author: InsiiEY, J. Larauve, J.

text:
    No. 1308.
    Sarah Ann Stilley v. John W. Stilley.
    Where a peremptory exception has been ordered by the Court to stand as an answer, with leave to amend, the defendant by filing an amended answer, will be considered as treating the peremptory exception as an answer to the merits.
    Where the supplemental and amended answer changes the substance of the original answer.it will be stricken out on motion of plaintiff. O. P. 420.
    Where the answer of defendant puts the capacity of plaintiff specially at issue, the plaintiff is bound to prove it to maintain his action.
    A natural tutor, though not required to be confirmed or appointed by the Judge, must, like all other tutors, take an oath before he can act as such. C. O. 328.
    Where it appeal’s that the counsel for plaintiff mistook the law, the Court will, in the exercise of a sound legal discretion, render judgment of nonsuit.

    APPEAL from the District Court, Parish of Livingston, Ellis, J.

      D. W. Hennen, for plaintiff and appellant.

      Alfred Ilennen and T. G. Davidson, for defendant and appellee.
   InsiiEY, J.

This action was instituted against the defendant to compel him to render to his daughter, the plaintiff, and to file in court an account of tutorship, and on his failure to do so, to pay her the sum of three thousand dollars, with interest, etc., that being the amount inherited by her from her mother, and in the hands of her tutor.

An order was issued by the clerk of the District Court to the defendant, requiring him to file an account of tutorship as prayed for; but no account was ever filed.

A judgment by default having been entered against the defendant, his counsel moved to set it aside, and that he have leave to file his peremptory exception, which was of the following tenor: “John W. Stilley, the defendant in the above-entitled and numbered suit, now appears, and asks .to be hence dismissed, with costs, because the plaintiff has stated and shown no cause of action, inasmuch as the defendant is not and never was the tutor of Sarah Ann Stilley, in which capacity he has been sued, and lias been required to account and answer. Excepting thus, he asks for judgment accordingly.

The plaintiff subsequently took a rule upon the defendant to show cause why the peremptory exception, filed after a default, should not stand as an answer to the merits.

The Court ordered the same to stand as an answer, with leave to the defendant to file an amended answer, and on the day following the defendant filed his amended answer. Besides pleading therein the general issue, and asking for a trial by jury, he says that he never administered the estate of the mother, nor was appointed tutor of the plaintiff, nor was there ever any estate to administer, or left by the mother of the plaintiff, and he prays to be dismissed, with his costs.

This amended answer was excepted to by the plaintiff, because it changed the substance of the defence, as made in the peremptory exception, filed after judgment by lefault, and which has been ordered to stand for an answer. That the said amended answer, containing a general denial, deprives the plaintiff of the benefit of the admissions made in the original answer, and compels him to prove facts that have been admitted by Hie pleadings.

The plaintiff prays that the said exception be sustained, and that the said amended answer be disregarded on the trial of the cause. The Court sustained this last exception, so far as it relates to the general issue contained in the amended answer, which the Court considered altered the substance' of the defence in the original answer, but ordered that the exceptions be dismissed, so far as they applied to the allegations in the said amended answer, as alleged that the said defendant was never appointed or administered as tutor of the plaintiff.

The defendant took a bill of exceptions to the last decision of the Court. It was stated in the bill that “ at the trial of the exceptions made by the plaintiff to the amended answer of the defendant, the counsel for the defendant insisted that the said amended answer was valid, and should stand as consistent with the former pleadings in the case; but the Court ordered that a part thereof be disregarded at the trial, and made the order non of record, which is to form a part of this bill, etc.

The cause came o,n for trial on the 24th October, 1861, and on that day the defendant filed, what he termed, peremptory exceptions. They were dilatory, and should have been pleaded limine litis, and were therefore not noticed by the Court."

There was a judgment in favor of the plaintiff for the full amount claimed.

A new trial was granted, and four years after the case was submitted to a jury, -when the plaintiff, relying on the pleadings and the admissions therein contained, introduced no testimony; whilst the defendant proved upon the trial that the plaintiff’s mother died so poor as to leave no means to pay her funeral expenses.

There was a verdict for the defendant, and the plaintiff, after an ineffectual attempt to obtain a new trial, appealed.

During the progress of the trial, the plaintiff took two bills of exception, one to the admission of the testimony of a witness produced by the defendant, to prove his wife’s poverty at the time of her death, on th¿ ground that the said testimony went to contradict the admissions contained in the defendant’s original answer, not traversing the fact charged in the plaintiff’s petition,'that the defendant had received property of the value of three thousand dollars from the estate of the plaintiff’s mother; and the other, to the charge of the Judge to the jury, that the peremptory exception filed on the 20th October, 1859, and ordered to stand for an answer, was to be considered in the nature of a demurrer, and not equivalent to an admission of the facts charged in the petition, and'not specially denied in the said peremptory exception or original answer; but, that the said exception or answer had to be taken in connection with the amended answer containing the general denial; that the said amendment or general denial was admissible, and did not change the nature of the defence; and also to the refusal of the Judge to charge the jury that the said original answer or peremptory exception, did contain admission of all the facts stated in the petition not specially denied, and could not be withdrawn by the general issue subsequently pleaded in the amended answer, filed on the 16th May, 1860.

The question raised by these bills of exception, and otherwise during the progress of the suit, all centre in the one query, whether the exception filed on the 20th October, 1859, after the rendition of judgment by default was, by the rules of pleading established in our courts, an answer to the merits, or if it was so treated by the defendant himself. If that exception was not an answer, to what was the amended answer subsequently filed, a supplement ? And if it was an answer, how could it be amended so as to change the substance of the issue joined? The defendant deemed it an answer, because he filed a supplemental or amended answer to it,' without any objection to the exceptions being considered an answer, and afterwards insisted upon the validity of the supplemental answer, and its consistency with the former pleadings. Did the supplemental answer change the substance of the original answer ? It certainly did, and should therefore not have been allowed. Art. 419-420, C. P. Abat vs. Bayon, 4 N. S. 518.

The only defence set up in the original answer was “that the defendant is not and never was the tutor of Sarah Ann Stilley, in which capacity he has been sued, and has been required to account,” and that fact required proof, which, however, was supplied by legal presumption, as the petition charged the defendant with having, as her natural tutor, received and administered the plaintiff’s share in her mother’s succession, amounting to three thousand dollars, which was not denied.

The only issue, therefore, raised was one of law, and the plaintiff was not bound to prove the allegations of her petition, which were not denied "by the answer. See 14 An. Aiken vs. Bedford, 4 N. S. 616; Austin vs. Latham, 19 La. 90.

The opinion expressed by us that the exception filed by the defendant in this suit on the 20th October, 1859, is an answer to the merits, every question raised by either party in the suit is disposed of, and the plaintiff by the admissions in his answer, having made out her case, the verdict of the jury and the judgment of the Court thereon must be set aside and reversed.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the District Court thereon be annulled, avoided and reversed. It is further ordered, adjudged and decreed that the plaintiff, Sarah Ann Stilley, wife of William Jones, have judgment against and recover from the defendant, JohnW. Stilley, her father and natural tutor, the sum of three thousand dollars, with legal interest from legal demand, to wit: 9th July, 1859, and that he pay the costs in both courts.

Petition for a Rehearing, by defendant and appellee.- — -The petition of J. W. Stilley, defendant and appellee in the above case, respectfully shows:

That the opinion of the Court delivered in this case is erroneous, (as the defendant considers) and therefore he presents most respectfully this petition for a rehearing.

The plaintiff claims S3,000 as the amount of the share of the property, real and personal, left in the parish .of Livingston by her mother, at her death, and which was administered by the defendant, her father, since 1837, and for which “ he has never rendered an account of his administration or the estate of her mother

Judgment by default was taken against the defendant, which was set aside. “ Ou motion of G. W. W itfcerston, the default is set aside, and he have leave to file a peremptory exception.”

Tire peremptory exception was filed, and is as follows:

‘ ‘ John W, Stilley, the defendant in the above entitled suit, now appears and asks to bo hence dismissed with costs, because the plaintiff has stated and shown no cause of action whatever, inasmuch as the defendant is not and never was the tutor of Sarah Ann Stilloy, in which capacity he has been sued, and has been required to account or answer. Excepting thus he asks for judgment accordingly. G. W. Watterston, defendant’s attorney.”

It is unnecessary to notice any other part of the pleadings, proceedings or any of the bills of exceptions in this case; as the defendant will confine this application principally to a review of the opinion of the Court on this one point — the force and effect of this peremptory exception, filed by Judge Watterston for the defendant. What did he traverse by this exception ?

It is clear, beyond any doubt, the defendant thinks he may safely assert that here was an issue of fact, formed by this exception.

“ The defendant is not, and never was the tutor of the plaintiff, S. A. -Stilley,” and consequently never administered her property.

It was necessary, on the part of the plaintiff to make this allegation. The defendant denies it.

Certainly, then, the plaintiff must make proof of it, for it was directly traversed.

The defendant believes this issue was inadvertently overlooked by the ■Court, and has not been passed on in the opinion.

What proof did the plaintiff give to support this averment? None.

Will it be said that the plaintiff states in her petition that she is the daughter of the defendant, and he has not denied that allegation; consequently, that he was her natural tutor?

This is a non sequitur. Nowhere in the petition is it alleged that her mother was legally married to the defendant, or that she was the lawful issue of the marriage.

This was an averment indispensable, because it would still be consistent with truth, that the defendant was her father, if she had been a natural child; but, to constitute the defendant a natural tutor, there must be the allegation of a lawful marriage.

The petition must be taken strongest against the plaintiff, as to all allegations not contained in it. No allegation can be supplied, if wanting. No proof could be admitted of any fact not alleged. 2 Hennen’s Digest, 1155, No. 3. , ’

There was a fault in the pleadings, a defect in the averments, and the first fault in pleadings is always visited on him who committed it; a rule fully established in pleading according to the common law, and recognized as correct by our Supreme Court. 3 N. S. 648, Abert vs. Bayon.

It might be sufficient for defendant to urge, if this case is to be decided by strict and technical rules of pleading, that the first fault was committed by the plaintiff. 7 Co. 10. 5 Bacon’s Abridgment, 339.

“If under the liberal mode of practice wisely established in this State, such strictness be not necessary, still the rights of the parties under the evidence offered are not the least altered or impaired, and they have the same right to insist at the trial, that the plaintiff has failed to show a cause of action that they would under a more technical system by taking advantage of it in pleading.” Such are the words of the Court. 3 N. S-648, Abert vs. Bayon. Taking then all the facts alleged in the petition to be true, they do not make the defendant to be the natural tutor of tlio plaintiff

The evidence of the petitioner does not establish the capacity of the defendant where he has denied it. Averment and proof of the marriage of the defendant and the mother of the plaintiff, was absolutely requisite. But no such allegation was made, or evidence given to snpport it. Consequently the plea of defendant was good, and a judgment of a nonsuit should be entered as the counsel for plaintiff in the close of his first brief suggested, (page 9 of the first brief) and considered probable.

But supposing the allegation in the petition, that the plaintiff is the daughter of the defendant, is sufficient to prove that he and her mother were married, and she is the lawful issue of such marriage, did that make the defendant the tutor of the plaintiff ? It is denied.

It is conceded to be the general rule, that the legitimate father is the only person, after the death of the mother, entitled to the tutorship of the issue surviving, and that he may be compelled to take upon himself the office.

But he must do this in the form required by law, be recognized and appointed by the Court of Probates, take the oath of office, and comply with all legal formalities, make an inventory, cause the appointment of an under-tutor, etc. “The appointment of a tutor to a minor belongs to the Judge of Probates of the place of domicil of the father.” C. P. Art. 944.

“It is the duty of the competent Judge * * to make the appointments the manner hereafter provided.” C. P. Art. 948.

“ If it be the father of the minor, who presents the petition claiming his tutorship, the Judge shall confer it on him, only requiring of him an oath to perform the duties well and faithfully.” C. P. Art. 949.

Now the evidence fully establishes the fact, that no succession of the mother was opened in the parish of Livingston, where she died, and where the petitioner alleges the property, real and personal, was situated; nor was there made therein, any appointment of tutor to the petitioner.

See the evidence of Terry and D. Settoon, (pages 54 and 55,) the two clerks of the Court for the parish of Livingston, who testified to an examination of the records, and that no such proceedings were to be found among the records in the office.

There were no proceedings to compel the defendant to accept the office of natural tutor to the plaintiff.

The official character of natural tutor, therefore, never existed, as regards the defendant, and the averment in this peremptory exception is sustained. The jury found for the defendant, the plaintiff should be nonsuited.

But it will be said that the defendant, the father of the plaintiff, is responsible in damages to the plaintiff' for his neglect of duty, for not taking possession of the real and personal estate of the minor child, which she avers was situated in the parish of Livingston, in neglecting to make an inventory thereof as required by law, and for his neglect to procure the appointment of an under-tutor. C. C. 2(56.

“Tutors by nature are bound to cause an inventory to be made, and an under-tutor to be appointed.”

“In every tutorship there shall be an under-tutor, whom it shall be the duty of the Judge to appoint at the time the letters of tutorship are certified to the tutor.” O. C. 300.

The Civil Code provides for the security of the minor’s estate, that all his relations residing within the parish are bound to apply to the Judge for the appointment of a tutor. O. C. 290. And if they neglect this duty, they are responsible in damages to the minor. C. C. 292. And anyone may give information to the Judge, when an appointment of tutor is necessary. C. C. 294. So the interest of minors is amply secured.

Now, in case of the neglect of the father to require letters of tutorship to be granted him, what is the action of the minor against him? Is it to render him an account of his administratorship, which he never undertook, or to make him responsible for damages incurred by his neglect?

These are important question of practice which may frequently occur, and should now be solved, when they are directly presented in this case for adjudication.

The Court is respectfully urged to consider the rules of pleading established by three Judges, Mathews, Martin and Porter, to whom our jurisprudence is so much indebted; and who were the founders of it in its infancy, and who were inferior to none who have since occupied their seats.

They say, emphatically, that “under the mode of practice wisely established in this State, strict and technical rules of pleading are not necessary; still the rights of parties under the evidence offered, are not the least altered or impaired; and they have the same right to insist at the trial that the plaintiff has failed to show a cause of action, that they would have under a more technical system by taking advantage of it in pleading.”

By this mode of practice the defendant claims to be judged. He invokes it, and will abide by it.

In his peremptory exception, he avers that the plaintiff has shown no canse of action, “inasmuch as the defendant is not and never was the tutor of Sarah Ann Stilley.”

The fact of tutorship was here at issue. The plaintiff offered no evidence to sustain it. The defendant gave convincing proof that he never had been tutor, or acted as such, and the jury found in his favor. On these pleadings the Court condemns the defendant to pay $3,060, with interest from 1859, till paid, with costs.

The Court will please reflect on, and examine the amount and effect of this opinion. The petitioner states that she had real and personal estate in the parish of Livingston to the amount of $3,000, but she describes no lands or movables of which it was composed. (What that estate was we cannot learn from the pleadings or evidence, except that the evidence given by defendant, which shows that the mother of the plaintiff was buried at the expense of a stranger. The husband, defendant, being in no condition to pay for her interment.)

We will suppose, or grant for sake of argument, that this real estate was a tract of 640 acres of land of the value of $2,500, and a stock of cattle thereon, personal property of the value of $500, making $3,000, which, should be restored to the plaintiff, as her share of her mother's estate. Now it is certain that this real estate, which the petitioner avers belonged to her, be it worth $2,500, or less, or more, must still be in parish of Livingston, and she, as the owner, can take possession thereof, or recover it from any usurper. Is the defendant bound to pay the value of this property, real and personal, whatever it may be, that $3,000 put on it by the petitioner, and the petitioner retain the right tf> sue for and recover the identical property — the tract of land and stock or cattle? or, if the defendant pay the $3,000, should he not at least be tilled, iu equity, to own the land and cattle, and have a decree making them his property afier he has paid their value to the plaintiff ?

Shall the plaintiff have the full benefit of a decree, under the opinion of the Court, for the $3,000, and the defendant have no decree for a' conveyance of the property, the full value of which he shall have paid to the plaintiff? Or shall the plaintiff get full compensation for her demands, with the right to sue for the specific property, the defendant to get nothing ?

Such must be the result of the opinion of the Oourt if it stands. But this would be manifest injustice, a consummation of iniquity, wrought om by the machinery of a court of justice.

It could never bo the intention of this Honorable Court to permit the plaintiff to perpetuate, with impunity, what may justly be termed a crime, at the sacrifice of her own father, who must be reduced to penury if this opinion becomes the judgment of the Court, as it would take the means away from him on which lie is to live.

Is the plaintiff without redress then? No. She can obtain the identical real estate in the parish of Livingston, left by her mother, if she really left any, also the personal property, if found to be in existence.

But if the redress of the plaintiff by this conrse is not complete, the defendant will submit to pay any damages suffered in consequence of his neglect to protect any estate, real or personal, which she shall show she inherited from her mother, which he should have administered.

This brings to the view and consideration of the Court, the most important point of defence, which the defendant confidently assumes he lias a just and legal right to present for decision, and to obtain one in his favor. Under the facts established conclusively by the evidence, and admitting all the facts, which can be assumed fairly from the pleadings, the case of the plaintiff can amount to nothing more than she had an estate inherited from her mother, which the defendant, her father, neglected to take possession of as her tutor, and he is responsible to her for any damages she has suffered by such negligence. Now, the defendant desires to take advantage of these facts, by pleading under the liberal mode of practice established in this State (without being confined by strict.and technical rules) that the plaintiff has mistaken her action. 3 M., N. S. 619, Abert vs. Bayon.

This would appear to have been the object of Judge ‘Watterston when he filed the pi remptory exception, aud which can be fairly and legally urged under the averment therein, that the plaintiff had shown :no cause of action. The cause of action stated by plaintiff arises from the duties imposed on him in his office of tutor. The evidence shows he never took that office upon himself, and can be responsible only from his neglect to exercise it. The plaintiff seeks to make him liable, because ho entered on the duties of her tutor. But the evidence shows that if ho is liable for anything, that is from a neglect to comply with a duty imposed on-him by law.

It will be in vain for the plaintiff to reply, that this distinction is too nice, metaphysical or technical, and - not according to rules of pleading.

It comes with a very ill grace from tbe plabitiff to object- to tce.bnie.alily or special pleading. What is it on which she hopes to obtain a jmlstnent against her father, except by pushing to the cxln m - point of teuhnicuiilj and special pleading, the case raised by the peremptory exception of Judge Watterston ?

She urges, that by the act of the Judge, in malting the defence of her father to rest on a peremptory exception, she has obtained an advantage which she never could have gained by the facts of the case — facts, which though given in evidence on the record, and uncontradicted, have been excluded, from his defence. Her father proves that he had not the means at the death of the mother to pay for her funeral expenses. This evidence, by a bill of exceptions, has been excluded under a very technical objection.

The defendant cannot be repulsed when he thrusts the same weapon in defence; he makes not the blow — he only parries it.

The counsel for the defendant does not wish to introduce into our courts a technical system of special pleading, similar to that prevalent in the common law, nor to give such a strict construction to the Articles of the Code of Practice as will cripple the parties, or stretch them on the bed of Procrustes.

He wishes, however, to present distinctly and respectfully the principles which should govern the Gourt, and aid it in separating truth, from falsehood; in attaining justice sincerely, and defending the unwary from the machinations of the cunning and the unscrupulous; in short, to carry out the principles of the Supreme Court as tersely, clearly and justly enunciated in 3 M., N. S. 619, Abert vs. Bayon.

Pleading is nothing more than the correct application of logic to a law suit. If the pleadings are not logical they cannot be correct, and can never elicit the truth or promote justice. Warren’s Law Studies, 707-747.

More than two centuries and a half ago, Lord Coke lamented that “ many a good cause is daily lost for want of good and orderly pleading, ” and he observes that “ more jangling and questions grow upon the manner of pleading and exceptions to form than upon the matter itself, and infinite causes lost or delayed for want of good pleading.” Co. Lit. 303, A, and Blackstone assures us “a man by mispleading, may, in some cases, lose his property, yet the law will not suffer him by such niceties to lose his life.” 4 Blac. 334.

Such niceties should be avoided here, and therefore our Supreme Court has established the rule above quoted. 3M., N. S. 649. A man should never lose his life or his property for mispleading.

•The Court has always the power to prevent such a catastrophe.

It will be very easy to do so in the present case, as by a proper consideration of the facts presented in proof, no injustice wilí be done to either party. The action against tho defendant, as tutor, is denied; but the right to render him accountable for neglect to take possession, and make an inventory of the plaintiff's estate is reserved to her, in which all claims she has can be adjusted, or the plaintiff may open the succession of her mother and recover whatever part of it remains, of real or personal property, in the parish of Livingston. Complete justice can be obtained in either of these two actions. The defendant will meet them immediately, and be prepared to vindicate himself successfully.

If the plaintiff claims from defendant, as her natural tutor, and does not aver the marriage with her mother, and the petition is defective for the want of this averment, and shows the first error in pleading, and for that reason is insufficient in law to maintain the action, and advantage can be taken of this defect on the trial of tho case, as settled by the rules of practice, sanctioned by the Supreme Court (3 M., N. S. 649, Abert vs. Bayon) must not the defendant, from the allegations in the petition, be clearly considered the natural father of the petitioner?

_ This is admitted. But in that case, still the petition would be defective, and would not show any cause of action; fur, unless the natural father has acknowledged his paternity, he is not entitled to the tutorship. This acknowledgment is not found in the petition. C. C. Art. 274.

“The father is of right the tutor of his natural child, acknowledged by him.”

Now, by the settled principles of pleading in all systems of jurisprudence, the petition, declaration, or bill of complaint, should contain all the legal averments necessary to show the right of the plaintiff, and to maintain the action. If deficient in any one particular, no cause of action is shown, and no judgment can be maintained for the plaintiff; there must be a nonsuit against him.

It is a maxim in pleading, that everything shall be taken most strong against the party pleading; or rather, if the meaning of the words be equivocal, they shall be construed most strongly against the party pleading them; for it is to be intended that every person states his case as favorably to himself as possible. 1 Chitty’s Pleading, 241. Co. Lit. 303, b. Stephens on Pleading, 378.

Ambiguum placüim, interpretan debet contra prof erentem. Co. Lit. 303, b.

Now, the rules of pleading quoted above, as derived from the common law, have been practically incorporated into, adopted and used in our courts. Indeed the decisions of our Supreme Court have gone farther than would be admitted in the courts of common law for tin- enforcement of strict pleading. Take a single case one of many that might be quoted. La. State Bank v. Senecal, 9 La. 225. This was an action against the endorser of a promissory note.

The petition averred the indebtedness of the defendant to the amount of the note; but no allegation was found in it, that the defendant had been notified of the protest for non-payment by the maker. A judgment by default was taken, and proof given of the notice. After the judgment by default had been made final the defendant appealed, and the plaintiff was nonsuited in the Supreme Court.

1. A judgment by default was taken on the failure of the defendant to answer, whereby an issue was joined, (coniestatio litis) and “ the defendant was presumed, by his silence, to have confessed the justice of his adversary’s demand,” and therefore the plaintiff wa>' allowed to proceed with his proofs in order to have his judgment confirm".!. C. P. Art. 360. The plaintiff did accordingly proceed with his proofs, and made out a full and complete case of indebtedness.

But when the case came up before the Supreme Court, this presumption was negatived; the language of the Art. 360, C P., was considered as confused and illogical, and to a certain extent a contradiction to Art. 312, C. P. 1 A. 117, Fink v. Martin et al., and a judgment of nonsuit was entered.

2. This case goes further than at common law, is admissible, under its pleadings; for, after verdict and judgment, it would be too late to take advantage of such a defect. Stephen on Pleading, 148-151, pp. 164, 168 of the 1st edition.

_ 3. This ease proves that all necessary allegations to render defendant liable must be found in the petition, and if any are omitted advantage of them may be taken, after judgment on appeal, by the defendant, (see 17 La. 82, Landry v. Baugnon) and it goes further than is allowed at common law. 3 Black. 394.

4. This case also proves that after a judgment by default, evidence cannot be introduced to remedy any defects, deficiencies or omissions in the petition. 12 Rob. 518, Young v. Talbot. 2 Hennen’s Dig. 1155, Nos. 3, 5 and 6.

A number of other cases of the same kind might be referred to, found in the decisions of the Supreme Court.

So that on a review of our practice, more nicety of pleading is required in many particulars than at common law.

The defendant does not believe that it is necessary, in his case, to resort to all of the niceties of pleading of any system; he asks only to be governed by the practice settled in this Honorable Court, and is willing to put the decision of his rights on the precedents given therein.

The most stringent rules of pleading have been used to reverse the judgment which was given in his favor on the verdict of the jury.

He asks the Court to apply them equally in his favor.

He seeks not to obstruct or defeat the rights of the plaintiff. By a judgment of nonsuit, the plaintiff is not precluded from renewing her action in proper form, with legal averments, whereby she can recover whatever property, real or personal, in the parish of Livingston, she is entitled to by inheritance from her mother, or compensation for any damages sustained by the neglect of her father, the defendant. On the contrary, the defendant is precluded from all equitable re,course for compensation for whatever amount he may be compelled to pay under a judgment against him.

The claim of the petitioner arises out of her share in the estate of her mother, which she avers has been administered upon by her father. It is only a share of the estate which she claims; the other claimants of other shares are not brought before the Oourt, consequently their rights cannot be adjudicated on in this action. The defendant presents to the Court this situation of the estate of the mother of the plaintiff for consideration.

If the defendant pays the amount of the share due plaintiff, $3,000, with interest, should he not in equity be entitled to a judgment for the same amount against the other heirs in the settlement of the estate? And should not the other heirs be made parties to settle the whole estate as is required in every Court of equity?

It is the plaintiff herself who, by her petition, brings this state of the facts of the case before the Court, and consequently the Court can properly notice it to do justice to all parties, which can be done by remanding the cause; even this the counsel for the plaintiff, in his second brief, suggested as a proper course for the Court. See the manuscript amendment of the brief made in the handwriting of counsel of plaintiff, now filed in Court.

Thus, justice can be done to all parties, and all further suits avoided. All the parties in interest should be made parties to the suit.

The counsel for defendant does not object to the determination of the Court to hold suitors to correct pleadings in all actions. On the contrary, he believes that an adherence to such a rule will tend exceedingly to make good lawyers. It will prevent the result which Tindal, the Chief Justice of the Common Pleas of England, said in Parliament “ would become an unmitigated evil, when the law is made too cheap. ” Warren’s Law Studies, 717.

Although die petition does not state the nature of the plaintiff’s title, an affidavit filed on her behalf, by her husband, discloses the important fact that it arose out of the dissolution of the community on the death of her mother (pp. 36, 37 of the record) and he obtained a commission for taking the testimony of Rachel Tucker, by whom he expected to prove the amount and value of the property owned or possessed by the defendant at the dissolution of the community with his late wife, and that the defendant took possession of and administered the same, as also the fruits, issues and revenues thereof; that plaintiff cannot safely go to trial without said testimony of Rachel Tucker. To this affidavit of the husband of the petitioner, (pp. 36, 37 of the record) the defendant earnestly requests the attention of the Court.

First, it proves that the plaintiff was not, and could not be surprised, as his counsel in his brief pretends, by the introduction of the evidence by defendant, that there was no estate inherited from the mother of the plaintiff. It also shows that the plaintiff’s counsel believed it requisite on his part to prove the amount of property inherited by his client from her mother. It furthermore shows that it was understood by (he counsel of plaintiff, that a traverse was made as to the amount inherited, and the administration of it. This the plaiutiff wished to prove, because it was •involved in the pleadings; because it was incumbent on her to prove it; beeanse she could not safely go to trial without it.

Now all parties at the trial came prepared, as far as was in their power, to prove the facts on which the merits depended.

The affidavit of plaintiff to obtain the testimony of Rachel Tucker was made and filed on the 221 October, 1861, and an order was given on the same day “to take her testimony, to enable the plaintiff to safely go to trial, ail'd prove that the defendant took possession of and administered the property of the plaintiff, inherited from her mother at the dissolution of the community.” Read tne affilavit, pp. 36, 37 of the record.

This a(H lavit demonstrates to the Court that this suit properly embraced the settlement of the succesi-ion of the mother of the plaintiff, in which she avers in her petition that she hid a share; other parties not before the C mrt had shares with her, and should have been made parties herein.

“ It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of ail persons interested in the subject of the suit, to make the performance of the order of the Court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose all persons materially interested in the subject, ougl t generally to be parties to the suit.” Milford’s Pleading, by Morton, lt~;9.

The succession, however, is before the Court by the petition, for settlement as regards one of the heirs.

Will not, and should not the Court look into the succession under the pleadings for a settlement of it? From the evidence found on the record it fully appears that the succession amounted to nothing, as there was not enough in it to pay for the interment of the mother of the plaintiff, according to the uneontradicted evidence of T. G. Davidson, Esq. It is certain, then, beyond a doubt, that the plaintiff is justly entitled to nothing for her share in the succession of her mother. Yet, if the opinion of the Court, based on technical pleadings becomes a final judgment, the plaintiff recovers §3,000, with interest, from 1857.

And when the settlement of the succession comes up before this Court, as it possibly may, another sot of heirs for their share may have judgment for nothing, because it consisted of nothing. A most striking contrast in the result in lawsuits and the administration of justice.

Those facts are patent on the record before the Court, and show a case, in the classical language of Blaekstone, 3 Black. 392: “ where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience.” The reports of the two cases hereafter in the Annual Volumes of the Reports of the State, will offer n?> encouragement to litigants in the defence of their rights, and will reflect no eminent credit on the administration of justice.

According to the strict rule of pleadings in courts of common law, when judgment thereon is to be rendered, the Court will arrest judgment, if from an examination of all the pleadings in the whole case it appears that the plaintiff is not entitled to it, though he may have gained an advantage by the incautious pleadings of defendant’s attorney. 3 Black. 393, 398.

It must be most apparent to the Court, in this case, that if the defendant is condemned, it must be through the “inadvertence” in the pleadings made by his attorney, and the advantage obtained thereby, without regard to the facts at issue. 3 Black. 395. All the facts disclosed by the record, though not stated in the pleadings, can be used for the defence by the liberal rule of pleading in the Courts of Louisiana. The affidavit now brought to the notice of the Court (from pp. 36, 37 of the record) is the most unexceptional disclosure which could be made by the plaintiff, and it throws light upon the whole case. The defendant wishes that the plaintiff may have the whole benefit of it, and obtain in full the evidence as to the amount of the estate of her mother from Mrs. Rachel Tucker.

Well might the counsel for the plaintiff suggest that “ the judgment should bo reversed, as erroneous, since it is final on the merits, when it ought to be at least on’v a judgment of nonsuit;” (p. 9, of his first brief.) But this he has modified by a manuscript addition, “rather it should be remanded,” etc. See the brief now presented, p. 9, in the handwriting of the counsel for plaintiff.

In. the brief of plaintiff (p. 9) it is stated: “He (the defendant) became liable as an usurper, though he failed to take the oath or give bond as tutor.” This acknowledgment, as to the proper manner of pleading, is all the defendant asks, for neglect of which he prays the plaintiff may be nonsuited.

But at most the plaintiff could only be entitled to a judgment for the restoration of her share of the property, for it is not alleged to be lost or alienated, or not to be in existence, or to have an account rendered which she may contest, which v/as the order given on the filing of her petition, according to her prayer.

The Court will please excuse the extent of this brief. But as its decision will crea1 a precedent of much importance, and for frequent use, á reason for its length is apparent, independent of the justice it claims.

On Rehearing.

Larauve, J.

This action was instituted against the defendant to compel him to render to his daughter an account of tutorship, or to pay her the sum of $3,000, being the amount inherited by her from her mother. A judgment by default having been rendered against defendant, his counsel moved to set it aside, and that he have leave to file his peremptory exception of the following tenor:

“ John W. Stilley, defendant in the above-entitled cause, now appears and asks to be hence dismissed with costs, because the plaintiff has stated and shown no cause of action, inasmuch as defendant is not and never was the tutor of Sarah Ann Stilley, in which capacity he is sued, and has been required to account and,answer. Excepting thus, he asks for judgment accordingly.”

. The plaintiff subsequently took a rule upon the defendant, to show cause why the peremptory exception filed after default should not be taken as an answer to the merits. On a hearing, the Court ordered the same to stand as an'answer, with leave to defendant to file an amended answer, which was filed next day. This answer was excepted to, and the exception sustained in part.

The case proceeded to a trial, and a judgment was rendered against plaintiff, and she has appealed.

The plaintiff adduced no proof in support of her demand, and her Counsel contended before this Court that plaintiff was not bound to prove the allegations set forth in her petition, and which were not denied by the answer, and that the capacity of the defendant as tutor, and which was specially denied, was presumed, and required no proof.

The defendant is sued as natural tutor, to account for his administration, or to pay plaintiff $3,000. This capacity being specially put at issue, the plaintiff was bound to prove it to maintain her action under her allegations; for if the defendant be not the tutor, it would take different allegations on the part of plaintiff to sustain her action against him. A natural tutor, though the law does not require him to be confirmed or appointed by the Judge, must, like all other tutors, take an oath before he can act as such. C. P., Art. 949. C. C., Art. 328. 11 R. 503. 12 R. 636. ' 3 A 562. There is no allegation in the petition, nor proof in the record, that the defendant ever acted as tutor of plaintiff.

This case was tried by a jury, who found a verdict for defendant, and the Court affirmed it by giving judgment accordingly.

We are of opinion that the plaintiff failed to make out her case; but, as it seems plaintiff’s counsel mistook the law, we believe that we should render a judgment of nonsuit only.

It is therefore ordered and decreed, that our former judgment be reversed, and that the verdict of the jury and the judgment thereupon be set aside and annulled; and it is further decreed, that there be a judgment of nonsuit against plaintiff, and that she pay the costs in both courts.


source: Caselaw Access Project

author: Ilsley, J.

license: Public Domain

text:
    No. 1070.
    Michael Hyland v. Mrs. Catherine Rice.
    A defendant (Jatmofcber forced to answer until be is informed with reasonable certainty of thct notice of the demand brodght against him.
    APPEAL from the Fourth District Court of New Orleans, Théard, J.

      Field & Sehackleford, for plaintiff and appellee.

      Randolph & Singleton and. Harr <& Foute, for defendant and appellant.
   Ilsley, J.

The petitioner in this case represents that the defendant is indebted to him in the sum of eight hundred dollars, being the balance due him for work, labor and materials rendered and furnished to her, at her special instance and request, by the plaintiff, in painting, whitening and whitewashing her house on Camp street, New Orleans, during the months of May, June, July and August, 1865.

The defendant excepted, alleging that she could not with safety answer to the plaintiff’s demand, until and unless a bill of items comprising plaintiff’s pretended claim was furnished, and prayed that the plaintiff be ordered to file bill of items and charges, specifically and definitely, and that she be excused from answering until such bill of items shall be furnished. This exception was overruled, and the defendant then pleaded the general issue, and the Court below, considering the law and evidence, and the report of the expert, to be in favor of the plaintiff, rendered judgment in his favor for the amount claimed, interest and costs.

The suit is not upon a specific contract to paint, whitewash, etc., the house referred to, for a sum fixed and certain; nor is the plaintiff’s demand a specific one for painting and whitewashing. It is a demand for work, labor and materials in painting, whitewashing; and, although, as was said in Ledoux v. Goza, 2 A. 396, “ it is true that our rules of pleading are liberal, but we ought not to extend this liberality so far as to force a defendant to answer, until he is informed with reasonable certainty of the items and nature of the plaintiff’s claim, and we deem this a case in which the Judge of the lower Court should have stayed proceedings, until the bill of particulars called for by the defendant was furnished by the plaintiff.

The objections set up in this Court to the report of the expert appointed by the Court cannot be noticed, as it is not properly presented.

The case must be remanded.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded to the District Court to be proceeded in according to law, the costs of appeal to be paid by the appellee.


author: Ilsdey, J. Howelu, J.

text:
    No. 6780.
    Andrew J. Dickinson v. Wm. J. Maynard.
    In an action for vindictive damages for an unfounded and malicious suit, both malice and want of probable cause must be alleged and proved to entitle the part.} to recover.
    Whore it is shown that an attachment has wrongfully and illegally issued, the party whose property has been attached, is entitled to recover the actual damages proved
    The measure of damages to be recovered on an attachment bond, is the actual expense and loss resulting from the levying of the attachment, including the fees of couusel, rendered in relation to the attachment.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      T. G. Morgan and C. M. Bradford <& Land, for plaintiff and appellee.

      Michel <& Koontz, for defendant and appellant.
   Ilsdey, J.

This is an appeal from a judgment, condemning the defendant to pay the plaintiff eight hundred and eighty-five dollars, with interest and costs.

The judgment now appealed from was rendered as damages for an attachment, alleged by the plaintiff in this suit to have been wrongfully and illegally obtained by defendant therein, and to have been maliciously persisted in by him, by means of a suspensive appeal never prosecuted fi’om an interlocutory decree, dissolving the attachment rendered on the 20th of February, 1850, in the suit of William “ J. Maynard v. J. R. Richardson et als, No. 13,004,” on the docket of the Fifth District Court of New Orleans.

The plaintiff in this suit claims two thousand five hundred dollars; that is to say, eleven hundred dollars difference in the value of the female slave attached, in consequence of her imprisonment, three hundred dollars for the hire or loss of her services during her confinement in jail, and eleven hundred dollars as exemplary or vindictive damages.

It appears from the record in the suit, No. 13,004, the defendant in this suit had sued the plaintiff, Dickinson, as endorser of a promissory note, for fourteen hundred and sixty-six dollars, and his suit was prosecuted to judgment.

The plaintiff in that suit had sued out an attachment, in virtue of whioh a female slave belonging to Dickinson had been attached, and confined in the parish jail from the 21st February to the 30th May, 1859.

The attachment was dissolved by the Fifth District Court, and from the interlocutory decree the defendant took a suspensive appeal, which was never prosecuted.

This suit is in the nature of an action for a malicious prosecution, and in this kind of action it is well settled, that malice and the want of probable cause in the original action, are essential ingredients. 9 Rob. 418. 6 A. 373. 13 A. 214.

Malice is not expressly proved, and we are not prepared to say that there was such a want of probable cause as necessarily to imply malice. The defendant certainly had a right of action against the plaintiff, for he obtained a final judgment against him, and the circumstances of the defendant, Dickinson’s residence and employment in New Orleans, were not such as to show in defendant an utter absence of a just cause for the attachment, and his right of appeal from the decree of dissolution was unquestionable.

The plaintiff was a young unmarried man, frequently changing the place and character of his employment, and speaking of seeking it in other States, he never having remained twelve months, consecutively, in this.

It being shown that the attachment was wrongfully issued, the party whose property was improperly attached, is entitled to recover the actual damage proved.

The evidence fails to sustain the claim as to the difference or deterioration of the slave’s value, in consequence of her illness from exposure while detained in jail, nor does it show that the damage in this particular complained of, was the direct consequence of the attachment. It is therefore unnecessary for us to express an opinion, as to the plaintiff’s right to recover for that cause.

The plaintiff, however, is entitled to recover the hire of his slave for the time she was illegally detained, and he was deprived of her use. The constructive services were wholly rendered before the abolition of slavery, so that we think no question can properly arise in this case out of that event. The amount of the hire proved is sixty-six dollars and sixty-six cents. See Phelps v. Coggshall, 13 An. 440. And he must be refunded the sum paid by him for attorney’s fees, dissolving the injunction — say thirty-five dollars. 9 R. 90. 2 A. 620. 13 A. 440.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of fcbe plaintiff, Andrew J. Dickinson, against William J. Maynard, the defendant, for the aggregate sum of one hundred and one dollars and sixty-six cents, with costs in both courts.

Howelu, J.

I cannot concur in the decree, allowing the wages of the slave, as I believe it to bo in conflict with the doctrine settled in the case of Wainwright v. Bridges, 19 A. 234. The right to the services of the slave grew out of the right of property in the slave, and the greater includes the less.


author: Howeed, J.

text:
    No. 954.
    F. Ricau et als. v. C. Baquie et als.
    In December, 1865, the stockholders of the Carondelet Canal and Navigation Company, determined by a two-thirds vote to lease the Canal Carondelet, upon which the board of directors adopted resolutions settling the specifications, and providing that public notice be given in several cities for a fixed time, inviting sealed proposals for the leasing of the canal according to the specifications, reserving to themselves the right »<> reject any and all bids.
    After the time fixed by the notices had expired, a meeting of the directors was had. and the sealed proposals were opened, examined, and all rejected. At the same meeting another bid was offered, and accepted by the board, and a lease entered into in accordance with the terms and specifications, to which some of the stockholder» and directors objected, on the ground that they were without authority to receive or act on bids under the resolution of the stockholders wit houb a new advertisement: Held — 'That the forms bo be observed, and the course pursued in effecting the lease were within the oontrol and discretion of the board of directors; that the adoption of one mode did not preclude them from afterwards pursuing another; that the first resolution did not perpetually bind them to follow the formalities therein prescribed.
    In matters within the discretion of bne board of directors, their acts, if lawful, although deemed erroneous by some of the members, will bind the corporators, and courts of justice will not interfeie to control the manner in which such acts are performed.
    APPEAL from the Sixth Distriet Court of New Orleans, Buplantier, J.

      J. Livingston and A. <& M. Voorhies, for plaintiffs.

      Gyprien Bu/our, for defendants.
   Howeed, J.

The plaintiffs have appealed from a judgment sustaining a peremptory exception, to the effect that the petition discloses no ground of action on their part against the defendants.

The parties on the one side are several directors and stockholders of the Carondelet Navigation Company, and on the other, the president and directors, as such, and in their individual capacity, and the secretary of the corporation, officially and individually; and the object of the suit is to annul a resolution of the board of directors, accepting a bid for the lease of the canal, property, rights and franchises of the company, and to enjoin the parties from executing said lease.

The petition sets forth, that in December, 1865, by a two-thirds vote of the stockholders, it was determined to lease the canal; whereupon, in January following, the board of directors adopted resolutions settling the specifications of the lease, and providing, among othes things, for public notices to be given in several cities for a fixed' time, inviting sealed proposals for the leasing according to the specifications, reserving the right of the board to accept or reject any and all bids; that at the expiration of the time, the board met and only two sealed proposals had been offered; one by Louis Gagnet, who is the secretary and a defendant, and one by B. Saloy, who is a stockholder and a plaintiff; that the proposal of Gag-net for $150,000, not complying with the specifications, was rejected, and that of Saloy for $80,400, being under consideration, a discrepancy was found in the amounts expressed in letters and figures, the former being $80,400, and the latter $84,000; whereupon, at a subsequent meeting, “ a committee was appointed to confer with said Saloy, to ascertain from him whether he would not agree to increase the amount of his bid by adding to the same the sum of $3,600;” that at another meeting the committee reported Saloy’s concurrence, which report was accepted, and at the same meeting a second proposal was submitted by Gagnet for $100 000, to which objection was made, as being irregular and too late — the only question pending being the acceptance or rejection of Saloy’s proposal, and that new proposals could be allowed only after additional time and publications; that on a vote being taken, Saloy’s proposal was rejected, and that of Gagnet’s taken up for action, and accepted by a majority -<rote, and a resolution adopted to lease the canal, etc., to him; that said proceedings are informal, illegal and injuries to the corporation; that had new advertisements been given, larger and more liberal offers would, without any doubt, have been received, and had not Gagnet, while Saloy’s bid was pending, informed others that it was too late to send in proposals, other advantageous bids, besides his, would have been received: that the contract of lease between the board and Gagnet is null, and void, because accepted in violation of the resolutions by which the lease was ordered to be made; that after the delay fixed for receiving proposals, it was too late to receive any others whatever, and the doing so not only violated the said resolution, but defeated the object of sealed proposals; and that it is more than questionable, whether, without authorization from the Legislature, such a contract of lease can be entered into between the corporation and third parties.

The argument of plaintiffs’ counsel is directed mainly to the right or power of the corporation to lease their canal and franchises; but we think the reference to this question in the petition is made, in arguendo, to strengthen their charge as to the irregularity of the proceedings, rather than as a ground of action, for it is said (in the language of this averment) “that on this account it is proper that the greatest precautions should be had in contracting such a, lease;” i. e., the lease may be made, but with the greatest precaution. There is no positive, substantive allegation, denying the right of the corporation to make a lease; which .it, is specifically stated that the stockholders by a. two-thirds vote advised ,a lease, instead of a loan to be made. The cause of action — the real ground of complaint is, that after adopting a resolution fixing a time for receiving sealed proposals, invited through public notices, and after the lapse of that delay, the board of directors accepted a proposal, without again pursuing the same forms. Admitting their material facts, we think their conclusions in law are incorrect, and present no cause of action against the defendants. The forms to be observed, and the course pursued, in effecting the lease, were within the control and discretion of the board of directors.

The adoption and observance of one mode, did not preclude them from afterwards pursuing another, which in their judgment is equally or more advantageous. The first resolutions did not perpetually bind them to follow the formalities therein prescribed. See Angelí and Ames on Corporations, pp. 827, 459.

In matters within the discretion of the board, their acts, if lawful, although deemed by some to be erroneous, will bind the corporators, and courts of justice will not interfere to control the manner in which such acts are performed. Same authority, p. 259. 6 L. 763.

No fact is alleged, showing a violation by the defendants,; of any law or of any provision of the company’s charter, or the acquired rights of any party.

The sealed proposals were rejected under the reserved right of the board, after which it was within their power to accept proposals in any manner satisfactory to themselves.

Judgment affirmed, with costs.

Petition for a Rehearing, by plaintiffs. — The plaintiffs respectfully call the attention of the Court to that part of the decision which argues that they have not sufficiently alleged the nullity of the lease, so as to bring up the question of the legal incapacity of the board of directors in that respect.

As that was the burden of the plaintiffs’ whole brief, and relief was asked only upon that ground, we now suggest that the Court should either have decided the point, or, declining to decide it, have made a reservation of the matter in the decretal part of the judgment.

The plea of res judicata may be filed below, if we are driven to institute another suit to demand the nullity of the lease, upon the ground that the board had no authority under the charter to enter into this contract. And as the decree, and not the reasons for judgment, will have to be considered in that event, we apprehend danger from that quarter.

We, therefore, respectfully ask:

1st. That the Court will reconsider the question, whether, under all the allegations of fact in the petition, the question of the authority of the board is not substantially raised. Matters of law and legal propositions need not be stated in a petition, for that would render it argumentative. Oldham vs. Croghan, 3 N. S. 521. Hodge vs. Easton, 5 N. S. 59. Florence vs. Nixon, 3 L. 292. (3 M. 402, Gravier vs. Livingston.)

But, should the Court be of opinion that its ruling on this subject-matter lias not been too technical, then we suggest:

2d. The propriety of amending the decree rendered so as to reserve to the plaintiffs the right in the future to test the absolute nullity of the lease, on the ground of the total want of authority on the part of the board of directors to enter into such contract.

It would, undoubtedly, subserve the purpose of justice, that not having been heard on that matter, a reservation be decreed to protect them against any eventuality in that respect.

Rehearing refused.


author: Howell, J.

text:
    No. 1116.
    Marius Martin v. John Thornill.
    APPEAL from the Fourth District Court of New Orleans, Thcard, J.

      Buchanan <& Gilmore, for plaintiff and appellee.

      Harrison & Hunlon, for'defendant and appellant.
   Howell, J.

This suit grows out of the same transaction, and presents the same facts and points as are involved in the case of Tompkins v. Thornhill, just decided, and for the reasons therein given the judgment is affirmed.


author: Howell, 3.

text:
    No. 983.
    J. B. B. Pecoul, Agent, v. L. C. Perret, Administrator.
    In an injunction suit where judgment for damages is rendered against the plaintiff and his surety, and the plaintiff alone appeals, the appeal will be dismissed, unless the surety is made a party thereto.
    PPEAL from the District Court, Parish of St. Charles, Beauvais, 3.

      A.&M. Voorhies, for plaintiff and appellant.

      A. Lavisson, for defendants and appellees.
   Howell, 3.

This is an action to enjoin and annul a judgment, in which the petition and demand of plaintiff were dismissed, and he and his surety condemned in damages, from which plaintiff alone appealed, without making his surety a party.

It was indispensable to the consideration of the appeal, that the surety on the injunction bond should have been brought before this Court. 3 A. 318. See 12 R. 203; 4 A. 577; 11 A. 409.

It is therefore ordered that this appeal be dismissed, at the costs of appellant.


author: Hyman, C. J.

text:
    No. 1033.
    Clark & Brisbin v. Francis Bouvain & Wm. H. Lewis. John Ermon, Warrantor.
    The doctrine is well settled, that a party talcing a pledge in writing with authority to sell the thing pledged, is limited in his authority to sell the articles mentioned in the act oí pledge; but where the evidence shows that he has authority to sell all the materials iu a certain building, which contains the articles he has in pledge, mixed with others belonging to the pledgor, the sale is valid and binding.
    Where evidence has been received without objection on points not presented by the pleadings, the parties are bound by it.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, 3.

      Marr & Foute, for appellant. E. Filleul, for appellees.

      W. H.Paxton, for warrantor.

      Brief of Warrantors.

    * * * On the 24th March, 1858, John Ermon loaned plaintiffs twenty-five hundred dollars, and took two notes of twelve hundred and fifty each, and on same day took act of pledge to secure the payment of the same. These notes were not paid, but on 1st November, 1861, Clark & Brisbin executed tiMiim their note for $2,532 50, with eight per cent, interest from date — being for same consideration, the articles pledged (with some others added) were removed to No. 19 Commercial Place, and most of the type and material promiscuously mixed.
    The city was captured April 29,1862, and under General Butler’s orders all who did not renew their allegiance were required to furnish a schedule of their property and surrender the same.
    On the 1st September, 1862, W. J. Hammond, at the request of Clark & Brisbin, took an inventory, for purpose of transferring these articles under military order.
    Clark & Brisbin left this city on the 19th May, 1863, under military order; but before leaving, and wishing to secure their property from confiscation, and wishing to pay their debts with it (certainly an honorable act), they placed all the material in the possession of Ermon, gave him the key of the store, requested him to pay the rent then due, $900, to Mrs. Eustis. and such rents as might afterwards fall due, which payments he made. Mr. Clark then went with Ermon to Buckner’s store, and there in the presence of Buckner and Ermon, said that Ermon had a mortgage on the establishment, printing materials, etc., and that he, Clark, wanted to settle the rent due, and that Mr. Ermon paid him the rent due up to that time, and rents afterwards accruing, and Clark then and there gave Buckner, the witness, fully to understand that Ermon was authorized to sell the materials, pay the rents; also to pay what was due to him, Ermon. Ermon paid me the rents, kept the keys for five or six months, and when the material was sold he returned me the keys.
    In March, 1864, the presses and material were advertised for sale, and on 2d April, 1864, they were sold to defendants for $3,000; cash $100, and three notes of $966 66, payable at six, twelve and eighteen months, interest eight per cent, after due. The press and material were in a low, damp room, 19 Commercial Place, not used for four years, and in bad condition; and were sold for their value.
    A statement of the account between John Ermon and Clark & Brisbin, is thus:
    Clark & Brisbin.............................................Dr.,
    To John Ermon:
    1861.
    Nov. 2. — -To your note due this day, secured by act of pledge. .$2,532 30
    To interest eight per cent, to April 2, 1864,................... 489 52
    To rents paid Buckner,...................................... 675 00
    To Advertising Picayune.................................... 2 00
    $3,698 82
    1862.........................................................Cr.
    April 2, — By proceeds on six, twelve and eighteen months, . $3,000, discount off $200..........................$2,800 00
    Due Ermon, April 2, 1864.................................. $898 82
    Such are the facts. There are certainly no equities to be asked for by Clark & Brisbin of John Ermon, as they are yet his debtors in the sum of $898 82, and interest for three years; nor will the rigid principles of law aid them.
    1st. This is a controversy between plaintiffs and John Ermon, called in warranty. No creditors or third persons appear to contest the acts of pledge.
    2d. The first authentic act of pledge, dated March 24, 1858, certainly covered all the printing materials therein named.

      3d. There were materials afterwards purchased. They were included in the second act of pledge (verbal). All the material were delivered to John Erinon, with the key of the store, and authority given him by the owners to sell the same, pay the rents, and pay what was due Ermon. John Ermon had actual possession of all the articles from May 19th, 1863, the time Clark & Brisbin left the city, up to April 2d, 1864, the day of sale, on which day they were sold under instructions of Clark. (See testimony of Buckner.)
    Pledges of movables may (not shall) be made by private writing and actual delivery, and if so made shall be valid against creditors, etc. Acts 1855, p. 348, Phillips’Digest, p. 405.
    The law only requires, in cases where creditors are contesting, that the pawn or pledge should be by written act. C. C., Art. 3124, 3125.
    ■ The Civil Code, Art. 3123, requires that the debtor wishing to pawn a claim or note on another person, must make a transfer of it m the act of pledge, endorse and deliver it.
    On this Article, in 9th An. page 539, the Court decides: “ That as the bills were not endorsed as required by C. C., Art. 3123, the syndic cannot, upon a mere formality of this sort disturb the act of pledge, as the good faith of the transaction was not impeached, nor showed any injury to creditors.”
    The syndic is the assignee of an insolvent’s estate, and representing creditors. If he could not impeach the act of pawn for want of form, how can Clark & Brisbin, who have never had the misfortune to require the services of a syndic?
    If there were creditors contesting, the full compliance with the formalities of law might bo required. 3 Martin’s Rep. 523. Story on Bailments, sec. 290.
    If the contract was made in good faith it cannot be annulled, although injurious to creditors. C. C., Art. 1895, 1940, 1973, 1974.
    I ask your attention to the good faith and liberality of Ermon, called in warranty on the 24th day of March.
    A. D., 1858, he loaned them in cash $2,500. On the day of sale, April 2d, 1864, they owed him $3,698 52. If you confirm the judgment, they will still owe him $898 92. If you reverse the judgment and order the restoration of the articles on a judgment for their value, it will leave Ermon’s estate as their creditor in the sum of $3,698 52, with but little hope of recovery.
   Hyman, C. J.

Plaintiffs seek to recover a printing press, and other printing materials, which they alleged to belong to them, and to be in the possession of defendants.

They prayed, .that, .defendants. be ordered to restore this property'tio them, or in case of failure-to restore-it; that they have judgment against defendants for the value thereof.

Defendants, in answer, claimed, title to, the property, in virtue of a sale made to them in April, 1864, by J. Ermon, whom they called in warranty. Ermon, in his answer, to .the call -in warranty, admitted the sale to defendants, and averred that he had a right to sell the property by a pledge of it to him made by plaintiffs' in March, 1858.'

It appears from the evidence adduced, that plaintiffs, who pursued the avocation of job printing, pledged, by written act, on 24th March, 1858, the materials which they used in carrying on their business to Ermon, (giving him authority to sell them in such manner as he might deem proper) but kept.possession of the same until May, 1863, when they delivered them tq -him, together with other printing materials which they acquired since making the act of pledge, declaring at the time of delivery that they were going to leave the city, and that he had a mortgage on the establishment, the printing materials, and that he was fully authorized to sell and dispose of them.

Ermon thereon paid for plaintiffs, at their request, the rent owing by them to the owner of the house in which were the materials, and rented the house for himself from the owner until he could dispose of them. He advertised all the materials for sale, and on the 2d April, 1864, sold them to defendants for $3,000, this amount being less than that owing by plaintiffs to him.

Plaintiffs claim in this suit only the materials which they bought since 24th March, 1858, the date of the pledge to Ermon, and contend that as they were not pledged to him, he had no right to sell them under the act pledging other property.

This position cannot be gainsaid, but the evidence is, that Ermon had authority to sell the materials that were in plaintiffs’ establishment, in May, 1863, and that he sold them to defendants.

Plaintiffs abandoned their occupation, ceased renting the house in which their materials were,, and assented that Ermon should rent the house, thus giving the appearance that Ermon was the owner of property therein. Such conduct, on the part of the plaintiffs, might well raise the question (if there was no evidence of authority in Ermon to sell) whether plaintiffs could recover from defendants.

Plaintiffs contend that the answer of Ermon was conclusive against him, because he relied therein in the pledge of 24th March, 1858, as his authority ro sell the materials, and that he could not depend on other authority than that alleged. The evidence of other authority than that in the act of pledge was introduced without objection, and parties are bound by evidence so received on points not presented in the pleadings.

Judgment in the District Court was rendered in favor of defendants and warrantor, without prejudice to their right of warranty, if any, against Ermon.

Let the judgment of the District Court be affirmed, and let plaintiff, who is appellant, pay cost of appeal.


author: Labatjve, J.

text:
    No. 6882.
    John Grace v. Frank Vonder Haas.
    Where the proof shows that a house has been leased for one month at a fixed price, and one-half of the amount paid in advanoe, and the lessor leases the house to another party, and puts him in possession before the end of the month, the Court will award such damages to the first lessee as the proof shows that he has sustained by the violation of the lease by the lessor.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.

      J. Van Balsón, for plaintiff and appellee.

      V F. é J. B. Cotton, for defendant and appellant.

      Boporler. — The following opinion was rendered by the Judge of the District Court:
    The proof shows that defendant rented a house to plaintiff at $20 per month, from 15th December, 1858, and received half a month’s rent ($10) in advance; no particular day was fixed for moving- into the house, and the lease was complete for one month, and not for a half month only, the agent of plaintiff informing defendant that it would make no difference when plaintiff would move into the house, as his rent would be secure to him. He did not reserve to himself the right to annul the lease, if the house was not occupied at the expiration of the half month.
    One witness says that the house was to be taken possession of on 15th December, but he evidently referred to the date when the lease should begin. The admission confirms this, which says plaintiff was to move in as soon as possible; confirming the testimony of Hutchinson, plaintiff, by the agreement and payment, had a right to the house for one month at least. The prool does not show a contract for a year.

    Defendant was made aware that plaintiff’s family was not in town, but was expected from one to three or four weeks.
    Plaintiff has proven only $80 paid out by him, of which he had to pay $8, if .he had obtained the house, leaving a balance of $22.
    The same amount is attained by another witness, to wit: $28 paid the carmen, and $6 to move to defendant’s house, leaving $22. To this, add the $10 paid on rent, and we have $82 paid out by plaintiff by the fault of defendant; to which may also be added the difference in the rent for the half month, to wit: $2 50.
    No other damages are proven; but this sum ($34 50) I think plaintiff is entitled to a judgment, both in law and equity.
    Defendant, having made such a bargain, should not have become alarmed so soon. He should have waited the month, or at least not given it to another before the expiration of the month.
    It is therefore ordered, that plaintiff recover of defendant $34 50 and costs.
   Labatjve, J.

The plaintiff demands of the defendant $520, as damages for the violation of a contract of lease, to commence on the 15th of December, 1859, at the rate of $20 per month; one-half of the first month, to wit: $10, was paid in advance.

The answer is a general denial.

The Court below, after hearing the evidence, gave judgment for plaintiff for $85 50 and costs.

The defendant appealed.

The contract of lease was entered into on the 9th of December, 1859; the plaintiff was represented by an agent, who made the defendant aware that plaintiff’s family was'not in town, but was expected to arrive here shortly, perhaps, in one, two, three or four weeks, but deeming that that made no difference, as the rent was secure, and when Grace’s family arrived, they would at once go into the house. The defendant rented the house on the 4th of January, 1860, and on the same day plaintiff arrived with his family and furniture, and found the house rented, and in the possession of another lessee.

We are satisfied that the evidence and circumstances of the case, fully authorized the judgment appealed from.

For the reasons assigned' by our learned brother below, his judgment is affirmed, with costs.

HowEim, J., recused.


text:
    No. 335.
    John Wheeler v. Joseph Maillot & Co.
    The presumption of law is, that the holder of a promissory note has acquired it in good faith, and the burden of proof is on the party disputing the ownership, to show that the holder did not acquire it in good faith.
    Notice of dishonor of a promissory note, served in due time on a partnership, is sufficient to fix tjie responsibility both on the partnership and the individual members thereof.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.
    Hyams, Labatt & Jonas, for plaintiff and appellee.

      Hace <6 Foster, for defendant and appellant.
   Hyman, C. J.

N. C. Selby gave his note, payable to the order of Joseph Maillot & Co., who endorsed it in blank.

Before maturity, it was held and owned by the “ State Savings Association,” which caused it to be presented and protested for non-payment on its maturity. The plaintiff, obtaining the note after its maturity, brought suit thereon against Joseph Maillot, one of the partners of the firm, and recovered judgment against him for its amount, with interest and cost. Maillot has appealed from the judgment.

He contends that the endorsement of the partnership name was made by John Benson, one of the members thereof, for accommodation; that the firm was not established for such purpose, and that Benson could not thus bind it; and further, that the consideration for which the note was given, had failed.

Whatever rights the association had against maker and endorsers oí the note are in the plaintiff, who is a subsequent holder of the note to the association, and no other defence can be validly set up against him but what could be urged against the association.

The presumption in law is, that the holder of a note acquired it in good faith, and for the defendant to make valid his defence, he must show that the association did not acquire the note in good faith.

No evidence has been adduced to such effect.

Defendant further argues that the notice of the dishonor of the note should have been given to him individually.

Notice of dishonor of a note, served in due time on a partnership, is sufficient to fix the responsibility, both of the partnership and the members thereof, when demand has been properly made.

Let the judgment be affirmed, and let the defendant pay the cost of this appeal.

Howell, J., recused.


author:
      Tat,taff.-rt¡o, J.
      Howell, J.

text:
    No. 903.
    John J. Michie v. A. Brown & Co. et al.
    Where a commercial firm Is sued on a note drawn by the company after the dissolution of the firm, citation served on the agent of one of the nartners, is not sufficient to bring the firm into court, although it be made at the former place of business of the firm.
    An agent cannot, stand in judgment, or deiend suits in court, without express and special authority from his principal. C. 0,20(36.
    A judgment founded on a defective citation, is null and void.
    Where a judgment of the lower Court has been declared null on appeal, on the ground of defective citation, the case wid be remanded at the costs of the appellee. .
    APPEAL from the Sixth District Court of Now Orleans, Duplantier, J.

      Durant tfi liornor, and Hornor & Benedict, for plaintiff aud appellee.

      Clark and Bayne, for defendant and appellant.
   Tat,taff.-rt¡o, J.

The plaintiff sues the firm of A. Brown & Co., as makers, and T. S. Powell & Co., as endorsers of a promissory note for the sum of seven hundred and fifty dollars, with interest.

Judgment was rendered in the Court below in favor of the plaintiff 'against A. Brown, a member of the firm of A. Brown & Co., and against the endorsers, in solido. ,

Erom this judgment A. Brown alone appeals.

The only question presented is as to the legality of citation.

The citation was addressed to A. Brown & Co., and also to T. S. Powell & Co., and, in all other respects, appears to have the requisites of a legal citation. The sheriff’s return on the citation, addressed tó A. Brown & Co., reads as follows:

“Received, January 29th, 1866. On the 31st day of January, 1866, served copy of the within citation, accompanying on defendant at 320 Magazine street, by leaving the same into the hands of J. E. Paul, chief clerk of the firm of Brown & Co., a free person, apparently over the age of fourteen years, residing at the said domicil, and whose name and other facts connected with this service, I learned by interrogating him, the defendant being absent from home at the time of said service.”

(Signed) “ John Hecioe, Deputy Sheriff.”

A judgment by default was taken against A. Brown & Co., on the 12th of February, 1866. On the 15th of that month, John E. Paul, by counsel, filed an “ application,” as it is styled, asking that the judgment by default be set aside, stating that A. Brown & Co. have no commercial domicil here, and that he has no authority to accept service of any petition or citation, and that A. Brown & Co. cannot, by him, be brought- into court.

On trial of the case afterwards, Paul was introduced as a witness by defendants. He testified that A. Brown & Co. were not then in business in New Orleans; that they were notin business there in January; that they had not been in business in New Orleans since the 30th of September, 1865; that they had no store or commercial domicil in New Orleans at the time the suit was brought; that Brown lived at Natchez, where the note was dated; that the house or firm of A. Brown & Go., was dissolved in September, 1865; that he had been keeping the house for a year and a half; that the establishment was at 320 Magazine street; that Andrew Brown owns the property in which witness carried on business, This witness stated that he “had a power of attorney from them in January; never since.” And afterwards, on cross-examination, he said “that he held a power of attorney from Andrew Brown, of the firm of A. Brown & Co.” This was produced. It is a notarial act, dated 14th of October, 1865.

This act specifies, among various powers granted to Paul, that he may “ ask, demand, sue for, recover, receive, etc., all moneys, goods and effects due him. To appear in all courts of law or equity, there to do and prosecute as occasion shall require, or to compromise, compound and agree in the premises by arbitration, or otherwise, as the said attorney shall in his discretion think fit; and generally, to do and perform all and whatever shall or may be required and necessary in the premises, as fully, amply and effectually to all intents and purposes, with the same force and validity, as lie the said constituent could or might do, if personally present. ”

There is no evidence in the record, showing that any public notice was ever given of the dissolution of the commercial partnership of A. Brown & Co., and none whatever that notice of that event was ever given to the plaintiff, or that he had knowledge of it when he instituted suit. The cause seems to have been regularly set for trial, and the trial gone into without its being required by defendant, that the exception to the citation should previously be disposed of.

As a witness in the case, J. E. Paul said: “ There was no notice giwen to plaintiff of the dissolution of that firm (Andrew Brown & Co.) that I know of; don’t know that any public notice was given of the dissolution of that firm; don’t think that they could have been given without my knowledge; I have no interest in the firm; I was a clerk of the firm.” And again, when questioned in relation to Brown’s property, and the nature of his business relations with Brown, the same witness said: “ I transact all his (Brown’s) business for him here. I hold a power of attorney from A. Brown to do that business.”

The citation is directed to A. Brown & Co. It was served, as the return recites, at the house or store where the business of the firm had been conducted, and upon “ J. E. Paul, chief clerk of Brown & Co,” and who was, at the time of the service, the agent and attorney in fact of Andrew Brown, then absent from the State. It appears that Andrew Brown lived at Natchez, Miss., doing the business operations of the firm of A. Brown & Co. in New Orleans, and there is nothing showing that he ever lived in New Orleans. It is not established that Paul was the clerk or agent of the firm, at the time this suit was instituted against it. His own testimony is clearly to the effect that he was not. He was, however, at that time, the agent and attorney in fact of Andrew Brown. The mandate introduced, grants a few special powers, but among them we do not find the power to defend suits. He is clothed with no power that seems sufficient to authorize the service of citation upon- him. To represent his principal, as defendant, is not a power of mere administration. Such a power, it was laid down by Judge Slidell, in Fusilier v. Bolin, á A. p. 61, can result only from the express terms of the instrument, or from an implication so clear as to be irresistible. C. C., Art. 2966.

Erom all the facts of the case, we conclude that the citation was insufficient, and, consequently, that the judgment is without effect.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and that there be judgment rendered in favor of the defendant, the plaintiff and appelle paying costs in both courts.

Petition for a Rehearing, by plaintiff and appellee. — The plaintiff respectfully prays for a rehearing in this case, to correct a clerical error in the decree entered.

The judgment reverses the decree of the lower Court, owing to there being no legal service of citation, and the defendant not having been brought properly before the Court, and renders judgment in favor of defendant.

We respectfully submit that no final judgment can be rendered herein, unless the parties are before the Court; if they are. plaintiff is entitled to a judgment, the evidence fully supporting his demand; if they are not, the only decree can be one of dismissal or nonsuit.

Howell, J.

A rehearing has been granted in this case to correct the decree: -

The judgment of the lower Court was reversed, because no legal citation is shown to have been made, and a final judgment rendered in favor of the defendant and appellant. This was erroneous; the cause should have been remanded, to enable the plaintiff to have citation made.

Ttis therefore ordered that our former judgment be set aside, and it is now ordered that the judgment of the lower Court be reversed, and the cause remanded to be proceeded in according to law. The plaintiff to pay-costs of appeal.


text:
    No. 959.
    Mrs. E. R. C. Monrose v. Arthur Brocard and Mrs. Delpeuch.
    There is no authority given by law to a notary public, before whom an act of sale is to be passed, to receive moneys or cheeks from one party to deliver to another. Such acts form no part of his duties as notary.
    The surety on a notary’s bond for the faithful performance of his duty as such, is only bound for such acts as the law authorizes or requires him to do in his official capacity.
    PPEAL from the Fourth District Court of New Orleans, Théard, J.

      T. W. Collens, for plaintiff and appellee.

      A. Pitot, for defendant and appellant.
   Hyman, C. J.

Mrs. Delettre caused an auctioneer in the city of New Orleans to offer for sale a slave at public auction, who was adjudicated to plaintiff for $580.

Plaintiff deposited with Arthur Brocard, a notary, a cheek for that amount, to be by him handed to Mrs. Delettre as soon as she made to plaintiff, a good and valid title to the slave, by an act of sale which was to be passed before him as notary.

Mrs. Delettre failed to make a title, as it was discovered that she was not the owner of the slave, and plaintiff sued Brocard and Mrs. Delpeuch as the security on his bond, as notary, for the amount of the check, alleging that he had collected the same.

Judgment was rendered against both'defendants, and Mrs. Delpeuch has appealed.

There is no authority given by law to a notary, when parties intend to pass acts of sale before him, for him to receive moneys or checks from one party to deliver to another. Such an act forms no part of his duty as a notary.

The security which he gives for the faithful performance of his duties as'notary, is only bound for such acts of his as the law authorizes or requires him to-do >in-his official capacity.

Appellant, in her answer, averred that a provost court in a proceeding before it between plaintiff and Mrs. Delettre, had ordered Brocard to retain the $580, until Mrs. Delettre could furnish a clear title to the slave.--"'

The Judge of the District Court gave this allegation as an additional reason why he rendered judgment against appellant.'

He says: “ By this order of the provost court, Brocard was made the common custodian of both parties in his official capacity; that the official deposit was recognized by an omnipotent court.” . . .1

Of the extent of the power of a provost court, the Judge, had nothing to do in deciding this case, as regards the appellant.

She had bound herself on the bond, for the faithful discharge .by Brocard of his duties as a notary, as presented by the laws of the State of Louisiana only.

Whatever other capacity than that given by the law of the State which a provost court could confer on the notary, Brocard, would not change •her obligation.

Let the judgment of the District Court, so far as it is against the appellant, be annulled and reversed, and let there be judgment in favor of appellant, with costs in both courts.


text:
    No. 1016.
    Jose Domingo v. The Louisiana Mutual Insurance Co.
    The doctrine in the case of Jose Domingo v. The Merchants’ Mutual Insurance Company (19 An, p. 479} reaffirmed.
    APPEAL from the Third District Court of New Orleans, Féllowes, J.

      W. 3. 3unt and T. L. Bayne, for plaintiff and appellee.

      Ed. Briggs and <7. M. Davidson, for defendants and appellants.
   Howell, J.

This suit, submitted by written consent, grows out of the same cause of action, and rests upon the same pleadings and evidence, as those of the same plaintiff against the Merchants’ Mutual-Insurance Co., and the Union Insurance Co., and for the reasons therein assigned, the judgment is affirmed.


author: Hyman, ' C. J.

text:
    No. 38.
    Francis Lombas v. Ferdinand Collet.
    Tbe legal mortgage accorded to a married woman on the real property of her husband, to. secure the recovery of her paraphernal means, attaches, and has force and effect on property acquired by the husband after her mpans have come into his hands, from the date of the purohase-by the husband.
    The vendor’s privilege is superior in rank to the mortgage of the wife on the property of her husband, but to make it available against the wife’s mortage, it must be recorded in the offioe of 'the Recorder of Mortgages, in the manner and within the time required by law., O. O. S240 3241.-
    The mortgage resulting from the recording of an act of salo of real estate, to the husband, is inferior in rank to the legal mortgageof the wife on the property of her husband, accordéd by law for the restitution of her paraphernal estate.
    APPEAL from the District Court, Parish of St, James, Lawes, J., •

      J. 3. llsley, for plaintiff.

      L. D. & F, J. Mckolls, for defendant.
   Hyman, ' C. J.

On 10th March, 1858, Francis Lombas sold to Ferdinand Collet, a tract of land in the parish of St. James, on a credit.

Collet gave his three notes to Lombas for the land, and in the act of sale the vendor’s privilege retained, and a special mortgage given on the land to secure the payment of the notes.

The act was.reeorded in the office of the recorder of-mortgages of the parish of St. James, on 28th February, 1859.

One of the notes, having become due, Lombas sued Collet, and obtained judgment against him, wherein it was decreed that the vendor’s privilege, and the sjjeeial mortgage be recognized and enforced.

Lombas caused execution to be issued on the judgment, and the land to be seized and sold by authority thereof. It was sold for $2,000.

Mrs. Ferdinand Collet, having obtained judgment against her husband, Ferdinand. Collet, for $3,400, being the amount of her paraphernal means, received by him in the years 1850 and 1853, filed her opposition, and claimed therein the right to be paid out of the proceeds of the sale under execution.

Lombas transferred the judgment he obtained against Collet, and also the notes to other persons, and they appeared in the suit, and claimed to be paid the proceeds of the sale.

The Ejistrict Judge rendered judgment, decreeing that to Mrs. Collet should be paid the proceeds of the. sale, there being no proof that Ferdinand Collet had other real property.

From this judgment the transferrees of Lombas have appealed.

The legal mortgage accorded bylaw to Mrs. Collet on the real property of her husband to secure to her the recovery of her paraphernal means, and by him for his own purposes, had force and effect on the land he bought from Lombas against Lombas as his transferrees, from the day he bought it, to wit: from 10th day of March, 1858. See 4 Rob. Rep. 71; 11 Rob. Rep. 154; 10 La. Rep. 301; 2 An. Rep. 775; 4 An. .Rep. 411 and 509.

The vendor’s privilege, which the law accorded to Lombas on the land, would have out ranked Mrs. Collet’s mortgage, being a preferred right to a mortgage, had he not failed to record the act of sale in the office of the recorder of mortgages within the tune the law required him to do so, in order to preserve his privilege. Having neglected to do so, he lost his privilege, and the mortgage given in the act of sale had effect as regards such persons, only from the time it was recorded in the office of recorder of mortgages. C. C., Arts. 3238, 3240, 3241, 3314.

The mortgage of Mrs. Collet out ranked that given in favor of Lombas, and entitled her to be paid out of the proceeds of the sale in preference to Lombas, as his transferrees.

Let the judgment of the District Court be affirmed, the appellants to pay the cost of this appeal.

IiiSBEY, J., recused.