text:
    Thompson et al. v. Chretien et al.
    B, who was a surety for A., a collector of taxes due to the United States, having executed a note, secured by mortgage, for the payment of an amount due by A. to the United States for taxes, the latter conveyed to B. all his property, of every description, authorizing him to hold or dispose of the same until the debt and incidental expenses should be paid. Some litigation having grown out of this conveyance, the parties terminated their disputes by a compromise, by which a part of the property was given hack to A., and B. assumed to pay a debt due by A., and to guaranty him against any claim on the part of the United States; the rest of the property was abandoned in full ownership to B. The act of compromise recites that A. releases to B. “all rights which he had or may have generally against the United States, of whatsoever nature, consenting that B. may use them as he may see fit;” and further that B.? gives to A. a full discharge for the amount paid by the former to the United States, acknowledging himself satisfied therefor, and “ renouncing in favor of A. all the rights ho has or may have against him in virtue of his subrogation to the rights of the United States.” The heirs of B. having subsequently obtained the passage of an act of Congress by which the amount paid by him was refunded to tbemon the ground of its having been illegally collected from, their ancestor, but not upon that of its not having been due, the heirs of A, sued them to recover the property conveyed to B., or an equivalent in money, in consequence of the heirs of the latter having recovered from the United States the amount paid by him : Held, that the debt due by A. to the United States was extinguished by payment, and was unaffected by the act of Congress and the payment to the heirs of B., the government having no power to revive the.debt of A. without his consent; that, by the payment made by B. to the United States, A. became the debtor of B., and no longer owed the United States, B. having guarantied him against all claim on their part, and that by the compromise lie was entirely discharged; that, in consequence of A.’s release from his debt to the United States, there was no failure of the consideration of the compromise; that the heirs of A. cannot be injured, nor can they profit, by the repayment made by the United States.
    Money paid to a creditor, though paid by one who was not the real debtor, cannot be recovered, where the creditor received no more than was really due to him.
    from the Fifth District Court of New Orleans, Buchanan, J,
    Greiner, Preston and H. A, Bullard, for the plaintiffs.
    D. Janin, Morphy and Simon, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

On the 27th October, 1820, John Thompson, of the parish of St. Landry, conveyed to Gerard, and Hypolite Chretien, certain lands and slaves mentioned in the conveyance, and also all his property, moveable as well as immovable, and.all the debts then due to him, in consideration of $14,806 27, for which sum the Chretiens had on that day executed a note, secured by mortgage, in favor of John Nicholson, marshal of the United States, payable in May then next ensuing, being for a debt due by said Thompson to the United States for taxes, and which the Chretiens had bound themselves to pay in the manner aforesaid ; and the act provided that they should have the right to hold, possess, ,and dispose of said property until said debt with the expenses and costs should be paid, in which event the sale was to be annulled. The acts of the parties thus situated by this conveyance gave rise to disputes which resulted in suits, which after pending several years were terminated by a compromise, made by a public act on the 14th July, 1825, in the town of Opelousas. By this act a portion of the property was given back to Thompson, the reconveyance of another portion was stipulated for, a certain judgment against Thompson was I assumed by the Chretiens, who warranted Thompson against any future claim on the part of the United States, and Tkompson abandoned to them in full ownership all the rest of the property conveyed to them in the act of October, 1820. The plaintiffs, who are the heirs of Thompson, have instituted the present suit against the defendants, who are the heirs of the Chretiens, in which they claim the property embraced in the act of compromise, or an amount in money, in consequence of the Chretiens having received back from the government of the United States the money they had paid for Thompson, by reason of which the consideration of the contracts before mentioned completely failed, and the property conveyed reverted of right to its origiual owner. There was judgment m favor of the plaintiffs for $15,617 80, with interest, and the defendants have appealed.

Thompson was collector of the revenue of the United States for the western district of Louisiana, and Louis Chretien was his surety for on amount which is not in evidence. A warrant of distress was issued against him and his surety from the treasury department. Louis Chretien was then dead, and Gerard and Hypolite, his brothers, had accepted his succession. Thompson, being unable to raise money, made with them the agreement of October, 1820. The amount of the note, $14,806 27, was paid to the marshal of the United States. The compromise of July, 1825, must be first considered. It recites that, in order to terminate the differences which have existed between the parties concerning the payment made to the United States by the Chretiens, as heirs of their brother who was Thompson's surety, of a debt due by Thompson, and declares that he cedes, releases, transfers, &c., “for the benefit and in favor of the said Chretiens, all lands of rights which he has had, or may have, generally, against the United States, of whatsoever nature they may be, &e., consenting that they may use them in such manner as they may think fit.” “ In consequence and in consideration of the above, the said Chretiens give to the said John Thompson a full and complete receipt and discharge, as in fact they hereby acquit and discharge him, of the sum of $14,806 27, which the said Chretiens, as heirs of Louis Chretien deceased, who was the surety of John Thompson, have paid to the government, and of every other sum which the said Chretiens have paid for the said J. Thompson; the said Chrétians acknowledging themselves satisfied and reimbursed for the aforesaid payments made by them, by the sales, cessions arid transfers before mentioned. And the said Chretiens moreover renounce to the said Thompson all tlu rights which they have, or may have against him, in virtue of their subrogation to the rights of the United States made to them by the government, declaring that they will make no use of the same against Thompson, inasmuch as he has entirely discharged himself in respect to them; and furthermore guaranty him against all claims on the part of the government of the United States relating to the object for which their brother was surety of Thompson, declaring the whole to have been paid by the proper officer of the law, and limiting their guarantee to the amount of the suretyship of Louis Chretien.” Thompson., after conveying to the ChrUiens formally the property he abandons to them, transfers to them all his rights of whatever description he may have against the United States, being willing that they may make use of them as they may think proper.

The Chretiens had thus paid the debt of Thompson and became subrogated to the rights of the United States, and having received payment in property from Thompson, they of course gave him a full and complete discharge, and the matters between them were thus apparently closed, in 1825. In December of that year the Chrétiens applied to Congress for the refunding of the amount they had thus paid, and, on the 3d of March, 1826, an act was passed for the relief of the heirs and representatives of Louis Chretien deceased, by which was ordered to be paid to Gérard and Hypolite Chrétien as such, the principal •sum of $12,999, with interest at six per cent from the 3d of April, 1822, until sixty days after the passage of the .act. the said sum having been illegally collected by .the marshal of the United States, tinder a treasury warrant, from the said Louis Chrétien, as one of the sureties of Johm, Thompson, late collector of ■direct taxes, &c. This amount had been carried to the credit of Thompson, on the books of the treasury, as collector, as the balance of his amount of direct taxes of 1815 and 1816, collected by a distress warrant from L. Chrétien, one of his .sureties. Whan Thompson heard of this act of Congress he remonstrated against the Chrétiens having any right to the receipt of the money, inasmuch as he had paid them, and they had bound themselves to guaranty him against any claim of the government of the United States. A copy of the compromise was also forwarded, but it load no effect, and the Chrétiens had the full benefit of the liberality of Congress. They were informed at the time, by the representative in Congress from the district, that they would be bound to restore the property received from Thompson, which was afterwards repeated on his return.

It is insisted for the defandants that, under the clause of the compromise which we have .quoted, the Chrétiens had a right to get this money back from the government of the United States for their sole and exclusive benefit; and this clause has been the subject of much discussion and argument. Thompson had a claim against the government for the stamps for which he had been charged .by the treasury, and which remained in his hands undisposed of, and also for some unpaid .salary as a clerk to the land commissioners, which was afterwards allowed to his heirs. Under a fair construction of the whole act we think, the claims transferred could not be .extended beyond these.

The act of Congress relates not to the claim of Thompson, but to that of the heirs and representatives of one .of his sureties, which were based upon rights appertaining to their own merits and not those of the principal debtor — upon the money having been illegally collected from L. Chrétien, wad not upon its not having been due. That Thoinpson should consent that this debt which was paid should be uncovered, and the distress warrant be again issued against him, his property seized, his defalcation again gazetted, and he forced to pay a debt twice, or commit a fraud by not paying it, is too improbable to require notice. That provided his debt to the United States remained paid, it, at one time, was a matter of indifference to him, whatever terms the Chrétiens might afterwards make with the government, is all that we can feel ourselves permitted to believe under the circumstances.

Before the legal consequences of the failure of the consideration of the compromise are to be .considered, there is a question not free from difficulty, and that is, whether the consideration has failed — whether Thompson's debt to the United States has not been extinguished by payment, and remains unaffected by the act of Congress and the payment under it to the Chrétiens. If such be the case — if it be in fact extinct, what claim the plaintiffs have for the restoration of the property is to be considered. The litigation between these parties and their successors has been of long duration; it commenced more than twenty-five years ago. The present case was before the Supreme Court in 1842. 3 Robinson, 26. It has been our aim to reach and determine it on the principles of law, from which we are not permitted to deviate for the purpose of relieving parties from difficulties in which their own conduct and conventions have involved them. It is deplorable that the property of a family should have been wrecked as this has been, and we feel deeply the responsibility of terminating forever a case which involves such interests, and of the great hardship of which we are thoroughly convinced.

The debt of Thompson was paid by the Chretiens to the government, and Thompson afterwards reimbursed them. The Chrétiens then received back from the government the amount paid : What effect has this upon the debt of Thompson? The statement of the facts brings up the familiar rule that when a debt is once paid, there must be some legal cause upon- which a party can be enabled to revive it. It is affected by fraud, error, violence, or any of those causes which affect the validity of all contracts; but that the creditor can, at his will and by his own act, revive it against the- debtor, cannot we think be seriously maintained. The government of the United States of its own free will and accord returned the Chretiens the money, with the exception of a sum retained, which had been paid to the marshal of the United States, and for which they had given their promissory note, which was drawn by Gérard and endorsed by Hypolite Chrétien. Was the debt against Thompson revived by this act, or did it remain unaffected by it ?'

So far as the rights of Thompson are concerned, this court must look upon the acts of the government of the United States in the same light as they would (upon those of an individual. The rights' secured to debtors i-est exclusively upon the law, and the government as a creditor has no privileges except those which appertain to its functions as recognised and established by law. The debt of Thompson having been paid, the government by no act of its own had the-power of reviving the obligation of Thompson, without his privity or consent. We are at a loss to conceive on what basis any such power can be made-to’ rest.

It is said that the Chrétiens paid the government in error, and the money paid 1 ought to have been- recovered back. But in what did the error of the Chrétiens consist ? They well knew the extent' of their brother’s responsibility on the bond of Thompson. They knew that there was another surety besides their brother. They, as two of his heirs, were not bound even for the whole of his-responsibility. In point of fact, according to the statements made in the argument of the plaintiffs’ counsel, the amount they were liable for was not the sole cause for the interference of the Chrétiens in favor of Thompson. The two' families were connected by marriage. Thompson's whole property was under seizure, and a portion of it sold under a distress warrant issued against him as a public defaulter, and advertized for sale, and it was to save him from total ruin, as well as themselves from being called upon to meet any deficiency, that ;hey assumed the whole debt. In their petition against Thompson, filed on 1822, it is alleged that they acted from the charitable motive of saving him from total ruin, as well as for saving themselves from less in interfering in his behalf with the marshal of the United States, in arresting the sale of his property.

The government of the United States, in returning the money to the Chrétiens, retained only $1,807, for which sum it maybe supposed Gérard and Hypolite were only legally bound as two of the heirs of their brother Louis. As f to render the fact of error impossible, they took security for the whole amount they had bound themselves for, from Thompson; and, five pears after-wards, were fully paid by him under the compromise of 1825, and, as subrogated to the United States, formally discharged Thompson and gave him hack part of his property, and assumed and paid a judgment which had been rendered against him. Can it be pretended, in the presence of this array of overwhelming facts, that the ChrUiens could claim relief from the government of the United States on the ground of having paid by mistake, when they had the money repaid to them in their pockets, and had extinguished ail the rights of the United States, which, by subrogation, were vested in them, by a formal discharge of Thompson ? Such a pretension appears to us to rest upon a complete confusion of all ideas of right and wrong.

The Chretiens, as friends of Thompson or as strangers, had a right to discharge his debt and save his family from being turned out of doors ; but, if the debt was really due, they never could recover it back from the creditor who had received no more than he had a right to. Domat, lib. 2, tit. 7, §2. Repetitio nulla est ab eo qui suum recepit, tametsi ab alio quam vero debitore solutum est. L. 44, ft, De Condict. Indebiti. The reason given for this by Do-mat is, that the creditor has received only what was his due, and the person 'thus interfering may have wished to discharge the debtor. After the debtor shall have paid the person, who has thereupon given him a discharge for the debt, how can the creditor, by returning the money to the person who paid it, bring into existence the debt which has thus been twice extinguished.

This debt we think has been twice paid, once by the Chretiens to the United States, and once by-Thompson to the ChrUiens; and, as matters stand, the United States have no more claim against Thompson than the ChrUiens would have, had the money not been returned to them. By the payment to the United States Thompson became the debtor to the ChrUiens who made it, and no longer owed the United States; by the compromise of 1825, he was entirely discharged. If Thompson was thus released from this debt the consideration of the compromise has not failed, but, on the contrary, ho has had the benefit of it, and the compromise remains in force.

It certainly has the appearance of injustice that the plaintiffs should not have the benefit of the money returned to the ChrUiens under the act of Congress. But considering that act in relation to the evidence which is before us, we can only view it as a matter between the parties exclusively, and not affecting the rights of Thompson. His heirs cannot he injured by it, but they can derive no benefit from it. The error in this matter does not consist in the payment of the Chretiens, but in the reimbursement to them of what they had already received.

But the United States have sued the plaintiffs on the original cause of action for which the distress warrant was issued, and the plaintiffs have pleaded payment. It appears by the treasury transcript annexed to the petition on which the suit is brought, that the nett proceeds of the payment to the marshal were passed to the credit of Thompson, as collector of the revenue. The right of the government to disturb this payment and make Thompson again the debtor of the United States we have considered in this case, and we have no reason to think that any court would come to any other conclusion ; but we may err in this, and the courts of the United States may take a different view of the subject, and hold the debt to be still unpaid. For this contingency we mu^t provide; and in this respect the rights of the plaintiffs must be fully protected, under the formal guarantee in favor of Thompson in the act of compromise, against all claims on the part of the United States.

We concur with the Supreme Court in the opinion expressed on the former trial of this cause that, the obligation of the Chretiens to Thompson was joint and not in solido.

In closing this cause it is proper to add that, we have considered the very able and elaborate opinion of the judge of the Fifth District Court of New Orleans, the strong equitable views of which we approve, but cannot for the reasons given apply them for the'benefit of the plaintiffs.

It is ordered that the judgment appealed from be reversed; and it is furthor ordered that the defendants, to wit, the representatives of the succession of Hypo-lite Chretien for one-half, and the representatives of the succession of Gérard, Chretien for one-half, be decreed to hold harmless and indemnify the plaintiffs against the said claim of the United States, against them by reason of the reimbursement made to the said Hypolite and Gerard Chrétien, in pursuance of an act of Congress of March, 1826, and that the appellees pay the costs of appeal, and the defendants those in the court below.


source: Caselaw Access Project

author: Slideli., J.

license: Public Domain

text:
    Davis v. Bourgeat, Executor.
    Where the record of the certificate of notice to an endorser of the protest of a note appears to have been made in the presence of two witnesses, bat it does not appear that they signed it, the record not being in conformity to the statutes of 14 February, 1821, s. 1, and 13 March, 1827, s. 1, the certificate will not be proof of notice, and a certified copy of it should not be admitted in evidence.
    from the District Court of Pointe Coupée, Farrar, J.
    No counsel appeared for the platntiff.

      Cooley, for the appellant.
   The judgment of the court was pronounced by

Slideli., J.

The plaintiff has failed to prove notice of protest to the endorser. The record of the certificate of notice seems to have been made in the presence of two witnesses; but it does not appear that they signed it. Not being in conformity to the statute, the certificate was not proof of notice, and the certified copy of it should have been rejected. See statutes of 1821 and 1827. Gas Bank v. Nuttall, 19 La. 449. Deblieux v. Bullard, 1 Rob. Rep. 67.

It is decreed that the judgment of the court below be reversed, and that there be judgment for the defendant, as in case of non-suit, the plaintiff paying costs in both courts.


author: Rost, J.

text:
    Crouch v. Lockett et al.
    A mortgage on slaves, recorded in the mortgage office of the place where the debtor had his domicil at the time of the inscription, will be unaffected by his subsequent removal with the slaves to another parish, and the acquisition of a domicil there. No inscription is necessary in the parish of his new domicil.

      from the Fourth District Court of New Orleans, Slrawbridge, J.

      H. A. Bullard, for the plaintiff.

      L. Pierce and Dunbar, for different intervenors.

      Ooold, for the defendant, Lockett.

   The judgment of the court was pronounced by

Rost, J.

The parties to this controversy are mortgage creditors of John Dodd, and severally claim to be paid by preference out of the proceeds of a judicial sale of certain slaves of the debtor. Crouch obtained a judgment in the parish of .Rapides, where Dodd had his domicil at the time, and recorded it on the 17th December, 1844. At the subsequent term of the court, Lockett obtained a judgment against Dodd, which judgment was recorded on the 6th of June, 1845. In the winter of 1845 Dodd removed to New Orleans, with the slaves he owned in the parish of Rapides-. Lockett recorded his judgment in the parish of Orleans after the arrival of Dodd. Cammack subsequently obtained a judgment against Dodd, which he recorded in the parish of Orleans. He also became subrogated to the rights of Lockett, and, having caused the slaves to be seized and sold, he became the purchaser. Cammo.ck then intervened in the suit of Crouch v. Lockett and the Sheriff, instituted to recover the proceeds under a previous sale to Lockett, which had been annulled, and asserted his right to retain the proceeds, on the ground that the mortgages he held were the only ones recorded in the parish of Orleans where Dodd had his domicil at the time of the seizure. The Gas Bank having a judgment recorded before any of the others in the parish of Rapides, also intervened. There was a judgment in favor of Cammack, and the-other parties appealed.

The legal question which this case presents is, whether a mortgage recorded in the parish where the debtor had his domicil at the time,, continues to operate on his slaves after he acquires a domicil-in another parish, or whether an inscription is necessary in the parish of the new domicil. It was held not to be, by the late Supreme Court, in the case of The Commissioners of the New Orleans Improvement and Banking Company v. Jewett, 11 Rob. 20. In the case of Cumming v. Biossatt, 2 Ann. R. 794, determined in the western district, we had occasion to reconsider that decision, and after mature deliberation we adopted its conclusions. The certainty of the rule it established appeared to us much in its favor, and we were impressed with the belief that, on the adverse hypothesis, questions of change of domicil would give rise to more litigation, inconvenience, and hardship, than can possibly result from its application. Neax-ly one third of the mortgages held by the property banks to secure the bonds of the State issued in their favor, are on slaves. If those mortgages lost their rank by the change of domicil of the debtors, which it is impossible for the banks to know in time to protect themselves, those securities might be defeated at pleasure.

The inherent difficulty of the subject arises from the application of registry laws originally framed for lands exclusively, to things essentially moveable in their nature, and immovable only by a fiction of law. We believe the interpretation adopted by the former court to be that which the legislature intended.

The judgment must be reversed, and the mortgages classed and satisfied in the order of the dates of their inscription.

It is therefore ordered that the judgment of the court below be reversed, that the defendant, Johu L. Lewis, sheriff, do pay out of the proceeds of the sale of the slaves of John W. Dodd, made under the executions in the case of the New Orleans Gas Light and Banking Company v. Dodd, and Cammack v. Same, the following sums of money in their order: 1st, to the Gas Light Company, the sum of three hundred-and seventy five dollars, with seven per cent per annum interest thereon, from the 4th of January, 1843, subject to a credit of seventy five dollars, paid the 1st June, 1845, the costs of said judgment appearing to have been paid. 2nd, To Winder Crouch, the sum of five hundred and fifty dollars, with ten per .cent per annum interest thereon, from the 4th January, 1844, and costs, being the amount of his judgment against J. W. Dodd, or that said sheriff pay to said Crouch so much as remains in said sheriff’s hands after payment of ¡the aforesaid sums of money to the Gas Light Company as first before mentioned. And if any further sum of money should remain from said sale after the satisfaction of said judgments, that it be paid over to the defendant, R. C. Cammack, as assignee of Henry Lockett; and it is further ordered that the said defendant, R. C. Cammack, pay the costs of this suit in both courts.


author: Etjstis, C. J.

text:
    Michel v. Police Jury of West Baton Rouge.
    Where, in consequence of the failure to give toithe owner of a plantation the notice required by the police regulations of the parish,of the work to be done in making a road and levóo on his plantation, the contractor to whom-the work was adjudicated cannot proceed summarily to seize and sell the land, he may recover.from the police jury the amount due un_ derhis contract.
    The record of the proceedings of a police jury, though not in the english language, were admissible in evidence whileithe constitution of 1-812-was still in-force.
    from the District Court of WestBaton Rouge, Farrar,-J. G. S.

      Lacey, for the plaintiff.

      Bennett, for ¡the appellants.
   The judgment of the court was pronounced by

Etjstis, C. J.

The plaintiff, who represents Joseph Claudel, to whom was adjudicated the making of the road and devée on the plantation of the heirs of Collins Blackman, situated on the river Mississippi, in the parish of West Baton Rouge, took his executory proceedings against the land, which were enjoined on the ground that.notice had notheen duly given to the proprietors according to the requisition of the police regulations of said parish. See 12 Robinson, 593. On the failure of his recourse against the land he sued the police jury, and obtained a verdict for the amount of the adjudication, to wit, $1,580, forwhich judgment was rendered with interest from judicial demand. Under the authority of the cases of Croizet v. The Police Jury of Pointe Coupée, 1 La. 109, Morgan v. The Same, 11 La. 158, Newcomb v. The Police Jury of East Baton Rouge, 4 Robinson, 233, and O'Brien v. The Police Jury of Concordia, 2 Annual R. 355, -we think the defendants are liable to the plaintiff.

A bill of exceptions was taken to the admission of the record of the police jury conferring the office of inspector of roads and levees on Robert L. Knox, by whom the adjudication to Claudel was made. Knox having been avowedly and publicly the officer of the parish, and made contracts in that capacity, and been recognized constantly as such by the defendants, it is questionable as to what extent, in a case of this kind, they would be permitted in a court of justice to dispute his authority. The objection is that, the record of the police I jury is not in the english language.

When the provision of the constitution of 1812, under which this exception was made, relating to the public records of the State, was first brought before our courts for consideration, the subject was thoroughly examined, and several decisions were made upon its extent and intendment, and we at this remote day consider it a sufficient answer to the objection made to the admission of the evidence, that no court in this State has ever, to our knowledge, recognized it as tenable. We consider that the court did not err in rendering judgment for the plaintiff under the evidence.

We cannot reverse the judgment on account of the allowance of interest from the judicial demand. It is legally due, and if the judge of the first in. static® had not given it to the plaintiff, we should have given it.

Judgment affirmed.


author: Slidell, L

text:
    Morgan v. Driggs.
    A contract between an attorney and client, by which the latter agrees to give to the former one-third of the judgment to be recovered, is void under the stat. of 31 March, 1808, s. 4.
    No recovery can be had in an action on a contract by which defendant stipulated to pay a certain amount for services to be rendered by an attorney in a suit then about to be commenced, where there is no allegation that the attorney had fulfilled his part of the con. tract.
    Tp authorize a debtor to enjoin an execution on the ground of his being the bolder of notes and drafts due by the plaintiff in execution, it must be shown that they were acquired at such a time that they could not have been pleaded in defence to the original action.
    Where an execution, issued for the amount of a judgment rendered by the Supreme Court and for the costs, is enjoined by the debtor, proof that the costs in the Supreme Court had been paid by the debtor before execution was issued, hut unaccompanied with any allegation that the creditor was aware of the payment, will not subject the latter to the costs of the injunction; nor will the fact deprive him of the right to damages, under the stat. of 25 March, 1831, s. 3, upon the amount enjoined, which was really due.
    from the District Court of Pointe Coupée, Farrar, J.

      Cooley,

    for the appellant.

      Ratliff and Cowgill, for the defendants.
   The judgment of the court was pronounced by

Slidell, L

Driggs, having obtained a judgment against Morgan, issued execution, and Morgan then obtained an injunction upon the following grounds: 1st. That the fees of the clerk of the Supreme Court, included in the writ of fieri facias, had been paid by him. 2d. That when Driggs was about to institute his suit against Morgan, he employed William Beatty, a member of the bar, to attend to the suit, and agreed to give him thirty-three and one-third per I cent of the amount recovered in said suit, as a compensation for his professional I services therein; and that by virtue of said agreement the said counsel was entitled to receive one-third of the amount of the judgment to be rendered in. favor of Driggs against Morgan. That Beatty transferred his rights to Marshall, who transferred them to Jlsley, who transferred them to the present plaintiff. 3d. That ha is the holder of several notes, drafts, and due bills made by Driggs; that Driggs has made a simulated transfer of his judgment for the purpose of defeating his offsets, and that the notes, drafts, and due bills were owned and held by him prior to the transfer of the judgment.

Upon motion the court below dissolved the injunction, except as to the amount of the fees paid to the clerk of the Supreme Court. The plaintiff in injunction has appealed, and the appellee in his answer to the appeal asks for the entire dissolution of the injunction, and for damages and interest. As the clerk’s fees had been paid by Morgan, the injunction was properly maintained for that item.

The agreement between BeoMy and Briggs, as pleaded, being an agreement for one-third of the judgment to be recovered, was void under the statute of 1808, and could not form the basis of an action. But, at the hearing of the motion to dissolve, the plaintiff, having produced the written agreement, prayed leave to amend by setting it forth according to its true tenor, to wit, an agreement for a compensation of thirty-three and one-third per cent on the amount to be recovered. The court refused to allow this amendment. If the amendment had been granted and the agreement been conceded to be legal, still the petition would have been defective. The agreement was personal, and, fairly construed, depended upon the future rendition of professional services. At the date of the agreement the suit was contemplated; and the attorney was not only to institute, but to carry on the cause to judgment. The words of the agreement are: “ In the suit about to be institued for me by my attorney at law, William Beatty, against Col. Charles Morgan of this parish, I hereby agree to give said Beatty, for his professional services in said suit, thirty-three and one-third per cent on the amount recovered.” Non constat, under the allegations of the petition either as originally drawn or as proposed to be amended, that the attorney had fulfilled his part of the contract, or had acquired a lawful right against his client to any payment under the agreement.

As to the other claims, there is no allegation that they were acquired subsequently to this date of the judgment on which the execution issued, or at such a time that they could not have been pleaded in defence to the suit of Briggs. Under the authority of Kennard v. Henderson, 9 Rob. 166, and the cases there cited, they could not be made the basis of an injunction.

We are of opinion that the costs of the injunction were improperly adjudged to be paid by Briggs. It is true that the trifling amount of $15 60, the fees of the clerk of the Supreme Court, had been paid by Morgan before the fieri facias issued, and that the costs were included in the writ. But there is no allegation in the petition that Briggs had any notice whatever that Morgan had paid them. If such notice had been given, wé may well suppose that Briggs would haye credited the amount on the fieri facias. It would be inequitable to inflict upon him the costs of this injunction by reason of a partial payment of this sort, of which he had no knowledge.

The sole legal ground for diminishing the amount for which thh fieri facias issued being this unnotified payment of a trifling sum, we consider the defendant in injunction entitled, upon the fair interpretation of the act of 1831, to damages upon the amount enjoined which was really due. See also Rowley v. Kemp, 2 Annual Rep. p. 360.

It is therefore decreed that the judgment of the District Court, so far as it maintains the injunction for the sum of $15 60, fees of the clerk of the Supreme Court, and so far also as it dissolves the injunction as to the residue of the amount of the fieri facias, be affirmed. And it is further decreed that so much of the judgment of the court below as condemned the defendant in injunction to pay the costs of the injunction and rejected his prayer for interest and damages, be reversed, and that the said Driggs do recover from the said Charles Morgan, and Charles Morgan, junior, his surety, in solido, interest at the rate of ten per cent per annum, from the 20th July, 1847, until the judgment be paid, upon the amount of the judgment enjoined, to wit, upon $1,500, and the further sum of $100 damages, and costs in both courts.


author: King, J.

text:
    Segond v. Remy.
    To authorise a judgment, on the dissolution of an injunction, condemning the plaintiff in injunction and his surety to pay, in solido. the amount of the judgment enjoined, there must be proof that the ¡creditor had lost the amount of |his judgment in consequence of the injunction.
    from the District Count of Ascension, Nicholls, J.

      Augustin, for the appellant.

      J. Seghers, ¡for the defendant,
   'lhe judgment of the court was pronounced by

King, J.

The defendant, Leonine RUrny, obtained a judgment against the succession of Theodore Segond, deceased, for $1,500, which was affirmed by this court in January last. See 2 Ann. Rep. p. 138. She caused a fieri facias to issue, the execution of which the plaintiff has enjoined in this action, alleging that, after the rendition of the judgment by the lower court, and while the cause was pending upon appeal, he discovered among the papers of Theodore Segond, deceased, two promissory notes for $875 .each, the payment of which was assumed by Leonine Rcmy in an authentic act, but which were in reality paid and taken up by Theodore Segond with his o.wn funds, whereby he became her creditor for the sums thus paid; that he also discovered two policies of insururance, exhibiting evidence of payments made .of .premiums of insurance by the deceased, for the account of Rimy, amounting to $92. These sums, it is alleged, were due to the deceased .at.the time the plaintiff preferred her claim, and extinguished it by compensation, leaving a balance due, for which he asks a judgment. The defendant excepted to the jurisdiction of the District Court to annuli the judgment .of the Supreme Court, and pleaded the prescription of five years. The injunction was dissolved by the district judge, and a judgment rendered in solido against the plaintiff and surety for five per cent interest, and twenty per cent damages. The appellee asks that the judgment of the lower court be amended by condemning the plaintiff and his surety, in solido, to pay the amount of the judgment enjoined, and increasing the rate of interest allowed to ten per cent.

The suit in which the defendant obtained judgment against Theodore Segond was twice tried and taken to the Supreme Court on appeals, and the records of both appeals, with the evidence adduced .on those trials, have, by the consent of counsel, been made a pant of the evidence ia this suit. The evidence upon which the judgment enjoined was rendered, is stated in the opinion of the court, reported in 2 Ann. Rep. p. 138. .Other evidence found in the record of that case explains the origin and payment of the notes now offered in compensation and extinction of that judgment, but was not adverted to in the opinion, not being necessary to the decision of the issues then presented. It appears that Rimy purchased a house and lot of one Santos, for $3,150. For $1,400 of the price she gave her note, endorsed by Theodore Segond, which she paid in 1841; and for the residue she assumed the payment of the two notes now in question, which were secured by a special mortgage on the property acquired by her. These mortgage notes were paid at their maturity on the 10th of December, 1836, by Theodore Segond, who appears to have retained them until his death, and they were not discovered by the plaintiff until December, 1846. The only additional fact of importance disclosed by the evidence in this case, is the discovery of the notes among the papers of Segond after his death. The testimony furnishes a satisfactory explanation of the reason why they remained in his possession, and repels the conclusion that he preserved them as evidences of debts due to him by the defendant. He was the confidential agent and adviser of the defendant, who is ignorant and illiterate ; he transacted the most of her business, and for many years was the depositary of her earnings, whieh gradually accumulated in his hands until they formed a sum sufficiently large to enable her to make an investment in real estate, and he advised her so to invest it. One1 of the witnesses states that Segond purchased the house and lot for Rimy, and paid the price as it became due, with her funds in his hands; that he advised her to invest the balance in his hands, in rebuilding the house; that, about fifteen days before his death, he told the witness that he still had money of Rimy?s in his hands. A second witness states that Segond purchased this property for the defendant, with funds of the latter, in 1836. A third witness, the vendor of the property, says-that Segond, going out of the office of the notary before whom the act of sale was proved, observed: “You- need not be uneasay about the payment of those notes; I have money in my hands belonging to Leonine Rémy, and I will pay them when they become duewhich was done. This evidence shows-conclusively, that the notes were paid by Segond, with the funds of the plaintiff; that he obtained possession of them, as well as of the policies of insurance, as her agent, and not as the evidences of indebtedness to him; and that, at his death, he continued to owe her the amount of the debt" enjoined. The testimony, in our opinion, clearly authorised the dissolution-of the injunction, with damages.

The prayer to amend the judgment, by condemning the plaintiff and his-surety to pay the amount of the judgment enjoined, cannot be allowed. I The act of 1831 authorises the court, upon the dissolution of injunctions to condemn the plaintiff and surety, jointly and severally, to pay interest at the rate of ten per cent per annum on the amount of the judgment, and not more than twenty per cent as damages, unless damages to a greater amount be proved. There is no evidence before us that the defendant has lost the amount of her judgment in consequence of the injunction, which proof would have been necessary to authorise the decree now asked for- The judgment enjoined bore five per cent interest, to whieh rate only five per cent in addition could be allowed, on the dissolution. 19 La. Rep. 300.

Judgment affirmed*


text:
    Blanchard et al v. Maureau et al.
    The nullity of a probate sale of the property of a succession, resulting from the non-existence of any order therefor in the records of the parish where it was made, is one of which the heirs alone can avail themselves.
    from the District Court of Lafourche Interior, Randall, J.

      C. A. Johnson, for the appellants.

      L. Janin, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The defendants refuse to pay a portion of the price due by them fora plantation, on the ground that they have just reason to fear an eviction. The court below gave judgment against them for the price, with a stay of execution till the plaintiffs furnished security against the eviction apprehended, in the snm of $4,000. The plaintiffs have appealed.

The land was purchased by P. F. Oyon, at the probate sale of the succession of Anne Bourg, in 1816. It formed a part of the community which had existed between her and Mathurin Daunis, h'ei'husband. A few days after, Mathurin Daunis, as a tutor of his minor children, Theodore Bourg, as curator of some of them, Marcel Daunis, one of the heirs of age, and Jean Charles Guillot, the husband of another of the heirs, passed an act of sale to Oyon, in conformity with the adjudication. Oyon subsequently sold to Lee, from whom the defendants purchased, assuming to pay the sum now claimed as part of the price. No order for the judicial sale is found in the records of the parish, and the defendants allege its nullity by í-eástur-of 'that'infarmality, on/4;her.a.uthoi¿ty of Elliott v. Labarre, 2 La. 326. This is, a nnltity» of which the heirs alone could have availed themselves, and more than ten years elapsed, while- they were all living and present after they attained the age of majority, without any attempt on their part to do so. We have no doubt of the good faith of Oyon, and the title under which he held was a just title. Biit it is true, as alleged, that the acts of possession, necessary for -the inception of the prescription of ten years, are not shown. It results, however, from all the acts of transfer that there were buildings and improvements upon the land, and that it was sold as a plantation. In the sale from Oyon to Lee, the vendor stipulates that the delivery will not take place till the first of January'next', following; and there is a further stipulation that the plantation shall be used and enjoyed by Oyon, even after that time, if the buyer fails to pay the first in'stalment'of thé'pricé at ma'tufityv The presumption of actual possession i-esulting from these facts and stipulations is sufficiently strong to induce us to remand the case, for the purpose of ascertaining the inception of the possession of Oyon and the facts of possession generally.

It is ordered that so much of the judgment as adjudges the defendants to pay the sum claimed, and the property mortgaged to be sold under it, be affirmed ; and that so much of the judgment as stays execution be reversed, and the case remanded for further proceedings; the defendants and appellees paying the costs of this appeal.


author: Slidell, J.

text:
    The Bank of Louisiana v. Lawless.
    An omission by the clerk to state in the copy of the petition served on the defendant tha date when the original was filed, is immaterial.
    A notary may demand payment Of a note by deputy, Stat. 14 March, 1844.
    It is unnecessary to prove the endorsement of plaintiff’s immediate endorser, when that of the payee is in blank.
    Whefe one of the makers oi a joint note,- subsequently assumes the payment of the whole amount, the holder will be entitled to the benefit of the assumption. C. C. 1884,1896. C.P. 35. In such a case it will be unnecessary to join his co-obligor in the action,
    Where a note is payable at a particular counting-house, notice of non-payment to the maker is unnecessary.
    A judgment allowing ten dollars for notarial copies offered in evidence, though not sustained by proof of the payment of so much, will not be reversed merely on that account. Aliter, where the attention of the lower Court was specifically called to the charge as an exhorbi- ' tant one, and it refused to correct it.
    from the District Court of Terrebomie, Randall, J*

      Ilsley, forthe plaintiffs.

      Colei for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

After personal service upon the defendant of a citation, which appears to us to have been in due form, and of a copy of the petition in which the clerk omitted to state the date when the original was filed, (an omission which seems to us of no importance,) judgment by default was taken. Afterthis, an exception was filed by the defendant, alleging what the defendant considered as informalities and defects in the petition and citation. This exception was evidently interposed forthe mere purpose of delay, and was in our opinion untenable, and was properly dismissed. The protest appeal’s to have been properly recorded, the certified copy was therefore properly admitted. The notary was authorised to make the demand by his deputy. See the Acts of 1844, p. 26. It was not necessary to prove the endorsement of the plaintiffs’ immediate endorsee, as the endorsement of the payee was in blank.

Although the note was originally binding on the defendant and R. C. Lawless jointly, it is satisfactorily proved as alleged in the plaintiffs’ petition, that defendant subsequently assumed to pay the entire debt; and the plaintiffs were entitled to the benefit of the assumption. Civil Code, 1896, 1884. Code of Practice, 35.

The defendanthaving become bound for the entire debt, it was unnecessary to join the co-obligor in the action. No notice of non-payment to the maker was necessary. Bradford v. Cooper, 1 Annual R. 325.

Although the allowance of ten dollars for notarial copies offered in evidence is not sustained by proof that so much had been paid for them, it is to be presumed that they cost something; and the amount, even if erroneously allowed, is too insignificant to justify a non-suit under the circumstances. If there was really an overcharge in this incidental item, and the attention of the court below had been specifically called to it, and the court had refused to correct it, there weuld have been some reason for expecting relief in this court.

Judgment affirmed.


text:
    Thibodaux v Wright et al.
    Where the return on a citation shows that it was served "on a free white person, apparently above the age of fourteen years, who was working at the sugar house at the domicil of the defendant, who was absent at the time,” the service is insufficient. It should have shown that the person on whom it was served lived in the house of the defendant, as required by art. 189 of the Code of Practice.
    A PPEAL from the District Court of Terrebonne, Randall, J.

      Beatty, A for the plaintiff.

      C. A. Johnson, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is a suit upon a promissory note. "There was a judgment by default, which, after the usual delays and proof of the obligation, was made final against the defendant, Barrow, who subsequently appealed. His counsel assigns, as an error apparent on the face of the record, the want of citation. The return of the sheriff is in these words: “Served copies of petition and citation on Alexander Ilenry, personally known to me, a free white person, apparently above the age of fourteen years, who was working at the sugar house at the domicil of Robert R, Barrow, who was absent at that time.”

This is not a legal service. It does not show that Alexander Henry lived in the house of the defendant, as required by art. 189 of the Code of Practice. See the cases of Pilié v. Kenner, 16 La. 571, Sparks v. Weathersby, 16 La. 595. Kendrick v. Kendrick, 19 La. 38. This plea is not a dilatory exception. The legal remedy for want of citation is by appeal, or by an action of nullity. Cook v. The State, 16 La. 289.

The judgment is reversed, and the case remanded for further proceedings; the plaintiff and appellee paying the costs of this appeal.


text:
    Barrow v. Wright.
    Whére a party enjoins an order of seizure and' sale, and the defendant in injunction con- I verts his executory process into a a proceeding via ordinarid, and, in an amended answer, pleads the exception rei judicata, no service of the amended answer will be necessary.
    The execution of a judgment cannot be enjoined on the grounds which have been pleaded in defence to the original action.
    from the District Court of’ Terrebonne, Randall, J.

      Raby and C. A. Johnson, for the appellant.

      Beatty, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The debt, on which the order of seizure issued in this case was obtained, arose under a final judgment decreeing against the plaintiff the specific performance of an agreement entered into by public act between him and the defendant, in relation to the purchase and sale of certain property, part of which had been held in partnership between them. The validity of the agreement was put at issue by the pleadings, and the judgment rendered thereon was voluntarily executed by the plaintiff, R. R. Barrow, who gave the note sued on, and several others, in conformity therewith. The plaintiff has enjoined the order of seizure on grounds anterior to the rendition of the judgment, which might have been set up as matters of defence. The defendant in injunction converted his summary proceeding into an ordinary suit, and, in an amended answer, pleaded the exception vei judieatee, and prayed for a judgment on his claim. The court of the first instance sustained the exception, and rendered, in favor of the defendant in injunction, the judgment from which the plaintiff has appealed. A reversal of this jndgment is asked on the ground that the amended answer of Ihe defendant was not served on the plaintiff, and also because the plea rei judieatee should not have been sustained.

The plaintiff in injunction brought the.defendant in court. He was there himself, and no service of .the amended answer was necessary. It has been so frequently held that a final judgment is -conclusive as to all matters of defence which might have been set up in the suit, and that no cause anterior to the judgment, which might have been pleaded, can be the ground of an injunction, that we deem it only necessary to refer to some of the decisions. Monroe v. Mc Millan, 8 Mart. N. S. 513. Garlick v. Reese, 8 La. 104. Campbell v. Briggs, 3 Rob. 111. Benton v. Roberts, 3 Rob. 226. 1 Mart. N. S. 71. 2 La. 181.

Judgment affirmed.


text:
    Wright v. Barrow.
    from the District Court of Terrebonne, Randall, J.

      Beatty, for the plaintiff.

      Raby and C. A. Johnson, 'for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This action is instituted on another of the notes executed by the defendant, under the judgment and compromise mentioned in the case just decided.

Except the question of practice, -whidh does not arise here, the issue is the same in both cases; and, for the reasons given in the other, the judgment rendered in this case in favor of the plaintiff must be affirmed.

Judgment affirmed.


text:
    Barrow v. Thibodaux.
    Where anote payable at a bank is held by the bank itself, presentment for payment to the bank by the notary employed to protest it, would be a vain formality.
    from the District Court of Terrebonne, Randall, J.

      C. A. Johnson, for the appellant.

      Beatty, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

It is true, as the plaintiff’s counsel states, that this case only differs from that of Barrow v. Wright, just determined, ante p. 130, in this: 1st. That the note sued on was payable at a particular place mentioned in the body of it, and that the record does not show that it was presented for payment at that place. 2d. That the record contains no proof of the assumption of the note of Wright by Barrow.

The note was made payable at the branch of the Union Bank of Louisiana at Thibodauxville, and the notary states that he protested it, at the request of jP. Marcháis, cashier of the Bank of Louisiana, meaning the branch, holder and bearer of the note at the time. The bank being the holder, the presentment of its own note to itself would have been a vain formality. The act in the record showing the assumption of the note of Wright by Barrow, is on the face of it an authentic act. No objection was made to its introduction in the court below, and as the plaintiff has abandoned the via execulivd, none can be noticed on the appeal. The case is clearly with the defendant.

Judgment ajjlrmcd.


author: Eustis, C. J.

text:
    Bibb et al v. Hebert.
    One who kills a slave while in the act of committing a larceny within his enclosures, will ho bound to the owner for his value, where the circumstances show that the act was not necessary for the defence of his person, his family, or his property.
    from the District Court of Lafourche Interior, Randall, J.
    C. A. Johnson, for the appellants.

      Cole and Beatty, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs sued to recover from the defendant the value of a slave belonging to them, who is alleged to have been killed by one of the slaves of the defendant. The defendant contends that, under the state of facts attending the death of the deceased, the act of his slave in shooting him was authorised by law. There was a verdict for the defendant, and the plaintiffs have appealed.

We do not think the killing of the slave in the act of committing larceny within the enclosures of the defendant was necessary for the defence of his person, his family, or even his property, and consequently was not justifiable, and that he is bound to pay the owner for the loss by reason of his death.

The defendant has pleaded the general issue, &c. The proof of the value of the slave is quite contradictory. The property in the slave is not established with sufficient certainty. Under these circumstances we think it best to remand the ease, for the purpose of enabling the jury to fix the amount of damages.

The judgment of the District Court is therefore reversed, and a new trial ordered; the appellee paying the costs of this appeal.

      The slave was shot while within the enclosures of the defendant, in the act of stealing hogs from a pen, which he had forced open,


text:
    Welsh v. Barrow.
    An overseer entitled to a privilege on tlie product of the last crop, under art. 3184 of the Civil Code, may enforce his privilege against a purchaser of the plantation and crop, after the crop has heen sold and the proceeds received by the purchaser. The privilege is not extinguished by the sale of the crop.
    from the District court of Terrebonne, Randall, J.

      Beatty, for the appellant.

      C. A. Johnson, for the defendant.
   The judgment of the court was pronouced by

Eustis, C. J.

This suit is for the recovery of wages as an overseer, for which the plaintiff claims a privilege on the proceeds of a crop of sugar received by the defendant, the owner of the plantation from which the crop was sold. There was judgment for the defendant, and the plaintiff has appealed. This is the fourth time that the subject of the compensation of the plaintiff as overseer on this plantation, has been before the Supreme Court. Welch v. Shields and another, 6 Robinson, 484. Welch v. Barrow et al, 9 Robinson, 535; and 12 Robinson, 530.

The plantation originally belonged to the defendant, who sold it to Shields in 1836, and on the 9th of November, 1842, Shields, being unable to pay for it, retroceded it, with the standing crop, to the defendant; Shields and his endorsers paying in addition the sum of $32,000, and binding themselves to pay the expenses of the plantation for the current year up to the date of the transfer. The amount claimed is for the plaintiff’s wages for 1842. That the services were rendered, that they bore a privilege on the crop, that the crop was sold and the proceeds were received by the defendant, is conceded.

It is urged for the defendant that, by the sale of the crop by Barrow, the privilege was extinguished, under article 3244 of the Code. By article 3184, the salary of the overseer for the year last past is privileged on the product of the last crop — thus presupposing that the planter would not keep his crop, but sell it; and the privilege is affixed specifically on the procceeds. Such is the construction given to this article by the Supreme Court in the cases cited; and in the Succession of Johnson, Kennedy, appellant, 3 Robinson, 216, the court held that this privilege on the last year’s crop may be exercised upon the proceeds after the crop has been sent to market and sold. If the proceeds were in a court of justice, or in the hands of the defendant's factor, the plaintiff would have his privilege over other creditors; and we do not understand on what principle he can be deprived of it when the proceeds are in the defendant’s pocket. The law is so clearly, as we think, in favor of the plaintiff, that it is not necessary to examine the strong equitable grounds on which the plaintiff’s claim rests.

The judgment appealed from is therefore reversed, and judgment is rendered in favor of the plaintiff against the defendant, for the sum of seven hundred and seventy-two dollars and fifty cents, with interest from j udicial demand; the ■ defendantand appellee paying the costs in both courts.


text:
    Landry et al. v. McCall.
    Though an adjoining tract of land be subject to the servitude of receiving the waters running naturally from the estate above, .the proprietor of the latter is not entitled to enter at pleasure on tlie contiguous tract, without the consent oí its owner, whenever it may be necessary to remove any obstructions to the enjoyment of the servitude; nor can he widen the drain by which the waters are carried off; such an improvement, if necessary, can alone be made by the police jury, on making adequate compensation to the owner of the laud subject to the usufruct, for the damage he may sustain thereby. The party entitled to the servitude must call upon the owner of the land which is subject to it to remove such obstructions, and may compel him by legal means to do so. Arts. 763, 770 of the Civil Code relate exclusively to conventional-servitudes ; natural servitudes are subject to different rules.
    from the District Court of Ascension, Randall, J.

      Rsley, for the plaintiffs,
    cited Civil Code, arts. 651, 653, 656, 768, 770, 773. 12 La. 502. 13 La. 54. 14 La. 161. 19 La. 351, Duranton (Brus. ed.), vol. 3, pp. 56-7, nos. 164, 165. 3 Toullier, 374 (Paris ed.). Pailliet, (Brus. ed.) 210 — 212.

      C. A. Johnson, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs allege that the natural drain of their plantations is a bayou which runs across the plantation of the defendant, situated below their own, and that he has wilfully and maliciously obstructed this bayou, to their great damage and injury. They pray that he he ordered and condemned to remove the obstructions within the limits of his plantation, and adjudged to pay damages. The defendant admits in his answer that his land is subject to the servitude of receiving the waters that flow naturally on, to, and through it, from the lands of the plaintiffs. He claims in reconvention damages, alleged to have been sustained in consequence of changes in the natural flow of the waters made by the plaintiffs.

On these issues, and the evidence adduced, the jury who tried the case returned the following verdict: “ The jury is of opinion that the plaintiffs have the right of servitude to drain their lands through bayou McCall, and the right of cleaning the same when they think it necessary; and we do not award any damages to the plaintiffs, and .condemn the defendant to pay the costs. We say that the defendant is not entitled to the damages he claims.” The judgment rendered upon this verdict decides that the plaintiffs have the right of entering on the plantation of the defendant, whenever it may be necessary to clean the bayou and remove encumbrances. It perpetually enjoins the defendant from preventing .the exercise of this right, and adjudges him to pay costs.

The defendant has appealed. His counsel does not insist upon the claim in reconvention, but insists that the only issue submitted to the jury besides the claim of damages, was, whether there were any obstructions in the bayou; and that as the jury have found this fact in favor of the defendant, and have | decided that no damages have been sustained, the verdict should have, been in | his favor, leaving the abstract legal questions upon which the jury passed to be 1 determined by the proper forum, whenever a decision upon them may become 1 necessary. jfl

We concur in this view of the rights of the defendant. The evidence shows that the obstructions complained of were a few trees, which had accidentally fallen across the bayou, when cut down for cord-wood by his slaves; that as soon as the state of the weather permitted, his overseer had them removed, and that they caused no injury to the plaintiffs. This surely shows no malice or ill-will; and we cannot recognize in the plaintiffs the vague and indefinite right, sanctioned by the judgment appealed from, to enter at pleasure his land, without his consent or knowledge. The part of the plantation upon which the servitude is exercised has not ceased to belo.ig to him, and his rights as owner must be respected.

Whenever the exercise of the servitude is obstructed the plaintiffs must call upon him to remove the obstructions, and may compel him by legal process to do so. Had this course been pursued, it is evident that this litigation would have been prevented. Si la succession du temps, ou quelque accident imprévu avait comblé le lit des eaux, les propriétaires des fonds inférieurs pourraient étre contraints d’en faire le curage chacun dans l’étendue de son domaine. Pardessus, Traité des Servitudes, p. 129, ed. 1822. The plaintiffs have not the right to widen the bayou, as the witnesses seem to believe. This improvement, if necessary, can alone be made by the police jury, upon an adequate compensation to the defendant for the damage he may sustain thereby. Arts. 768 and 770 of the Civil Code, upon which the plaintiffs’ counsel relies, relate exclusively to conventional servitudes. Natural servitudes are laws of vicinage and necessity, subject to different rules. Pardessus, 53, 66.

It is therefore ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.


author: Slidell, J,

text:
    Driggs v. Ballard.
    Where a suspensive appeal is allowed to a party, on his giving bond, with surety, in a certain amount, and the surety does not sign the bond, but writes on the back of it r “I am surety for the appellant for costs only on the within appeal bond, but not for the principal,” the appeal must be dismissed for want of a sufficient bond.
    from the District Court of Pointe Coupée, Farrar, J.

      Rattiff and Cowgill, for the appellant.

      Cooley, for the defendant,
    moved to dismiss the appeal, citing Code of Pract. art. 574, 9 Rob. 39.
   The judgment of the court was pronounced by

Slidell, J,

The defendant obtained an order of appeal, and signed an appeal bond for $175, the amount mentioned in the order of court, in which bond Fisher is named as surety. Fisher did not not sign the bond ; but on the back of the bond his signature appears toa memorandum in these words: “lam security for W. E. Driggs for costs only on the within appeal bond, but not for the principal.” This obligation is too vague and informal to satisfy the requisitions of the Code; and the motion to dismiss must prevail.

Appeal dismissed.

       The judgment was in favor of the defendant for $74, with interest at five per cent a year, for less than five months. A suspensive appeal was allowed to tho plaintiff on his giving bond, with surety, for $175, with the conditions required by law.

       A decision was rendered at the same time, dismissing, for the same reason, an appeal by the defendant in the case of Van Rennselaer v. Driggs.


text:
    North et al. v. Troxler et al.
    Where plaintiffs sue on a note payable to tlieirorder, expressed on its face to be for value received, claiming the privilege of vendors, and asking for a sequestration on the allegation that the note was given for merchandize sold to defendants, it is unnecessary to prove the consideration to entitle plaintiffs to a judgment on the note. The allegation is only material so far as the right to a sequestration, and judgment for a privilege, is involved.
    from the District Court of Iberville, BurJc, J.

      W. E. Edwards, for the appellants,
    cited 2 La. 457. 4 La. 220.

      Deblieux, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs sued upon a promissory note, annexed as part of tlieir petition, whicli is payable to the order of the plaintiffs, and expresses on its face to be for value received. The plaintiffs further claimed a vendor's privilege, and asked for a writ of sequestration, alleging that the note was given for goods and merchandize sold by them to the defendants. The defendants pleaded the general denial. They also pleaded that the order of sequestration unlawfully issued, prayed for its dissolution, and for damages. The court decreed the dissolution of the sequestration; and, at a subsequent hearing, the court gave judgment for the defendants as in case of non-suit, upon the ground that having alleged the consideration of the note to have been merchandize sold, the plaintiffs were bound to prove such consideration, and had failed to do so.

We are of opinion that, under the pleadings, it was unnecessary for the plaintiffs to prove the consideration, in order to entitle themselves to judgment upon the note. The allegation was only material so far as the right to a sequestration and decree of privilege was involved.

It is therefore decreed that the judgment of the court below, so far as it dismissed the sequestration, be maintained; that, in other respects, the judgment be reversed; and that the plaintiffs recover of the defendants Troxler and Billings, and of Louis N. Troxler and Charles BiUings, in solido, the sum of $417 20, with interest at the rate of eight per centum per annum from the 17th day of November, 1846, until paid; that the plaintiffs pay the costs occasioned by the order of sequestration, and that the residue of the costs in the court below, and those of this appeal, be paid by the said defeudants.


text:
    Gaudet v. Gourdain et al.
    Parol evidence is admissible to prove an agreement with a slave to emancipate her, and tho execution by the latter of her part of the contract. Art. 1783 of the Civil Code, which authorises slaves to contract on their own account for their emancipation, subjects those contracts to no particular formality. i>Tbe rule contained in that article is derived from the laws of Spain, into which it had been introduced from the civil law, and must be interpreted with us as it has uniformly been under those systems of jurisprudence. Per Curiam: The act of emancipation must he in writing and authentic; but this regulation of ' public order has nothing to do with the contract under which the right to be emancipated is acquired by a slave.
    A child born of a woman after she has acquired the right of being free al a future time, lbl« lows the condition of its mother, becoming] free at the time fixed for her enfranchisement. C. G. 106.

      from the District Court of St. James, Nickolls, J.

      W. Hall, for the appellant.

      J. J., and A. Roman, and Bérault, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who sues for her freedom, has appealed from the judgment rendered against her in the first instance. The material allegations of her petition are that, the defendant, Jean Gourdain, purchased her mother and the two children she then had, under an agreement made with her said mother, that he would emancipate her, and retain only her two children in bondage, provided she paid one half of the purchase money; that the mother fulfilled that condition before the petitioner was born, by paying $220, half of the amount of the adjudication ; that from the 5th of January, 1830, the day of the purchase, the plaintiff’s mother enjoyed her liberty under that agreement till her death, which occurred in 1845; that the plaintiff was born in November, 1831, and enjoyed her liberty with her mother from that time, without any opposition or hinderance on the part of the defendant.

On the trial, parol evidence was offered to prove the agreement alleged, and its execution by the plaintiff’s mother. It was objected to by the defendant’s counsel, on the ground that it went to prove a contract of emancipation by parol, and that evidence to show any such agreement should be in writing. The court sustained the objection so far as the testimony offered was intended to prove title, but subsequently admitted it for the purpose, says the judge, “of elucidating the question whether the plaintiff’s mother had really enjoyed her freedom since the purchase by the defendant, or whether she was still under his power and in his possession.” We are of opinion that the evidence was admissible to prove the agreement and its execution.

The rule found in art. 1783 of the Civil Code, which authorizes slaves to contract on their account for their emancipation, subjects those contracts to no particular formality. It is derived from the Spanish laws, into which it had been introduced from the civil law, and we are bound to give it the interpretation it has uniformly received under those systems of jurisprudence. Partida 3, tit. 2, law 8. D. (5. 1.) 1.’ 53, de Judiciis.

It is undoubtedly necessary that the act of emancipation should be in writing and authentic. But this regulation of public order has nothing to do with the contract under which the right to be emancipated is acquired by the slaves. In the case of Mathews v. Boland et al. 5 Rob. 200, the only written evidence of a contract for emancipation similar to the one alleged in this suit, was a receipt under private signature showing that the plaintiff had paid for his freedom. The court, on that evidence, ordered his master to emancipate him, provided no objection existed under the laws regulating the emancipation of slaves. The promise and payment being fully proved as alleged in this case, the same decree would have been made m favor of the plainliff’s mother, if she had resorted to the same remedy. The promise is not only proved, but it is also in evidence that it was known by some of the bidders at the sale; that they abstained in consequence of it from bidding against the defendant; and that he purchased the plaintiff’s mother and her two children for little .more than half of the price he was prepared to give for them. The payment was made by the plaintiff’s mother before the plaintiff was born; and she acquired by that payment a legal right to her emancipation. The defendant unjustly withheld that right from her, and cannot be permitted to make his own wrong the foundation of his title to the plaintiff. The child born of a woman after slie has acquired the right of being free at a future day, follows the condition of its moth01'> anlJ becomes free at the time fixed for her enfranchisement, even if the mother should die before that time. Civil Code, art. 196.

We are of opinion that the judgment in this case should have been for the plaintiffs, and, as all the evidence is before us,, we will close the controversy.

It is therefore ordered that the judgment in this case be reversed. It is further ordered that there be judgment in favor of the plaintiff, and that she be forever quieted in the possession, exercise, and enjoyment of her liberty, against all claims and pretensions of the defendants, the said defendant, Jean Gourclain, paying the costs in both courts.


text:
    Leggo et ux. v. The New Orleans Canal and Banking Company.
    .A document purporting to be a copy, made in another State from a book called “ Miscellaneous Record, Book E,” certified under the seal of that State, of a deed under seal for certain slaves, appended to which is the oath of the subscribing witness that he witnessed the execution oí the instrument, and saw the maker deliver it, where the effect of such record, under the laws of the State in which it was made, is not shown, if objected to, will bo inadmissible. The original deed, being under private signature, and presumed to be in the possession of the party unless otherwise accounted for, should have been produced; the copy offered was but the copy of a copy.
    PPEAL from the District Court of Iberville, Burle, J.

      Bennett, for the appellants.

      Deblieux, for the defendants.
   The judgment of the. court was pronounced by

Eustis, C. J.

The executory proceedings against certain slaves mortgaged to the Canal Bank by the deceased mother of the plaintiff, Esther Leggo, were enjoined at her instance, on an allegation that the title to said slaves vested in her under a provision of the will of the late William, Scott, who died in the State of South Carolina, and that her mother having only a life interest in them could not mortgage them to the detriment of her right, which became absolute on the death of her mother. The district judge, being of opinion that there was a want of proof of the identity of the slaves, dissolved the injunction, and the plaintiff has appealed.

The only doubt on our minds in weighing the evidence was as to the sufficiency of the evidence of the identity of one of the slaves, which resulted from the similarity of name.

A bill of exceptions was taken to the admission of a document offered in evidence hy the counsel for the plaintiff. It purported to be a true copy from a book called Miscellaneous Record, Book E, page 186, and is certified under the seal of the State of South Carolina. The original appears to have been a deed under seal, made by Thomas A. Oliver, of certain slaves to Mrs. Mary Bostick, with a limitation during her life and after her death to the lawful heirs of her body. Appended is the oath of the subscribing witness, that he saw the said Thomas A. Oliver deliver the within instrument and witnessed the execution thereof. The district judge refused to receive the instrument offered on the ground that, the original deed, being under private signature and in the possession of the party unless otherwise accounted for, and the copy offered being in fact a copy of a copy, was inadmissible under the-rules of law.

We think the judge did not err in refusing to admit the document in evidence, the effect of such a record not having-been shown under the laws of South Carolina. There is a discrepancy in the dates, which shows -the necessity of caution in the admission of pieces of evidence which the law does not recognize as authentic. The date of the record is anterior to that of the execution of the deed, the former .being of the 28th of May, 1824, and the latter of December 24th, following. .Judgment affirmed.


text:
    McMullen v. Jewell.
    An amended petition may be received even after the trial has commenced, where its only object is to correct a mistake in the name of the plaintiff, e. g. by substituting Joseph for John. Per Curiam': Amendments are reducible to no certain rule; each case must be left to the sound discretion of the court. An amendment should or should not be permitted as it will tend to the furtherance of justice ; provided that amendments to the petition do not alter the substance of the demand, and those to the answer be not of a dilatory kind. C. P. 419, 420.
    A judgment will not be reversed for an error in condemning a party to pay a small portion of the costs, for which he was not liable, unless it be shown that the error was brought to the notice of the lower court, and-that it refused to correct it.
    from tlie District Court of Pointe Coupee, Farrar, 3.

      Ratliff and Cowgill, for the plaintiff.

      Ráeoste, for tlie appellant.
   The judgment of the court was pronounced by

Rost, J.

This suit was brought on an open account in the name -of John T. McMullen. The account annexed to the petition is in the name of Joseph T. McMullen. An exception taken by the defendant to tlie 'first service of proces made upon him, was sustained by the court, and a new service ordered and made. On the trial of the suit the plaintiff-obtained leave to file an amended petition by which the name of Joseph T. McMullen was substituted to that of John T. McMullen. To this a bill of exceptions was taken by the defendant, who now appeals from the judgment rendered against him in favor of Joseph T. McMullen. His counsel alleges that the judge erred '..first, in alallowingthe amended petition to be filed, after the trial had commenced ; secondly, in condemning the defendant to pay all the costs, whereas the plaintiff should have been adjudged to pay those made in the service of the .first citation, which was decreed te be illegal.

Amendments are reduceable to no certain rule. Each particular case must be left to the sound discretion of the court; and the best principle is that, an amendment should or should not be permitted to be -made as it would best tend to the furtherance of justice; provided that the amendments made to the petition do not alter the substance of the demand, and that those made to the answer be not of the dilatory kind. Code of Practice, arts. 419, 420. This principle was recognized by the late Supreme Court in the case of Debuys v. Mollere, 2 Mart. N. S. 625. It has been invariably acted upon ever since; and the application it received in Lalande v. Terrel, 12 La. 8, is decisive against the appellant.

It may be that there was error’ in condemning the defendant to pay the costs of an illegal citation. But it is an error which he should have asked the inferior court to correct. We have frequently held, that we would not reverse judgments .on account of trifling errors, unless it was shown by the record that those errors had been brought to the nplipe of the judge, and that he had refused to correct them. We deem these proper cases for the application of the legal maxim, De minimis non curat lex. Hown v. Grailhe, 1 Ann. Rep. 140. [See also Medley v. Voris, 2 Ann. Rep. 140. Amis v. Merchants Ins. Co. Ib. 594. Angelloz v. Risollet, Ib. 651. R.] Had this last rule of practice been settled for ns long a period as that concerning amendments in pleadings, we would have allowed the appellee the damages he claims. But as the appellant may n.pt have been aware of its existence, we will simply affirm the judgment.

Judgment .affirmed.


text:
    Porter v. Barrow.
    Jn case of the breach of a contract from motives of interest, the party by whom it is broken will be liable for such damage as might have been foreseen, as well as for that which was the direct and immediate consequence of the breach; but for no more. C. C. 1928.
    The allowance of interest from judicial demand on the amount of damages recovered for the breach of a contract, is within the discretion of the court.
    from the District Court of Terrebonne, Randall, J.

      Beatty, for the plaintiff.

      Belcher and C. A. Johnson, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for damages, for the breach of a contract •for the sale of five hundred hogsheads of sugar on the defendant’s plantation situated pn the bayou Lafourche. Samples of the crop were delivered to the plaintiff, and the sugar was deliverable from the 1st tq the 15th of March, 1845, pn the plantation, the contract having been made in New Orleans. There was a verdict ip favor of the'plaintiff for $4,67.5, and the defendant has appealed.

Under the rule which this court has adopted in the case of Arrowsmith v. Gordon et al., ante p. 105, in which the provisions of opr Code pn the subject of damages have beep fully considered, ws can find no warrant in the evidence for the wliple amount of damages allowed by the jury. The estimate of the value of the sugar based on samples which had been for a month separated and in all probability kept in a dry place, is, as we consider, not a safe standard of the value of the sugar in hogsheads,

Giving the plaintiff the benefit of the market price of the article at the time pf the breach of the contract, with such other indemnity as we are authorized to grant, the verdict cannot be sustained.

W.e think that the breach of the contract was designed from some motive of interest, and, under article 1.928 of the Code, the defendant is liable for such damages as might have been foreseen, a? well as for those which were the direct and immediate consequence of the breach, but for no mor.e.

The market pric.e of spgar at the time of the defendant’s default we fix at cents per pound, which will give the sum of $1,875. The charges for expenses to which the plaintiff was subjected, to the amount of $90, the jury was justified in allowing. We consider it to be within our discretion to allow the plaintiff interest from the judicial demand.

The judgment appealed from is therefore reversed, and judgment rendered in favor of the plaintiff against the defendant for $1,965, with interest from judicial demand, and costs incurred in the court below ; those of the appeal to be paid by the plaintiff and appellee.


author: Slidell, 3.

text:
    Boeto v. Laine.
    Claims for board and lodging, are not cases in which the continuousness of the supply can effect the course of prescription. C. C. 3499, 3500.
    Reconventional demands are not exceptions within the meaning of the rule, (¿ux temporalia sunt ad agendum, perpetua sunt ad excipiendum. The rule must he restricted to exceptions necessarily attached to and inseparable from the demand.
    from the, District Court of Lafourche Interior, Randall, J.

      Beatty, for the plaintiff.

      Cole, for the appellant.
   The judgment of the court was pronounced by

Slidell, 3.

This action is brought to recover the amount of two sums of money alleged to have been loaned to the defendant, less a certain credit which the plaintiff allows for a payment on account more than sufficient to pay the earlier loan. The defendant in his answer acknowledges the receipt of the sums mentioned in the petition, but alleges that they were not loans, but payments of a debt for boarding the plaintiff during a long series of years. To establish the second loan, which is the principal item of the plaintiff’s claim, he offered in evidence a check given by him to the defendant, and which was "proved to have been paid, by the cashier of the bank upon which it was drawn, to the defendant. It is very true, as urged by the defendant, that in a suit for money lent it is not sufficient to show that the plaintiff delivered money or a bank check to the defendant; for this, prima facie, is only evidence of the payment by the plaintiff of a debt antecedently due to the defendant. But the plaintiff has gone farther, and proved the acknowledgments of the defendant to the cashier that it was a loan. This testimony the district judge believed ; and as the character of the witness was unimpeached, we feel bound to consider the fact of the loan as proved.

The court below allowed the defendant credit for one year’s board, and rejected the claim of the defendant for the antecedent time, considering the claim barred by prescription. We may remark that, independently of the objection of prescription, the testimoney adduced by the defendant is not very satisfactory. But however this may be, the plea of prescription was unquestionably maintainable. It is not a case in which the continuousness of the supply or service can be considered as effecting the course of prescription. The claims of inkeepers and such others for lodging and board which they furnish, is, with several other causes of action, classed under the prescription of one year by article 3499 of the Code; and the succeeding article declares that, in the cases so enumerated the prescription takes place although there may have been a regular continuance of supplies, or of labor or other service.

The defendant however urges that, even if his claim beyond the last year was effected by prescription, he is still entitled to use it as a means of defence, under the rule Qua temporalice sunt ad agendum, suntad excipiendum perpetua. We have already had occasion to consider this rule, and were of opinion that it must be restricted to those exceptions which,in the language of the commentators, are “ viscerales” — nécessairement attaehées á Vaction et inseparables de la demande. A case in point is put by Troplong, in his Treatise upon Prescriptions, no. 833. Pierre rédame El un journalier le paiement d’une obligation. Celuici excipe de quelques salaires qu’il prétend lui étre dús. Ce moyen de défense n’est pas une exception viscérale tendant á saper les fondemens de la demande principale. C’est une demande recoventionelle et réciproque, qui tend á une compensation et qui laisse subsister Faction du demandeur. Elle n’est done pas recevable si elle est faite hors du temps de la prescription. La régle Qua temporalia, etc, n’est pas faite pour elle, sans quoi ce serait un moyen détourné de rendre les actions perpétuelles, et de détruire les prescriptions établies. See also Girod v. Creditors, 2 Annual Rep. p. 546.

Judgment affirmed.


text:
    Succession of Hargis.
    The settlement of dowry must be shown by the marriage contract.
    A grandfather is incompetent as a witness for his grandchild. C. C. 2260.
    A receipt executed by a wife, assisted by her husband, acknowledging the receipt by the husband of the proceeds of paraphernal property, is, primó, fade, sufficient against the .heirs of the husband; but where the succession of the latter is insolvent, the evidence adduced by the wife, in opposition to creditors, must be conclusive.
    from the District Court of Lafourche Interior, Randall, J.

      Cole, for the appellant.

      .Beatty, contrá.
   The judgment of the court was pronounced by

Rost, J.

The appellant is the widow of the deceased,and claims to be placed on the tableau, as a privileged creditor, for the sum of $400, as a dowry received from her grandfather Pierre Theriot, which was paid to, and received by, her said husband Thomas Hargis; and for the further sum of $578 received by her said husband for the opponent, from the succession of her mother.

The only evidence offered by the opponent in support of these claims, was two documents. One of these is a declaration made under oath by Pierre Tliériot before a notary and two witnesses, in which he states that, about seven years before, he had given in dowry to the appellant a sum of $400, which he delivered to her husband. The other document is an bet of release, executed by the appellant, assisted by her husband, in favor of her father, in which she states that, in an act of partition, executed, before the parish judge, of the succession of her deceased mother, her share was ascertained to be $578, and she acknowledges that her father has theretofore paid that amount to her husband, and releases her father from all further liability.

The court below did not err in dismissing this opposition. The settlement of the dowry must be shown by the marriage contract, and the payment of it to the husband by legal evidence. The grandfather of the opponent was not a competent witness to prove either of these facts. Civil Code, art. 2260.

The acknowledgment in the receipt given by the husband and wife for the proceeds of paraphernal property, would perhaps be, primd facie, sufficient against the lieirs of the husband; but the succession is shown to be insolvent, and, in opposition to creditors, the evidence adduced by the wife in support of her claims must be conclusive. Judgment affirmed.


author: Kims, J.

text:
    Bird v. Barrow.
    "Where a plaintiff alleges his residence and that of the defendant to "be in a particular parish, and the defendant, after a judgment by default against him, answers denying specially that the plaintiff was a resident of the same parish with himself, and settingup a claim in re-convention, evidence to prove the residence of the plaintiff to be as alleged in the answer cannotbe excluded on the ground that, the exception to plaintiff’s residence was a dilatory one, which should have been made in limine Ubis. Per Curiam: The allegation in the answer that defendant’s residence was in a different parish, was not a plea interposed to retard the suit, which cannot be set up after a judgment by default; but an averment necessary to be made and substantiated, to enable the defendant, under the stat. of 20 March, 1839. sec. 7, to institute a demand in reconvention, though not necessarily connected with, or incidental to, the main cause of action. The allegation is a plea to the merits, and necessary to give jurisdiction to the court of the reconventional demand.
    from the "District Court of Terrebonne, Randall, J.

      Beatty, for the plaintiff.

      C. A. Johnson, for the defendant.
   The judgment of the court was pronounced by

Kims, J.

The plaintiff instituted this suit upon a draft, and in his petition averred his residence, as well as that of the defendant, to be in the parish of- Terrebonne. After the entry of a default the defendant filed an answer, in which he denied specially that the plaintiff was then, or at the time of filing his petition, a resident of Terrebonne, and averred that he was a resident of the parish of Lafourche Interior. He further pleaded a general denial, and claimed in reconvention from the plaintiff and one Field, in solido, $1,500, being the value of thirty one hogsheads of sugar delivered to Bird and Field to be transported by them as freight to Field’s mills, and which through their carelessness and neglect were lost. On the trial in the court below he offered to prove the residence of the plaintiff to ba as alleged in the answer. The evidence was objected to. on the ground that the exception to the plaintiff’s residence was a- dilatory plea, and should have been made in limine litis. The objection was sustained, and the defendant excepted to the opinion of the judge. A judgment was rendered in favor of the plaintiff for the amount of the draft, and the reconventional demand was dismissed as in case of non-suit. From the judgment dismissing the claim in reconvention the defendant has appealed.

The district judge, in our opinion, erred in rejecting the evidence offered |to prove the residence of the plaintiff to be in the parish of Lafourche Inierior. The 7th section of the act of 1839, p.. 164. authorizes the defendant, hen he resides in a different parish from the plaintiff, to institute a denand in reconvention against the latter, although suoh demand be not necesiarily connected with, nor incidental to, the main cause of action. The allegation in the defendant’s answer that the plaintiff’s residence was not as iverre'd in his petition, but was in a different parish, was not a plea interposed to retard the progress of the suit. It was necessary that the avernent should be made and substantiated by proof, in order to enable the defendant to avail himself of the right accorded to him by the act of 1839, of instituting his reeonventional demand. The plea was intended to defeat the plaintiff’s claim, and to enable the defendant to obtain a judgment in re-convention. When the plaintiff’s residence is denied for that purpose it cannot be regarded as a dilatory exception, which the defendant is prohibited from pleading after a judgment by default, but is essentially a plea to the merits, and an averment necessary to give jurisdiction to the court of his reeonventional demand.

We can only relieve the defendant from the judgment dismissing his demand in reconvention, that being the only judgment appealed from.

It is therefore ordered that the judgment of the District Court dismissing the reeonventional demand of the defendant, be reversed. It is further ordered that the cause be remanded for a new trial according to law, with instructions to the district judge to permit the defendant to prove the allegations of his answer; the plaintiff paying the costs of this appeal.