text:
    No. 3905.
    State of Louisiana on the Information of Joseph Wittgenstein v. F. J. Herron and J. W. Fairfax.
    The suspension by the Governor of the Secretary of State from office did not create a vacancy in the office of Secretary of State, and the Governor is without the power to appoint a Secretary of State unless a vacancy has occurred in the office, and then only ad interim, as provided by the constitution. In case the Governor has appointed a person to taire charge of the office during the suspension of the Secretary of State, such person so appointed is only clothed with ministerial duties, and the appointment of an Assistant Secretary of State by such person is absolutely void, because the power of appointing an Assistant Secretary of State is conferred upon the Secretary of State alone, and is not a ministerial act.
    APPEAL from the Eighth District Court, parish of Orleaus. Dibble, J.

      8. Belden, Attorney General, for the State; A. P. Field and J. Q. A. Fellows, for relator; Semmes á Mott,-fov defendants and appellees.
   Taliaferro, J.

Wittgenstein, the relator in this case, brings this suit in conformity with the provisions of the intrusion act, complaining that he was illegally ejected from the office of Assistant Secretary of State by F. J. Herron, himself an intruder into and unlawfully exercising the functions of Secretary of State, and who, by the illegal exercise of the powers thereof, appointed in relator’s place and stead one John W. Fairfax, who, under color of this pretended appointment, has illegally intruded into and assumes to exercise the duties of relator’s office. F. J. Herron was made a party to the suit, and the relator prays that Herron and Fairfax be declared by judicial decree, intruders in office; that he be decreed entitled to the office of Assistant Secretary of State, and that he be put in possession of the office and all the papers and archives belonging to the same.

Exceptions were filed by the defendants to the mode of proceeding. Fairfax excepted on the ground that the right to the two offices held by two different individuals can not be inquired into in the same suit. He answered further, in case his exception were overruled, denying the plaintiff’s allegations and pleading in substance his rightful tenure of the office. The exception taken on the part of Herron is to the same import, with the additional plea of res judicata. In the court below the exception was sustained and the suit dismissed.

The relator has appealed.

It was not necessary, in the action of the relator in seeking his rights, to incorporate a proceeding again st Herron to have him decreed to be an intruder. There was an unnecessary and improper joinder, of parties. Eliminating, therefore, from the action the extraneous portion of it, we shall proceed to an examination of the issue between Wittgenstein and Fairfax in regard to the office of Assistant Secretary of State. The Governor suspended the Secretary of State from the exercise of his functions as a State officer. No vacancy in the office of Secretary of State thereby arose. The Governor is without.power to appoint a Secretary of State unless a vacancy o’ccnr in the office, and then only ad interim, as provided by the constitution.

Conceding that in case of the suspension of a Secretary of State from the performance of the duties of the office, the Governor would have, on general principles, the right to appoint a person to discharge the duties of Secretary of State, upon which we express no opinion, the person so appointed would be clothed only with ministerial duties, such as arise in the usual routine of office business. The Secretary of State is vested by law with the power to appoint an Assistant Secretary -of State. This is not a mere ministerial duty. The person charged with the performance of the ministerial duties of the Secretary of State during his suspension from office is without power to remove from office, and much less without the power to appoint to office an assistant secretary for the reason that he himself is not Secretary of State.

The appointment of Fairfax to the office of Assistant Secretary of State by Herron is, therefore, nugatory and without effect. Wittgenstein’s right to that office was in no manner impaired by the action taken in the matter by Herron. The suspension of Bovee from office by the Governor did not affect the right of Wittgenstein to discharge the duties of the office of Assistant Secretary of State, and the ejection of the latter from office was without warrant or authority of law.

We think the judgment of the court a qua erroneous. It is therefore ordered that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this case he remanded to the court of the first instance, to be proceeded with in accordance with the views herein expressed and according to law, the defendant and appellee Fairfax paying costs of this appeal.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 2510.
    J. R. Wolf v. Mitchell, Craig & Co.
    la this case the evidence shows that plaintiff had several conversations with defendants, or some of thorn, in reference to the leasing of certain houses and tenements for a store on Canal street; tbat the parties intended to perfect their agreement about the lease by reducing it to writing. It was never reduced to writing, and the plaintiff now seeks to enforce it as a verbal lease.
    Held — That it being shown that it was the obvious intention of the parties to reduce the terms of the lease to writing before it was considered as complete, that the defendants as lessees, could not be held on the plaintiff’s showing a verbal lease merely.

      K PPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      W. H. Hunt, for plaintiff and appellant. Hoselmis & Phillips, for defendants and appellees.
   Howell, J.

In December, 1867, the plaintiff sued upon an alleged verbal contract of lease entered into between himself, through his agent J. A. Blaffer, and the commercial firm of Mitchell, Craig & Co., on the eighth of June, 1867, of two stores on Canal street, for five years, commencing on the first of August, 1867, and ending on the thirty-first of July, 1872, for the price of $9000 for the first year,. $10,000 for the second year, and $12,000 each for the successive years, payable in monthly installments at the end of each month.

The defendants pleaded the general issue, and alleged “that they did contemplate making a contract for the hiring of the property mentioned in said petition, and had a conversation with said Blaffer at the time mentioned in said petition, but that a contract was to be made in writing at a future day, and before said day arrived, defendants refused to make that contract, or any other contract in relation to said stores, and notified said Wolf, thr .ugh his agent, that they should not make any contract of hire of said property. And they allege that they never did make any contract with said Wolf or his agent, either verbally or otherwise, for the hire of said property.” Subsequently the administrator of J. R. Craig, who died pending the suit, answered, “ that, the acts of said Craig in the 'premises were not valid and binding on said firm or succession; that at the time charged in said petition he-was drunk, and was incapable of giving a valid consent to the pretended contract of lease set forth in the petition, and that no binding, contract was then made or could be made by said Craig.”

From a judgment ,in favor of plaintiff enforcing the lease the defendants appealed.

The question arises, does the evidence establish the contract declared on as complete between the parties t We think not.

In making a contract of the extentj amount and importance of the one under consideration, it is reasonable that the parties should have reduced it to writing so as to make it binding in all its stipulations, before considering it finally closed, and we think the evidence shows that such was the intention of the parties in this instance.

Blaffer, after stating the conversationMn which the general terms of the lease were discussed and agreed to, says: “I then told Mr. Craig that for the purpose of making this contract binding on both parties, we had better repair at once to the office of G-ottschalk & Magner, notaries public, there to draw up a writing embracing what had been done and said,” which Craig declined to do at.that time. He-says they then “ went to the office of Mitchell, Craig & Co., and there met Mr. Rayburn. The entire agreement and understanding that had previously taken place between Mr. Craig and myself' at the building and on our way to the office, were there repeated in presence of Mr. Rayburn.” This witness says: “He (Craig) and Mr. Blaffer came into the office together; one of them said, ‘here is Mr. Rayburn, we can fix it up before him.’ Then they spoke in regard to the leasing of the stores on Canal street, and they did not decide. The difficulty was in r egard to the rent — the time it should commence. Nothing said about making rent notes in my presence. The terms they proposed were to take the stores on five years lease, the first year $9000, the second year $10,000, and the third, fourth and fifth years $12,000. That was put in pencil on a slip of paper by Mr. Blaffer. Then Mr. Blaffer wanted him to go to the notariés, Messrs. Gottschalk & Maguer, to have the lease drawn up and signed, and Mr. Craig declined to do so. That is all that transpired in the office.” In answer to questions, he stated he was sure the lease was to be written, “because Mr. Blaffer insisted on it. When Mr. Craig would not go to a notary at once, Mr. Blaffer wanted something drawn up in my presence to witness.”

We must, under the evidence, regard the taking of the keys and ordering signs made as incidents in the progress of the negotiations,’ and that the contract of lease was only.to be conclusive when reduced to writing, before which the defendants declined closing it.-

It is therefore unnecessary to examine other questions of law and the second ground of defense presented.

Is is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both courts.


author: Wilt, J.

text:
    No. 3808.
    Succession of Rosanna Henderson—Opposition of the Heirs to the Tableau of the Executor.
    An executor is accountable to the heirs for the rents which he is able to collect from the estate which he is administering, and he is entitled to charge the estate for necessary improvements which he places upon the property, which property must be compensated with rents that lie has collected.
    from Parish Court, parish of Rapides. S. L. DaAgre, Parish Judge.

      By an c6 White, for executor. Thomas O. Manning, for opponents and appellants.
   Wilt, J.

The heirs appeal from the judgment amending and homologating the tableau and supplemental tableau filed by the testamentary executor of Rosanna Henderson.

The appellee prays the amendment of the judgment so far as relates to the fees claimed by the attorney of the succession, and the commissions of the executor asking the increase of both to the amount stated in the tableau. We think the judgment appealed from is correct. The executor has no right to charge commissions on the succession of Frank Henderson. The court allowed him two and a half per cent, on the inventory of the property .of Rosanna Henderson, for whose estate he was appointed executor, and this is all he is allowed by law.

We think the court did not err in reducing the fee of the attorney from $2500 to $1000, which is fair compensation for the services rendered to the succession.

As to the note made by the deceased in favor of the executor, no sufficient reason is shown why it should not remain on the tableau, and of course the owner thereof is entitled to the interest thereon.

The slaves, the'cotton, and all the movable property having been partitioned among the heirs in 1863, shortly after the succession was opened, the executor had no active capital upon which he could derive income, unless the rent of the land in his charge be considered such.

Of course, during the war the land was unproductive, the slaves and other movable property being taken off by the heirs.

After the close of the war the executor returned to the place _and found it in no condition to cultivate — the cabins and fencing being all destroyed by the army. He built some cabins and put up several miles of fence at his own expense. He also collected a small sum for rents. The court compensated the claim for improvements with the claim for rents, and this appears to be just and equitable. The heirs have no right to demand from the executor any more rents than he was able to collect. On the whole we find no reason to disturb the judgment of the court a qua.

Judgment affirmed.


author: Howe, J.

text:
    No. 2801.
    F. F. Folger v. D. F. Kenner.
    An iron safe which has been incased in a brick wall, with its foundation laid in bricks and mortar or plaster, is an immovable by destination, and can not be recovered by a person claiming it, separate and apart from the buildings and premises in which it is so located.
    from the Fourth District Court, parish of Orleans, Théard, J.

      Breaux & Benner, for plaintiff and appellee. Hays & New, for defendant and appellant.
   Howe, J.

The plaintiff, as assignee of N. C. Folger, brought this action to recover an iron sate alleged to belong to him, and to be in possession-of defendant in his dwelling house, and to be there illegally detained by the latter.

The defendant averred that the object of the suit was, more properly speaking, a vault, attached to the walls of his dwelling with brick and mortar, and therefore immovable.

There was judgment for plaintiff for the safe or its value, and the defendant appealed.

The defendant purchased the dwelling house here mentioned from R. H. Bayley, who had purchased- it at sheriff’s sale under a writ of fieri facias against N. C. Folger, the plaintiff’s assignor. The sheriff’s deed to Bayley makes mention of a “ safe in the wall.”

There seems to have been some difficulty made by N. C. Folger about surrendering tlie premises after this forced sale, which was finally-settled by a compromise between him and the defendant Kenner who, in the meantime, had purchased from Bayley. In the act of compromise Eolger reserves a right to sue for the safe ; but Kenner does not in any way give up his right to retain it as part of the immovable property of which he had become owner.

The compromise does not appear to affect this case in any manner. The question is one of fact merely whether the object of the suit is a movable safe or a vault attached to and a part of the immovable.

The evidence satisfies us that it is a-double brick vault, lined with iron, and with double iron doors, and is not only attached with plaster or mortar to the walls of the house, but is attached in the same way to the soil by a brick foundation, running down through the floor of the house. The iron doors and linings could not be taken away without also removing the double brick vault which incloses them, and this in turn could not be removed without breaking the building to some extent.

The whole affair might almost be considered an immovable by nature, having its foundation in the soil itself. Rev. C. C. 464. But it is at least immovable by destination under Rev. C. C. 468, 469, and the plaintiff has no more right to remove it than he has to remove a mantlepiece from the drawing-room. . 5 An. 717; 6 An. 264; 23 An. 137.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment for defendant, with costs.


author: Taliaferro, J.

text:
    No. 2795.
    Mrs. L. L. Mann v. B. L. Mann.
    -¿¿.■written agreement "between the husband and the wife, who have been divorced at a suit of tbe wife on the ground of the adultery of the husband, which makes provision for the settlement and partition of the community property, is a law between the parties, and a judgment of the District Court which carries into effect and renders executory the provisions of the written contract will not be disturbed on appeal.
    from the Sixth Judicial District Conrt, parish of Tangipahoa. Bilis, J.

      T. d J. BlUs and 11. & R. Marr, for plaintiff and appellee. Race, Foster <& B. T. Merriele, for defendant and appellant.
   Taliaferro, J.

In May, 1869, Mrs. Mann, then the wife of the defendant, brought suit for a divorce on the ground of the husband’s adultery. Pending the suit which involved the liquidation and settlement of the community, the parties having the vain hope of evading the scandal of such a proceeding, entered into an agreement to submit the main action upon the pleadings and evidence, it being a foregone conclusion that judgment of divorce would be rendered. In regard to the community property the parties, by a written agreement drawn up by their counsel, provided for the consequences of the expected judgment, which, was in due time rendered. Provision was made for alimony, the care of the children, the payment of some pressing debts, and finally for the liquidation and settlement of the community and its division between the plaintiff and defendant. , It was settled that this should take place on the first of January, 1870. The plaintiff in the present suit complains that the defendant refuses to comply with his engagement, and seeks, by a course of false and treacherous conduct, to avoid a divsion of the common property as he obligated himself to do. The plaintiff therefore took a rule upon the defendant to compel him to' a compliance with the written contract. The answer to the rule appears to justify the allegation of the plaintiff charging the defendant with evasion and dissimulation. Judgment was rendered in the court below in favor of the plaintiff. It decreed a partition of the community, that to that end the personal effects be sold for cash after legal advertisements; that the real estate be divided in kind if practicable; if not, that it be sold on such terms as the parties may agree upon. In case they should not agree, that it be sold for cash at auction, alter legal notice, provided the appraised value be bid, otherwise on a credit of twelve months for notes secured by mortgage, etc. The judgment, after directing the manner of making the partition, referred the parties to a notary with instructions to him in regard to ulterior proceedings. From this judgment the defendant appealed. The written contract of the parties is the law of the case. The fourth clause of this instrument is in these words: “ The real estate and personal effects of the community shall remain undisposed of until the first of January, A. D. 1870, when the personal effects shall be sold for cash, and the real estate shall be divided in kind, or sold to effect a division upon such terms as may be agreed upon by the parties, without the intervention of the court.”

The fifth clause of the written- act recites: That the entire community, including the interest thereof in the firm of B. L. Mann. & Co., shall be liquidated and settled up as soon as can be with due regard to the interests of all parties. After all the debts and liabilities of the community have been settled and paid, the net proceeds of the community shall be equally divided between the parties, plaintiff and defendant.”

A bill of exceptions appears in the record, taken by the defendant’s counsel, to the admission of a portion of the evidence of Ellis, one of the counsel who, on the part of the plaintiff, was engaged in drawing up the written agreement between the parties. In regard to the settlement and partition, Ellis testified that it was.clearly understood by the parties that the partition agreed upon did not contemplate the community interest in the firm of B. L. Mann & Co. This evidence was objected to by the defendant’s counsel, on the ground that there is no ambiguity in the language of the act, and therefore there is no room for evidence aliunde to explain it. It is unnecessary to determine this objection, for we believe there is no ambiguity in these clauses of the written contract. Taken in connection with all that precedes them it is sufficiently clear that the purpose of the parties, as learned from the act itself was, on the first of January, 1870, a settlement and partition of, the •community, exclusive of the community’s interest in the commercial firm. The first clause is significant. It provides that a number of debts of the community which are enumerated shall be paid in equal portions by the parties if, after efforts being made for that purpose, an extension of time can not be obtained to make the payment. This was a preparatory step to the partition of the community. The partnership had no interest in these debts. No provision was stipulated in regard to the liabilities, if any, of the community in reference to the partnership engagements, and no stipulation that the partnership affairs should in any manner affect the agreement to make a division of the community on the first of January. The pretensions of the defendant now set up, that at, some time hereafter the community may become responsible on account of ttie partnership, are flimsy and entitled to no ■consideration. His efforts' to make out his firm insolvent now is a signal failure. No creditor of the partnership is on the alert, or concerned .about a division of the community between theplaintiff and defendant in this suit. The interpretation of the written instrument, contended for on the part of the defendant, would protract the settlement and partition — ad grceeas calendas. No such interpretation can be admitted, .for it would be in violation of right and common sense.

It becomes unnecessary to examine the plaintiff’s bill of exceptions.

The judgment of the lower court we consider correct.

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


text:
    No. 2742.
    Isidore Levy v. A. Friedlander.
    A dry goods merchant who has engaged the services of a clerk to aid in carrying on his business is not liable to .an action in damages by bis clerk for simply taking a partner in the business, nor is he liable to such action because he has changed somewhat the character, »of his business from that of a wholesale notion store to tbatof a wholesale dry goods store» A clerk who has quit his employer under such circumstances without showing any good cause therefor can recover neither wages nor damages.
    from the Seventh District Court, parish of Orleans. Col-lens, J.

      Saucier <& Michinard, for plaintiff and appellee. Cooley and Phillips, for defendant and appellant.
   Howe, J.

The plaintiff alleged that about the twenty-ninth of June, 1869, the defendant employed him and secured his services as managing clerk and salesman in a “ wholesale fancy goods and notions store, which said Friedlander stipulated and agreed to open and carry on alone and in his own individual name in the building forming the southwest corner of Chartres and Customhouse streets, in this city;”' that he was employed for the month of July at $166 66, and for the year, commencing August 1, at $3000 per annum, payable monthly; that for several years prior to this time he had been, to the knowledge of the defendant, employed as a clerk in the wholesale fancy goods and notions ” business, and would not have engaged his services in any other business ; that he would not have contracted with defendant but for the representation by the latter that he would have no partner, and' that in the event of success plaintiff might become interested with him; that said Friedlander refuses to fulfill his part of said contract,, but has formed a business connection with a wholesale dry goods house ” in this city, and' has abandoned his intended and proposed business in “ wholesale fancy goods and notions.” He alleges default on demand, and prays judgment for the amount of the salary due and as it shall fall due, less a credit of $50 paid. v

The answer was a general denial, and an averment that “ the respondent employed the plaintiff as a clerk in a house which he contemplated opening in this city, but that on opening said house or store plaintiff positively refused to comply with his contract or enter upon the discharge of the duties required of him by said contract without any just cause, but assigned frivolous and unfounded reasons for not-doing so.

There was judgment for plaintiff as prayed for, and the defendant-has appealed.

The main facts appear' to be that in June, 1869, the defendant intended to establish himself in business, and employed the plaintiff as a clerk at the rates set forth above. The plaintiff was set to work to prepare the store on the southwest corner of Chartres and Customhouse streets for the reception of a stock of goods, and the defendant went on to-New York to purchase a stock. While in New York the defendant modified his plans somewhat, and concluded to take a partner and to carry on a business at a store on the opposite side of Chartres street and sell at wholesale not only “fancy goods” and “notions ”, but “ dry goods.” The plaintiff thereupon refused to work for him, giving as a reason that he did not know the dry goods business and did not like the defendant’s house, and he was therefore discharged. This was about August, 1869. In October, 1869, the plaintiff returned to the employment of the firm where he had been when the defendant engaged him, and at the same salary he had there received — $2000 per annum — and his work was that of a general salesman, the business of his employers being to sell at wholesale “ dry-goods, fancy goods and notions.”

We must confess our inability to perceive in these facts any foundation for the judgment appealed from.

It will hardly be contended that a merchant who has employed a clerk with the expectation of opening a store on the southwest corner of a street has not the right to open it on the northeast corner and there require the services of his employe; of that such a change of plan will subject him to an action of damages or to the penalty of article 2749 of the Rev. C. C.

Nor do we think it can be contended with much more force that a merchant who employs a clerk with the expectation of carrying on business alone, precludés himself from the legal right to take a partner,, or that such a change of plan will subject him to an action for damages or to the penalty of the article.

If the new partner were a person of infamous character, or should treat the clerk unjustly, the rights of the clerk might be changed, but there is no allegation or proof in this case of any such state of things.

There is nothing left in this record, then, on which to base the plaintiff’s claim, except the theory that the defendant changed his business-in such a way that the plaintiff properly refused to work for him, and his discharge was therefore unlawful under article 2749 of Rev. C. C'. Admitting for the sake of argument that a complete change of business, as from that of grocer to that of gunsmith, would justify this position, we do not find any such state of facts in this ease. A witness of experience states that the dry goods business and the notions business are .the same thing ; “ that is,” he says, “drygoods houses usually-keep notions — some more and some less.”

It appears also by the testimony of another disinterested witness that the defendant’s house was of this kind, keeping a stock of “notions” and “fancy goods” as well as “dry goods,” strictly so called. Mr. Worcester defines dry goods as “textile fabrics, such'as are sold by linen drapers, mercers, etc., in distinction from groceries.”

It also appears by plaintiff’s own testimony, as stated above, that after his discharge by defendant he returned to his former employers, and took a place as general salesman in a business identical with ..defendant’s, namely, dry goods, fancy .goods and notions. We conclude-that the reasons given by plaintiff for refusing to work for defendant’s-house were frivolous, and that he was properly discharged. Rev. C. C. 2750.

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

Rehearing refused.


author: Hówe, J. . Howell, J.

text:
    No. 2792.
    Margaret Haughery v. H. R. Thiberge et als.
    If the main action is sufficient in amountto give the appellate court jurisdiction of the appeal, then other parties to the suit are entitled to the benefits of the appeal without regard to the amount, involved.
    -An appeal is valid if it be taken by motion in open court, and the bond be given in favor of the clerk. Such appeal will not be held irregular because the party afterward so considered it, and to k another appeal by petition where all the parties were not cited.
    A clause in a building contract imposing a penalty of thirty dollars per day upon the builder for failing to complete the building within the time specified can not be enforced against him it the fault for not completing it within the time lies with the other contracting party.
    from the Sixth District Court, parish of Orleans. Oooley, J.

      T. & J. A. Gilmore, for plaintiff and appellee. T. 8. MeOay and Foselius & Phillips, for defendants and appellants.
   Hówe, J.

A motion has been made to dismiss the two appeals taken herein, the one by Lee, Markey, Carré & Co. and Powers & Dunn,.and the other by Charles Donnelly, on various grounds, which ■are reducible, however to two, viz-.:

First — That the amount involved does not exceed $509; and

Second — That all the parties to the judgment have not been made parties to the appeal.

The amount involved in the case, as between the plaintiff and Thiberge, exceeds two thousand dollars. The appellants were made parties defendant for the purpose of settling their claims upon the fund due from plaintiff to Thiberge; and although the claims of some are less than five hundred dollars, yet we think they are all entitled to ■appeal, being parties to a dispute in which an appealable amount is at stake.

As to the question of parties, the appeal of Donnelly is valid, having been taken by motion in open court with a bond in favor of the clerk. The fact that he deemed this method irregular, and afterward took an •appeal by petition and failed to have all parties cited, can not prejudice him, for the motion of appeal was correctly made, and his rights •can not be destroyed by his want of faith in their existence.

As to the appeal taken by Lee and others, it appears that some parties have not been cited; but we are not disposed under the facts ot the case to attribute the blame to the appellants. They prayed for -citation in such form as to make it the duty of the clerk to attend to ■the matter. The motion to dismiss is overruled, and

It is ordered that the appellants Lee and others have until the first Monday of November, 1870, to cause the proper parties to be cited.

. Howell, J.

This is an action by a proprietor, under a building contract, against the contractor; his surety and several unpaid subcontractors and furnishers of materials, etc., to settle the rights of the various parties to the unpaid portion of the price fixed by the building ■contract. The plaintiff claimed the enforcement of a penal clause for. 'failure to complete the work within the stipulated time, and the cost ■of completing the building according to the specifications after it was .abandoned by the contractor. From a judgment in favor of the plaintiff, five of the creditors, of the contractor, whose claims amount to $2918 12, have appealed.

The only error we discover in the judgment is in allowing the penalty of thirty dollars per day for the delay in completing the contract, and the erasure of the privilege to the prejudice of the appellants for their proportion of the unpaid installment of the price, $3357 50.

The evidence satisfies us that the delay resulted principally from the tardiness of the plaintiff in having the party wall, which was unfit for use, rebuilt in time for the contractor to complete his work. This old party wall was, by the terms of the contract, to be used in constructing the new building without cost to the contractor, and when' the old building was torn down the said wall was found unsafe and unfit, was condemned by the proper city authorities, and the contractor was forbidden to use it. The plaintiff was duly notified, but this ■wall was not rebuilt until it was too late for the erection of the plaintiff’s building within the time. This was a “lawful excuse” for the non-performance of the principal obligation within the stipulated time. R. C. C. 2120, 2122. It is the first and not the second clause of the latter article that is applicable to this case. The contract was to build the house by a certain day, and if it was not then built the contractor was to pay thirty dollars per day until it was completed. But the plaintiff contributed mostly, if not entirely, to this delay, and she is not in a position to enforce the penal clause.

The judgment seems to be final as to the contractor and those* of his creditors under the contract who have not appealed, and the amount, $1915 45, remaining in the proprietor’s hands out of the unpaid installment after completing the building, not being enough to satisfy the whole of the claims of the appellants, must be distributed ratably among them. The allowance of interest on the distribution will not change the amount to be received, and is therefore omitted in the calculation.

The appellants are not, under the evidence, entitled to judgment against the plaintiff for the whole amount of their respective claims. But as they ask it against the defendant Thiberge, the contractor, it, will be allowed to avoid a multiplicity of actions.

It is therefore ordered that the judgment appealed from be reversed, as to the appellants herein only, and it is now ordered ■that the plaintiff Margaret Haughery be. condemned to pay to the. said appellants the sum of $1915 45 out of the fifth, and last installment due under her contract of sixth August, 1868, with the defendant H. R. Thiberge, in the following proportions, to wit: To J. Gv Lee $648 60, to P. Markey $364, to W. W. Carré & Co. $320 80, to-Powers & Dunn $98 05, and to C. Donnelly $484, and that the privilege on the lot and building of plaintiff, described in the petition,, in favor of each of said parties, be recognized and enforced, And, it is further ordered that the said' J. G. Lee recover of the said H. R. Thiberge the sum of $991 35 with legal interest from January 12, 1869; that the said P. Markey recover of the said H. R. Thiberge the sum of $556 55, with legal interest from February 12, 1869; that the said W. W. Carré & Co. recover of the said H. R. Thiberge the sum of $490 48, with legal interest from December 24, 1868 that tlie said Powers & Dunn recover of the said II. R. Thibergethe sum of $150, with legal interest from December 27, 1868, and that the said C. Donnelly recover of the said H. R. Thiberge the sum of $739 74, with legal interest from December 16, 1868 — each of said sums to be credited with the amounts severally allowed to them by this judgment out of the' funds in the hands of the plaintiff Margaret Haughery, when paid; the costs of the said appellants in the lower court, as well as the costs of appeal, to be paid by the said Margaret. Haughery and H. R. Thiberge.

It is finally ordered that in other respects the judgment appealed, from remain undisturbed.


author: Lüdeling, C. J.

text:
    No. 2780.
    Jesse R. Powell v. Jenkins & Walker—Brooks, McDonald & Co., Intervenors.
    la conducting a case before the district court tbe judge is necessarily invested with a large discretion in the matter of granting a continuance, and if the appellant fails to advise the appellate court by bills of exceptions of the errors of the judge in refusing a continuance, then and in such case the Supreme Court will maintain the ruling'of the judge a, quo refusing it.
    from the Fourth District Court, parish of Orleans. TMard, J.
    ' T. O. Starlce and Alfred Grima, for plaintiff and appellee. Samuel B. & O. L. Wallcer, for intervenors and appellants.
   Lüdeling, C. J.

The plaintiff attached twenty-one bales of cotton as the property of Jenkins & Walker, residents of the State of Arkansas.

Brooks, McDonald & Co. intervened, and claimed that the cotton belonged to them.

There was judgment in favor of the plaintiff against the defendants and the intervenors, and the latter alone have appealed.

The only question for decision on appeal on the merits is whether on-not the property attached belonged to the intervenors.

If we disregard the objections urged against the admissibility of the evidence of the intervenors and give full effect to it, the evidence fails to prove that the cotton belonged to the intervenors, and therefore the judgment should be affirmed.

The intervenors made an affidavit for a continuance of the case in the court a qua, on the ground that one of the intervenors, Hugh McDonald, was a material witness on their behalf.; that he had been duly summoned, but that he could not be found on the day of trial, .and that he was absent from the State.

The motion for continuance was refused, and no bill of exceptions was taken to the ruling of the court; and we are .unable to say what were the reasons for the ruling. Much reliance must be placed on the discretion of the lower courts, which have better means than the Supreme Court to ascertain the object of applying for a continuance.

We are not satisfied that the judge erred in refusing a continuance, on the grounds of the absence of one of the intervenors.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.


author: Ludeling, C. J.

text:
    No. 2770.
    Francois Lacroix and Etienne Cordeviolle v. Edward D. White.
    A possessor of real estate under a title derived from a judicial sale, made under a judgment, can not be evicted therefrom in a suit by another claimant by a different title, unless the claimant alleges and shows that the judgment itself is illegal, or that the sale is illegal and void.
    from the Sixth District Court, parish of Orleans. Oooley, J.

      M. F. JAvaudais and John J. Barnett, for plaintiffs and appellants. Fellows <& Mills, for defendant and appellee.
   Ludeling, C. J.

The plaintiff brings this action to'recover a certain lot of ground in the city of New Orleans, which he alleges defendant has illegally taken possession of.

The defendant avers that he is the owner thereof by virtue of a purchase at, a sheriff’s sale, under a judgment of a court of competent jurisdiction. There was a judgment of non-suit and the plaintiff has appealed.

The plaintiff is really seeking to attack a judgment and a sale under it without having alleged in his pleadings any irregularity or illegality, either before or after the judgment. This can not be done. The defendant’s title will be upheld until its detects (if any there be) be specifically stated and proved. •

It is therefore ordered that the judgment appealed from be affirmed, with costs of appeal.


author: Taliaferro, J. Wyly, J., Howe, J. Ludeling, C. J.,

text:
    No. 2343.
    Nelson Clements, Horace Cone subrogated, v. O. B Graham & Co.
    The courts of Louisiana will not entertain a suit founded upon a claim alleged to have been acquired in consideration of army stores furnished to the enemies of the United States-during the late civil war.
    from the Fourth District Court, parish of Orleans. Théard, J.

      8ertm.es <& Mott, for plaintiffs and appellants. Bradford, Lea & Finney, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues the commercial firm of O. B. Graham & Co. for $45,000, the value, as he alleges, of a lot of cotton belonging to him, which the defendents, by' one of their firm, became possessed of by illegal means, having acquired it in Mexico from persons illegally and fraudulently holding it under a purchase from-certain parties who, by violence and unlawful means, had taken it from the plaintiff. The plaintiff charges fraud arid bad faith in the defendants in getting hold of this cotton, they being fully cognizant of all the illegal proceedings of the persons through whom they pretend to have acquired the cotton. There was judgment against the plaintiff in the court below and he has appealed.

It seems that this plaintiff, who was a citizen of New York, entered' into a contract in 1862 with the insurgent States to furnish them with what .he called “army stores,” by which we understand arms and munitions of war generally, to be used in promoting the rebellion against the United States, then rife throughout those States. That these army stores were to be delivered at some points in Texas, designated by the contracting parties. That in consideration for these army stores the plaintiff was to receive cotton at some specified price per pound. It is for the value of the cotton, or a part of it, so received, as he alleges, in payment for the army stores delivered by him, that the plaintiff is now contending.

Will the courts of this country, either State or national, entertain a suit founded upon a claim alleged to have been acquired in consideration of army stores furnished during the late rebellion to the enemies of the United States engaged in active war against the government and striving to subvert it 9 We think not. It would be inconsistent with the dignity, as well as opposed to the public policy, of the United States, to recognize such an ownership as that upon which the plaintiff founds this action. In 14 Howard, p. 38, the Supreme Court of the .United States declared that “ no contracts can be enforced in the courts of the United States, no matter where made or where to be executed, if it is in violation of the laws of the United States, or is in contravention of the public policy of the government or in conflict with subsisting treaties.” We think the judgment-of the lower court should be sustained.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

Wyly, J.,

concurring. The evidence satisfies me that Clementenever had actual or corporeal possession of the cotton. It was sent by the confederate authorities from San Antonio on wagons employed in confederate service, with bills of lading addressed to Major Baughn, confederate cotton agent at Rio Grande City, and from there it was to be forwarded to Wm. W. Perkins, confederate agent at Matamoros, to whom also bills ot lading were forwarded from San Antonio. The cotton was sent from the interior of Texas doubtless for the purpose of meeting the engagements of the confederate government with Clements, and it was designed that these agents, to whom the bills of lading were forwarded, should make the delivery at the mouth of the Rio Grande, pursuant to contract, and that the debt of the confederate government to Clements for army supplies was to be credited with the proceeds of the cotton at the price per pound stipulated in the contract. Being apprehensive that the cotton might not reach its destination, in view ot the impending fall of the confederacy, and preferring to take the title of the cotton in himself while it was in transitu from San Antonio to Rio Graude City,- Clements entered into a contract with Perkins, at Matamoros, for the cotton, and the bills of lading were indorsed and delivered by Perkins, agent for the confederate govern - ment, to Clements. This was in May, 1865. It was doubtless a sale and constructive delivery of the cotton, the drivers of the wagons becoming the bailees of Clements.

But it is siiown that at the time of the contract between Clements and Perkins the former was a citizen of New York, a loyal State, and the latter was an inhabitant of an insurrectionary district; besides, he dealt only with Clements in behalf of the rebel government and as its agent.

Under the act of Congress commonly called the non-intercourse act, the parties were incapable of making a conventional obligation.

The contract of May, 1865, did not, therefore, transfer either the title or the possession to Clements. It was an absolute nullity.

The constructive delivery resulting from the transfer of' the bills of iading and the sale of the cotton while it was in transitu, gave no possession, because the whole contract was totally void on account of the incapacity of the parties.

Clements could not appoint as his agents the wagon drivers having the cotton in charge while it was being hauled from San Antonio -to Rio Grande City, because of the same impediment which prevented Mm from making a valid contract with Perkins. These drivers lived in rebel lines, and they were employed in the service of the enemies of the United States.

The lawless persons who took the cotton, compelled the agent of the rebel government at Rio Grande City to give them the bills of lading before the cotton arrived. When it arrived on the wagons they took it from the drivers forcibly and crossed it into Mexico. The actual or corporeal possession of the cotton, therefore, never passed out of the rebel government or its agents and employes, the carriers, until it was taken by the robbers and crossed into Mexico and sold. It was yet in the actual custody of the rebel government, or its agents, when the robbery was committed.

Now, the plaintiff has no cause of action against the defendants, because their agent bought part of the cotton from the robbers in Mexico, knowing of the robbery, unless he had both ownership and possession thereof. He had neither, as we have just seen, because both his title and constructive possession resulted alone from the contract of May, 1865, with Perkins, at Matamoros, and that entire contract was absolutely void, because of the incapacity oí the parties to make it, and because of the immorality thereof. The fact of' possession outside of that void contract is not shown by the evidence. The- plaintiff never got the fruits of that contract, because he never was able to get the actual possession .or custody of the cotton, the object thereof. Owing to the character of the contract of May, 1865, the plaintiff can not get the aid of the court to enforce his rights resulting therefrom, the policy of the law being to give no remedy to an immoral contract. I therefore concur in the decision of this case.

Howe, J.

I concur in the decree in this case. I do not think the plaintiff has established such possession as to entitle him to maintain his action, his contract with the insurgents being confessedly flagitious.

Ludeling, C. J.,

■dissenting. In my opinion the question involved in this case is, whether or not a person who has acquired possession of property through a contract entered into against public policy, or in violation of. law, can be deprived of this property by robbers, who take it and sell it to others who are aware of the nature of the robbers’ possession. Or, to state the question in another form, whether the title to personal property, under an executed contract, can be questioned, on the ground of the illegality of said contract, by one who holds under a transfer from robbers with knowledge of the theft ? I think the question should be answered in the negative. 2 Wallace 81, Brooks v. Martin; 17 How. 232, Blair v. Gibbes.

As against a mere trespasser, a perfect title is not necessary to recover in a petitory action.

The mere possession of the cotton in this case would be sufficient to authorize its recovery from the robbers or those who acquired from them with knowledge. 8 Cranch 421; 7 Wallace 573 — Morris’ case.

The evidence satisfies me fully that the contract between Clements and the confederate States, whereby he acquired the cotton in controversy, was an executed contract. He had delivered the army supplies to the agents of the confederate States, for which Colonel W. H. Broad-well, chief of the cotton bureau, under instructions from headquarters, directed certain cotton to be delivered to Clements or his agents. He says: “I arranged with Governor Morehead to deliver to him some cotton at Waco or thereabouts. My understanding was that the cotton would be at the risk of Governor Morehead or his principal, after delivery at Waco or thereabouts. My recollection is that Governor Morehead was willing to take the cotton in almost any manner that would place the cotton in Ms possession or under his control. My order for the cotton contemplated that the cotton would be pointed out by the officer to whom it was addressed, and placed at the disposal of Governor Morehead, or any one authorized by him to receive it,” etc. The letter of instructions written by Colonel Broadwell to the officer at Waco corroborates Broadwell’s testimony, and it contained the further direction: “The indebtedness of the government, for the settlement of which the cotton is to be applied, will appear in the shape of a copy from Wm. M. Perkins. This certified account Major Tevis will take up by using cotton at thirty cents per pound, less the expense of transporting and placing it on shipboard at Matamoros. Should any difficulty occur in adjusting this, the cotton can be used at thirty cents in your district, and an additional quantity can be given to pay the expenses of transportation and placing it on shipboard.”

The evidence shows that quantities of cotton were collected together at Waco and San Antonio for Clements; that the bales of cotton were weighed and marked in his mark, and shipped for his account. The bills of lading stated that the cotton was consigned to Wm. M. Perkins for account of Nelson Clements.. And Wm. M. Perkins and his clerk swear positively that, shortly before the capture of the cotton by Benavides and Slaughter, Nelson Clements and Wm. M. Perkins had a settlement in regard to the very cotton claimed in this suit. Wm. H. Campbell, the clerk of Wm. M. Perkins, says: “I can’t say what became of the bills of lading in the hands of the carrier, and those kept at San Antonio •, but those in possession of Perkins were given to Clements, who, in his settlement with Perkins, agreed to take the bills of lading weight as expressed in them, and so settled with Perkins, when he turned qver the money vouchers and assumed possession of tlie property.” This is fully corroborated by Win. W. Perkins. So does Clements himself swear positively to the same facts. Merriman swears that the carriers afterwards applied to him, as the agent of Clements, for payment for transportation of the cotton, under an agreement, with Clements. The indorsement or delivery of the bills of lading gave an irrevocable right to receive and control the cotton, if delivery had not been perfected before. 6 East. 41, Abbott on Shipping (7th Shee’s edition) p.326; lAn. 84; 15 An. 438; 18 An 84.

I think that defendants can not invoke the statutes of the United States, interdicting commerce between citizens of the belligerents during the late war, to maintain their wrongful possession. 10 Wallace 464, Corbett v. Nutt; 8 Cranch. 421; 7 Wallace 573 — Mbrris’ case.

I can not concur in the views of my associates in this case.


text:
    No. 2754.
    John Freeland v. W. Hyllested & Co.—Geo. H. Vinten, Third Opponent.
    A lessor who has consented to a sub-lease by the lessee can not afterward hold the subtenant liable as a third person, and olaim a lien and privilege on his property found on the premises to secure the rent due or to become iLuC'by the lessee.
    from the Sixth District Court, parish of Orleans. Gooley, J.

      O. M. Ootvrad & Son, for plaintiff and appellant. John McKee 'and Baee, Foster & F. T. Merriclc, for opponent, appellee.
   Ludeling, C. J.

This is an action to recover rents not due, from Hyllested & Co., on the ground that said firm was in failing circumstances and insolvent. He obtained a writ of provisional seizure, whereby the property of Hyllested & Co. as well as that of the sub-lessees was seized.

Geo. H. Vintén intervened to claim his property. He alleged that he had punctually paid his rents and that his property was not liable to seizure for the payment of the rents due by Hyllested & Co.

There was judgment for the amount admitted to be due by the subtenant Vintén in favor of the plaintiff, who has appealed. He claims the whole amount for which the property was rented to Hyllested & Co., and claims a privilege and right of pledge upon the property of Vintén, who is treated as a third person and not a sub-tenant. The appellee has not prayed for any change in the judgment. The only question for decision is, was or was not Vintén a sub-tenant ?

The plaintiff insists that, because in the act of lease between himself and Hyllested & Co., there was a stipulation that Hyllested & Co. should not sub-let the property without the written consent of the lessor, and this written consent was never obtained, the sub-lease is a nullity and Vintén was not a sub-tenant, but a third person who had voluntarily put his property on the premises leased. It is proved that the date of lease between the plaintiff and defendant, was not recorded, and that Vintén did not know that the stipulation above stated was in the contract of lease. It is also proved that the plaintiff knew Vintén had sub-leased the upper stories of the building, and that just before the seizure in this case the son and agent of plaintiff wrote a letter to Mr. Vintén, the purport of which is as follows:

“ My father is the owner of the property, and as his agent would suggest to you the propriety of holding your rent subject to my order. Mr. Hyllested has been protested.
“ Very respectfully, etc.,
“JOHN D. FREELAND, Agent.”

It is singular that after this the plaintiff should pretend that Vintén is not a sub-tenant. His contract of lease from Hyllested & Co. is proved -, and whether Hyllested & Co. violated their contract with the proprietor of the property is immaterial in the inquiry as to the status of Vintén. The law permits the lessor to sub-let to another. This contract depends entirely upon the consent of the parties to it. It can not effect, however, the rights or obligations of the original lessor and lessee. The two contracts are totally independent of each other. If the lessee has violated his obligation, that can not of itself change the fact that Vintén occupied a part of the premises as a sub-tenant, under a contract with the lessee.

It is therefore ordered that the judgment be affirmed, with costs of appeal.


text:
    No. 2797.
    Heirs of G. P. McMichael v. Mrs. F. Bankston, Widow, etc., et als.
    Tlie fact that words appear in an olographic will which arc not in the handwriting .oí the testator is not good cause for annulling the will, if the words themselves do not change the meaning nor alter the dispositions made hy the testator in his own handwriting.
    from the Parish Court, parish of Tangipahoa. O. J. Bradley, Parish Judge.

      W. Duncan, for plaintiffs and appellants. T. é J. Bilis, for defendant and appellee.
   Howell, J.

The plaintiffs, who are heirs of G-. P. McMichael, deceased, sue to annul the olographic will of their father on the ground that it was not wholly written by him.'

The four plaintiffs as witnesses state that the will was entirely written, dated and signed by the hand, of the testator, except the word “to” in the sixth line from the top, and the word “acres” in the eighth line, which are in a different hand. Another witness and two experts express the same opinion. The original will is before us, and it is evident that there is some difference in the appearance of those two words from the balance of the writing. But it is very manifest that the presence or absence of the two words can have no material effect upon the meaning or contents of the will. Without them the sense is the same as with them — the whole will showing that the testator bequeathed to his wife a certain number of acres of land. In another place there is a connected and rational repetition of this bequest in which the same two words are written by the testator.

Admitting, therefore, that the two words in question were added by the hand of another, we may safely, under the first clause of article 1589 R. C. C., consider them as not written, and not impair the validity or effect of the will.

We can not say that the law requires a will to be annulled for so unimportant and trivial cause.

This is not a case in which damages for a frivolous appeal are authorized.

Judgment affirmed.


text:
    No. 3895.
    Mrs. L. H. S. Cannon v. The Female Orphan Society.
    A purchaser of real^property can not maintain an action to annul the sale on the ground that his vendor’s title is affected with a relative nullity.
    The uninterrupted possession of real estate for thirty years vests an absolute title in the possessor without the possession being in good faith.
    from the Fifth District Court, parish of Orleans. Lemmbont, J.

      Lea, Finney & Miller, for plaintiff and appellee. A. J. Lewis, for defendant and appellant.
   Howell, J.

On the tenth of June, 1867, the defendant sold to the plaintiff a piece of real estate for ten thousand dollars, one-third cash, paid at the date of the act, and the residue in two notes for equal amounts, payable one and two years after date, and secured by mortgage and the vendor’s privilege on the property sold. The plaintiff took possession of the property and paid the first note at maturity; but refusing to pay the last, the defendant obtained an order of seizure and sale, the execution of which the plaintiff enjoined and sued to annul the sale, on the grounds that the donation inter vinos of the property made by Julien Poydras to the defendant on the fourteenth April, 1817, is in terms and legal effect a substitution, and utterly null and void, or if any title whatever passed thereby, it was by the express terms of the act inalienable and subject to the reversionary right of the Charity Hospital. She also set up defects in the executory proceedings.

The defense is a general denial and the prescription of ten and thirty years.

The district judge annulled the sale, canceled the unpaid note and ordered the defendant to refund the sums paid, with interest and costs, and the defendant appealed.

It is urged on the part of the defense, and we think properly, that a purchaser in the undisturbed possession and enjoyment of property which has been sold to him, can maintain no action to annul the sale on the ground that his vendor’s title is defective or is affected with a relative nullity, as at most the one in question can be considered. If the purchaser has just reason to fear being disquieted, he may retain the price until the vendor gives him security. E. C. C. 2557 ; 7 N. S. 96; 14 L. 470; 6 E. 471. The plaintiff sets forth no such reason and made no such demand.

We think, too, the plea of prescription is well made. The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith, if the possession as owner has been continuous and uninterrupted during all the time. E. C. C. 3499, 3500; McLean v. G-uillaum, 24 An. We find from thé evidence that the defendant acquired this property in 1817 by a title which divested the ownership of the donor and vested it in the donee, even though it may have been borrowed, and sold it in 1867, a period of fifty years. This suit was instituted in 1871, and thero is no intimation that there has been any disturbance of possession or title by any one haviug an alleged contingent or reversionary right. It is unnecessary, in our opinion, to notice any other points. The alleged defects of form in the proceedings are not such as to authorize the injunction. C. P. 734, 735; 21 An. 692; 23 An. 83; C. P. 737; 18 An. 657 ; E. S. sec. 1202; 19 An. 80.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of defendant dissolving the injunction herein, with ten per cent, on the amount enjoined as damages, and costs in both courts.


author: Wyljt, J.

text:
    No. 3672.
    Succession of Antoine Truxillo—Sosthene Truxillo v. Jeannette Truxillo, wife of Antoine Dalferes et al.
    The parish court is without jurisdiction to entertain an action to enforce a mortgage claim against a succession where the amount involved is'above five hundred dollars.
    Real estate belonging to a succession can not be sold under judicial process without dividing it into lots varying from ten to fifty acres. Constitution, article 132; Revised Statutes oí 1870, seo. 2452.
    from Parish Court, parish of Assumption. JD. LeBlanc, Parish Judge.

      Hiram H. Carver, for plaintiff. Nichols & Folse,-fot opponent and appellant.
   Wyljt, J.

In September, 1871, Antoine Truxillo died, leaving a small succession, consisting mainly of a tract of land, and leaving three heirs, viz: Sosthene Truxillo and his two sisters, Mrs. Dalferes and Mrs. Barras.

Pending the application of Mrs. Dalferes to be appointed administratrix, the plaintiff Sosthene Truxillo sued his two sisters for a partition of the succession, and alleging that he is a mortgage creditor of said succession for $7282; he prayed that the land be sold in block by an auctioneer for cash enough to satisfy his mortgage claim, “ and also for cash for oné-third of the balance remaining beyond the amount at the day of sale of said mortgage claim;” and that a notary be appointed to whom the parties may be referred for final partition, etc.

The court ordered all the property to be sold in block for cash “for the double purpose of paying ” the mortgage claim held by the plaintiff and for partition.

From this judgment the defendant Mrs. Dalferes appeals. She contends :

First — That the parish court was without jurisdiction to render the judgment ordering the sale of the property to pay the mortgage claim setup by the plaintiff, because it is contested by the co-heirs and the amount thereof exceeds $500.

Second — That the action to enforce this mortgage claim as an incident to his suit for partition is illegal.

Third — That the order of the parish court requiring the sale of the property in block violates article 132 of the Constitution requiring land to be sold in lots from ten to fifty acres.

This proceeding is anomalous. The main object of the plaintiff is doubtless to enforce his mortgage claim against the succession of his father, which is unrepresented, and which claim will absorb the greater part of the succession. He opposes an administration, and yet, under articles 990 and 992, Code of Practice, he seeks to have tke»property sold to pay his large claim by cumulating the ajfplication with an action for partition.

The property of a succession can not be sold under the articles referred to until some one has been appointed to represent it, and until the claim has been allowed by the administrator or other legal representative, or adjudicated upon by the court.

The amount of this claim being $7282, the parish court was without jurisdiction.

The jurisdiction of the court depends upon the amount in dispute, regardless of the party holding the claim, whether he be an heir or not.

As Truxillo died in September, 1871, the property of his succession must be sold in lots of from ten to fifty acres each. It can not be sold in block. Revised Statutes of 1870, section 3452; Constitution, article 132.

It is therefore ordered that the judgment appealed from be annulled, and that this suit be dismissed, with costs of both courts.


text:
    No. 365.
    Hamilton & Co. v. J. C. Elstner.
    The keeping of a warehouse floating on tlie water is an employment requiring skill, and any person engaged in tins kind of business who fails to exercise that skill is guilty of gross carelessness. 24 An. 165.
    A person keeping such a warehouse who receives a lot of gunpowder on storage is liable to the owner for its value in case of loss by the sinking of the wharfboat, because the sinking occurred through the failure of the warehouseman to exercise the required skill to prevent it, or by failing to remove tlie powder on storage before the floating warehouse sunk.
    from the Tenth Judicial District Court, parish of Caddo. Devisee, J.

      O. M. Pegues, for plaintiff and appellee. Duncan & .Moncure, for defendant and appellant.
   Howell, J.

By an ordinance of the city of Shreveport, adopted in 1866, and still in force at the'time this case was begun, the merchants of that city were required to store all gunpowder kept by them, iu quantities exceeding a small specified' amount, on a wharfboat lying at the levee and'known as the wharfboat of Bapley & Co.

In January, 1868, this wharfboat was kept by the defendant Elstner, as a lessee of Bapley, and in that month the plaintiff stored with him on this boat a quantity of gunpowder, for the value of which this suit was brought. About two weeks after, without the knowledge or consent of plaintiff, the defendant removed this powder and stored it-on another wharfboat named the Cincinnati, lying outside of the Eapley & Co. boat. On Sunday, the ninth of February, the defendant received and placed on this outer wharfboat an unusually large consignment of quartermaster and commissary stores belonging to the United States army, consisting among other articles of seventeen. hundred bales of hay and eighteen hundred sacks of grain, weighing-some three hundred and fifty tons. A witness employed on her, testifying for defendant, stated that she had never been so heavily laden before since witness had been in charge of her. On Wednesday morning, the twelfth, she began to leak badly, in such a way as to excite apprehension of sinking. Pumps were set to work, but the water still gaining, other pumps were procured by which the water was a little reduced. About noon the defendant’s employes began to shift-the cargo from the guard next the river and put it on the bow. In the opinion of the witness already quoted, if the hands had then been set to work to remove the cargo they might have saved it. At dark the water in the stern was somewhat lower, and the apprehensions of those on board were, somewhat relieved. But the fact seems to have been that this lowering of the water in the stern was produced not by any real reduction in the amount of leakage or the amount of water in the boat, but by the shifting of the cargo to the bow. At nine o’clock in the evening the leaking began to increase/and then for the first time an attempt was niade to remove the cargo, but too late. The boat sunk at three o’clock next morning, and the plaintiffs’ powder was totally lost. Thereupon this action was commenced for its value, and the plaintiff having had judgment in the court below the defendant appealed.

The appellant makes two points here. First, that his liability is that of a warehouseman ; and second, that as such he is only required to exercise ordinary care. We may admit the correctness of both these propositions, and yet fail to perceive any error in the judgment. The question whether a person has failed to exercise ordinary care in his vocation, or what is the same thing, has been guilty of gross carelessness, depends in great measure upon the nature of that vocation. It would be gross carelessness for a workman to smoke in a powder mill; but it might not be gross carelessness for a blacksmith to smoke at his forge. Circumstances proverbially alter cases. And hence it has been held by this court and by ijie Supreme Court of the United States, that in an employment requiring skill the failure to exerci'se that skill is gross carelessness. Bussey v. the Mississippi Yalley Transportation. Company, 24 An. 165.

Now, the keeping of a wharfboat or warehouse floating on the water is certainly an employment requiring skill. It is exposed to many dangers which do not threaten the business of keeping a warehouse on land. The perils of leakage and sinking are, as appears by testimony in this case, unceasing in their attacks, yet they may be repelled by skillful care, or else the business would come to an end. We think it plain that defendant failed to exercise toward the plaintiffs the skill demanded by his employment. Haviug, without the consent of plaintiffs, removed their powder from the Rapley boat, where it was safe, to another boat, he received on that other boat for his own advantage and purposes an unusually large consignment of freight. It appears from the testimony that the Cincinnati, before this, was but lightly laden and lay well up in the water, and it is probable that the seams thus exposed had opened, so that when the great weight of army stores was placed upon her and she settled down, the leakage commenced. The testimony also makes it probable that the pumps were inadequate, or the force to man them insufficient. It further appears that the defendant had about twenty hours from the time when the danger of sinking announced itself in which to remove the plaintiffs’ powder; and of these ten or twelve were hours of daylight, when there would have been no danger of fire in such removal. It would have required but the work of a few moments to have replaced the powder on the Rapley boat, from which, in strictness, the defendant, should never have removed it. After a review of the whole evidence,, we are of opinion that the defendant failed to exercise the care which the law requires from one in his business.

Judgment affirmed.


text:
    No. 359.
    W. S. Edwards v. The Parish of Bossier.
    Parish warrants which have been issued by the police jury without the authority of law impose no legal obligation or debt upon the parish.
    from the Eighteenth Judicial District Court, parish of Bossier. Watkins, J.

      J. B. Griffin and J. A. Snider, for plaintiff and appellee. Biehard W. Turner, for defendant.
   Taliaferro, J.

The plaintiff sues to recover $2253 10, with interest thereon, being the aggregate sum of eighteen warrants or obligations-issued by the police jury of the parish through, the president of that body; and made payable to the petitioner or bearer. The answer is a general denial of the liability of the parish on the instruments sued on, and a special averment is made that the parish of Bossier is without power or authority to jssue and put into circulation the instruments upon which the action is founded, and thereby bind the parish for their payment. The defense further is, that if the parish of Bossier were ever legally obligated to pay the warrants held by the plaintiff, it would now, since the formation of the parish of Webster, be bound only for one-half of the amount sued for. The defendant pleads the prescription of five years in bar of the action. There was judgment against the parish for $2205 35, with interest, and a decree for the assessment and collection of a parish tax sufficient in amount to pay and discharge the debt and all costs. The defendant has appealed.

It is not shown that the police jury of Bossier parish, by any special act of the Legislature, was empowered to issue these negotiable instruments ; nor is it shown that the police jury, by ordinance passed at the time it authorized the issuing of them, provided in the manner required by law for their payment. These pretended obligations are therefore void and without effect. No money can be had upon them. Acts of 1853, p. 234; 23 An. 190, 232, 251.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided anil reversed. It is further -ordered that there be judgment in favor of defendant, the plaintiff and appellee paying costs in both courts.


author: Howell, J. Howe, J., Ludeling, C. J., Taliaferro, J.

text:
    No. 146.
    C. Yale, Jr., & Co. v. J. W. Howard.
    Where a devolutive appeal lias “been taken from a judgment which, directs a certain number of pounds of cotton to be delivered to the plaintiff, or in dofault thereof to pay a certain amount in money, and execution has issued thereon, the delivery into the hands of the •sheriff of the cotton is not a voluntary execution of the judgment, and the devolutive •appeal may be prosecuted thereafter.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      V. M. Pegues, for plaintiffs and appellants. Land & Taylor, for defendant and appellee.
   Howell, J.

The defendant obtained judgment against plaintiffs for •4f six thousand pounds of ginned cotton, strictly middling, or in default ■thereof the sum of three thousand one hundred and twenty dollars, ■the value thereof,” and caused execution to issue. Two days after -execution was issued the plaintiffs took a devolutive appeal, and had the judgment reversed, on the ground that it was enforcing a contract, the consideration of which was Confederate treasury notes.

A few days after the execution issued and.an appeal was taken, a -cotton broker in New Orleans wrote as follows to the sheriff:

“General H. T. Hays:
Lear Bir — I have purchased the six thousand pounds of cotton for ■account of Mr. Yale, but the press will not deliver it to-day. Will joxl please allow the delivery of the cotton to remain over until to-morrow, and oblige,” etc. 1

In accordance with this the cotton, which cost nineteen hundred and twenty dollars, was delivered, and a receipt therefor indorsed on the ■execution.

The question ,is, was this a voluntary execution of the judgment ? A majority of the court think not. It seems manifest that the plaintiffs were acting under compulsion of the law, for they were entreating the sheriff for a time to obey the writ which he was executing, and the fact that they chose to comply with one.of the alternative demands ■of a writ which they could not resist does not, in our opinion, make the execution oí the judgment voluntary. The sheriff was commanded to take the cotton or its value. He gave the debtors the right to ■deliver the cotton, which they delivered in obedience to the mandate of the law; but they continued to prosecute their appeal and were relieved from the judgment. A devolutive appeal implies the right to have the judgment executed and the obligation to refund. It seems to us that under the circumstances the action of plaintiffs was advantageous to the defendant, for had they allowed their property to be seized and sold a much larger amount would be demandable. The •case in 14 An. 329, cited by defendant, differs materially from this.

It is therefore ordered that the judgment appealed from be reversed, .and that plaintiffs recover of defendant the sum of nineteen hundred .and sixty-one dollars, with legal interest from judicial demand, and .costs in both courts.

Howe, J.,

concurring. I think the plaintiffs were compelled to pay on the defendant’s judgment what they did, and are entitled to recover. I therefore concur in the decree in their favor.

Wyly, J., concwring.

Ludeling, C. J.,

dissenting. This is an action to recover the value of six thousand pounds of cotton at thirty and a half eents per pound, which the plaintiffs allege was unduly paid to the defendant in satisfaction of a judgment in the suit of J. W. Howard v. C. Yale, Jr., & Co. It appears that judgment had been rendered in favor oí Howard for six thousand pounds of ginned cotton, strictly middling in quality, and in default thereof for three thousand one hundred and twenty dollars. The judgment was based on a contract for Confederate treasury notes. A devolutive appeal was taken, and pending the appeal, an execution having been issued under the judgment, C. Yale, Jr., went into the market and bought the amount of cotton specified, at thirty and one-half cents per pound, and satisfied the judgment.« Subsequently the judgment in the case of Howard v. Yale, Jr., & Co. ■was reversed. We think they voluntarily delivered the cotton which they had bought for one thousand eight hundred and thirty dollars, in satisfaction of the judgment for cotton or three thousand one hundred and twenty dollars, and that if the fact had been known to the appellate court before the cause was decided, that court would have dismissed the appeal. 14 An. 329. Besides, the contract which gave rise to the obligation of C. Yale, Jr., & Co. was decided to be unlawful. We can not aid C. Yale, Jr., & Co. to recover back what they have voluntarily paid any more than we could help Howard to enforce his contract. I think we should leave the parties where they have placed themselves. 5 R. 101. If there is any equity in the case it is on the side of the defendant, who bought cotton from the plaintiffs and paid them Confederate currency which, though unlawful, had a value at the time, and which C. Yale, Jr., & Co. enjoyed. After the judgment against C. Yale, Jr., & Co. for the price of the cotton sold, as aforesaid, had been rendered by the district court, their cupidity made them choose, the alternative given by the judgment of delivering cotton instead of running the-risk of having to pay the money judgment; and thus, to some extent, they have been made to discharge an obligation which their consciences should have made them observe. I think there-is no error in the judgment of the district court; I therefore dissent.

Taliaferro, J.

I concur in the dissenting opinion of the Chief Justice in this case.

Rehearing refused.


text:
    No. 364.
    E. S. Oliver v. B. M. Johnson.
    agmt who has transcended his authority in the collection and investment of the proceeds. of notes is not liable therefor, if the principal, on being advised of the collection and investment by the agent himself, fails to notify him. promptly that he-repudiates his acts.
    from the Tenth Judicial District Court, parish of Caddo. Devisee, J.

      Duncan and Moncwe, for plaintiff and appellant; Land and Taylor, for defendant and appellee.
   Taliaferro, J.

The plaintiff sues the defendant to recover from him the amount of two promissory notes, one for $200, the other for $750, with ten per cent, interest on each, alleging that, in November, 1860, he forwarded to the defendant, living in Shreveport, these two notes for collection — the makers of the notes being residents of Jefferson, in Texas. That the notes were received by Johnson, who is a private banker and collecting agent, but has entirely failed to account to the petitioner for the notes, or for any part of the same.

The defendant in his answer admits that, in the latter part of the year 1860, he received the notes in question for collection; that he sent them to a local collector in Jefferson, Texas, for collection; that repeated efforts were made by him to collect the notes, without success; that he caused the notes to be. duly protested at maturity; that, when informed by the collector at Jefferson of his inability to collect the money on the notes, the defendant caused' them to be placed by his agent in the hands of an attorney of good standing, to be sued upon, the said attorney undertaking to collect or account for the said notes. The defendant contends that, having used due diligence to collect the notes, and having turned them over to a respectable attorney for suit, his own responsibility as agent ceased, the attorney at law being responsible.

There was judgment for the defendant,, and the plaintiff has appealed.

The difficulty between the parties in this case seems to be that the attorney at law collected the notes in confederate treasury notes. The defendant Johnson wrote under date of November 3, 1865, as follows to the plaintiff: ,

“Dear Sir — Yours of 25th ult. received and contents noted. When I received the notes mentioned, I found it necessary to place them in the hands of an attorney at Jefferson for collection. The war came on and stopped everything. In 1863 I received advices from my attorney that the party offered to pay confederate money, and stated all his clients were taking it, and advised me to pursue the same course, which I did, and invested the amount in interest notes, which I have on hand now.
“ Yery. Respectfully,
B. M. JOHNSON.”

Nearly five years intervened between the date of this letter and the filing of this suit against Johnson to compel him to account.

The plaintiff, in his own testimony, says: “When I received the information from Johnson that he had collected these notes in confederate money and reinvested them in confederate interest-bearing bonds, and that he still had them on hand, I did not consider it necessary to write him that I repudiated the acts of his attorney in Jefferson, and therefore did not do so, as I considered him responsible to me for the acts of his agent, and that he had just as well have said that his agent had stolen the notes, or that he had cast the proceeds into the Mississippi river.”

It is a well-settled principle of agency, that the acts of one or the other party, when disclosed to his correlative, should be promptly avowed or disavowed. In the case of Ward v. Warfield, 3 An. 471, this court, in relation to the duties and responsibilities of agents toward their principals, said: “If the agent unnecessarily exceed his commission or risk his principal’s effects without authority, he renders himself responsible to the principal. But while this general doctrine may be considered as unquestionable, there are other principles which are equally well settled in the law of agency. Subsequent assent, as between principal and agent, is equivalent to a previous authority; and hence where an agent has committed a breach of orders, and the principal, with full knowledge of all the consequences, adopts his acts, even for a moment, he will be bound by them, aud the agent will be discharged. Nor is it necessary that such a spirit should be express. It.may be inferred from the conduct of the principal.” C. C. 1811; 18 La. 517 j 7 N. S. 143; 2 Rob. 1 ¡ 11 La. 286.

In Ball v. Bender, 22 An. 496 — a case similar in its character to the one under consideration — Ainsley, as agent of Bender, had, without express authority, sold cotton of his principal for confederate money. When he heard of the sale Bender said he would rather have heard of his burning the cotton than selling it for confederate money, but did not promptly repudiate the act. In a suit by Ball against Ainsley and Bender, to enforce the contract Ainsley had entered into with Ball, the court on a rehearing on the reconventional demand of the defendant gave judgment against him on the ground that “it was the duty of Bender to notify, the plaintiff Ball that he repudiated the act of Ainsley as unauthorized so soon as he was informed of the fact, oven if Ainsley had been unauthorized to sell. This he failed to do.”

We think the evidence in the case before the court shows a neglect on the part of the plaintiff to disavow and refuse to ratify the unauthorized act of his agent, when informed of it by the agent himself, that will debar him from recovery.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


author: Wyly, J.

text:
    No. 323.
    L. Grand & Co. v. Charles P. Cox et al.
    The burden falls upon the person who objects to the admission- of a certified copy of a mortgage in evidence, on the ground that the original did not contain the required amount of internal revenue stamps upon it, of showing that the stamps were not upon it at the time it was recorded. In the absence of such proof the presumption is that the recorder required the necessary stamps to be affixed before he recorded the act.
    from the Fourteenth Judicial District Court, parish of Richland. Bay, J.

      W. W. Oamplell, for plaintiffs and appellees. Morrison <& Farmer, for defendants and appellants.
   Wyly, J.

The plaintiffs sue the defendants jointly for $2715 fox-supplies furnished them during the year 1867, and claiming a privilege, they sequestered part of their crops ; they also seek to foreclose the mortgage given by the defendant Scriber on the land described in the-petition. The defense was the general denial.

The court gave judgment for the plaintiffs and the defendant Scriber has appealed.

As to the defendant Cox, the judgment can not be examined, because he has not appealed.

The defendant Scriber excepted to the admission in evidence of the-certified copy of mortgage which he gave the plaintiffs on the eleventh December, 1867, because the original act of mortgage was not stamped as required by the revenue laws of the United States.

The recorder’s certificate attached to said copy shows that it was duly recorded on nineteenth December, 1867. In the absence of proof' to the contrary, we will presume that the recorder did his duty, that he required the necessary stamps to be legally affixed before registering the act. The bill of exceptions was not well taken.

From the evidence we think the court erred in condemning the defendant Scriber jointly with the defendant Cox for $2715, and also decreeing judgment against him for $1500, the amount of the mortgage. The amount for which there should be judgment against him is only the amount of the mortgage consented to by him on the eleventh-December, 1867.

It is therefore ordered that the judgment against the defendant Scriber be reduced to $1500, with five per cent, per annum interest thereon from first January, 1868, and as thus amended let the judgment be affirmed.

It is further ordered that appellees pay costs of appeal.

Rehearing refused.


author: IIowe, J.

text:
    No. 340.
    H. Cushing, for use, etc., v. T. E. Jacobs.
    A due bill for a certain amount given to secure payment of a shipment of cotton from the Red River to Re*w Orleans at so much per bale — the number of bales to be ascertained after the boat arrives at Ke*w Orleans — can only be enforcod for the number of bales actually carried at the rate agreed on.
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      Land <& Taylor, for plaintiff and appellee. Nutt & Leonard, for defendant and appellant.
   IIowe, J.

This*action was commenced on the following instrument:- “ Due H. Cushing $1240, charges on cotton taken from the wreck of the steamer D. C. Horton.
(Signed) • T. E. JACOBS.
(Indorsed) H. CUSHING.”
“ October 7, 1865.”

A number of points have been discussed in the briefs, but the only issue really made by the answer is as to the consideration of the due-bill — in respect to which it is averred that “said note was without legal or valid consideration, and that same was signed in error.”

The history of the due bill, as we interpret the testimony, is as follows: In October, 1865, the steamer Horton, loaded with about two hundred and seventy-five bales of-cotton, sank in Red River. Shortly after the steamer Cricket, commanded by defendant, came to her assistance. It was then agreed, that the Cricket should take the cotton from the Horton and transport it to New Orleans, and there collect the full freight for the whole at the rate of $20 per bale, and pay to the Horton $10 per bale for all the dry cotton. The transfer from the sunken boat was made in the night and in a hurried manner, and it was estimated that there were one hundred and twenty-four bales of dry cotton, for which, at the rate of $10 per bale, the due bill was then and there given.

It was understood that the exact number of bales of dry cotton should be definitely ascertained in New Orleans, and on the arrival of the Cricket there, it was found. by inspection and sampling that there were but sixty-five bales of dry cotton.

The testimony which discloses this state of facts was received without objection, and is neither impeached nor contradicted. We therefore conclude that the due bill as between the parties ought not to be enforced beyond the amount really contemplated by them at the moment it was signed. This amount is shown to have been $650.

It is therefore ordered that the judgment appealed from be reduced to the sum of six hundred and fifty dollars, with five per cent, interest' thereon from October 7, 1865, and costs of lower court, and that plaintiff and appellee pay costs of. appeal.


text:
    No. 365
    Martin L. Baker v. Elstner, Kinsworthy & Co.
    In this case plaintiff took defendants’ note in settlement of a debt, and with the knowledge of defendants placed it in the hands of a third party, to whom payment was afterward made. Plaintiff now seeks to enforce payment against the maker on the ground that the third holder was not authorized to receive payment.
    Held — That the loss must fall upon the plaintiff, because it was through his fault that the defendants were enabled to make the payment to the third party.
    from the Tenth Judicial District Court, parish of Caddo. Hevisee, J.

      Sides & Hall, for plaintiff and appellant. , Duncan & Monoure, for defendants and appellees.
   Wyly, J.

Plaintiff appeals from the judgment rejecting his demand against the defendants on a promissory note for $1000.

The defense is the plea of payment.

It appears that the jilaintiff loaned the defendants the sum claimed and took their note in favor of Thomas M. Wynn. He says he took the note in this way to prevent annoyance from a party who he feared would sue him if he knew that he was the owner of the debt due by the defendants.

By the testimony of the plaintiff it also appears that immediately after the note was given, Thomas M. Wynn accompanied him to a neighboring store and there indorsed in full to him the note. He then placed the note in Wynn’s hands to keep, pursuant to previous arrangement.

It remained in Wynn’s possession until past due. In the meantime the payments were made to Wynn, which the defendants contend extinguished ihe debt.

The credits were not indorsed on the note, but the defendants took Wynn’s receipts. The plaintiff contends that Wynn had no authority to collect the debt, and that the defendants are at fault for not' demanding the note before making the payments.

While Wynn held the note, the defendants knowing that he was the payee, and being doubtless ignorant of the indorsement in full, had the right to believe him the owner, and they were justified in making the payments as they did to him. The plaintiff chose to put his claim in the name of Wynn, thereby inducing the defendants to deal with him as owner.

The loss must fall upon the plaintiff rather than upon the defendants, because it was by plaintiff’s act that Wynn was enabled to collect the money from the defendants.

We think the judgment is correct.

Judgment affirmed.


author: Wyey, J.

text:
    No. 328.
    Thomas Gooch et al. v. John Lee Gooch et al.
    An lioir ivlio lias provoked tlie appointment of liimself as provisional administrator of the estate of his mother, on the allegation that the succession required immediate admin istration, can not he held and treated as an intemneddler in the estate.
    from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      Nutt & Leonard, for plaintiffs and appellants. B. J. Looney, Public Administrator, for appellees.
   Wyey, J.

The question presented for adjudication in this case is, can a provisional adininistrator who has collected funds belonging to-the estate, and failed to pay them over to the heirs, be treated as an intermeddler, and the property which he has transferred to a third party be subjected to an hypothecary action on account of the mortgage accorded to minors against intermeddlers ? Bevised Code 3315. The court a qua concluded that the provisional administrator could not be so treated, and gave judgment accordingly.

The plaintiffs appeal. They allege that their mother Martha Gooch died in 1859, while they were minors, leaving certain property, particularly three notes for $1200 each, due by Mrs. Martha Gibbs, of Mississippi. That their brother John L. Goooh collected these notes and has never accounted therefor, thereby becoming indebted to them for the amount claimed in the petition. That they, being minors and unrepresented by a tutor, acquired a legal mortgage on the property of said John L. Gooch, because he intermeddled in the succession of their mother and interfered in the administration of property belonging to them; that said mortgage affects the lot of ground described in the petition, situated in the city of Shreveport, and now possessed byr the succession oí James Coulter, because'the same was owned by the-said John Lee Gooch at the time of said intermeddling in the administration of their property, and that its subsequent transfer to Simms and to Coulter did not remove the incumbrance. The public administrator who represents the succession of* Coulter contends that the lob in question is not affected by the mortgage :

First — Because John Lee Gooch was provisional administrator at the time he collected the claim; besides, he is one of the heirs, and he ought not to be treated as an intermeddler by reason of his office and heirship.

Second — Because the lot did not belong to John Lee Gooch, but to-his wife Matilda E. Gooch, who acquired it in 1863, the deed contain- ■ ing the following clause:

“It is expressly understood that this purchase is made with Mrs. Gooch’s own separate funds; in this, that it is replacingher paraphernal property alienated by her husband.”

The public administrator contends that Simms acquired in good faith the ,lot from Matilda E. Gooch, who held by a title ostensibly valid, and he subsequently transferred the said lot to James Coulter. That, under the authority of Mercier v. Canonge, 8 An. 37, said lot in the hands of innocent third persons would not be affected by a tacit mortgage against John Lee Gooch who, at most, only had a covert or equitable interest in the property, the ostensible title being in his wife.

We deem it unnecessary to decide this point, because the first objection, in our opinion, disposes of the ease. We think the provisional administrator was not an intermeddler.

John L. Gooch, one of the heirs, Applied to the court to be appointed provisional administrator, representing that the succession of his mother .required immediate administration; that it consisted mainly of promissory notes due by a person residing in Mississippi, and it was to the interest of all the heirs that the money be collected immediately;, “that it will be dangerous to went'the delay of the time prescribed by law for the appointment of an administrator or curator, and that for this ptmjjose alone he be appointed provisional administrator.”

The court appointed him; he took the oath and gave bond for $6500, the inventoried value of the estate being $5950. Whether or not the court erred in appointing him is immaterial. He took the oath and gave the bond required by the judge, and in proceeding to accomplish the object of his appointment he can not be regarded as an intermeddler. Where it was necessary to preserve the estate, the judge had the right to appoint a provisional administrator, and the person so appointed will not incur the penalty announced in article 3315 Revised Code, where he merely performs the duty contemplated in the appointment.

It is therefore ordered that the judgment herein be affirmed, with costs.