author: Mebkick, C. J.

text:
    F. S. Goode, Administrator, v. T. Buford.
    The surety on the administrator’s bond will he hold liable for monoy set down on the inventory as part of the estate, although it is shown that the administrator received it in a fiduciary capacity before his appointment.
    from the District Court of the Parish of Terrebonne, Roman, J.

      Goode <& Aycoch, for plaintiff. Connolly <& Rightor, for defendant and appellant.
   Mebkick, C. J.

Joseph A. LeBlanc, former Recorder of the parish of Terre-bonne, applied, on the 23d of June, 1855, for letters of administration upon the estate of one Anson Lauterman, deceased, and that an inventory might be taken. On the 26th day of the same month, LeBlanc, acting in his capacity of Recorder, took an inventory of the effects of the succession, wherein he set down, among other things, the money on hand, amounting to $515 85. This money he took into his possession at the time of taking the inventory.

LeBlanc was appointed curator of Lauterman’s succession, and on the tenth day of July, gave bond as such, with the defendant as his surety. LeBlanc died before settling his account as curator, and /. A. Gagne was appointed administrator of LeBlanc’s succession, while the plaintiff, Goode, was appointed administrator of Lauterman’s estate.

Goode instituted au action against both J. A. Gagne, administrator, and Buford, surety of LeBlanc, on the bond ; but the action was dismissed as premature as to Buford, the surety. The suit against the administrator resulted in a judgment against LeBlanc’s succession for $141 31, and an execution having been issued, was returned nulla bona. Thereupon, the suit was renewed against the surety and judgment rendered against him for the same amount as had been rendered against Gagne, the administrator. The surety appealed.

The record contains a bill of exception to the refusal of the District Judge to grant a new trial. We do not understand the counsel to insist upon the bill of exception before this court. Certainly an error of law into which a party had fallen in shaping his defence, would not, as a general rule, be a valid ground for a new trial.

The controversy in this court is confined to the cash received by the Recorder when he took the inventory, and before he gave bond as curator. The defendant contends that LeBlanc was insolvent, and that having received the fends before lie was appointed curator, the sureties for him, in the capacity which he bore ■when he received the money, and in virtue of which he received it, are alone responsible ; and that the language of the bond itself imports an obligation of suretyship for future management only, and cannot be held to have a retroactive effect.

The condition of the bond was,'that the curator should well and truly perform all the duties incumbent on him as such curator, and pay over whatever moneys should be coming to the lawful heirs of said estate, after the payment of all the just debts of said estate, whenever lawfully required (so) to do. This bond, which substantially embraces the requirements of the Code (see Arts. 1034,1119), was based upon the inventory which contained the item of cash on hand as forming part of the assets. Nothing prevented the surety from examining the bond and ascertaining for himself for what things the principal was binding himself. In the absence of proof, it cannot be supposed that in the interval between the taking of the inventory and the giving of bond, the Recorder, LeBlanc, had committed the crime of embezzlement of a fund, for the administration of which he was applying to the court for power, but it must be presumed that he still continued to hold the same, and that when he was qualified as curator, it was in his hands in specie. Coussy v. Vivant, 12 An. 46.

The case of Parmele & Baker v. Brashier, 16 La. 14, is cited to prove that the surety is not liable for moneys which the principal had received before the the date of the bond. The reasoning of the court in that case was in reference to one of three annual bonds which the curator was obliged to give prior to the Act of 1837, on each renewal of his office. It does not appear to be applicable to a case like the present.

We conclude, therefore, that the cash in the hands of the administrator at the time of his appointment and inventoried, must be considered as subject to administration and covered by the bond given for the fidelity of the administration of the curator.

Judgment affirmed.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    Charles Simpson v. Francis Lombas et al.
    Wlien the name of the State in which plaintiff is domiciled is alone set forth in the petition — Held: that it is a sufficient compliance with Art. 172 of tlie Code of Practice.
    The authority of an attorney-at-law is presumed, and an affidavit to obtain an order of seizure and sale, made by him in the absence of his principal, is sufficient.
    from the District Court of the Parish of Lafourche, Roman, J.

      Beatty & Bush, for plaintiff. Tkibodaux (£• Blake, for defendants and appellants.
   Land, J.

This is an appeal from an order of seizure and sale taken hy the third possessors of the mortgaged property.

In their petition of appeal the defendants allege three grounds of error. Two, however, are only assigned and urged in this court as apparent on the face of the record, to wit:

First. That the domicil of Simpson, or his agent, is not fully set forth in his petition.

Second. That there is nó' authentic evidence of the power of Q. F. Thompson to act as agent of his pretended principal, C. Simpson.

I. The domicil of the plaintiff, Charles Simpson, is stated in the petition to be in the State of Missouri, and this allegation of residence is a compliance with Article 172 of the Code of Practice. Perry v. Believre, 5 N. S. 79.

This suit was not instituted by an attorney-in-fact for the plaintiff, but by attorneys-at-law, whose residence it was unnecessary to allege in the petition.

The first assignment of error is, therefore, groundless.

II. The second assignment of error is equally untenable. As before stated, the agent or attorney-in-fact did not institute this suit on behalf of the plaintiff.

The suit was commenced, and has been prosecuted by, Messrs. Beatty <& Bush, attorneys at law of the plaintiff, and authentic evidence of their authority is not required. Their authority to act is a presumption of law. Rowlett v. Shepherd, 7 N. S. 514.

Louis Bush, Esq., one of plaintiff’s attorneys-at-law, made the affidavit required by Article 3365 of the Civil Code, to which was superadded the oath of J. F. Thompson, the agent of plaintiff. The affidavit of the attorney-at-law was sufficient, and the superaddition of the oath of the agent was, of course, unnecessary. Phillips’ Revised Statutes, p. 92, sec. 11.

It is, therefore; ordered, adjudged and decreed, that the order of seizure and sale of the lower court be affirmed, with costs.


author: Lasus, J.

text:
    Hannah I. Wallis v. A. Bourg, Sheriff et als.
    The cx.'is'teTiCG of a privilege or mortgage upon property seized under a./i./a. ,will not authorize an injunctic'ii. to arrest its sale ; the remedy is by third opposition.
    PPEAL from the District Court of the Parish of Terrebonne, Roman, J.

      Cénnolly & Rightor, for plaintiff and appellant. Beatty & Bush, for defendants.
   Lasus, J.

This is an injunction suit to restrain the sale of certain property .-seized under a writ of fieri facias issued in the suit of R. Patterson <fi Co. v. H. H. Wallis, on the grounds, that the plaintiff is the owner of a part of the property seized, -and that she has a mortgage and privilege on the other part.

R. Patterson <fi Co. moved to dissolve the injunction on the face of the papers, and the District Judge sustained the motion as to that; portion of the property seized, o® which the plaintiff claimed a mortgage and privilege, and overruled it provisionally as to the property claimed by the plaintiff in her own right.

.The existence of a privilege or mortgage on property, will not authorize an injunction to arrest its sale. The remedy is by third opposition. Code of Practice, 396, 401; 6 N. S., 615; 7 N. S., 281.

The judgment of the lower court is correct.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, •with costs, and that this cause be remanded to the lower court for further proceedings according to law.


author: Laud, J.

text:
    Francis Lombas v. E. G. Robichaux, Sheriff, et al.
    The delay within which a suspensive appeal may he taken from an order of seizure and sale is fixed by Art. 525 of the Code of Practice, and, as amended, is in the country fifteen days, excluding Sun -
    The delay commences to run from tho date of the servico of the notice of the order of seizure and sale, which is notice of judgment to the possessor of the hypothecated property.
    PPEAL from the District Court of the Parish of Lafourche, Roman, J.

      Thibodaux & Blake, for plaintiff. Beatty & Bush, for defendants and appellants.
   Laud, J.

Charles Simpson, one of the defendants, obtained an order for the seizure and sale of certain mortgaged property in the possession of the plaintiff in this suit. The latter applied for, and obtained a suspensive appeal therefrom, which has been recently decided by this court.

The Sheriff disregarded the appeal, and was proceeding at the instance of Simpson, to execute the order of seizure and sale, when he was restrained by a writ of injunction sued out in this case.

The defendant, Simpson, attempts to justify .the proceeding of the Sheriff, on the ground, that the appeal was not taken within the legal delay, and was, therefore, only devolutive. He contends, that the plaintiff’s right to a suspensive appeal was limited by Article 735 of the Code of Practice, to three days, to be computed from the day on which the notice of the order of seizure and sale, was served upon him.

The meaning of this Article has been misapprehended. The three days therein mentioned, are days of grace, given to the possessor of mortgaged property,- to pay the debt demanded before a seizure by the Sheriff. Rowlett v. Shepherd, 7 N. S. 514.

The delay within which a suspensive appeal may be taken, is fixed by Article 575 of the Code of Practice, and, as now amended, is in the country fifteen days, excluding Sundays. Phillips’ Revised Statutes, p. 99.

In hypothecary actions the delay for a suspensive appeal, commences to run from the date of service of the notice of the order of seizure and sale, which is notice of judgment to the possessor of the hypothecated property. Billet v. Henry, 2 An. 145. C. P. 575, 624.

The plaintiff’s appeal was taken within the delay provided by Article 575 of the Code of Pi'actiee, as amended, and had the effect of suspending the execution of the order of seizure and sale.

The injunction was, therefore, rightfully maintained by the District Judge, during the pendency of the appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs in both courts.


text:
    Stephen Van Wickle v. Sarah Garrett and Husband.
    The action of a judgment creditor of the husband to annul a judgment of the wife against the husband, on the groud of fraud, is prescribed by the lapse of one year from the date of the wife’s judgment, she having a real demand.
    The reinscription of a judgment interrupts prescription against the hypothecary action on the judgment.
    from the District Oourt of the Parish of Pointe Coup sé,Haralson, J.

      U. B. & E. Phillips, and P. A. Roy, for plaintiff. W. H. Cooley and A. Provosty, for defendants and appellants.
   Land, J.

This is a revocatory action to annul a judgment of separation of property, obtained by defendant against her husband, and also an hypothecary action to enforce a judicial mortgage on a tract of land and certain slaves in possession of defendant.

The plaintiff obtained a judgment on the 19th of May, 1837, against R. R. Coyle, the husband of defendant,'for two thousand dollars with interest, and af-terwards, in 1839, obtained another judgment against him for one thousand dollars.

These’ judgments were duly recorded, and have been reinscribed in the proper office.

In 1841, defendant sued her husband for a separation of property, for the recognition of her title to certain slaves, and for the recovery of a debt of $4,116.

In 1842, a judgment was rendered in favor of defendant for a separation of property, for the slaves claimed, and for the sum of $3,450.

In 1848, Coyle, the husband, transferred to his wife, the defendant, a tract of land in part payment of her judgment, at the price or estimation of $1599 50»

In 1855, this suit was commenced to annul the judgment of separation of property, on the grounds of collusion and fraud between defendant and her husband, and to subject all the property in her possession as community property to the payment of Ms judgments, and to enforce his judicial mortgage on the land and slaves held by her.

The defendant pleaded to these demands a general denial, and the prescription of one, ten, fifteen and twenty years.

The plaintiff was the judgment creditor of the husband at the date of the rendition of defendant’s judgment, and his right to sue to annul her judgment on the groud of fraud, she having a real demand, was prescribed by the lapse of one year from its date. Fennessy v. Gonsoulin, 11 La. 424; C. C. Art. 1989. The prescription of one year, was, therefore, a bar to plaintiff’s revocatory action.

The prescription of ten years pleaded in bar of the hypothecary action, was interrupted by the reinscription of plaintiff’s judgments, and was, therefore, properly overruled. O. C. 3333.

There is-no error in the judgment of the lower court.

Judgment affirmed, with costs in both courts.


author: Oole, J.

text:
    Martha Ann Loyd, Wife, &c., v. J. J. Mortee et al.—Wm. Bagley et al., Warrantors.
    In a petitory action, if the title set lip by defendant has a common origin with that of the plaintiff, the defendant caunot allege the nullity of plaintiff’s title.
    PPEAL from the District Court of the Parish of St. Tammany, Wilson, J.

      Penn & Martin, for plaintiff. A. Hennen, for defendant. lessee R. Jones, for warrantors, appellants.
   Oole, J.

This is an action to rescind the sale of the slave Mary and her children, born since the sale, on the ground of the minority of plaintiff, Martha Ann Loyd, at the date of the sale; and also for the value of their services since the majority of plaintiff.

It appears that on the 30th May, 1829, John L. Goodbee, in a marriage contract duly executed in favor of Nancy Loyd, the mother of plaintiff, and in consideration of the marriage, gave to the plaintiff the negress slave Mary ; that on the 31st December, 184Y, William Bagley by public act purchased the slave Mary from the plaintiff, then a minor, and on the 20th December, 1850, Bagley sold her and her child to John J. Mortee, tutor to his minor children Anna Maria and Lucinda E. Mortee.

The judgment tvas in favor of plaintiff, annulling the sales and granting hire.

The act of donation was passed before the Parish Judge, ex officio a Notary Public, and two witnesses. 0. C. 1523. It would seem that the mother had the corporeal possession for her child, the donee; if so, the donation has full effect, though not accepted in express terms. C. C. 1528. At any rate she would seem to have had corporeal possession at the date of her sale of the slave.

It is not necessary, however, to decide these points, inasmuch as Bagley and Mortee had full knowledge that the title of the slave was supposed to be in plaintiff. In the act of sale to Bagley, plaintiff was assisted by her natural mother, Mrs. Nancy Goodbee, and John L. Goodbee, the original donor of the slave to plaintiff, and it is stated therein that the slave sold is the same which plaintiff “ received from the said John L. Goodbee and Nancy Loyd, her natural mother by virtue of the marriage contract of the said John L. Goodbee and Mrs. Nancy Goodbee, executed before Jesse R. Jones, late Parish Judge of the parish, on the thirtieth day of May, 1829, extant and of record in the Recorder’s office in notarial record book B.”

In the act of sale from Bagley to Mortee, tutor, it is declared, that the slave “ Mary is the same slave that was acquired of the plaintiff by act passed before the undersigned Notary.”

We are, therefore, of opinion, that defendants are estopped from questioning the title of plaintiff.

It is the common origin of the title of defendants, and they cannot successfully allege its nullity. Squier v. Stockton, 5 An. 120; 1 R. 369 ; 8 L. 239; 4 An. 249 ; Greenleaf on Evidence, $ 22, 23, 24, 25, 26, 207, 210 ; O. 0.1528, 1533.

Judgment affirmed, with costs.


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

text:
    Pittman & Barrow v. E. G. Robicheau, Sheriff, &c.
    The interest of a partner in a particular tiling or piece of property belonging to the partnership, cannot he seized for his individual debt, but the whole share or interest of the indebted partner in the partnership may be seized and sold subject to the payment of the partnership debt. This rule applies to a particular partnership, andis the same rule laid down as applicable to commercial partnerships in the case of Smith v. McMiclcen, 3 An. 322.
    An injunction will only bo perpertuated as issued for some legal cause stated in the petition.
    PPEAL from the District Court of the Parish of Lafourche, Roman, J.

      C. Belcher, for plaintiffs. Beatty <& Bush, for defendants and appellants.
   Buchanan, J.

The police jury of Lafourche having obtained a judgment against one Broun, seized under execution property of their debtor, which was adjudicated to him at a second crying, on twelve months’ credit. Brown gave his bond for the price of adjudication, with -John B. Pittman, as his security. The bond not being paid at maturity, a writ of fieri facias was issued upon the same against Pittman, under which the undivided half of certain lands, farming utensils, animals and negroes, being the entire interest of Pittman in an agricultural partnership subsisting between himself and Robert R. Barrow, under the firm of Pittman & Barrow, was seized and advertised for sale.

John B. Pittman and Robert R. Barrow, both join in a petition for an injunction, which has been granted, to stay the proceedings of the police jury under their said seizure. The grounds alleged for the injunction, are the following :

1st. Because sufficient property had already been seized under a fi. fa. issued previously, and never released.

2d. Because the issuing of a second fi. fa. and the seizure of property under the same, are contrary to the express agreement of the parties.

3d. Because, under a fi. fa. against J. B. Pittman solely, the assets of the said partnership could not he seized, and all the property seized belongs to the said partnership, &c.

Upon the first and second grounds for injunction, the evidence disproves the allegations of the petition.

Upon the third ground, the counsel of plaintiffs relies upon the authority of the cases of Smith v. McMicken, 3 An. 322 ; Bank of Tennessee v. McKeage, 11 Rob. 130 ; Carvin v. Bates, 10 An. 756 ; and Alexander v. Burns, 6 An. 704.

All these cases were seizures of particular assets of a partnership for a debt due by one of the partners. Whereas the present seizure, as the evidence shows, (although there is an allegation in the petition to the contrary,) comprehends the entire interest of John B. Pittman, the debtor, in the partnersliip of Pittman <& Barrow. Such a seizure is sanctioned by Article 2794 of the Civil Code. And in the earliest of the cases cited, that of The Bank of Tennessee v. McKeage, the court said: “ The interest of a partnerin a particular thing, or piece of property belonging to the firm, cannot be seized or attached for his individual debt. An individual creditor cannot, under an execution or attachment, have the half or third of a piece of goods, or other article belonging to the partnership, seized. He must have the whole share or interest of the indebted partner seized, and thus dissolve the partnership, and take the share after the payment of the partnership debts.” To the same effect, are the cases of Cucullu v. Manzenal, 4 N. S.; Craft v. McKneely, 1 La.; Baca v. Ramos, 10 La.; Oliver v. Gwin, 17 La.; Nelson v. Connor, and Lee & Bullard, 3 An.; Harris v. Bank of Mobile, 5 An.; Carvin v. Bates, 10 An.; and Davis v. Carroll, 11 An.

The single case of Smith v. McMicken, 3 An., contains expressions which have been supposed, although erroneously, to conflict with the doctrine thus uniformly held, as well by the bench which decided that case, as by the predecessors and successors of that bench.

The error consists in mistaking the antecedent of the pronoun it in two places in the following sentence of the opinion read by Mr. Justice Slidell, as the organ of the court: “ From these principles we think it fairly results, that the individual creditor of a partner cannot seize a particular asset, the property of the partnership, nor even the so called interest of the partner in it, under the pretext that his debtor has an individual interest in it.” The two its italicised by us in this quotation, evidently refer to asset, as their antecedent, and not to partnership. The contrary construction would make the last branch of the proposition obiter dictum, uncalled for by the case before the court, which, as we have already observed, was a seizure of a particular asset, or of the interest of an individual partner in that asset, and by no means a seizure of that partner’s shave or interest in the partnership itself. And the presumption is entirely against Judge Slidell’s having intended an obiter dictum, as at variance with the known caution and acute apprehension of the points in controversy, which distinguished that learned judge. Besides, how can we reconcile the construction given to the case of Smith v. McMicken by plaintiff’s counsel, with the emphatic enunciation of a contrary doctrine on repeated occasions, in the cases cited above, by all of the Judges who took part in the decision of Smith v. McMicken — not to speak of the express law of Article 2794 of the Civil Code.

We conclude that the District Judge erred in maintaining this ground of injunction.

The property seized should be advertised by the Sheriff, and sold as the share of John B. Pittman, in the partnership of Pittman & Barrow; for the reason, that the purchaser ought to bo informed that he is buying, not a joint interest in the pi-operty, but the partnership interest of an individual partner, and that the property, in his hands, will be subject to the settlement of partnership debts, in a liquidation to be made of the partnership, according to the 2794th Article of the Code.

In this case, the Sheriff has not advertised the property or interest seized, as, partnership ; but the plaintiffs have not made this objection a ground for injunction, and are not entitled to have the writ perpetuated for this cause. An injunction will only be perpetuated, as issued, for some legal cause stated in the petition.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that there be judgment dissolving the injunction herein issued, without damages; that the Sheriff, in re-advertising the property seized, make mention that the same is the share of John B. Pittman in the partnership of Pittman <& Barrow, to be sold subject to the payment of partnership debts ; and that the plaintiffs and appellees pay the costs in both courts.

Merrick, C. J.,

dissenting. Article 2794 C. C. is in these words: “ The partnership property is liable to the creditors of the partnership in preference to those of the individual partner; but the share of any partner may in due course of law be seized and sold to satisfy his individual creditors subject to the debts of the partnership ; but the seizure, if legal, operates as a dissolution of the partnership.”

This Article appears to me to apply as well to particular as commercial partnerships. In the particular partnership, of course Van partnership creditor acts directly against the virile shares of each partner ; in the commercial partnership, against the partners in solido.

Applying the Article cited to the case before us, we find that the seizure made by the individual creditor of Pittman has not been made “ subject to the debts of the partnership,” as required. There may be debts due the firm, as well as debts due by the firm. If it be conceded that there are no debts due the partnership and that the seizure made in this case of one-half of the plantation, slaves, &c., was a seizure of all the effects belonging to the partner in the particular partnership, it does not yet show a compliance with the law, and is not the same thing as the seizure of one-half of those effects subject to the partnership debts.

In my opinion, there are two modes in which the seizure in this case might have been made: the one, to seize one undivided half of the partnership effects (according to the terms of the Article) subject to the debts of the partnership, and the other to seize the interest of the partner in the partnership, and then the purchaser of that interest could apply to the proper court for a liquidation of the partnership debts, and a partition of the surplus. Of these two modes of proceeding, the latter is more in conformity to the spirit of the authors. See Trop., Société, No. 865.

The partnership is looked upon as a fictitious or moral being entirely distinct from each individual partner. Smith v. McMicken, 3 An. 321, and authorities there cited; 5 An. 539, 6 An. 704, 11 An. 706.

In the language of the case of Smith v. McMicken, the partners are not the owners of the (partnership) property itself, but of the residue which may be left from the entire partnership property after the obligations of the partnership are discharged.”

If this be law, (and it seems too firmly established to be disputed,) then the execution is simply directed against the moral being, the partnership, to obtain from the same the effects, rights and credits in its hands belonging to the individual partner. And the proceeding in execution ought to be conducted as against any other third person having like effects belonging to the judgment debtor.

Now, if we allow the judgment creditor to seize and sell the undivided interest of one of the partners in a particular thing, we ignore the moral being of the partnership, and admit at once that the partner, objectively and passively considered, is the owner, as distinct from the partnership. We do precisely the same thing when we allow a seizure of. all the visible and tangible effects of the partnership. In the case before us, in order to maintain the seizure, we must admit, with reference to the creditors of the partnership, that Pittman is the owner of one undivided half of the plantation and slaves, and that the partnership, considered as a moral person, does not own anything. Eor if one-half could be seized for the benefit of the individual creditors of Pittman, and the other half for the benefit of the individual creditors (if any) of Barrow, the creditors of the • partnership would be without redress, and the purchaser would take the property free of all incumbrance. Eor if a legal sale can be made of the undivided interest of an individual partner in any or all the partnership effects, the preference given the partnership creditor is gone, because it does not appear to be one of those privileges which can be preserved by registry, and which follow the property into the hands of third persons acquiring the same.

It is proper to observe, that I have never understood the ease of Smith v. McMicken otherwise than as interpreted by my colleagues. I consider the rule adopted in that case a safe one, and that it is applicable to particular as well as commercial partnerships. I deduce from it these propositions :

1st. That with reference to the creditors of the partnership, and the individual creditors of each partner, the partnership is a fictitious and moral being, the owner of the partnership effects.

2d. That the individual creditor of any one of the partners cannot, as a consequence, seize the undivided interest of one of the partners in “ a particular asset” of the partnership, nor of the undivided interest of the partner in any specific number of effects of the partnership, although it may constitute the entire active means of the concern, because they do not belong to the individual partner, and

3d. That the only way to make a seizure to pay the debt of an individual partner is to seize his undivided interest in the partnership effects subject to the payment of the partnership debts, or, which is the same thing, to seize the undivided interest of the partner in the partnership, which would give the purchaser the residuum after the payment of the debts and liquidation of the partnership affairs.

Now the conclusions of my colleagues seem to coincide with one of the modes of seizure which I admit to be valid, and I should not have much hesitation in concurring, but the decree seems to me to fall short of the argument.

The Sheriff says nothing in reference to the partnership in his seizure. He simply seizes the one undivided half of certain tracts of land; the undivided half of the mules, carts and plantation implements, and the undivided half of the negroes, described by their names and ages.

The seizure forms a part of the record, and is the basis of the title of the purchaser at the Sheriff’s sale. The sale, when made, refers back to the seizure. The notice of sale and advertisements are never permitted to control the seizure nor do they properly form part of the Sheriff’s return.

An informal or illegal seizure cannot be enlarged or rendered valid by the advertisement.

Now, in the case before us, the seizure and notice of seizure do not indicate that the property was seized subject to the payment of the partnership debts, nor even that it was partnership property. Neither are the active debts of the partnership seized, if there are any ; there being no proof in the record on the subject of the active or passive debts.

The debtor who is bound in warranty is interested, that his property shall be seized in accordance with his rights in it, and he ought not to be subjected to subsequent actions in warranty, growing out of a sale of incumbered interests.

I think the judgment of the lower court ought to be affirmed. The plaintiffs allege that “ under a fi. fa. against I. B. Pittman, solely, the assets of said partnership could not be seized,” &c. The petition contains a prayer for general relief, and the evidence in my opinion makes out the plaintiffs’ case.

Oole, J., concurred in this opinion.


text:
    Michael Gaudet, Under-Tutor, v. Widow Ursin Gaudet.
    The mother wishing to contract a second marriage may, by the advice of a family meeting, be retained in the tutorship of her minor children on giving security, and her application may be acted on before the marriage is celebrated. Her rights in this respect are not impaired by the refusal of a previous family meeting to retain her in the tutorship without security.
    PPEAL from the District Court of the Parish of Ascension, Duffel, J.

      XX. J. II. Ilsley, for plaintiff and appellant. A. Gentile and Mills S LeBlanc, for defendant.
   Land, J.

The defendant, wishing to contract a second marriage, applied for an order for a family meeting, to decide whether she should remain natural tutrix of her minor children.

The family meeting was ordered, and after deliberation, decided she should not remain tutrix in the event of her marriage with Claude Mathieu.

Afterwards, and before the celebration of marriage, with Mathieu, the defendant obtained a second order for the convocation of another family meeting, to decide whether she should remain tutrix, in the event of her marriage with Mathieu, upon her giving good and sufficient security for the fidelity of her administration.

The second family meeting advised the retention of defendant in the tutorship, provided she should give the proposed legal security. To this advice the under-tutor refused his assent; but the proceedings of the family meeting, were homolo-gated by the District Judge, and from this judgment the under-tutor prosecutes the present appeal.

It is the opinion of the court, that the defendant had the right to the order for a second family meeting, to deliberate upon the new matter which she proposed to submit, that is to say, whether she should remain tutrix upon her giving good and sufficient security for her administration, and that it was not necessary to postpone her application until after marriage.

The right of a family meeting to retain the mother in the tutorship of her children, upon condition of her giving bond and security, prior to the celebration of her second marriage, is recognized in the case of Smith, under-tutor, v. Dickerson, tutrix, reported in 2 An. 401, and we think the rule well founded in reason, and recommended by considerations of public policy.

"We have no doubt of the validity of the bond of the tutrix given under such authority, whether executed before, or after her second marriage, and that she incurs by such appointment or retention, all the duties and obligations of a dative tutorship.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, and that the costs of appeal and lower court be paid out of the estate of said minors.


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

text:
    Louis St. Martin v. The City of New Orleans.
    Where two legislative Acts are approved on the same day, the rule of construction applicable to different sections of the same law will apply ; the minute and particular provisions of one Act prescribing the salary of the Register of Voters in the city of New Orleans, are not repealed by a general grant of power in the other Act to the Common Council in relation to all city salaries.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford <& Finney, for plaintiff. J. J. Michel, for defendant and appellant.
   Merrick, C. J.

We adopt as our own the opinion prepared by Mr. Justice Spofford, which considers all the questions raised by counsel in the oral and written arguments in this case, and the opinion must be understood as deciding nothing else.

Spofford, J.

On the 20th of March, 1856, a legislative Act was approved “ providing for the registry of the names and residence of all the qualified electors of the city of New Orleans, according to Article 11th of the Constitution of the State.” Session Acts, 1856, p. 131.

On the same day, was approved an Act to amend the city charter of New Orleans. Session Acts, 1856, p. 136.

The former Act, (section 18,) declared “ that the Register shall, while in office, receive the sum of five thousand dollars per annum, payable quarterly ; provided, however, that the said salary may be reduced by Act of the Legislature, at any time or times after the first year of office ; and provided that such reduction shall only begin from and after the current year in which such Act is passed ; which salary shall be paid by the city of New Orleans; and the said city of New Orleans shall provide a suitable office for the Register in the city-hall of said city.”

The latter Act (sec. 126) provided, “ that the Common Council shall fix the compensation of the services of every officer of the city or of the State, whose said services are, by law, to be paid by the city of New Orleans.”

On the 27th of March, 1857, the Mayor of the city of New Orleans approved a resolution of the Common Council, declaring, “ that from and after the 1st day of April, 1857, the salary of the Register of .Voters of the city of New Orleans, shall be at the rate of eighteen hundred dollars per annum, payable monthly, on the ordinary pay roll of city officers.

The question is, whether the Common Council had the right to pass this resolution ; in other words, whether the legislative provisions as to the salary of the Register of Voters, were repealed by the authorization given to the Common Council in the 126th section of the amended city charter to fix the compensation of the services of officers therein referred to.

The District Judge held, that there was no repeal; and the city has brought up the case for a revision of this judgment.

“ The repeal is either express or implied : it is express when it is literally declared by a subsequent law ; it is implied when the new law contains provisions contrary to, or irreconcilable with, those of the former law.” C. C. 23.

In Johnson v. Pilster, 4 Rob. 77, it was well said that prior laws are not repealed by subsequent ones, unless by positive enactment, or a clear repugnancy in their respective provisions. If such be the rule in relation to laws enacted at different periods, it applies with greater force to the several parts of a Code adopted about the same time.”

As already stated, the two legislative Acts before us were approved upon the same day. The 126th section of the Charter Act can, therefore, have no greater effect in derogation of the 18th section of the Registry Act, than if it were a subsequent section of the same law. The rule laid down in Bacon’s Abridgment (vol. 6, 231, verbo statute) is that “ if a particular thing be given or limited in the preceding part of a statute, this shall not be altered or taken away by subsequent general words of the same statute.” This rule was cited with approbation, and applied by Martin, J., as the organ of the court, in Rogers v. Beiller, 3 M. 672.

The minute and particular provisions of the Legislature prescribing the salary of the Register, and the only mode in which it may be changed even by the Legislature itself, cannot, we think, be held to be repealed by a subsequent general grant of power to the Common Council in relation to all city salaries, in an Act approved at the same time.

Judgment affirmed.


author: Cole, J.

text:
    Cerf Wolf v. Fred. Munzenheimer & Co.
    Where the amount sued for was over three hundred dollars, hut before judgment was rendered in the lower court, the plaintiff entered a remittitur, which reduced it to less than three hundred dollars— Held: That an appeal in such a case will be dismissed, it not being appealable in amount.
    APPEAL from the District Court of the Parish of Pointe Ooupée, Ratliff, J.

      Thos. H. and W. J. Cooley, for plaintiff. A. Provosty and Phillips, for defendants and appellants.
   Cole, J.

A motion is made to dismiss this appeal, on the ground that the amount involved in contestation is not sufficient to give jurisdiction to this court.

The amount sued for was three hundred and fifty dollars, with five per cent, interest from judicial demand.

Upon the trial during the taking of the testimony of plaintiff, which established that according to the contract between the parties to the suit, plaintiff was not entitled to more than three hundred dollars, he entered a remittitur of fifty dollars.

As the remittitur was entered before judgment, it is clear that the amount in contestation did not exceed three hundred dollars. Gardère v. Garrey et als., 2 An. 136 ; Mason v. Oglesby, 2 An. 793.

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed at the costs of appellants.


author: Merrick, C. J.

text:
    P. Fortunich et als. v. The City of New Orleans — M. Stagancoviche et als. v. The same — T. Letcoviche et als. v. The same.
    IE an action against tlie city corporation to recover damages for injury done "by a mob, when the de-fence pleaded was a general denial — Held: That under the pleadings the city might prove in mitigation of damages that the plaintiffs had exposed their property in the public market, in violation of an ordinance of the city requiring the markets to be closed at the hour when the injury was done, but that such evidence, could not be received as a complete bar to the action.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Johnson & Davis, for plaintiífs. J. J. Michel, for defendants and appellants.
   Merrick, C. J.

These three suits have been brought to recover damages done by a mob, during the night of the 2d of June, 1856, to certain fruit stands of the plaintiffs in the fruit market. The actions are based upon the Act of the Legislature, approved 9th of March, 1855, (Acts 1855, p. 45,) which is in these words, viz :

Be it enacted, &c., That the different municipal corporations in this State, shall be liable for the damages done to property by mobs or riotous assemblages in the irrespective limits.”

The defendant pleaded the general denial. There was a verdict of the jury

Iand judgment of the court thereon, in each case respectively, in favor of the plaintiffs.

The first question presented by the record for our consideration, is a bill of exception taken to the opinion of the lower court allowing the defendant to introduce the city ordinance, approved 20th Nov. 1852, the sixth section of which provides that the market shall be opened at the dawn of day and close at twelve o’clock M.

Had this ordinance been relied upon by the defendants, as a complete bar to plaintiff’s action, it could not have been offered in evidence under the general issue. But it does not appear, by the bill of exception, to have been offered for that purpose, and the only question now is, was it admissible for any purpose ?

It appears to us that it was admissible under Article 2303 of the Civil Code in mitigation of damages.

The Article cited is as follows : “ Art. 2303 — the damage caused is not always estimated at the exact value of the thing destroyed or injured ; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.

The defendant contends, that inasmuch as the plaintiffs were in fault in keeping open their stalls, in violation of the ordinance, they cannot recover under the well known legal principle, that where the damage has happened through the fault of both parties neither can recover.

Without admitting that the principle can have any application to a case like the present, it is a sufficient answer to say that this defence has not been pleaded and, as already observed, the ordinance could not have been introduced under the pleadings as a justification.

In regard to the damages there is much uncertainty. But they have been assessed by a jury of the city, who are much better qualified to judge of the facts of the case than most of the members of this court, and their verdicts have been approved by the District Judge.

The judgment of the lower court in each of the above named cases is, therefore, affirmed.


author: BncnANAN, J.

text:
    Sarah A. Raiford and Husband v. J. B. Wood and Wife.
    Where a suit is brought on a promissory note, the property of the wife, in her name conjointly with that of her husbaud, the husband must be viewed as appearing therein only to assist and authorize his wife, and the judgment rendered in such suit Is the property of the wife.
    A Sheriff’s sale, not recorded in the Recorder’s office of the parish where the property is situated, is utterly null and void, except between the parties thereto.
    Where the judgment enjoined bears the highest conventional interest, the court on dissolving the injunction cannot add anything to that interest, but in a proper case will inflict the full penalty of twenty per cent, damages.
    from the District Court of the Parish of Point Coupée, Ratliff J.

      TJ. B. & E. Phillips, for plaintiffs and appellants. J. II. Farrar, for defendants.
   BncnANAN, J.

This is an injunction sued out by plaintiff, Mrs. Scott, to arrest the execution of a judgment against her husband, which carried siiecial mortgage and vendor’s privilege upon the land and slaves seized under the execution. It appears that between the date of the judgment and of the seizure in execution, Mrs. Scott had become the purchaser at Sheriff’s sale, of the same land and slaves seized at the suit of another creditor of her husband.

There are two grounds stated in plaintiff’s petition for injunction. The first is, that one of the defendants in this suit, W. B. Wood, had waived the pact de non alienando, in his mortgage, by consenting to the Sheriff’s sale of the land and slaves to Mrs. Scott, and consequently could not seize the mortgaged property in her hands without the notices and delays required as against third possessors of mortgaged property.

The second ground of injunction is, that eleven hundred dollars had been paid by petitioner’s husband on account of defendant’s judgment which had not been credited on the execution.

With regard to the first ground, the testimony offered does not establish any waiver of the pact de non alienando on the part of W. B. Wood, even supposing that he had the right to make such a waiver — which he had not.

The judgment upon which the seizure was made was a judgment in favor of William B. Wood and his wife, Catherine M. Harbour, upon a note given by John S. Scott in part payment of this same land and these slaves, purchased by Mm from Pleasant Harbour, the father of Mrs. Wood, and which note came to her in partition of her father’s estate. The.mortgage, with the pact de non alienando, was stipulated in Pleasant Harbour’s sale to Scott, as a security for the punctual payment of this note.-i

The evidence thus shows the note and its accessory, the mortgage, to have been the paraphernal property of Mis. Wood, and that her husband, although nominally plaintiff in the suit and judgment on the note, conjointly with his wife, must be viewed as only appearing therein to assist and authorize his wife.

Another sufficient objection to this ground of injunction, urged in argument, is, that the Sheriff’s sale was not recorded in the Recorder’s office of the parish of Pointe Ooupée at the date of the seizure, or at the date of the injunction. It was, therefore, without effect, “ utterly null and void,” as against the defendants in injunction. Revised Statutes, page 453, verbo Registry. Acts of 1855, page 335.

Upon the second ground of injunction, namely : a partial payment of the debt, no evidence whatever was offered upon the trial.

The judgment of the District Court, dissolving the injunction, must be affirmed; but requires amendment as to its money clause, as suggested by appellees in an answer to the appeal.

Sections 1th and 8th of the title “ Injunction,” in Phillip’s Revised Statutes, p. 241 declare, that on the trial of injunctions of execution of judgments, the surety on the bond shall' be considered a party plaintiff in the injunction suit; and in case the injunction be dissolved, that the court shall condemn the plaintiff and surety, jointly and severally, to pay the defendant in such suit, interest at the rate of eight per cent, per annum, on the amount of the judgment enjoined, and not more than twenty per cent, as damages, unless greater damages are proved. Acts of 1855, p. 325.

The judgment enjoined in this case, bares the highest rate of conventional interest, by its terms ; and under repeated decisions, we are not permitted to add anything to that interest. That judgment, in principal and interest, amounted, at the date of the injunction, to nine thousand dollars and upwards.

We consider this a proper case for the infliction of the full penalty of twenty per cent, damages under the statute; and there has been no proof of damage beyond that amount.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that the injunction herein be dissolved ; and that the principal and sureties in the injunction bond, Sarah Ann Raiford, Auguste Provosty, and James Vignes, in lieu of the damages and interest given by the lower court, be condemned, jointly and severally, to pay to the defendants, William B. Wood and Catharine M. Harbour, eighteen hundred dollars, as damages, with costs in both courts.


text:
    John C. Inge v. Police Jury of Tensas.
    The report of the jury of freeholders appointed hy the Police Jury, under the Act of the Legislature “ relative to the building of levees in the parish of Tensas,5’ to estimate the amount of damage that may be done to a proprietor where a now levee is to be built, and also the benefit that may arise from the construction of the levee, is conclusive against the Police Jury, unless it is contested upon the ground of error or fraud. But to render it conclusive the formalities of the law must be strictly complied with.
    The prescription of one year against actions arising from offences and quasi-oifences is not applicable to an action for damages for the partial destruction of property occupied by the construction of a levee under legal authority.
    from the District Court of the Parish of Tensas, Farrar, J.

      P. Alexander, for plaintiff. T. P. Farrar, for defendant and appellant.
   Cole, J.

This action is based upon the eighth section of the Act of the 16th of March, 1848, “ relative to the building of levees in the parish of Tensas, and to create a special fund for levee purposes.” Sess. Acts 1848, p. ISO, 18.

The section reads thus: Be it further enacted, &c., “ that whenever it shall be necessary to make a new levee in the parish of Tensas, and the person or persons on whose lands the same may be laid off shall feel themselves aggrieved or injured thereby, said Police Jury shall appoint a jury of five disinterested freeholders of a differentdevee ward, who shall examine on oath and report to said Police Jury the amount of damage that may be done the complainant, and the benefit also that may arise from the construction of the levee, and if it appear that the amount of damage is greater than the benefit accruing, the difference shall be paid out of the levee fund within a reasonable time after the report of said jury.”

It being necessary to construct a new levee on the plantation of plaintiff, the Police Jury of Tensas appointed a committee, or jury, to examine and report the damage sustained by plaintiff in the location and construction of the same.

The jury, before acting, took an oath to faithfully examine and report to the Police Jury the amount of damage, and also “ the benefits” that might arise from the construction of the levee in front of the plantation of plaintiff.

Thoir report was as follows:

“ The undersigned, appointed as a committee by the Police Jury of the parish of Tensas, to assess the damages and the benefits to the plantations of McCall and Inge, report: that Duncan McCall shall be entitled to the payment from the said Police Jury, to the amount of $25 per acre, from the base of the old levee to the base of the new levee, in front of the plantation of said McCall ; and that John C. Inge is entitled to the same payment per acre, from the base of the old levee to the base of the new levee, recently built, extending from the line of McCall and Inge to a point a short distance below said Inge’s house, to where it connects with the old levee.”

The number of acres for which damages were due under this report was determined by a survey of the land by the parish engineer. The report was rejected by the Police Jury, and the jury were discharged.

Plaintiff afterwards instituted this suit.

It was tried before a jury, who agreed upon a verdict for one thousand and fifty dollars, being the amount due at $25 per acre for the number of acres found by the survey.

The Police Jury appealed from the judgment upon the verdict.

The judgment is erroneous. The report was properly rejected by the Police Jury, because the proceedings did not accord with the requirements of the statute of the 16th March, 1848.

The eighth section instructs the Police Jury to appoint a jury of freeholders to examine and report, not only the damage, but also the benefit that may arise from the construction of the levee. The Police Jury, however, appointed a jury to examine and report only the damage. They were, therefore, not authorized to value the benefit.

It'is true that the jury took an oath to examine and report the damage and also the benefit, and in their report, they designate themselves as the committee appointed to assess the damages and the benefits, but they do not, in their report, state separately the amount of damage and that of the benefit, but, only, that plaintiff is entitled to twenty-five dollars per acre.

Their report ought to have complied with the law, so that it would have been patent upon it, that the benefits as well as damages had been maturely considered, and also that no arithmetical mistake had been made in the calculations which produced the difference for which the Police Jury were responsible.

Besides, the jury might erroneously estimate the damages, but not the benefits ; but when they are not separately specified, it deprives the Police Jury of the ability of properly contesting the report, and of showing the particular error made by them, either in the estimate of the damages, or of the benefits, or of both.

The report of the jury is, under the statute of 16th March, 1848, conclusive against the Police Jury of the amount of damage and of benefits arising from the construction of the levee, unless it is contested upon the ground of error or fraud.

In order, however, to render it conclusive, it is requisite that the formalities of the law should be followed.

We would further remark, that the statute only'requires a jury of five freeholders, whereas the Police Jury appointed seven.

As the law provides for five, this number only ought to have been appointed, for the addition of two might produce a different result from that which would have been arrived at by five. Besides, if an addition of two were permitted there would be no limitation to the extension of the number.

It is true, that in this case, five of the seven appointed only signed the report, but still this was not a compliance with the resolution of the Police Jury, which named seven.

Upon the trial, the Police Jury offered to prove by one of the jury who assessed the damages, that the jury did not take into consideration, in their examination and report, the benefits derived by plaintiff from the levee, and that the same was not considered or estimated by them.

This offer was objected to by plaintiff, upon the ground that the report having been made under oath, could not be contradicted.

The admission of the evidence would not have contradicted the report, for there was no allusion therein to the benefit to plaintiff from the construction of the levee and the object was to show that the benefit had not been considered.

It is objected by defendant, that the levee was not laid out upon the land of plaintiff, but upon the land of Watson.

It appears that after the levee had been laid out, the plaintiff purchased the land. The land was bought after the levee had been laid out and constructed.

It would seem, then, that the damage must have been taken into consideration by plaintiff and that he must have given a less price for the land on that account. The action would seem to be, if at all, with the vendor of plaintiff, unless the right had been transferred by the sale. But this objection has been waived by the Police Jury, and the right of action has been recognized to be in plaintiffs by their proceedings in the case at bar.

Appellant has plead prescription and relies upon Article 3501 of the Civil Code, which declares that actions resulting from offences or quasi-offences are prescribed by one year.

This Article does not apply to the present case. The damages contended for-do not result from an offence or a quasi-offence, but results from a law authorizing for the public good, the partial destruction of property by the construction of a levee, that is the destruction of that space which is between the old and new levees, for it would be exposed to inundation, and the same law provides for compensation for the damages suffered, or for the excess of damages over the benefits.

" It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment for defendant against the claim of plaintiff, reserving the rights of plaintiff hereafter, if any he has, when the Police Jury shall proceed legally to determine upon them ; and that plaintiff pay costs in both courts.


author: Las», J.

text:
    B. T. K. Bennett v. City of New Orleans.
    A municipal'corporation is not liable for damage done to private property, unless tile act which caused the damage was done without the authority of law, or being authorized by law, was improperly or wantonly executed.
    Where a municipal corporation was sued for an act of omission or nonfeasance, in not repairing a draining machine erected for public utility, by which neglect plaintiff’s premises were overflowed, and his property damaged — Held: That as the act complained of involved the disbursement of the corporate revenues, it was a matter of discretion with the corporate authorities, and that if plaintiff was 'damaged, it was damnum absque injuria, and he was oonseguently without sufficient cause of action.

      lidia, also That a corporation in such a case may avail itself of this exemption from suit, under the plea <if. the general issue.
    from the Fourth District Court of New Orleans, Price, J.

      Matt <& Fraser, for plaintiff. J. J. Michel, for defendant and appellant.
   Las», J.

The defendant is sued for an act of omission, or non-feasance, in not «causing certain draining-machine, erected for public utility, to be repaired and Ikept 3k 'operation; in consequence of which neglect plaintiff alleges that his ¡premises, on which he had an iron foundry and machine-shop, were overflowed, Tiis buskess suspended, and his property damaged to the amount of eight thousand -dollars.

'The answer is a general denial, which puts at issue the law as well as the facts «of tthe pIeíbqtiff’s case.

A&rdtgkg the non-feasance of defendant, and damage to plaintiff resulting 'theréfeom, vfche question presents itself: do these facts give plaintiff a right of :acfion against defendant, a municipal corporation vested with a portion of the powers of 'government, for the recovery of the damage sustained ?

It seems lie be a well settled principle in respect to the jurisdiction of courts, tchat the sovereign cannot be sued without his consent, and that the principle is applicable ¡te ¡all governments, whatever may be their form. Jurisdiction implies .superiority, :smd the supreme power in a state can have no superior.

'This exemption from liability on the part of government, has been extended to unumciipal icoi]f orations, vested with, and exercising portion's of the sovereign ¡power, ¡for the reason that such corporations are considered the representatives of {the government, and that their exemption from suit is necessary to make the pre-ffogatke available to the government itself. O’Conner v. City of Pittsburg, 18 Penn. R., 187; Stewart v. City of New Orleans, 9 An., 462.

The exemption, however, has been strictly construed, in regard to municipal eorporations, mud they have been held liable, for damage to property, whenever the act avsllmrizsd by them, was not warranted, by the powers vested in them by their charter, wax contrary to law, or was improperly, wantonly and maliciously done, McGarey v. City of Lafayette, 4 An., 440. Walling v. Mayor and Trustees of Shreveport, 5 An. 660 ; Wilde v. City of New Orleans, 12 An., 15. It is held, that where the act done was clearly within the scope of their powers, and was properly executed, they are not liable for damage to private property. Reynolds v. Mayor and Trustees of Shreveport, 13 An., 426.

Hence it results, that a municipal corporation is not liable for damage to private property, unless the act complained of was without the authority of, or against law, or was improperly or wantonly executed. Such being the rule in regard to acts of commission, it applies with much greater force to acts of omission or nonfeasance, within the discretion of the corporate authorities, and involving, as in this case, an expenditure of the corporate funds. We are therefore of opinion, that the plaintiff is without a cause of action against the defendant.

The exercise of powers involving disbursements of the corporate revenues is a matter of discretion with corporate authorities, unless otherwise expressly commanded by legislative will.

If the plaintiff has been damaged, it is damnum absque injuria.

That municipal corporations may be sued in all matters of contract, and in cases of tort, as well as in those expressly authorised by statute, is not questioned. The exemption from suit, or non-liability for damage to private property extends to those cases in which the damage results from, or is consequent on the exercise or non-exercise of power vested in the corporation, and the power itself is legally and properly exercised, or its non-exercise is a matter of discretion. The corporation may avail itself of this exemption from suit, on the plea of the general issue, as was done in this case. Stewart v. City of New Orleans, 9 An. 463 ; Reynolds v. Shreveport, 13 An. 421.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment for defendant, with costs in both courts.


author: Buchanan, J.

text:
    Succession of Joseph A. Beard. — Sarah E. Andrews v. Executor of Beard.
    Tiie instrument set up as a last will was in these words : “ Duo Mrs. Sarah 35. Andrews the sum or two thousand five hundred dollars, payable to her order, out of the proceeds of my estate, after my death. New Orleans, June 15th, 1855. J. A. Beakd.”

      Held: That such an instrument being negotiable in its form, cannot be viewed as a legacy, for want of a legatee.
    Where it was established that the plaintiff was the concubine of a married man, who executed an obligation in her favor, payable at his death — Meld: That a prima facie case was created, which threw upon the plaintiff the burden of proving a legal consideration.
    from the Second District Court of New Orleans, Morgan, J.

      Hart & Martin, for plaintiff. Simonds <& Fenner, for the Executor, defendant and appellant.
   Buchanan, J.

The testamentary executor is appellant from two judgments ; one probating a due bill of the testator as a last will; and tho other, condemning the estate to pay the amount of said due bill.

The two appeals are submitted for decision together.

The instrument which has been admitted to probate as a last will, roads as l follows:

Due Mrs. Sarah E. Andrews, the sum of two thousand five hundred dollars, payable to her order, out of the proceeds of my estate, after my death.

“ New Orleans, June 15th, 1855. J. A. Beard.”

The District Judge held this to be a testament, on the authority of the case of Pena v. Cities of New Orleans and Baltimore, 13 An. 86. But the difference between the two instruments is obvious. Not to mention other points of distinction, it is sufficient to say, that in the case quoted, there was a devisee named, to wit, Francis Pena; while in the present so called will, there is no devisee.

The amount which Joseph A. Beard acknowledged to owe to Sarah E. Andrews, he declares to be payable out of his effects, after his death — but to whom ? To the order of Sarah E. Andrews. The endorsement of Mrs. Andrews, would have made this instrument, negotiable in its form, and dated some two years previous to Beard’s death, the property of the bearer. Consequently, viewing the instrument as an act of last will, each holder became, in turn, the legatee of Joseph A. Beard. It is, as if Beard had written “ my estate, after my death, will be bound for the payment of my due bill in favor of Sarah E. Andrews, to any person who may be the endorser and holder of said due bill.”

We hold this to be no legacy, for the want of a legatee. It appears to be simply an evidence of indebtedness. As such, it may be considered of superior rank to a legacy; inasmuch as debts are to be paid before legacies. The document was improperly admitted to probate as a last will; and the appeal taken from the order of probate, must be sustained.

The other appeal is a suit brought by Mrs. Andrews against the testamentary executor of Joseph A. Beard, in which she claims judgment against him for the amount of the due bill, with interest, to be paid in due course of administration. The executor, who is also one of the heirs of Joseph A. Beard, among other de-fences, pleads specially want of consideration of the due bill, alleging that the plaintiff was the concubine of said Beard.

Evidence received without objection, and not contradicted, has left little or no doubt upon our mind, that an illicit intercourse subsisted between the deceased signer of the due bill, (who was a married man,) and the plaintiff.

Evidence of this character, creates a prima facie case against plaintiff, which throws upon her the burden of proving a legal consideration for the instrument sued upon. She has offered no proof wdiatever upon this point.

As, however, the District Judge has not attached the same significance as ourselves to the portions of the evidence to which we have alluded, we will give plaintiff another opportunity of proving a valid consideration.

It is, therefore, adjudged and decreed, that the judgment or order of probate and execution of the due bill of Joseph A. Beard, deceased, held by Sarah E. Andrews, as a last will of said Beard, be reversed ; and the petition of said Andrews for probate, dismissed at her costs in both courts.

It is further decreed, that the judgment of the District Court in favor of Sarah E. Andrews against C. C. Beard, testamentary executor of Joseph A. Beard, being No. 5787 of the docket of this court, be reversed; and that the said cause be remanded for a new trial according to law ; and that the costs of appeal in said case No. 5787, be paid by the plaintiff and appellee.