fact is not sufficient to entitle her to a judgment for the value of such property. She may resume the administration of whatever of her paraphernal property may still exist in nature, hut she is a creditor for the value of such only as may have been disposed of by him or for his benefit.
    APPEAL from the District Court of the Parish of Lafayette, Martel, J.

      C. II. & E. Mouton, for plaintiff. M. E. Girard, for defendant and appellant.
   Voorhies, J.

The judgment liquidating the rights of the plaintiff against the estate of her deceased husband, George Jackson, must be amended so as to reduce the amount awarded from the sum of $524 00, to that of $162 00. In other respects it is correct.

The evidence shows that the wife’s movable property for an amount exceeding the former sum, was administered upon by the husband; but this does not of itself entitle her to a judgment for the value. She can resume the administration of whatever paraphernal property, as may yet exist in nature; but she is a creditor for the value of such only as may have been disposed of by him or for his benefit.

The paraphernal property of the wife, disposed of by the husband daring his life-time, or sold at the probate sale of his succession, is valued at $162 00; for this amount she is entitled to be classed as a moi’tgage creditor.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by reducing the amount allowed the plaintilf, to the sum of one hundred and sixty two dollars; and that in other respects the judgment of the District Court be affirmed, the appellee paying the costs of appeal.


author: Duffel, J.

text:
    Alfred Voorhies v. Valsin Fournet et al.
    A police juryman is not an officer, in the intendment of Article 122 of the State Constitution j there is no reason, thereforo, why a party who holds a civil office of emolument should not he at the same time a police juryman.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J.

      Voorhies Brothers é Dupré, for plaintiff and appellant.

      Deblanc & Fuselier, for defendant.
   Duffel, J.

The defendant, Valsin Fournet, having been duly elected as one of the police jury members of the parish of St. Martin, the plaintiff, who was defeated at said election, nevertheless claims the seat of the defendant, on the sole ground that the defendant is now, and was on the day of the election, Clerk of the District Court of the said parish, and we are referred to Article 122 of the Constitution.

The District Judge nonsuited the plaintiff.

As we are satisfied that a police juryman is not an officer, in the intendment of the Constitution, we will not examine the different pleas and exceptions presented by the parties, but we will simply affirm the judgment of the court a qua. Dorsey v. Vaughan, 5 An. 155; State v. Blanchard et al., 6 An. 515.

Judgment affirmed.


text:
    B. A. Martel, Tutor, v. Francois Richard et als.
    The tutor represents tlie minor so completely, tliat when lie lias once brought a suit for him, or answered ail action against him, no further petition or answer can be required on the part of the minor ; and a judgment rendered in the namo of his tutor, so long as his tutorship lasts, is a judgment for or against the minor himself.
    A suit properly brought by tho tutor for a minor, may üe prosecuted by the minor after attaining majority, without any new citation, or formal chango in tho pleadings.
    APPEAL from the District Court of the Parish of St. Landry, Simon, J.

      Swayze é Moore, for plaintiff and appellant.

      Dupré & Garland, for defendant.
   Merrick, O. J.

“ This is a suit instituted by the plaintiff, tutor of Jul-ien <& Lewis Grabot, against Franpois Richard, administrator of tho succession of Lange Grabot, deceased, for the purpose of annulling a sale of land, provoked by the defendant in his capacity as administrator of the deceased, to dismiss the administrator from office for his neglect and mal-administration, and to recover the sum of five hundred dollars from his official surety, as damages sustained by the minors in consequence of the mal-administration of the defendant; an injunction was also prayed for and granted to arrest the sale of property advertised to be sold at the instance of the defendant, and also to arrest all further proceedings by the administrator until the further order of the court.”

“ Defendant filed an answer to the merits on the 23d of May, 1856. On the 28th September, 1859, by amendment, he filed two peremptory exceptions, alleging that the minors had arrived at the age of majority, and that the tutor was functus officio, and could not prosecute this suit.”

The District Court being of the opinion, that the proof showed that the heirs had attained the age of majority, maintained the exception and dismissed the suit.

Plaintiff appeals.

The proof, or admission, does not clearly establish, as we think, the inference that tho heirs have all attained the age of majority.

The tutor represents the minors so completely, that when he has once brought a suit for them, or answered an action against them, no further petition or answer can be required on their behalf. The judgment rendered in the name of the tutor, for or against the minors, so long as his office continues, is a judgment for or against the minors themselves, subject, however, to the rules relative to actions of nullity and appeal. C. P. 109 ; 15 An. 88, 3 An. 292, 7 An. 368, 11 R. 504.

If this suit was properly brought for the minors, when commenced by the tutor, (we repeat) it is ffór-suit, as much so, as if it were commenced in their individual names as majors, and as a consequence, they may prosecute the same when they attain the age of majority, without any new citation or formal changes in the pleadings. They should take care, however, that judgment, in an action of this kind should be rendered in favor of those heirs who have attained the age of majority, as well as the tutor of those who are still minors.

The District Court not having passed upon the merits, but having dismissed the case upon an exception, the same must be remanded.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that said exception be overruled, and that this case be remanded for a trial upon the merits, the defendant paying the costs of the appeal.


author: Vookhies, J.

text:
    Caroline Lazare, Wife, &c., v. Celise Jacques, f. w. c.
    A natural son is not a competent witness in controversies which, relate to the succession of his deceased natural father,
    A donation of immovable property made by a man to his concubine, is, under the prohibition contained in Article 1468 G. 0. radically null and void, and not susceptible of ratification or confirmation. Such a contract being absolutely null, all parties interestéd, such as all the heirs of a deceased party who has made such a donation, have a right to sot up this nullity for the purpose of defeating the fraud practised upon the law. This right is not confined to the forced heirs only.
    In suing for tho-property illegally donated, the heirs aro not required to produco a counter-letter, but are allowed to prove the violation of the law by every species of evidence oral as well as written.
    Parol evidence is admissible whenever the obligation is one contracted infraudem legis: it is immaterial what form may have been given to the reprobated contract.
    APPEAL from the District Court of the Parish of St. Landry, Martel, J.

      Swayze & Moore, for plaintifls.

      John E. King, for defendant and appellant.
   Vookhies, J.

The plaintiffs are the administrator and the collateral heirs of J. B. Desmarais, deceased. They sue the defendant for the purpose of annulling an act of sale made to her by Ihe deceased, and base their demand upon the fact that she was at the time his concubine, and that this was a disguised donation.

The facts elicited on the trial of this cause show conclusively that the deed of sale in question was a disguised donation, and that the transfer was made in that form for the purpose of evading the prohibition contained in Article 1468 of the Civil Code.

The only question presented under the evidence is, whether the plaintiffs, who are not forced heirs, have the right to attack this deed, and, if so, whether they should produce a counter-letter.

Before discussing this matter, however, it is necessary to notice a bill of exception taken by the defendant to a ruling of the inferior court. A witness by the name of Noel Roy was held to be incompetent, being a natural son of the deceased Desmarais. The Code says : “ The husband cannot be a witness either for or against his wife, nor the wife for or against her husband; neither can ascendants with respect to their descendants, nor descendants with respect to their ascendants.” C. C. 2260. As the very matter involved in the present controversy relates to the succession of Desmuráis, deceased, it is evident that Noel Roy, his descendant, cannot be heard in the premises.

The position assumed, on the merits, by the defendant’s counsel, is, that none but forced heirs can attack a donation made in violation of Article 1468 of the Civil Code; that other legal heirs have no rights but such as are derived from the deceased himself, and that even the forced heirs stand in no better situation beyond their interest in the legitime.

This is not the case of a simulated sale, but of a prohibited donation made under the form and semblance of a real contract of sale. The transaction was a real one, although the contract was purely gratuitous. C. C. 1975 ; Johnson v. Alien, ante p. 505. The rules applicable to ordinary cases of simulation do not, therefore, apply.

This contract being derogatory to public order and policy, it is radically null and void, and, as such, is not susceptible of ratification or confirmation. The obligation is an illicit one ; it is not reducible or subject to rescission : it is an absolute nullity.

Such being the case, it follows that parties interested —such as the heirs of the deceased, — have a right to set up this nullity for the purpose of defeating the fraud practiced upon the law. To say that forced heirs only, and that to the amount of their legitime, are entitled to invoke this nullity, carries its own refutation. For it is tantamount to saying that the illicit obligation is binding in all cases in which the legitime is not invaded, and that, even when it violates the legitime, it is not null and void, but merely reducible.

If the heirs generally, whether or not forced heirs, have the right to attack such a disposition, when it is mado in a last will and testament, it is difficult to see why this right should be limited to the protection of the legitime when the donor resorts to an act inter vivos. The prohibition is the same : — ■“ Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donations of immovables.” C. C. 1468. If the donation be set aside, — and, under the law, the whole donation must be declared null, — the property reverts back to the succession, and is transmitted to the legal heir, whether in the direct, or in 'the collateral line. These have consequently the right to sue for the property illegally donated; and, for that purpose, they are allowed to prove the violation of the law by all species of evidence, oral as well as written. To require of them a counter-letter, is to place the law at the mercy of the law-breaker. The object of the latter being- to defeat the prohibition, to the detriment of those who are to inherit from him in due course of law, it is evident that in no case these parties would be enabled to produce a counter-letter; and the prohibition would be a dead letter on the statute book, But it is well settled that parol evidence is admissible whenever the obligation is one contracted in frauiem legis; and that it is immaterial what form may have been given to the reprobated contract.

Judgment affirmed.


text:
    Harvey Beach v. Miller’s Testamentary Executors et als.
    Decision in the ease of Linton v. Stanton, 4th An., affirmed.
    Tlio validity of a decree l>y tho Unitod States Court, giving a discharge iu bankruptcy to a debtor, uu dor tlio Act of Congress approved August 19th, 1841, caunot bo questioned, if tho certificate has not been impeached for fraud, and the debt in question is not of that fiduciary class which is saved from tho operation of tho Act.
    Rights vested iu creditors by a cessio Imuirum, so far as they relate to the property codod, are unaffected by subsequent proceedings of tho insolvent, iu causing himself to bo declared a bankrupt under the Act of Congress of August 19th, 1S41. But tho 8th Section, Art. 1st, of tho United States Constitution, provides that Congress shall have the power to establish “uniform laws on tho subject of bankruptcy throughout the United States” ; this power was specially delegated to Congress, and only reserved by tho sovcral States in so far, and so long as Congress did not see fit to exercise it. The moment Congress exorcised the power the State laws on the subject became inoperative and wore suspended.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J.

      Simon & Gary, for plaintiff and appellant.

      Dupré & Garland, for defendants.
   Duffel, J.

The plaintiff alleges that John F. Miller made a surrender of his property, which was accepted, for the benefit of his creditors, by the Judge of the Fifth District Court of New Orleans, in February, 1841; that syndics were appointed, and a final account and tableau of distribution was rendered, and the syndics discharged in January, 1854; that the petitioner’s claim was put down in 'the schedule, but he did not share in tho distribution ; that aohA-Miller subsequently acquired property to a large amount, which is now under the administration of his testamentary executors. (Miller died in 1857). The petition concludes by demanding that his claim be classed among the debts of the estate, contradictorily with the executors and the universal heir and legatee under the will.

Various pleas are set up in defence, among which we will notice the principal one.

The defendants plead, in bar of the action, a discharge in bankruptcy, obtained by John F. Miller in the United States District Court for the Eastern District of Louisiana, on the 31st of October, 1842, under the Act of Congress approved August 19th, 1841, entitled “ An Act to establish a uniform system of bankruptcy throughout the United States.” United States Statutes at large, vol. 5, p. 440.

This plea was sustained by the District Court in an elaborate and conclusive opinion. The plaintiff appealed.

The counsel of the plaintiff contend : 1st, That as Miller made before our State court a surrender of all his property, and .as, under our State laws, (section 28 of tho Insolvent Act of 1817, re-enacted in 1843, and C. C. 2173,) any one . creditor may force a new cession of property, all the old creditors of tho insolvent acquired a vested right on all the future property of their debtor, which cannot be impaired by a subsequent surrender under the Act of Congress; 2d, That the judgment of discharge cannot avail the defendants, as the formalities of law were not complied with, the assignee- did not furnish bond and security, the creditors never proved their debts, nor were they sailed to do so, the decree of notice to creditors to obtain the discharge was given by the Deputy Cleric, and the designation of the newspaper was simply “ in a newspaper in the district,” no personal notice was made.

The decree of discharge is as follows :

John F. Miller v. His Creditors and the Creditors of Jonas Marsh & Co. — In Court, October 31st, 1842. — Decree of discharge. — Present: T. H. McCaleb.”
“ John F. Miller, of New Orleans, having presented his petition praying to be discharged in full from all his debts individually, and as member of the firm of Jonas Marsh & Co. of the parish of St. Martin, Attakapas, and for a certificate of such discharge, pursuant to the Act of Congress entitled “An Act to establish a uniform system of bankruptcy throughout the United States,” passed August 19th, 1841: and it being shown, to the satisfaction of the court, that the said bankrupt has bona fide surrendered all his property and rights of property, and that ho has fully complied with and obeyed all the orders and directions which have from time to time been passed by the court, and has otherwise conformed to all the requisites of the said Act; that proof of publication, according to the rules of this court, has been duly made, and notice given to the creditors; and it further appearing, that no written dissent to the bankrupt’s discharge has been filed by a majority, in number and value, of his creditors, who have proved their debts, and no opposition whatever has beeen made, no cause being shown to the contrary, why the prayer of the petitioner should not be granted.
“ It is, therefore, by virtue of the Act aforesaid, ordered and decreed by the court, that the said John F. Miller be, and he is accordingly hereby fully discharged of and from all his debts owing by him at the time of presentation of his petition to be declared bankrupt, to-wit, on the.2d day of July, 1842. It is further ordered, that the Olerk duly certify a copy of this decree under the seal of this court, and deliver the same to the bankrupt, when demanded.
(Signed) Tu. H. McOaleb, U. S. Judge.”

This court had occasion to pass on similar objections, wc allude to the second ground, and maintained the validity of the discharge; we will therefore simply refer to the case, Linton v. Stanton, 4 An. 402, as a full answer with the simple addition, which we extract from that case as being applicable to the present one “as the certificate has not been impeached for fraud, and as the debt in question is not of that fiduciary class which is saved from the operation of the Act, wc may here dismiss the question of the validity of the proceedings and decree of the bankrupt court.”

We fully subscribe to the proposition that vested rights cannot be impaired, and that the rights vested in the creditors by a cessio bonorum, as relate to' the property ceded, are unaffected by subsequent proceedings of the insolvent, in causing himself to be declared a bankrupt under the Act of Congress of August, 19th, 1841. Dwight, Syndic, v. Simon et al. 4 An. 490 ; West v. His Creditors, 5 Rob. 261 and 8 Rob. 123; sections 9 and 10 of Article 1st of the United States Constitution. But the 8th section of Art. 1st of U. S. Const, provides that Congress shall have the power to establish “ uniform laws on the subject of bankruptcies throughout the United States.” Thus this power was specially delegated to Congress, and only reserved by the several States in so far, and so long, as Congress did not see fit to exercise it. The moment Congress exercised the power, the Slate laws on the subject became inoperative, were suspended. Sturges v. Crowninshield, 4 Wheaton 122, or 4 Curtis 362.

Heneo wo conclude, that Miller was fully discharged by the decree of tho 31st October, 1842, and that his estate cannot now be held liable for any debt contracted prior to the 2d of July, 1842.

Judgment affirmed.


text:
    Benoit Ney v. Joseph D. Richard et als.—Benoit Ney v. Joseph D. Richard.
    In a prosecution against a party for cruel treatment to a slave, tho Justice of tlio Peace is without authority to placo tho slavo beyond tho reach or control of tho master. That right or privilege is conferred upon tho Judge and jury who try tho prosecution for the cruel treatment. The Justice’s Court is entrusted only with tho preliminary investigation of* tho charge preferred; and beyond the duties of a committing magistrate, tho Justico is without authority.
    It is the duty of tho District Judgo, in such a case, on application for a mandmius, and upon a proper showing, to release the slave from imprisonment, without making tho magistrate a party to tho proceedings.
    Tho jurisdiction of tho Supremo Court over misdemeanors attachos only after tho actual imposition of a fine exceeding threo hundred dollars.
    Whore a slavo had been ordered into tho custody of tho Sheriff by a Justice of tho Pcaco, in a prosecution against a wife for cruol treatment — Hdd: That an application by tho husband, as -head and master of tho community, to tho District Judgo for a mandamus against tho magistrate, tho keeper of tho Parish Jail and the Sheriff, for the delivery of tho slavo, was not incidental to tho criminal prosecution, and if tho amount involvod oxceods the sum of threo hundrod dollars, tho Supreme Court has jurisdiction.
    Tho Sheriff boing a ministerial oillcor, cannot troat as a nullity a mando/imis from tho District Court, and in order to recover a slave m such a case as the above, tho only remedy of tho plaintiff is in a mandamus.

    from the District Court of the Parish of St. Landry, Martel, J.
    C. H. Mouton and J. E. King, for plaintiff and appellant.

      Swayze & Moore, for defendant.
   Voorhies, J.

The plaintiffs wife, Adéle Roy was arrested under a charge of cruel treatment of their slave, by name Frozine. There being a waiver of the examination before tho committing magistrate, an onder was entered admitting the party to bail, and, in default thereof, ordering her into the custody of tho Sheriff to await her trial in the District Court.

The accused furnished the bond required, and was thereupon released; but the magistrate forthwith ordered the slavo Frozine to jail during tho pendency of the prosecution; and, a mittimus to that effect being placed in the hands of the Sheriff, the slave was incarcerated in the Parish Prison.

Benoit Ney, claiming to be the owner, as head and master of the community, applied to the District Court for a mandamus against the magistrate, the keeper of the Parish Jail, and the Sheriff, for the delivery of the slave, on the ground that the mittimus was an absolute nullity for want of authority in the magistrate to make such a decree.

The District Judge, the mandamus having been tried, decided that the decree was valid, and ordered the Sheriff to retain the slave in his custody until she be discharged in due course of law.

We are aware of no law which authorizes a magistrate, in such cases, to place a slave beyond the reach or control of tho master. 'That right or privilege is conferred upon the Judge and jury who try the prosecution for the cruel treatment. The Justice’s Court is entrusted only with the preliminary investigation of the charge preferred; and, beyond the duties of a committing magistrate, the Justice is without authority.

From the moment that the Justice, Joseph D. Richard, had committed the accused, Adah Roy, and the latter had furnished bonds for her appearance before the District Court, the functions of the committing magistrate were at an end, and the jurisdiction of the District Court had attached. So that, however irregular and informal the mittimus respecting the custody of the slave, no order or decree could be rendered against the magistrate in the premises. The District Judge, however, had the right, — nay, upon a proper showing, it was his duty, to release the slave from imprisoument, without making the magistrate a party to the proceeding.

Had the accused applied by rule to have the slave returned to her, and had the District Court denied the order, no appeal would have lain to this court. Our jurisdiction over misdemeanors attaches only after the actual imposition of a fine exceeding three hundred dollars.

But these proceedings are not incidental to the criminal prosecution in the name of the State against Adéle Roy; — this is an action separate and distinct, in which she has no concern, and the parties of which are not the same. The amount involved in this civil cause exceeds the sum of three hundred dollars, and brings it within our jurisdiction.

So far as the merits of this controversy are concerned, it does not seem to be very important to determine whether it would have been preferable to have proceeded by habeas corpus, or whether this remedy was even applicable. The plaintiff, considering the Sheriff and the keeper of the Parish Jail as mere ministerial officers acting under the orders of the District Court, proceeded by mandamus. The object of this writ, whether addressed to an individual, corporation, or public officer, or court of inferior jurisdiction, is to direct it “ to perform some certain act belonging to the place, duty or quality with which he is clothed.” C. P. 829. “ It may be directed to public officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them.” C. P. 834.

The object of the present suit is to obtain from the District Judge an order directing the Sheriff in the discharge of his duties under the mittimus of the magistrate. The Sheriff, being a ministerial officer, could not treat the order as a nullity; and, inasmuch as the whole matter is vested in the District Court, the only remedy of the plaintiff laid in a writ of mandamus. To require of the party to institute an ordinary action, would entail a hardship not only upon him, but upon the Sheriff and keeper of the Parish Prison, who have no interest in the matter, and are acting under the direction of the court.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed as regards the appellees, Chachéré & Thompson; that [a writ of mandamus do issue upon the said parties, as prayed for by the plaintiff; and that in other respects, the judgment appealed from be affirmed.


author: Buchanan, J.

text:
    Henry Laville v. Jean Biguenaud.
    An action for damages on account of a malicious prosecution, cannot be sustained, except on proof of malice to the defendant, and of want of probable cause for the prosecution of which plaintiff complains.
    Actions of this sort have been favored,- a clear case must be made out, of a provision of the fforms of justice to the satisfaction of private malice, and tlio willful oppression of the innocent, in order to sustain them.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J.

      Deblanc & Fxiselier, for plaintiff.

      Simon & Gary, for defendant and appellant.
   Buchanan, J.

This is an action for damages for a malicious prosecution, and for public defamation.

The prosecution charged to be malicious was an affidavit made by defendant before a Justice of the Peace, that plaintiff had committed perjury in a suit wherein one Champagne was plaintiff, and the affiant was defendant. Upon this affidavit plaintiff was arrested, and, alter examination, was discharged by the Justice.

The slander charged is, that defendant publicly declared that plaintiff “ had perjured himself in the case above mentioned, and that, cost what may, he would have him sent to the penitentiary at Baton Bouge.”

The answer of defendant denies generally the allegations of the petition, and specially denies malice; pleads that his affidavit before the Justice of the Peace was made according to law, and in the discharge of his duty as a good citizen ; and specially denies the public defamation as charged.

It appears from the evidence, that the plaintiff, a journeyman cooper, was employed by Champagne, a cooper, in making certain hogsheads and repairing others for defendant, who refused to pay Champagne, on the ground that the work was badly done. A long time afterwards, — more than a year, as stated in plaintiff’s brief, — Champagne sued defendant for this work before a Justice of the Peace, and recovered judgment upon the testimony of plaintiff. Defendant went, therefore, before another Justice of the Peace, and made oath that he had reason to believe, and did believe, that plaintiff had been guilty of perjury in the testimony thus given by him; and prayed that he might be arrested and dealt with accord • ing to law.

Plaintiff was arrested, and, after examination, was discharged by the magistrate.

The well established rule of practice, that an action of this kind cannot be sustained except on proof of malice in the defendant, and of want of probable cause for the prosecution of which plaintiff complains, is founded in the soundest reasons of public policy.

The individual, upon whose oath the warrant issues for the arrest of another as a criminal, is not considered in law as a party plaintiff in the criminal prosecution, but as a witness for the State — in many cases a witness by compulsion — discharging a duty to the commonwealth, in a matter of public interest. To treat this individual as warranting the success of the prosecution, at the risk of his fortune, would have a direct tendency to discourage the prosecution of offenders against the laws, and to ensure the impunity of crime. Actions of this sort have, therefore, never been favored. A clear case must be made out, of the perversion of the forms of justice to the satisfaction of private malice and the willful oppression of the innocent.

In Womack v. Kemp, 6 N. S. 477, it was held by this court, (Martin, J.,) that a charge of perjury made in a legal proceeding, with the view of bringing the accused to justice, is not actionable, even although tho oath charged to have been false was not technically a perjury, but a voluntary affidavit, not made nor intended to be used in a legal proceeding.

And in Donovan v. New Orleans, 11 An. 711, we held that the expression every act of man ” in Article 2294 of the Civil Code, does not apply to a lawful act.

In the present case, we find no proof of malice on the part of defendant. Tho expressions used by him to witnesses: “ he would see the end of the affair,” and if tho fellow does not go to the penitentiary, they are all rogues,” do not amount to such proof. They are perfectly consistent with the idea of an intention to vindicate public justice, and nothing more.

As to the want of probable cause, the only proof offered by plaintiff is the testimony of Champagne, the plaintiff in the original suit. This witness declares that Laville’s testimony in that suit was true and correct. lie could scarcely say less, as the party who had gained his cause upon that evidence; and this may be taken as an offset to the affidavit of his adversary, that Laville’s testimony was falso. But Domingeau, another witness of plaintiff, swears that one of the hogsheads hooped by Laville burst in rolling it to the river.

On a careful review of the case, we are of opinion that the verdict of the jury is not sustained by the evidence.

There is no proof of the words charged in the second count of the petition.

It is, therefore, adjudged and decreed, that tho judgment of the District Court upou the verdict of tho jury be reversed, and that there be judgment for defendant, with costs in both courts.


author: Merrick, 0. J.

text:
    Alexandre Declouet v. Belizaire Borel.
    A real servitude, to bo valid, should express and describe tlio estate in favor of which it is established, especially whore it is shown that llio party claiming such servitude was the owner of several estates at tho time tho servitude was acquirod.
    XJndor tho Spanish law, tho usufructuary had only tho right to grant leases of tho proporty hold by him, and tho usufruct terminated if ho alienated his right, and it also terminated at tho death of tlio usufructuary, as under our law.
    A olauso, in an agreement establishing a usufruct, by which it is provided that such usufruct shall bo licriditablo, must be considered as not written.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J,

      Simon <& Gary, for plaintiff and ajipellee.

      Deblanc <& Fusilier, for defendant and appellant.
   Merrick, 0. J.

The principal facts in this case are correctly stated by defendant’s counsel as follows:

“On the 4lh of May, 1804, Olivier Devezm and Louis Judice made an exchange by means of which the latter gave to the former a tract of land having 17 arpen ts in front on the western bank of the Bayou Teche, in exchange for a tract of land having 16 arpents in front on the eastern bank of said bayou. In this act, it was stipulated ‘que sur les 17 arpents sur la partie occidentale aux stipulations préeédentes que cede le sicur Louis Judice au .sieur Olivier Devezin, que le bois qui se trouve dossus sera partagé en deux parties égales par une perpendiculairo qui sera tirée on présenee de témoins, en prenant do la riviere en allant a la prairie; cette jouissanee do la moitié dudit bois, restera héréditaire aux hoirs ou ayant cause dudit sieur Louis Judice, sans que, dans aucun temps ni pour quelque raison que ce soit, que ni mondit sieur Olivier Devezin, ses hoirs ou ayant cause puissent inquiéter et porter aucun empéchement, opposition et contradiction a la pleine et cntiére exécution du contonu au present acte, sans en rien omettro ni réserver.
The plaintiff, by virtue of a number of mesne conveyances, claims the actual ownership of the lands on the eastern bank of the river Techo which were given in exchange to Louis Judtce, and upon which, he contends, the right conceded by the clause above quoted, is attached as a servitude.
“ The tract of land on the western bank of the river, given in exchange by Louis Judice to Olivier Devezin and upon which the plaintiff claims the servitude, by several mesne conveyances, became the property of diaries Olivier Duclozel. But in the act constituting his ownership to a portion of it, Mrs. Carmelite Amy, his vendor, has reserved for herself and assigns ‘que tout le bois qui se trouve sur la dito portion de torre et qui pourra y croitre par la suite, k partir du bayou jusqu’au grand cliemin, n’est pas eompris dans cette vento; la dame vcndercsso se le réservant expressément, ainsi que la faculté d’en user de la maniere qu’elle le jugora convenable!
“On the 10th of April, 1860, the defendant purchased from1 Mrs. Carmelite Amy her right to the exercise of the reservation made in her favor in the deed 'of sale just above referred to.”
“ Immediately after this purchase, Belisaire Borel, the defendant, set to fell timber on the land in question, and the plaintiff sued out the injunction which is the object of the present suit.”

Judgment having been rendered in favor of plaintiff defendant appeals.

The act of exchange between Olivier Devezin and I^ouis Judice of 4th May, 1804, was executed at a time when the Spanish- law was in force and consequently must receive its construction or interpretation with reference to that law, and the plaintiff cannot possibly have any greater right than Louis Judice had reserved, for the reason that he claims through him .by mesne conveyances.

It appears to us, to be clear that by the act of exchange Louis Judice transferred to Ohvier Devezin the property in the soil of the seventeen arpents of land on the west bank of bayou Teche, because he expressly declared in the act of exchange that he transferred all his rights to the -said land in full property to Devezin.

What than did he reserve? was it any part of the property thus alienated? This could not be, for there could not bo- two exclusive owners of the same thing.

The right there reserved was subordinate to that of the owner; of him who hold the dominium. If so, then the most favorable view we can take of Judice’s right is to consider it one of the servitudes allowed by the Spanish law.

Was it a real servitude? One established in favor of the plantation conveyed by Devezin? We cannot come to this conclusion, because there is no clause in the act so constituting the servitude, and Judice was the owner of other lands (as appears by tlie same act) for which, with equal propriety, it might be assumed that the servitude was reserved. 8 Am 152.

It was then a personal servitude. But among' personal servitudes the right of the usufructuary is the most perfect. Wo will therefore assume that Judice retained the usufruct.

Here again under the Spanish law the usufructuary had only the right to grant leases of the property held by him and the usufruct terminated if he alienated his right; and it also terminated at the death of the usufructuary, as under our own law. 1 Moreau & Carleton’s Partidas, p. 424, 3, 31, law 24.

The term “ayant cause” used in the act could therefore only refer to lessees and the words of inheritance must be considered as not written. Were personal servitudes capable of such perpetuity by inheritance aud transfers as contemplated by plaintiff, it is obvious that titles to estates would become by their complications far removed from that simplicity which has even been the policy of our law to preserve. C. C. 705.

As the plaintiff has never acquired any servitude upon, nor any real right in or to the tract of land on the west side of the bayou iu question, it is useless to consider what are defendant’s rights. If plaintiff be without title, the acts of the former possessors of these tracts will not avail him.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of defendant with costs in both courts.


text:
    R. S. Boyd v. Walter Cox.
    Articles 1795 and 1796 of the Civil Code, must be construed to mean, that the assent to a proposition, in order to ho binding upon the proposer, must he made at once, without any intervening separation of the parties, unless an intention, on the part of tho proposer, to grant timo for consideration to tho opposite party, appears evident, either, 1st, from tho situation of tho partios, or 2ndly, from tho nature ef the contract.
    Article 1798 C. C. is not inconsistent with Articlo 1796 ; the former refers to tho case statod in tho Article preceding it, where one party proposes and the other assents, without an immediate signification of dissent from the proposer : — where the conversation or correspondence terminates with the assent of the party to whom the proposition has been made. But Article 1796 refers to its own immediate preceding Article (1795) aud to tho state of facts of that Article — to-wit, a proposition, an assent, and an immediate signification of chango of intention on tho part of tho proposer.
    Where one partner in a commercial firm made a proposition to his co-partner, that lie would either sell his own interest in the concern, on certain terms, or purchase that of such co-partner on tho same terms, and the partner, to whom the proposition was made, failed to signify his assent at tho timo, but went off, and three days afterwards notified tho proposer of Ins determination to purchase — Held: That an immediate signification of change of intention by the proposer released him from the obligation which lie would have otherwise incurred, from his proposition, unless it appears from the situation of tho parties, or from tire nature of the contract., that it was the intention of tho proposer to allow several days for reflection ‘ainrdocision upon his proposition.
    APPEAL from the Fifth District Court of JNew Orleans, Eggleston, J.

      Ogden & Augustin, for plaintiff.

      J. D. Mayes, for defendant and appellant. '
   Buchanan, J.

On the 16th of March, 1858, at New Orleans, defendant made to plaintiff the following proposition :

I will give you your account as it stands on the books, and my note for five thousand dollars, at twelve months from date, for all your interest in the concern ; or I will sell to you my interest in the concern, at the same rate, and on the same tonus.”

The plaintiff thereupon stated, “ that the price named was less than he, plaintiff, had expected Cox, the defendant, to offer, and that the offer on the part of Cox to sell, was what plaintiff had not expected, and that he was not prepared immediately to act upon it; that to elect to purchase, would involve the necessity of plaintiff’s again coming to New Orleans the ensuing season, which he wished to avoid; and in that respect the offer was not equally favorable to both parties.”

To which the defendant, Cox, replied “that an offer to sell or to buy on the same terms was always a fair one, in cases like ours ; that he was not disposed to change the offer he had made.”

In the evening of the same day (16th March) the plaintiff called upon defendant, and asked him if he had correctly understood his proposition, and repeated it to him exactly as above set forth; and Cox replied “ that it was correctly understood ; that it was a matter of entire indifference to him whether he bought or sold; and that he had no change to make, nor would he make any change in the offers he had made.”

Plaintiff, taking leave of the defendant, then told him that he should probably elect to purchase his interest; to which defendant replied, “ it is very well.”

On the 19th March, 1858, three days after the above recited conversations, plaintiff, being then at Natchez, telegraphed to defendant at New Orleans, in the following words : I will buy on terms proposed. Be down Sunday.”

Defendant received this telegram on the same day, and immediately telegraphed in reply to defendant: “ I withdraw my proposition.”

Plaintiff contends that the proposition made on the 16th, and the assent given on the 19th of March, 1858, constitute a perfect contract; for the specific performance of which this action is instituted.

The only point, discussed by counsel in argument before this court is, whether the proposition was accepted in time to bind defendant.

The Civil Code, Article 1795, says : The party proposing shall be presumed to continue in the intention which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention.”

Article 1796. — “ ITo is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms which evince a design to give the other party the right of concluding the contract by his assent ; and if that assent be given within such time, as the situation of the parties, and the nature of the contract, shall prove that it was the intention of the proposer to allow.”

In our understanding of the last of the Articles quoted, the assent to the proposition must be made at once, without any intervening separation of the parties, unless an intention on the part of the proposer to grant time for consideration to the opposite party appears evident, either, 1st, from the situation of the parties, or, 2dly, from the nature of the contract.

We have not neglected to notice the Article 1798, which declares that the acceptance needs not be made by the same act, or in point of time, immediately after the proposition; provided it be made at any time before the person who offers or promises has changed his mind, or may be reasonably presumed to have done so, it is sufficient.

This would seem at first blush to be inconsistent with the Article 1795, but is not so in fact. The Article 1798 refers to the case stated in the Article preceding (1797), where one party proposes and the other assents, without an immediate signification of dissent from the proposer : where the conversation or correspondence terminates with the assent of the party to whom the proposition has been made. But the Article 1796 refers to its own immediately preceding Article (1795), and to the state of facts of that Article, to-wit, a proposition, an assent, and an immediate signification of change of intention on the part of the proposer. And that is the ease before the court. Had the telegram of plaintiff, conveying his assent to defendant, not been followed by an immediate signification of change of intention, as it was, there is no doubt that the contract would have been perfect and binding under the terms of Articles 1797 and 1798.

"We are therefore to enquire, whether the evidence exhibits anything in the situation of the parties, or in the nature of the contract, which proves,” as the Oode has it, that it was the intention of the proposer to allow several days for reflection and decision upon his proposition.

As to the situation of the parties. .Plaintiff declares in his petition, that in his second conversation of the 16th of March, with defendant, he told the latter that he was under the necessity of going to Natchez that evening, and desired, before leaving, to know whether he correctly understood his proposition. If this allegation had been proved, perhaps it might have been inferred that plaintiff was not in a situation to have decided upon plaintiff’s proposition before going to Natchez. But this allegation is negatived by the sworn answer of defendant to an interrogatory propounded to him by plaintiff, touching the truth of the allegations of the petition. Defendant answers: “ Mr. Boyd says in his petition, that on the evening of the 16th March, he told me that, he was under the necessity of going to Natchez that evening. This is not true, and I was ignorant of his whereabouts until the 19th of March, when I received a telegraphic dispatch from Natchez on that day, which I instantly replied to,” &e.

As to the nature of the contract. There is nothing in the contract itself which required a delay for deliberation. The petition alleges, that a trial balance of the affairs of the partnership had been made and examined by both parties, which was indeed the basis of their negotiations. The petition, moreover, states an abundance of facts which leave no doubt upon the mind that both parties were fully informed of what it was that defendant proposed to sell, and what it was that he proposed to buy. Again, as the note which defendant proposed to take in payment of the sale was plaintiff’s own note, without an endorser, it cannot be inferred, nor indeed do we understand that it is pretended, that any time was requisite for complying with the terms of the" sale.

Upon a careful review of the circumstances, we have not been able to discover proof that the defendant was concluded by anything in the situation of the parties, or in the nature of the contract, from signifying to plaintiff his change of intention, when he received the assent of the latter to a proposition which he had made the latter three days previously.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there bo judgment for defendant, with costs in both courts.


author: Land, J.

text:
    Lapène & Ferré v. M. A. Riche et als.
    Interrogatories on facts and articles cannot bo taken for confessed, and used as evidence on tlio trial, without an order of court directing them to be answered within a given deUiy, and notice of such order given to the party interrogated.
    APPEAL from the District Court of the Parish of St. Tammany, Wilson, J.

      J. C. David, for plaintiffs.

      Angus Bowie, for defendants and appellants.
   Land, J.

The plaintiffs instituted this suit against the defendant, Marie A. Riche, and her second husband, Pascal Favaron, for the recovery of two certain debts, on the ground that they had been contracted for, and enured to the benefit of the separate estate of Marie A. Riche, during her first marriage, or that she, after the death of her first husband, Francis Dury, converted the proceeds of the community property to her own use — the allegations of the plaintiffe’ petition leaving the cause of action doubtful.

On the trial below, judgment was given in favor of the plaintiffs, and the defendants were condemned to pay the debts demanded.

We cannot determine the case on its merits, because the interrogatories on facts and articles annexed to the plaintiffs’ petition, and propounded to Marie A. Riche, were taken for confessed, and used as evidence on the trial, without any order of court directing her to answer the same, within a given delay. This order and notice thereof, were necessary to enable the plaintiffs to lake the interrogatories for confessed, and to use the same as evidence, on the trial of the cause. See C. P. Art. 351, and Act of the 10th February, 1843, p. 14, amending Art. 352 ; Weathersley v. Huddleston, 2 An. 845 ; Spears v. Nugent, 2 An. 11. Without this evidence, the plaintiffs are not entitled to a judgment, even against the defendant, Marie A. Riche.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that this cause be remanded for further proceedings according to law, and that plaintiffs and appellees pay the costs of this appeal.


text:
    B. Cahn v. Antonio Costa.
    The decision in tho caso of Dupre v. Demurest, 5 An. 591, affirmed, to the effect that tbe speculative opinions of physicians derived from upost mortem examination, are not sufficient to establish the length of timo which a redhibitory disease existed in a slave before his death.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, ,T.

      Robert Preaux and /. B. Cotton, for jriaintiff and appellant.

      Collens <& Woolridge, for defendant.

      Budd & Lambert, for warrantor.
   Voorhies, J.

The plaintiff sues for the rescission of the sale of a slave, made by her to Antonio Costa on the 5th day of April, 1858. The allegations upon which this action is based, are that the slave was, at the date of the sale, affected with a redhibitory disease, — consumption; that Costa although aware of the existence of this defect, did not give the information to his vendee; and that shortly afterwards the slave, notwithstanding proper care and medical treatment, died of this disease.

Antonio Costa called his vendor, Mrs Jules de Rosenon, in warranty, averring that at the date of the sale to Calm the slave was sound ; that, if she was not sound, he had no knowledge of thq fact; and that “if said slave had any such disease on the 5th of April, 1858, though not known to respondent, it must have existed previously to said 3d October, 1859, as expressly alleged by plaintiff.” This was the date of the sale from Rosenon to' Costa.

The evidence is conclusive to the fact that, when the plaintiff made her purchase, the slave was affected with a redhibitory disease, of which she died shortly afterwards; and also that the plaintiff took the very .best care of the patient.

"With regard to the date of the disease, so far as affecting the warrantor’s case, there is some difficulty. On one side we haye the speculative opinions of physicians, several of whom saw the deceased during her last ill-ness, and one of whom made the post mortem examination; and from their testimony, we might be authorized to conclude that the disease existed at a time anterior to the date of the sale from the warrantor; but on that very day a physician made a thorough examination of the slave, and, on the trial, he testified to her soundness at the time. The rule in the case of Dupré, Ex'r. et al. v. Démarest, finds its application in this instance; and the more so that it appears in proof that the slave was, during the whole time she remained with the warrantor and with the defendant, robust and, to all outward appearance, free from all disease whatever. (Dupré et al. v. Démarest, 5 A. 591.)

This position is strengthened from the fact that the defendant resists the action of the plaintiff on the ground of the soundness of the slave at a subsequent date.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; — that the sale of the slave Célestine from the defendant to the plaintiff be canceled and annulled; — that the plaintiff do have judgment against the defendant for the sum of one thousand and twenty dollars, with legal interest from judicial demand; and the further sum of sixty-two dollars with like interest; that the defendant’s demand against the warrantor bo rejected; and, finally, that all the costs in both courts be borne by the defendant.

Same Case — Or a Re-hearing.

Upon a careful re-examination of the facts of this case, we have come to the same conclusion, that it was shown affirmatively that the slave in question was diseased at the date of the sale from the defendant to the plaintiff, whilst the evidence did not establish the unsoundness of this slave at the date of the sale from the warrantor to the defendant.

The defendant, in his answer, averred that when he sold the slave, she was perfectly sound; but" that, if such was not the case, he was not aware of the fact, and the slave must have been unsound at the date of his own purchase. There is an apparent inconsistency in these allegations; but, in point of fact, there is none. A party may be in good faith in alleging his belief as to the non-existence of a redhibitory disease; but, should it turn out that he was mistaken, there can bo no impn-opriety in his attempt to trace the origin of the disease to a period anterior to his ownership.

In the case at bar we are satisfied that the evidence does not show that state of facts, which would justify the defendant’s recourse against his warrantor.

It is, therefore, ordered and decreed, that the judgment of this court remain undisturbed.


text:
    City of New Orleans v. Clark & Brisbin.
    The first and second sections of the statute approved January 29th, 1858, amendatory of the suctions 103 and 104 of the City Charter, approved March 12th, 1857, do not make the payment of the taxes therein mentioned from January 1st to March 1st annually, dependent as to time on the will of the contributors, lnit simply suspends the action of the city to enforce its lien oil the personal proporty of the delinquents, or to sue out an injunction, as provided by law, until after the 1st da3r of March annually.
    The city ordinance imposing a tax of 825 on each printing office doing job work, does jiot refer cxcluclusivcly to printing offices publishing a newspaper and doing job work conjunctively, but to any printing office doing job work.
    APPEAL from the Second Justice’s Court of New Orleans.

      W. O. Denegre, for plaintiff.'

      L. M. Day, for defendant and appellant.
   Duffel, J.

This suit is instituted to recover of the defendants a tax of ¡S25, imposed by the city ordinance on each “printing office doing job work.”

The defendants resisted the payment of this tax on the grounds that the same is oppressive, illegal, unjust and unconstitutional.

Judgment having been rendered against the defendants, they appealed.

It is here contended by the appellants, 1st, that the ordinance which requires the payment of the tax on trades and professions, in advance, is illegal, because the 1st and 2d sections of the statute approved Jauuary 29th, 1858, p. 3, amendatory of the sections 103 and 104 of the city charter approved March 12th, 1859, contemplate the payment of the tax from January 1st, to March 1st annually. 2d, That the words of the ordinance “every printing office doing job work" mean, in common parlance, a printing office furnishing a newspaper and doing job -work conjunctively, and that inasmuch as they do not publish a newspaper, but simply do job work, they are not liable to the tax.

On the first point. The above mentioned sections do not make the payment of the tax, from January 1st to March 1st annually, dependent on the will of the contributors, but simply suspend the action of the city to enforce its lien on the personal property of the delinquents, or to sue out an injunction as provided by law, until after the 1st day of March annually.

The proceeding's in this case were instituted after the 1st of March, 1859, for the payment of the tax of that year.

On the second point. It is conceded that the defendants have a printing office and do job work; henee they are strictly within the letter and meaning of the ordinance.

Judgment affirmed, with costs.


author: Buoiianan, J.

text:
    Hawkins, Administrator, v. Catherine Hays.—Catherine Hays v. Hawkins et al.
    The degree of violence imd threats requisito, under1 Article 1845 of the Civil Code, to invalidate a contract, is the samo in regard to contracts between husband and wife, as in regard to contracts generally.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, J.

      Hardesty cO Kernan, for plaintiff and appellant.

      Fuqua c6 Kilbourne, for defendant.
   Buoiianan, J.

The first of those suits is instituted upon two notes and an account.

The second is an injunction against an order of seizure and sale issued upon one of the notes (which was secured by special mortgage by authentic act) embraced in the first suit.

Both suits were tried by juries, who found a verdict, in the first, in favor of the plaintiff for a portion of the largest of the two notes sued upon, and for the whole of the smaller note and of the account; and, in the second suit, in favor of the plaintiff in injunction.

From the judgments rendered in conformity to these verdicts, the administrator of Mills has appealed; and the two suits have been consolidated in this court.

The only question of law for our decision is presented by a bill of exceptions to a charge of the Judge to the jury, that the violence and threats referred to in Article 1845 of the Civil Code, should be construed as applicable to parties, other than husband and wife; that, as regards the husband and wife, whether separate in property or not, it is sufficient, to invalidate a contract or mortgage made or signed by the wife, that it was so made or. signed because the husband desired it should be done; that the mere wish, desire, or insisting, on the part of the husband, that his wife should sign the act, must be taken to be a sufficient coercion by the husband, within the meaning of Article 1844 of the Code, to invalidate the wife’s contract.”

We have been referred to no authority which exempts the contracts of a married woman from the application of Art. 1845 of the Code. The case of The Gas Light Company v. Paulding, 12 Rob. 378, relied upon by the counsel of appellee, does not touch the point here at issue. The charge was, in our opinion, erroneous.

It is, therefore, adjudged and decreed, that the judgment of the District Court in these consolidated cases, upon the several verdicts of the jury, be reversed ; and that the said ca&s, consolidated, be remanded to the court below for a new trial; and that the appellee, Catheiine Hays, pay costs of these appeals.