text:
    Dow & Walsh et al. v. Hardy & McDonald, Executors, et al.
    Ah appeal willbo dismissed if all the parties interested in maintaining tlie judgment of tbe court below, are not mentioned in tbe appeal bond.
    APPEAL from the District Court of the Parish of Claiborne, Land, J.

      Copes ty Ludeling, for plaintiff and appellant.

      McGuire Ray, for defendant.
   Buchanan, J.

There are two motions to dismiss the appeal in this case, of which it is only necessary to notice one—that filed by the executors. This motion is grounded upon the want of an appeal bond in favor of the parties in the cause, who are the real parties in interest.

This is an opposition to the admission by the executors, as good claims against the succession, of four drafts of the deceased, in favor of William A. Brake, Jr., for one thousand dollars; of Henry Brahe, for two thousand and eighty-seven dollars and thirty-eight cents; of Jasper Gibbs, for five hundred dollars ; and of the Trustees of the Minden Male Institute, for fifteen hundred dollars. The judgment of the court below dismissed the oppositions, and directed the executors to pay the drafts. From this judgment the opponents appeal.

It is plain that the holders of the drafts in question are the parties interested in maintaining the judgment appealed from. Three of them are held by the payees, William A. Brahe, Jr., Henry Brake, and Jasper Gibbs; and the fourth is held by an endorser, J. H. Cunningham. One of these parties, Cunningham, is not mentioned as obligee in the appeal bond; and another, Gibbs, is only men-' tionod in his capacity of tutor of his children, who are heirs at law of the deceased, but not in his individual capacity.

The motion must, therefore, prevail.

Appeal dismissed, at costs of appellants.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    Moses S. Guice v. F. P. Stubbs and Bobo, Sheriff.
    ■When an appearance "bond lias been duly forfeited, tlic appearance of tbe accused at a subsequent term of the court to stand his trial will not liberate the security from liis liability.
    APPEAL from the District Court of the Parish of Morehouse, Mayo, J.

      Todd & Brigham, for plaintiff and appellant,

      F. P. Stubbs, for appellees.
   Cole, J.

This is an injunction suit; the facts of the case will be briefly detailed. A bill of indictment for larceny was found against one M. A. Guice at the May term, 1856, of the District Court. He gave a bond for one thousand dollars, conditioned for his appearance with the present plaintiff, as his security.

The bond was subsequently forfeited for non-appearance, and judgment was rendered against the parties thereto.

The jury having been discharged for the term, the accused appeared at the same term of court, at which his bond had been forfeited, and demanded a trial by jury and that the judgment bo set aside.

On account of the discharge of the jury, the court could not grant him a trial, and refused to set aside the judgment, whereupon an appeal was taken to this court and the judgment was affirmed. 11 A. p. 605.

An execution having been issued, this injunction was sued out by plaintiff who was security on the bond ; he represents that his principal the accused has appeared in court, when a jury were present, since the termination of the suit upon the bond, and demanded his trial, which was refused; he prays therefore that the execution on the bond may be perpetually injoined, and that he may be liberated from liability upon the bond.

It appears that when the accused presented himself for trial, the State was not ready on account of the death of one of the witnesses and the absence of others from the state.

The statute authorizes the setting aside of the judgment at the same term of court upon the appearance, trial and acquittal, or upon the appearance, trial, conviction and punishment of the party accused. Revised Stat. p. 170.

The accused by his own fault had prevented a trial, when the State might have been ready; he had rejected his right to a speedy trial.

He cannot then complain that the State is not ready, when he has thrown obstacles in the way, that have delayed the trial, until the witnesses have left the State.

Appellant complains that the judgment allows ten per centum interest on the amount injoined, instead of eight per centum.

It does not appear that this error was called to the attention of the lower court, and as the amount of the difference of interest is small, the maxim de minimis will apply.

Judgment affirmed.


author: Spoerord, J.

text:
    E. R. Cory v. Allen W. Eddins.
    The principle ill the case of Hollander, v. His Creditors, 6 An. p. GC9, re-affirmed, to the effect that all the privileges created by Art. 3184 C. C. as amended by the Act of 1S43, arc equal iu rank, except the privilege for the wages of the overseer, which is declared by the Act to be superior to that of the furnisher of supplies ; this exception evidently confirms the rule.
    RPE AL from the District Court of the Parish of Franklin, Barry, J.

      T. S. Crawford, for plaintiff.

      W. H. Hough, for defendant and appellant.
   Spoerord, J.

Both parties were aware of each other’s privilege upon the cotton raised by the common debtor Tiffee, which was shipped by the defendant, and there was no such bona fide sale of that lot, to either of them as to defeat the privilege of the other.

The nett proceeds of this cotton in defendants hands ($264 27) must, therefore, be treated as subject to the privileges of both.

All the privileges created by Article 3184 of the Code as amended by the Act of 1843, are equal in rank, with the exception of the privilege for the wages of the overseer, which by the second section of that Act is declared to be superior in rank to that of the furnisher of supplies; this exception evidently confirms tho rule.” Hollander v. His Creditors, 6 An. 669. The plaintiff had a privilege upon the cotton which produced the fund aforesaid, for $300 ; the defendant for $200. Dividing the fund pro rata between them, the plaintiff is entitled to a judgment for $158 55.

It is, therefore, ordered, that the judgment of the district court be avoided and reversed; and it is now ordered and decreed, that the plaintiff recover from the defendant the sum of one hundred and fifty eight dollars and fifty-five cents, with five per cent, interest from the 3d May, 1853, until paid, and the costs of suit in the district court; the costs of this appeal to be paid by the plaintiff and appellee.


author: Buchanan, J. Cole, J., SroiroBD, J.,

text:
    Antoinette Boulard v. Meredith Calhoun.
    An employer is not responsible for acts of bis overseer, which are not done in discharge of duties for which such overseer was engaged ; nor is he responsible for the acts of his slaves used by his overseer, to assist him in the performance of such unauthorized acts.
    In a suit brought by plaintiff to recover damages against a planter for the violent ejection of herself from her house, the removal of her goods, wares, and merchandize from her store, and the destruction of the store itself by defendant’s overseer and slaves—Held : That testimony going to show that the business carried on by plaintiff consisted chiefly m illegal traille with slaves, was admissible to rebut the claim for damages.
    The owner of a slave is not liable for exemplary damages for any offence, or quasi offence, of his slave, unless the slave, in committing the offence, acted under the command of his master, who thereby became an active participant in the tort or crime done.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      Hyman § Cazabai and W. B. Lewis, for plaintiff.

      T. C. Manning, J. H. Overton and Ogden Ryan, for defendant and appellant.
   Buchanan, J.

This is an action sounding in damages for a tort committed by defendant’s slaves.

The petition charges, that by the advice and procurement of the defendant, certain white men, named Murray, Shelton, Johnson, Hamilton and Houton, together with about twenty-nine slaves, all belonging to defendant, and of which slaves nine were designated by name, came to the residence of plaintiff, in the night of the 19th May, 1856, and forcibly and violently ejected her from her house, and removed her stock of goods, wares and merchandize, from a store which she kept there ; which, together with the person of plaintiff, the said white men and slaves placed in a flatboat, and turned the same adrift in the Red River. Petitioner further alleges, that she had in her house two thousand dollars in cash, which the said white men and slaves took possession of, and have never returned to plaintiff; and further, that the said white men and the said slaves, acting by the advice of the said Meredith Calhoun, did set fire to plaintiff’s house, and consumed the same, with its furniture. The plaintiff lays her damages at twenty thousand dollars.

The case has been before two juries. The first time there was a mis-trial; and the second jury has returned a verdict of five thousand dollars ; from which defendant appeals.

The evidence shows that plaintiff resided and kept a small assortment of groceries, dry goods, etc., in a shanty, of the meanest description, which her husband had put up many years ago upon the river bank, on land of the estate of Tlidcman, and for which he, and his widow after his death, covenanted to pay the proprietor of the land an annual rent of five dollars.

The defendant is a planter, having four cotton plantations, lying contiguous to each other, on the opposite side of the Red River from the plaintiff, and all fronting the river. Although the defendant himself resided on one of these plantations, they wore all under the superintendence of a general manager, Mr. Benjamin ; and each of the plantations was provided with a separate overseer.

For reasons which will be seen, when we come to examine a bill of exceptions in the cause, Dr. Murray, a planter, living immediately contiguous to plaintiff, and Mr. Benjamin, the manager of the defendant, determined to remove the plaintiff and her stock of goods from the shanty which she occupied, and after shipping her and them on board a flatboat, to demolish the shanty itself. This project was executed in the night of the 19th May, 1856. The .parties present and aiding in its execution were four in number, namely : Dr. Murray, Johnson and Swim, two of the defendant’s overseers, and Hamilton, a herdsman, or cattle-minder, in the employ of defendant. The two overseers brought with them, by directions of Benjamin, a force of ten each of the slaves attached to the plantations of defendant, under their charge, to do the laboring work of the removal of plaintiff’s goods from the shanty to the flatboat. There is no proof whatever that any money of plaintiff was taken, as alleged in the petition.

The first question that we have thought proper to be examined, is one of fact. Was it by the advice and procurement of the defendant that the acts just detailed were committed ?

It is certain that the defendant was not present in person at the scene of the outrage. The plaintiff’s petition declares that he was not present, by enumerating those who were present. It is true that two witnesses of plaintiff Mrs. Hamilton and Mrs. Shelton, declare that he was present; but their evidence is very satisfactorily shown to be false in this particular. And it is proved, by two witnesses, that the defendant, so far from advising the invasion of plaintiff’s rights of property and the violence to her person, on this occasion, distinctly refused to give them his sanction, when applied to for that purpose. Mr. Benjamin says: I was present when Dr. Murray proposed to defendant to remove plaintiff forcibly, and his reply was, that the act would be outrageous and illegal, and that he would have nothing to do with it.” And Johnson, in giving an account of the arrangements between himself and Benjamin, for the foray upon the plaintiff, tells us that Benjamin enjoined him not to say any thing to defendant about it.” Swim, the other overseer concerned in this affair, says : He never had any conversation with defendant about this transaction previous to its occurrence.” Dr. Mur ray says : “ The first proposition for the removal of plaintiff was first talked of at defendant’s, between Mr. Benjamin and witness, either by boxing up her goods and by hauling them off, or by putting them in a flatboat. Defendant was after-wards sent for by witness and Benjamin, and consulted in the matter. * * * * * Defendant said in substance that he would have nothing’ to do with her forcible removal; that he had prosecuted her in Natchitoches, and would probably get her off in that way. Thinks he made a statement to the effect that she was a woman, and he would not resort to any violent means of removal.” Again, in evidence taken under commission, Dr. Murray says : “ After Mr. Calhoun refused to participate in the removal of plaintiff, he immediately left the company and went to his own room ; that the way Mr. Calhoun had come into the room was, that Mr. Benjamin and witness had sent for him. The conversation was still continued after Mr. Calhoun had left the room ; that Mr. Calhoun, as witness had already stated, refused to have any thing’ to do in the transaction, but did not peremptorily forbid any others from proceeding in the matter at that time.”

We consider, therefore, that the plaintiff has failed to prove the allegation of her petition, that the tort complained ol was perpetrated by the advice and procurement of defendant; but, on the contrary, it is proved that it was not by his advice and procurement.

Oonceding that, under Art. 180 of the Civil Code, the master is answerable for all the damages occasioned by an offence or quasi-offence committed by his slave ; and that this liability attaches, as decided in the case of Collingsworth v. Covington, 2 An. 406, whether the owner could have prevented the damage complained of, or not; we are next to enquire what pecuniary loss the plaintiff is proved to have sustained by the acts of defendant’s slaves in the premises. Those acts consisted in removing the plaintiff’s property from her house to the flatboat; and in destroying her house by fire. Those were acts committed under the orders of defendant’s overseers, who were persons set over the slaves by their master, and to whose orders they were accustomed, as well as obliged, to yield obedience. Wo should, therefore, not consider these acts, under the circumstances, as acts of the slaves themselves, properly speaking, but rather as acts of the overseers, for which defendant is not bound, because they were not acts done in the discharge of the duties for which those overseers were engaged. (C. C. 2299.) But defendant had notice from Benjamin and Murray, of what was in contemplation ; and, although he disapproved of it, and although it is not proved that he had any notice of the intention of his manager, to employ any of his slaves in the execution of the project, yet we think that, having such notice, he ought to have, in the words of Murray, “ peremptorily forbidden ” the taking of his slaves for any such purpose ; and not having done so, he is responsible for the acts above enumerated as acts committed by his slaves.

We are next to enquire, what is the legal extent of such responsibility ? By Article 180 of the Code, the master is answerable for all the damages occasioned by an offence or quasi-offence committed by his slave. (Les maitres seront tenus do réparer les dommages causés, etc.) We find nothing in the terms of this Article, or of the following one, which extends the doctrine of exemplary, vindictive, or punitory damages, to this class of responsibilities ; with the single exception of the case where the tortious or criminal act has been committed by the slave, by the express command of his master. In which case wc may perhaps imply the doctrine from the terms of Article 181; and from the consideration that, in the case mentioned, the act of the slave would be, in reality, the act of the master ; and the slave merely a tool in the hands of the master.

But to extend an accountability so indefinite as that for vindictive damages, to other cases than those in which' the owner of the slave was an active participant in the tort or crime committed by the latter, would constantly expose the master to ruin by the acts of a vicious slave, without any fault of his own ; and would thereby operate as the greatest of discouragements, to the holding of that species of property; a consequence which we conceive to be at variance with the policy of the law of Louisiana.

None of the witnesses estimate the actual loss sustained by the plaintiff at more than one thousand dollars ; a lumping estimate, with very imperfect data to support it. It is proved, that in fifteen days after this event, the plaintiff was re-established at her old stand, with all her furniture, stock of goods, etc., about hei^ just as they were before the fire.

There is a bill of exceptions in the record, to the refusal of the district court to permit the defendant to offer, in mitigation of damages, proof of the nature and character of the business carried on by plaintiff; that it consisted chiefly of illegal trafficking with slaves. Much evidence of this kind, contained in depositions, was ruled out by the district court; but comes up in the record, marked with cross lines, or enclosed in brackets. We are of opinion that this evidence should have been admitted, to rebut the claim of exemplary damages. The mischiefs to our agricultural population, arising from shops kept by unprincipled white people, where whiskey is furnished to slaves in exchange for articles pilfered from their masters, have been frequently the object of legislative attention. Such traffic is prohibited under very stringent penalties ; and in some of these statutes, rules of evidence, highly favorable to the prosecution, have evinced the legislative sense of the importance of repression, and of the difficulty of conviction. The nature of the traffic, almost exclusively nocturnal, with parties incompetent as witnesses, makes it peculiarly hard of detection.

Having before us in the record this excluded testimony, which we think should have been admitted, it is unnecessary to remand the cause on that account. We have examined it, and find that it contains abundant proof that the plaintiff was habitually, and notoriously engaged in an illegal traffic with slaves.

Parties should present themselves in court with clean hands ; and one, who appears as a suppliant to the justice of her country, for enormous vindictive damages, based upon a violation of sacred rights, guaranteed to her by the constitution and laws of the land, should take heed that no habitual violation of those laws on her own part, has made her a nuisance to the community in which she resides.

It is, therefore, adjudged and decreed, that the judgment of the district court be reversed, and that plaintiff recover of defendant one thousand dollars, with costs of the court below; those of appeal to be paid by the appellee.

Cole, J.,

concurring. Inasmuch as plaintiff sought to recover, not only actual damages, but also smart money, I am of opinion defendant was entitled to introduce testimony relative to the character and occupation of plaintiff, in mitigation of the exemplary damages.

The philosophy of punitory damages is based upon the effect of the unlawful act, in outraging the feelings of the sufferer ; and also upon the justice and necessity of punishing beyond real damage to the person or property, him who has molested, and injured one pursuing avocations not reprobated by the State, or performing all the obligations of good citizens, and, therefore, specially under the protection of the law.

All rules of law ought to be established upon equitable principles.

There would be neither reason nor common sense in allowing the same amount of exemplary damages for a tort against one whose illegal acts were its exciting cause, as against a good citizen.

If injury to the feelings be considered in estimating the damages, then the sentiments and delicacy of the hardened violator of the law, are not to be valued at the same rate as those of the citizen who obeys the laws of his country. I concur in the opinion of Mr. Justice Buchanan.

SroiroBD, J.,

concurring. Whatever may be the doctrine concerning exemplary damages,” in cases against the wrong-doer himself, I think it clear that smart money, as it is termed, (that is, punitory, as distinguished from compensatory damages,) cannot be levied upon a master for the act of his slave, to which he was not privy.

The evidence fails to satisfy my mind that Calhoun was privy to the acts of his slaves, done to the injury of plaintiff; and his overseers were not acting in the scope of their employment.

One thousand dollars appear, from the testimony, to be an ample allowance to cover the real, or actual damages suffered by the plaintiff.

I am, therefore, able to concur in the decree, without expressing an opinion upon the admissibility of the evidence offered, to show the plaintiff’s habitual business and character.


author: Oole, J.

text:
    Walter L. Campbell v. Oscar Roubieu—Sally W. Nott, et als., Garnishees.—Andrew McDougall, Intervenor.
    A wife separated in property from lier husband, when sued upon an obligation contracted by herseliV cannot, in-bar to the action, plead that the decree of separation had not been advertised, and that no fi. fa. had issued upon her judgment; theso objections might properly be raised by third parties,
    APPEAL from the District Court of the Parish of DeSoto, Creswdl, J.

      Land § Winans, for 'intervenor and appellant.

      J. B. Elam, for defendant.
   Oole, J.

The plaintiff, the judgment creditor of the defendant, Roubim, caused a fi.fa. to issue on his judgment from the Fourth District Court of New Orleans, to the Sheriff of the parish of DeSoto, and garnisheed W. C. Payton, and others; and afterwards, by an amended petition, garnisheed Sally W. Nott and R. A. Nott, her husband.

R. A. Nott answered, for himself and wife, the interrogatories propounded by plaintiff,- as follows :

“ That they are indebted to Oscar Rouhieu in the sum of about two thousand dollars, more or less, the exact amount of which he will forward to the Clerk, before the trial of the case.”

Sally W. Nott, denying the right of lier husband to answer for her the inter- ' rogatories, answered, that to the best of her recollection, at the request of her husband, and with him, she signed a ao-te in favor of Oscar Rouhieu for about two thousand one hundred and eighty-seven dollars and fifteen cents, due about the first of April, 1855, which she thinks is negotiable, and has been informed has been transferred.” That this is all the debt she ever owed Roubieu."

Andrew McDougal intervened in the suit in garnishment; alleging himself to be the owner of the note, having obtained the same in the regular course of business, and prayed for judgment against her for its amount.

The liability of Mrs. Nott is the sole question, presented by the parties, for our solution.

She was, some years ago, separated in property from her husband.

The separation of property, her sole signature to the note, and the neglect to file an answer, when alone sued upon the obligation, denying the consideration to have accrued to the advantage of her separate estate, raise the presumption that the consideration of the note benefited solely herself.

This presumption becomes conclusive when conjoined with the recognition in her response to the interrogatories, that she owed to Roubieu, the payee, the debt created by the note.

It cannot abstract from the cogency of the conclusion, that the decree of sopa^ ration was not advertised, and no ji. fa. issued. These are objections to be pressed more properly by third parties, than by the one whoso duty was to have had the decree advertised, and the./;, fa. issued.

It is, therefore, ordered, adjudged and decreed, that the judgment be amended, as follows, to wit; That Andrew McDougal, the intervenor, recover of Sally W. Nott, two thousand one hundred and eighty-seven dollars and fifteen cents, with eight per centum interest thereon, from the first of April, 1855, until paid, less a credit of one hundred and eighty-eight dollars and fifty-six cents, paid April 4th, 1855, and the costs of his intervention.

It is further decreed, that the judgment, so amended, be affirmed, and that Sally W. Nott pay the costs of appeal.


text:
    W. B. Hyman v. L. Bailey et als.
    •A call in warranty will not bo allowed after the caso has been set, an l called up for trial.
    In an action,en declaration de simulation” where plaintiff has alleged the utter insolvency of defendant—JIdd: That authentic acts of sale of land and slaves to defendant, are admissable in evidence to establish the fact of his solvency, and consequent ability to make the purchase of the property m controversy.
    A party claiming title under a Sheriff’s sale made by virtue of ,a fi fa. in support of his title, must produce not only the sale of the Sheriff, but also the writ of execution, the Sheriff’s return and the judgment.
    -The Act of 1855, with rogard to the effect of Sheriff’s sales, does not mako the original, or copy of such a salo, sufficient proof, in itself, of a title translative of property.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      W. B. Lewis and A¡ Cazabat, for plaintiff.

      Ryan & Osborn, for defendant and appellant.
   Cole, J.

This is a petitory action, conjoined with an action en declaration de simulation, to recover a certain tract of land, which plaintiff avers he purchased at Sheriff’s sale.

On the trial, defendant asked leave to call W. Waters, Jr. in warranty; and on the refusal of the Judge, a bill of exceptions was taken to his opinion.

The court did not err; the call in warranty was offered to be filed, after the case had been set by consent, and called up for trial by the consent of counsel on both sides.

It was in the power of defendant to have asked for the call in warranty at ap earlier date, and not to have waited until the permission to make the warrantor a party would have operated a continuance.

Besides, Waters, in his sale, expressly limits his warranty to his own acts and those claiming under him; defendant had then no right to call him in warranty, because plaintiff does not claim under Waters ; but by virtue of a purchase made of the rights and title of defendant.

There is, also, a bill of exceptions to the refusal of the court, to permit the defendant to “ establish, by authentic acts of sale to the deceased Merrick Maillon, in her lifetime, that she owed a valuable property in lands and slaves ; from the revenues of which, she was able to make the purchase of the land in controversy.”

The court erred. One of the principal objects of the suit was to declare the sale to Maillon .simulated, and plaintiff, in his petition, alleged that she had neither means nor money to buy properly.” Defendant, as the administrator of her estate, was then entitled to contradict this averment, which was also sought to be sustained by proof.

It is unnecessary now to express an opinion upon the merits of the cause, for plaintiff has shown no title, and he has no right to force defendants to exhibit their title, until he has established an adequate interest in the land to authorize it.

Plaintiff pretends to have purchased the land at Sheriff’s sale, on the 7th of April, 1855, by virtue of an execution issued out of the District Court of the parish of Rapides, on a judgment of A. Lilly v. S. E. Cuny et al., wherein defendant, Bailey, was a judgment debtor.

The only evidence of such a title is the Sheriff’s deed of sale of the land to plaintiff.

This is insufficient. It is incumbent on a party, Claiming under a sale by virtue of a ft. fa., to produce the writ of execution, the Sheriff’s return, and the judgment.

The Sheriff’s sale proves that the Sheriff pretended to sell certain property; but it is a mere executive act, depending for its validity upon the judgment of a competent court and an execution, issued in virtue of the mandate of the court.

The presumption of omnia rede ada applies to the sale of a Sheriff, so far as the formalities of law are concerned, which his duty required him to follow in making the sale; but it is not a sequence from this, that he did not act in error, and make the sale under a forged copy of a pretended judgment.

Sec. 3 of the Act of 1855, relative to Sheriff’s sales and writs of fieri facias, approved March 15th, 1855, gives the same effect to a copy of a Sheriff’s sale, duly recorded and certified, as to a duly certified copy of an authentic act; but does not make the original or copy sufficient proof of itself, of a title translative of property. Davis v. Wilcoxen, 5 An. 584.

The judgment shows the nature of the decree of the court; the writ of execution is the authority given for making the judgment effective; and the Sheriff’s return shows what was done under the execution. Dede v. Boguille, 8 An. 138.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed. And it is further decreed, that this cause be remanded to the lower court for further proceedings according to law, and the principles enumerated in this opinion. And it is further decreed, that the appellee pay the costs of appeal ; those of the lower court to abide the event of the final decree.


author: Cole, J. Spoffobd, J.,

text:
    Dunn & Yates v. G. M. Branner.
    A steamboat will be beld liable for obligations incurred, during a trip, whether the trip was authorized by the owners or not.
    The bill of lading does not create the contract between the shipper and the common carrier ; it has been adopted as a convenient mode of establishing the contract, but is not an exclusive species of evidence.
    A steamboat is responsible for money deposited by travelers, when the deposit isa necessary one.
    A person receiving a voluntary deposit is liable only for gross nogligonce or fraud.
    APPEAL from the District Court of the Parish of Natchitoches, Chaplin, J.

      Hodge & Austin, for plaintiffs and appellants.
    /. G. Campbell and J. B. Smith, for defendant.
   Cole, J.

Plaintiffs delivered to Captain Newsom, of the steamer Belle Gates, two packages of money ; one containing five thousand dollars, the other thirty dollars, to be carried from New Orleans to Shreveport.

At the arrival of the boat at the port of destination, the package of five thousand dollars was missing. Newsom was then arrested on the charge of having embezzled it.

Having signed a bill of lading for the package, he was liberated. Plaintiffs then being in possession of the bill of lading, caused the boat to be sequestered. Bryan, the owner of the Belle Gates, being absent from the State, his son-in-law, the defendant, in order to relieve the boat from seizure, entered into the following-agreement :

“ State of Louisiana, Parish of Caddo.
Bo it remembered hereby, that we, the undersigned, have this day fully adjusted all things in relation to the seizure of the steamer Belle Gates, for the loss of deposit of five thousand dollars by Dunn Sf Yates, for which she was seized. The terms of this adjustment are as follows : Dunn Sf Yates agree to take the bills of the steamer Belle Gates, one for the sum of two thousand five hundred and twenty-two dollars and twenty-two cents, at forty days from date, and one for two thousand five hundred and thirty-three dollars and thirty-one cents, at sixty days after date, both payable at the counting house of John F. Wyche & Co., New Orleans, Louisiana, to Dunn Sf Yates or order. These bills are taken by Dunn Yates in full discharge of their claim; and the said George M. Branner, in consideration of the discharge of the seizure of said boat by Dunn & Yates, hereby agrees that he will and does guarantee the payment of said bills at maturity. It is further agreed, that Dunn Sf Yates will pay all the court costs of the seizure of said boat Belle Gates.
January 1st, 1857.
(Signed) Dunn & Yates,
George M. Branner.
Attest: Sam. Ford, ~W. II. Probst.”

In accordance with this convention, the plaintiffs at once discharged the sequestration, and afterwards dismissed the suit at their cost; and two notes were given, signed by Captain Newsom, for steamer Belle Gates and owner, for the amounts specified in the agreement.

These notes were protested at their respective maturities for non-payment, and the present suit was instituted against Branner, upon the guaranty contained in the agreement.

There was judgment for defendant and plaintiff has appealed.

The grounds of defence of defendant, to free him from liability, will be briefly reviewed.

It is contended by defendant, that Newsom, during the absence of Bryan, took possession of the Belle Gates, without authority, and received a cargo at New Orleans for Shreveport.

Even, if it be conceded, Newsom was not authorized by any express power, to run the boat on that trip ; still Bryan had left Newsom, with such control over her, as to enable him to start her on a voyage. Bryan, having thus placed it in his power, to deceive the public, ought not to complain, if his boat be held liable for the obligations incurred by her during the trip.

Appellee avers, that by the instigation and fraud of plaintiffs, the bill of lading was fraudulently signed by Newsom, to liberate himself from arrest; and was executed at Shreveport, after the completion of the voyage, and ante-dated to the date of the departure of the boat from New Orleans.

That on the bill of lading thus illegally obtained, the boat was sequestered.

Under the belief it was a legal seizure for the breach of a lawful contract, he entered into the agreement for the purpose of releasing the boat; and • when the facts were communicated to him, he notified the plaintiffs to proceed against the boat. Defendant relies on Articles 1814, 1835, 1840, and other provisions of the Code on error and fraud.

The record does not sustain the averment of appellee, that he was not cognizant of the ante-dating of the bill of lading, and of the other facts of the case; on the contrary, it shows he was probably acquainted with all of them.

Probst, a witness of defendant, says, he feels confident that defendant knew all the facts before he signed the guaranty.

The responsibility of appellee exists, whether the facts of the case were known to him or not, because the boat was liable for the restitution of the lost package, and the security of defendant was, therefore, to guaranty a legal claim.

It does not appear clearly, if the plaintiffs were to pay the boat for the transportation of the money or not, although it may perhaps be inferred from the evidence, that compensation could have been demanded and recovered.

McClelland, the Clerk of the boat, testifies : “ That on the evening of the 20th of December last, while the said boat was lying at New Orleans, Mr. Dunn, of the firm of Dunn Yates, came on board, and said to affiant, that he had two packages of money, one containing five thousand dollars, the other thirty dollars, which he, Dunn, wished to ship on said boat. That affiant stated to him, that he did not have the key ; to wait a few minutes, that Captain Newsom would be on board; that a few minutes alter, Captain Newsom did come on board and took the two packages, and put them in the safe.”

The words to ship,” creates the presumption that plaintiffs were to pay for the transportation of the packages.

That the bill of lading was not delivered until the termination of the voyage, does not deprive the steamer of the right to exact the usual charge ; the bill of lading does not create the contract between the shipper and the common carrier. It has been adopted as a convenient mode of establishing the contract; but is not the exclusive species of evidence. If the boat were to have been compensated, the obligations of the parties would then have been controlled, not by the law of deposit, but of hiring-. C. C. 2900.

The boat, in that event, would be responsible ; for no justifiable excuse for the loss has been shown.

Defendant avers, also, that no liability exists on his part, even if the facts relative to the loss had been known by him ; because the money was delivered as a voluntary deposit, and transported without charge.

Conceding no compensation was to have been received for the transportation of the money, the boat is nevertheless responsible.

•Art. 2722 of the Code declares, that earners and watermen are subject, with respect to the safe keeping and preservation of the things entrusted to them, to the same obligations and duties, which are imposed on tavern keepers in thojtitle of deposit and sequestration.

Arts. 2936 and 2937 of the Code, under the title of “ deposit and sequestration," provide, that an innkeeper is responsible, as depositary, for the effects brought by travelers who lodge at his house; the deposit of such effects is considered as a necessary deposit; also, for the effects brought by travelers, even though they were not delivered into his personal care : provided, however, they were delivered to a servant, or person in his employment.

Art. 2938 declares, the innkeeper is responsible, if any of the effects be stolen or . damaged, either by his servant or agents, or by strangers going and coming in the inn.

It thus appears, innkeepers are responsible for Vliat are considered as necessary deposits ; and consequently, by Art. 2722, the common carrier would be liable, if the deposit of the packages were necessary.

That it was a necessary deposit is clear, for plaintiffs could not safely or prudently have retained them in his custody during the voyage from New Orleans to Shreveport.

Art. 2908 of the Code, requires the depositary ■ to use the same diligence in preserving the deposit, that he uses in preserving his own property.

Although the most rigorous diligence is not incumbent upon him, who has received a voluntary deposit, for which he was to receive no reward for preservingit. Art. 2909 O. 0. Tet he is liable for gross negligence or fraud.

Now, if one has five thousand dollars which belongs to himself, he would, with ordinary prudence, be able to explain the probable mode of its loss, if it should occur. The depositary then being obligated to use the same diligence in preserving the deposit that he uses in preserving his own property, ought to be able to show in what way the voluntary deposit was lost, and that it disappeared -without any fraud or gross negligence on his part.

But no reasonable explanation has been offered to show, that the loss of plaintiff was not occasioned by the fraud or gross negligence of the officers of the • boat.

The steamer is therefore responsible, and the seizure thereof was consequently based on a legal obligation.

Defendant was not then in error of fact or law, nor the victim of fraud, in guaranteeing the notes on the hypothesis of the liability of the boat.

It may be stated, that the guaranty of the notes may have been induced not only by the desire of appellee to aid his son-in-law, but also by the motive of personal interest, arising from partial or entire ownership of the Belle Gates.

Probst testifies, that “ to the best of my knowledge she belonged to Leon Bryan, though I am not certain of it.”

It is not positive that Bryan was the sole proprietor ; the evidence, however, establishes that appellee acted as Captain of the Belle Gates in the spring of 1856, prior to the loss of the money, also subsequently ; and continued in that capacity from about the 1st of January until the 10th of February. 1 Rob. 410; 9 La. 84; 5 An. 604, and 11 An. 704.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; that plaintiffs recover of defendant the sum of two thousand five hundred and twenty-two dollars and twenty-one cents, with five per centum interest thereon from the 13th of February, 1857, until paid; also, the further sum of two thousand five hundred and thirty-three dollars and thirty-one cents, with five per centum interest thereon, from the 5th of March, 1857, until paid, and the costs of both courts. And it is further decreed, that the recourse of defendant bo reserved against all parties who may be liable to him for the reimbursement of the amount oí this judgment, if any such recourse he may have.

Spoffobd, J.,

concurring. I concur in the judgment without expressing an opinion as to the liability of the steamer Belle Gates, or of any person for her, other than the defendant Branner.

For, if he was not himself an owner, he undertook the business of the owners in effecting a compromise of the suit, in which the boat was sequestered. He cannot question his own authority. And even if he had none, he is personally bound for all the. consequences of his assumption. C. C. 2979.

He procured the dismissal of a pending law suit, and the release of the boat which he commanded both before and afterwards, by leading the plaintiffs into a compromise. This transaction, in which he figures as a principal, he now seeks to repudiate on the ground of error. There is no evidence that when he made the compromise, he was ignorant of any of the material facts; indeed, there is reason to suppose he knew the facts of the case as well then, as now. And a contract of this kind cannot be assailed by a party to it, on account of any error in law. C. C. 1840, No. 2, 3038, 3045.


author: Buchanan, J.

text:
    W. D. McCoy v. A. Sanson—Estate oe Carasco, Intervenor.
    It is too lato for a party to a suit to ploacl tlie want of issue joinod, upon a potition of intervention, after lie has gone into trial without auswering it, unless ho can show that he was ignorant, boforo going to trial, of the existence of the intervention in the record.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      W. B. Lewis, Hyman fy Cazabat and T. C. Manning, for plaintiff and ap-
    pellant.

      M. Ryan and J. H. Overton, for defendant and appellant.

      Mercer Can-field, for Intervenor.
   Buchanan, J.

Plaintiff sues defendant, by the petitory action, for a tract of land in the possession of the latter.

The administrator of Landry Carasco, deceased, intervenes ; and claiming the property as belonging to the succession which he administrates. He opposes therefore, both plaintiff and defendant.

Defendant alone answered the intervention. But on the trial of the cause, which was full six months after the intervention filed, the plaintiff objected to the right of the intervenor to have his intervention passed upon, for want of an issue joined upon the same. We think this objection was ill taken. Article 393 of the Code of Practice certainly contemplates an issue upon intervention. The Article says that the petition of intervention must be served upon the party against whom it is directed, in order that he may answer to the same in the delay given in ordinary suits. But the plaintiff has chosen to go to trial without answering. His objection was only made after the evidence and argument were closed. There is no suggestion in the bill of exceptions, that he was ignorant, before going to trial, of the existence of this intervention in the record.

The plaintiff brings a petitory action against the defendant for land, which plaintiff claims under title derived from Charles Gustave Carasco. The defendant pleads the general issue. The administrator of Landry Carasco intervened, claiming to be the owner of the locus in quo.

The substance of the allegations of the petition of intervention is, that Landry Carasco, an elder brother of Charles G. Carasco, being involved in debt, took the title of the land in the name of Charles Gustave, in the year 1846, the latter being then a small child, and without any means ; that the purchase was in reality made by Landry Carasco, and that Landry always remained in possession of the land as owner, down to his death in 1853.

Defendant offered some notarial conveyances of land, as evidence of title in himself, but a survey made by order of court shows that defendant has the entire quantity called for by his titles, without conflicting with the land claimed under the Carascos. Indeed, defendant’s titles give Landry Carasco as a boundary. A jury empannelled to try the issues, found a verdict in favor of the intervenor ; and although both plaintiff and defendant appealed, yet the contest in this court is entirely between the plaintiff and intervenor. It is sufficiently shown, by evidence admitted without objection, that Landry Carasco was in possession of the land from 1846 to the time of his death ; that it was known as the “ Landry Carasco place,” that Charles Gustave Carasco lived with his brother, and could not have been more than eleven years of age, in the year 1846, and, that in selling to plaintiff, he merely intended to sell “his claim.”

Upon the whole case, as presented to the jury, we think it was competent for them to decide whether Landry or Gustave Carasco was the real owner of the locus in quo ; and we see no sufficient reason to disturb their verdict.

Judgment affirmed, with costs.


author: Spobfokd, J.

text:
    S. Robb & Co. v. W. Bailey.

      S. R. sued as payee upon a noto made payable to S. R. efi Go., alleging that he had traded alone under that stylo and firm ; defendant oxcoptocl, on the grounds, that lie had traded with S. R. <£ Go., and denied that plaintiff owned the noto-, or traded, as alleged, under the name and stylo of S. R. & Go.— Held: That plaintiff, to recover as payee, should provo that he alone composed the nominal firm of 8. R. cú Go., to whom the note was made payable.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      T. C. Manning, for plaintiff.

      Hyman Cazabat, for defendant and appellant.
   Spobfokd, J.

The plaintiff, Samuel Robb, sues the defendant upon a promissory note payable to S. Robb & Co. The plaintiff’s petition avers that he is trading alone, in Philadelphia, under the name and style of S. Robb § Co. He sues as payee only, and not as endorsee.

The defendant, for answer to the suit, filed an exception stating that he contracted the obligation sued on with S. Robb Co. and not with Samuel Robb, who is unknown to Mm. He also denied that Samuel Robb owned the note, or traded under the name and style of S. Robb fy Co.

The plaintiff offered no evidence but the note sued on, and had judgment. The defendant has appealed.

This is not a case of an alleged nonjoinder or misjoinder of parties, where the defendant excepting is obliged to point out how the error may be corrected. But the objection goes to the right of action upon the note ; it denies that the plaintiff is the payee, or that he is even one of the payees.

It would seem, from the authorities, that the plaintiff, Samuel Robb, should have proved his averment, which was so specially denied, that he alone composed the nominal firm of S. Robb fy Co.

Greenleaf lays down the rule thus : “ where the bill or note is made payable to a firm by the name of A. Co., the payees, in a suit in their own names, must prove that they were the persons who composed the firm.” 2 Greenleaf Ev. $163. This doctrine was recognized as applicable, under similar circumstances, to those presented here, in the case of Ferguson, Administrator, v. King, Curator, 5 An. 642.

It is, therefore, ordered and decreed, that the judgment of the District Court bo avoided and reversed, and the cause remanded for a now trial, the costs of this appeal to bo borne by the plaintiff and appellee.


text:
    Louis Béridon, Administrator, et al. v. Ludger Barbin, Sheriff, et al.
    Statutes of a general nature do not repeal particular statutes enacted for the benefit and relief of individuals.
    Trior to tlie passage of tlie Acts of the 16th March, 28th April, 1853, and 17th March, 1852, there wore no provisions in our law with regard to settlers claiming preemption rights to the lands donatod by the general government to the State, under the Acts of Congress of March 2nd, 1849, and September 28th, 1850; the State, therefore, at that time had control over those lands, subject only to the conditions of the grant.
    APPEAL from the District Court of the Parish of Avoyelles, Ogden, J.

      H. § S. L. Taylor and Barlow Waddill, for plaintiffs.

      J. L. Generes, for defendant and appellant.
   Oole, J.

The plaintiffs enjoined the Sheriff in the execution of an order issued from the Second District Oourt of the parish of Orleans, requiring him to soil certain land situated on Red River, within the parish of Avoyelles, being property belonging to the succession of Mar/c Borrel, deceased.

Plaintiffs aver, that the right to the land forms a portion of the succession of Julien B. Maillet, deceased, whose estate is administered by Louis Béridon; that it was acquired by Maillet under the preemption laws, and by Act of the Legislature of this State, entitled “ An Act for the relief of Julien B. Maillet."

The defendants, in defence of their title, allege that they hold the land in question by entry under the Act of the Legislature of the State of Louisiana, approved the 17th of March, 1852, entitled “ An Act to provide for the sale of swamp or overflowed lands,” and exhibit patents for the same, and that this land was a portion of the swamp land selected by the Register of the land office, under, and by virtue of, said Act of the Legislature; and, in pursuance thereof, sold to Mark Borrel.

There was judgment perpetuating the injunction and annulling the patents, in the name of Mark Borrel.

Defendant has appealed.

The decision of this cause depends on the interpretation which may be given to Act No. 184, of the Legislature, approved 18th March, 1850, entitled an Act for the relief of Julien B. Maillet of the parish of Avoyelles, which is as follows :

Be it enacted, &c., that Julien Baptiste Maillet is hereby authorized to procure a land warrant from the State Register of the land office, for three hundred and twenty acres, to cover his preemption right on file in said office, and that the Register of the land office be, and he is, hereby required to reserve the same until said land be duly surveyed and approved, and the said Maillet duly notified thereof.”

It is not denied that the land in contestation is that which is alluded to in this Act.

It may be concluded from the Act that adequate proof was presented to the sovereign power of the State of the preemption right of Maillet.

There is no evidence in the record that this land was ever surveyed and approved ; or, if so, that Maillet was ever notified of the same.

This Act deprived the State of the prerogative of alienating the land, until after it had been surveyed and approved and Maillet had boon duly notified thereof, and had neglected in due time to cover his preemption'right with his land warrant.

The Acts of 16th March and 28th April, 1853, (Acts of 1853, pp. 35 and 15G,) do not conflict with the Act in favor of Maillet; these Acts require, that the application and proof of preemption should be made before the expiration of twelve months after their passage. But they are general statutes, and do not repeal one enacted for the benefit of a particular individual.

Besides, this land was a part of the swamp land donated to the State by the Acts of Congress, of March 2d, 1849, and 28th of September, 1850.

Prior to the said Acts of 16th March and 28th April, 1853, and that of March 17th, 1852, there were no provisions of our law in relation to settlers or preemptors on the lands thus donated. The State had, therefore, in 1850, control'over the land in contestation, subject to the conditions of the grant; and, as she then conferred the right on Maillet, to purchase the saino after certain conditions should have been performed by herself; she could not subsequently deprive him of this privilege without any act or omission on his part sufficient to forfeit the same.

Judgment affirmed, with costs of appeal.


author: Spofford, J.

text:
    J. H. Ransdell v. M. R. Ariail.
    The phrase, “ tlio next general election,” ocouring in the concluding portion of Art. 79 of the State Constitution, has rcfercnco only to the general election of Clerks throughout the Slate, which is ovidently designed by the Constitution to take place every four years.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      M. Ryan, for plaintiff and appellant.

      T. C. Manning, for defendant.
   Spofford, J.

C. E. Joüett was elected Clerk of the District Court in the parish of Rapides, for the regular term of four years, at the November election in 1855.

In May, 1857, he resigned his office, and the Judge of that court immediately appointed the defendant, M. R. Ariail, to fill the vacancy, as he was authorized to do by Article 79 of the State Constitution. This appointment was made for the unexpired term of Mr. Joüett, and the appointee holds, that, under the true construction of the Constitution, he is entitled to retain the office until the November election in 1859.

The Governor, however, ordered an election to be held for Clerk in the parish of Rapides, at the regular biennial election for Representatives to the General Assembly, &c., &c., which took place in November, 1857. The relator, J. H. Ransdell, being then elected and subsequently commissioned, sued out the present mandamus, to compel the defendant, Ariail, to surrender the office and its archives, which he had refused to do upon amicable demand. The mandamus having been refused by the inferior court, the relator has appealed.

The single question presented for our adjudication is as to the meaning of the phrase “ the next general election,” in the concluding part of the 79th Article of the Constitution.

“ Clerks of the inferior courts in this State shall be elected for the term of four years, and should a vacancy occur, subsequent to an election, it shall be filled by the Judge of the court in which such vacancy exists, and the person so appointed shall hold Ms office until the next general election.”

We find no one species of election styled “ the general election” in the Constitution. Article 4 declares, that “ the members of the House of Representatives shall continue in service for the term of two years from the day of the closing of the general elections,” using the plural, and not without a design. For there is more than one general election. Thus, in Article 18, it is provided that “ the first election for Senators shall be general throughout the State, and at the same time that the general election for Representatives is held; and thereafter there shall be biennial elections to fill the places of those whose time of service may have expired.” Again, in the schedule, title X, Article 147 provides, that “ the first-class senators, designated in Article 17, shall hold their seats until the day of the closing of the general elections in November, 1853, and the second-class until the day of the closing of the general elections in November, 1855.” The plural was properly employed, because there was in each of those years not only a general election for Representatives to the Assembly, but a general election for Sheriffs, a general election for Coroners, &c., &c. But, although we thus find, from the phraseology of the Constitution itself, that its framers recognized the fact that there’wero various general elections, or, rather, that there was a general election for each class of officers who were to be voted for at once throughout the State, yet, they nowhere designated any one of these elections as preeminently “ the general election.”

The term general election was probably used to designate an election which takes place throughout the State, in contra-distinction to a partial election, or that which takes place only in certain portions of the State ; as, for instance, the biennial elections for Senators, one-half of whom vacate their seats every other year. If the expression related not to the generality of the election with regard to its territorial extent, but to the number of officers voted for, then “ the general election,” par excellence, would be the gubernatorial election which is quadrennial only.

But our opinion is, that the term “ general election,” should be construed with reference to the subject-matter of the Article in which it is found ; thus construed, there is no great difficulty in arriving at the meaning of Article 79. It first provides that Clerks of the inferior courts in this State (that is throughout the State) shall be elected for the term of four years ; then, that should a vacancy occur subsequent to an election (that is an election for Clerks), it shall be filled by the Judge of the court in which such vacancy exists; and, finally, that the person so appointed shall hold Ms office until the next general election, (that is, general election for Clerks,) which, as already provided, occurs every four years.

This view acquires additional strength from a consideration which appears to have controlled the judgment of the lower court in this case, to wit: that the terms of elective officers prescribed by the Constitution are indivisible, and, with one or two exceptions, uniform, so as to begin and end at certain fixed periods simultaneously throughout the State. When vacancies occur by death, resignation or removal, the old term does not lapse and a new and independent term begin, but provision is made merely for supplying the vacancy for the residue of the old term, at the expiration of which things resume their normal course. The Article 148 in the schedule declared, in order to establish this uniformity with regard to Clerks, that the first term of service of the District Attorneys and the Clerks of the inferior courts to be ordered and established under this Constitution, shall be regulated by the term of service of the first Governor, so that a new election for these officers shall bo held on the first Monday of November, 1855.” Thenceforward, the general elections [i. e. the elections throughout .the State) for these officers were evidently designed to take place every four years. Arts. 74, 79. And such is the legislative interpretation. Rev. Stat. p. 84, sec. 4, Clerks; Ibid, p. 182, sec. 1, District Attorney. Now, this uniformity and regularity would be destroyed if the phrase the next general election,” in Article 79, be construed to mean the next general elections, or the general election for Representatives, rather than the general election for the class of officers which is alone treated of in Art. 79, to wit: Olerks of the inferior courts. Eor that Article only provides one mode of filling a vacancy, that is by appointment of the Judge. It does not provide that a portion of the vacancy shall be filled by appointment of the Judge, and the residue by a popular election. No authority was given by the Constitution to elect a Clerk for a less term than four years, after the first. Olerks elected under it should go out of office in November, 1855. If, therefore, the plaintiff was properly elected in November, 1857, he must remain in office, or his term at least must last, until November, 1861, whereas, the intention was that there should be another general election for Olerks in November, 1859. The system inaugurated by the Constitution of 1852 would thus be thrown into confusion. This irregularity could not be avoided without giving a very strained interpretation to Art. 79, to wit: that, if a vacancy occurs subsequent to an election, it shall be filled by the Judge of the court in which such vacancy exists, and the person so appointed shall hold his office until the next general election, when, the remainder of the unexpired term, if any, shall be filled by popular vote at such election. And, even if we superadd these words, a casus omissus might remain, viz : the occurrence of a vacancy at a period too late to have the necessary notices given for the popular election, and an appointment by the Judge previous to a general election, which must expire with it, leaving a two years vacancy unprovided for.

We are aware that a different interpretation may have been placed upon Art. 79 by the Executive of the State, in other instances besides the present. But we apprehend little practical inconvenience from this circumstance, as no contest can arise where the parties in interest have acquiesced in such executive interpretation, by giving up the offices which they hold under a judicial appointment. Guzman v. Walker, 11 An. 693; State v. Morgan, 12 An. 712.

Judgment affirmed.


text:
    George Berlin v. H. Gilly & Co.
    It is not necessary to move in open court to have a decree of the Supreme Court recorded in an inferior court, as Article 620 of tlie Code of Practice, requiring it, is repealed by the Act of 1855, relative to tlie duties of tlie Clerks of the District Courts.
    A party who has pointed out property, is estopped from objecting to the action of the Sheriff in levying upon it.
    APPEAL from the District Court of the Parish of Avoyelles, Cullom, J.

      T. C. Manning, for plaintiff and appellant.

      II. S. L. Taylor, for defendant.
   Cole, J.

Defendant being a judgment creditor of plaintiff, caused a fi.fa. to issue; and the Sheriff, having- seized, property to satisfy the same, was enjoined from selling it.

The injunction was dissolved, and plaintiff has appealed.

It is contended, that under Articles 619 and 620 of the Code of Practice, decrees of the Supreme Court cannot be executed until recorded in the inferior court, where judgment was first rendered and until such record has boon ordered, by motion in open court; and that the decree of the Supreme Court, under which the ssidfi.fa. issued, was never so recorded.

It appears, that without any motion in open court having been made, the decree was recorded in the lower court, and an execution issued.

It was unnecessary to move in open court to have the decree recorded; because Article 620, O. P., requiring it, is repealed by the Act of 1855, p. 51, $ 5, which authorizes Clerks of District Courts to receive, file and record all mandates and decrees of the Supreme Court, and to issue all legal process thereon. See also, Act of 1852, No. 305, g 4, Sess. Acts, p. 207.

Plaintiff also complains of the mode in which the seizure has been made; that of the property seized there are two tracts of land, which, before the levy, he had sold; and that he will be subjected to a suit in damages by the vendees, if they are sold by the Sheriff; that of the land admitted to he his, the Sheriff has not seized such lots as were contiguous; but has seized detached lots, the sale of which would cut up his land in such a manner, as to render it impossible for him to sell it hereafter.

It is a sufficient response to those objections, that there is no proof in the record that plaintiff has ever disposed of any of the land; and further, that as ho pointed out to the Sheriff the property which was seized, and directed him to levy on the same, he is estopped from objecting to the action of the Sheriff in levying on it.

Plaintiff has called our attention to an error of the lower court, in allowing three per cent, interest as damages, from the 28th March, 1856, the date specified in the original judgment, till paid; this is incorrect, but the error does not seem to have been called to the attention of the lower court.

The interest allowed as damages should have been calculated from the date of the service of the injunction until its dissolution.

The District Court allowed three per cent, interest as damages; and also fifty dollars as Attorney’s fees for defending the suit; defendant has prayed in this court for an increase of damages ; we think he is entitled to the same.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended as follows, to wit: that the part of the judgment which decrees that the defendant, II. Gilly, recover of George Berlin and his security Auguste Voinchi, jointly and severally, three per cent, interest on $1,056 83, the principal of the amount of the judgment enjoined, from the 28th March, 1856, till paid, be avoided and reversed; and it is further ordered and decreed, that said defendant recover of said Berlin, and Voinchi, his security, jointly and severally, three per cent, interest on $1,056 83, the principal of the amount of the judgment enjoined, from the 5th of November, 1857, the date of the service of the injunction, until its dissolution; it is further ordered and decreed, that in addition to the fifty dollars allowed by the lower court as special damages, the said Gilly shall also recover fifty dollars as general damages ; and that the judgment so amended be affirmed, and that appellants pay the costs of appeal.


text:
    Lacour et al. v. Heirs of Gasparite Lacour.
    The obligation of warranty, on tlio part of each of the co-heirs towards the other, in matters of partition, extends to the solvency of the debtors, whose debts may have been partitioned.
    APPEAL from the District Court of the Parish of Natchitoches, Chaplin, J.

      H. Safforcl, for plaintiff.

      J. B. Smith, for defendants and appellants.
   Buchanan, J.

It was settled by this court last year, when the point was made before it on the previous appeal herein, that Article 1449 of the Code does not apply to this case. See 12th An., 724.

The insolvency of Normand & Woods, the makers of the notes which fell to the share of J. B. Lacour’s representatives, the plaintiffs, is sufficiently established.

It is also proved that the tutrix of plaintiffs used due diligence, with but partial success, to collect the notes of Normand & Woods.

On the 1st of April, 1840, an informal partition was made by Gasparite Lacour among his children and grand-children, of certain bills receivable in his possession, and comprising the whole of his estate ; which partition was intended, apparently, to be equal. The donor estimated at $48,000 the effects partitioned, and the shares (six in number) at $8000 each.

The bad notes of Normand § Woods fell into the share of plaintiffs; and there has arisen therefrom a deficiency, as computed by the District Judge, of $4,993 40 ; five-sixths of which he distributes among the five other shares, represented in various proportions by the defendants, leaving the other sixth to be borne by plaintiffs. This arithmetical operation is criticised by the counsel of defendants, but without reason. The result seems to be that equality in the amounts received by each co-parcenor, which it was the object of the common ancestor to establish, and of the judgment of the court to restore. The obligation of warranty, on the part of each of the co-heirs towards the other, in matters of partition, by Article 1427 of the Civil Code, extends to the solvency of the debtors of the debts partitioned.

The District Judge has concluded that the insolvency of Jarnau, whose notes, for a large amount, fell to the share of two of the defendants, has not been satisfactorily shown. And upon a review of the evidence, we are not prepared to disagree with him in this conclusion. We do not consider it necessary to review the question of interest, as prayed in the answer to the appeal.

Judgment affirmed, with costs.


text:
    Succession of John Tucker—Account of Tutrix—Opposition of Under-Tutor.
    A tutor is only bound to roudcr an account of his tutorship, when it expires by his ward attaining the ngo of majority, or when ordered to do so by the Judge.
    A tutor may file annual, or provisional accounts, for the purpose of preserving evidence of pajmients nmdo by him, or whon necessary to the obtaining of certain orders of court pending his administration ; but all these accounts of tutorship thus sanctioned by law, although they are 2>rima facie evidence, thoy are not conclusive upon the minor, unless rendered to hnn after his majority or emancipation.
    APPEAL from the District Court of the Parish of Natchitoches, Chaplin, J.

      A. H. Pierson and /. M. B. Tucker, for plaintiff and appellant.

      P. A. Morse, and Hamilton & Chaplin, for defendant.
   Buchanan, J.

The appellee, a married woman, assisted by her husband, is tutrix of her four children, issue of her first marriage with the deceased, John Tucker. The eldest of these minors is now thirteen, and the youngest five years of age.

On the 14th April, 1856, the appellee presented her petition to the District Court of Natchitoches, with an account annexed, which is an informal account of tutorship and administration, and a statement of the l’ights of the accountant and her children in a community of acquets combined. The petition sets forth, that petitioner is executrix of the last will of her deceased husband. Tucker, tutrix of his minor children, and surviving partner of the community of acquets resulting from her marriage with Tucker; that in her two first named capacities, she has administered the affairs of the succession, paid debts, and (agreeably to the directions of Tucker’s will) made purchases of property; that in her last named capacity, she is entitled to the usufruct of the common property, and the fruits and revenues arising' therefrom are hers, though the same have been inventoried as property of the community; that the rights and interest of petitioner, and of her children respectively, in the estate, amount to certain designated sums of money, as set forth in the account annexed; that it was the will of petitioner’s deceased husband that the property should remain together until the respective majorities of his children, and that petitioner desires to carry into effect that clause of the will. The petition concludes by a prayer that the under-tutor of the minors, Tucker, be cited to defend their interests in the premises; that the account annexed to the petition be homologated, and that a decree bo rendered “ fixing the respective rights and degree of interest of the said minors and of herself in the said estate, both separate and in community.”

The under-tutor appeared, and among a variety of other grounds of opposition to the account and proceedings of the tutrix, specially opposes ninety-three of the items of “ liabilities.”

The District Judge rendered a judgment upon this issue, fixing the cash value of the interest of the tutrix, and of each of the minors Tucker, respectively, in the community of acquets, “ without prejudice to the rights of the parties to take the property in kind; ” allowing many of the items opposed, as valid charges against the minors ; and reserving the right of the tutrix to claim those which he rejected in a “ final settlement of tutorship.”

The under-tutor appeals; and has laid before us for examination and decision all the numerous objections raised by his opposition to the details of the appellee’s account. A careful examination of the record has satisfied us that it would bo a more loss of time to enter into those details; and that the only proper course to be pursued, is to put the appellee’s petition and account out of court, as being in no sense a legal account of tutorship.

A tutor must render an account of his administration as tutor : 1st, at the expiration of his tutorship, that is to say, when his ward attains the age of majority, or is emancipated ; and 2d. when ordered to do so by the Judge, as in cases of destitution of tutorship, &c. C. C. 350.

Or a tutor, for the purpose of preserving the evidence of payments made by Mm pending his administration, may file annual accounts of tutorship. Rev. Stat., verbo Minors, $ 19, 20, p. 339.

It has also been observed by Judge Martin, in the case of Stafford v. Villain, 10th La. Rep., 329, that tutors may, when necessary to the obtaining of certain orders of court, render provisional accounts of their administration.

But there is one thing to be observed of all the different kinds of accounts of tutorship thus sanctioned by law : that although they may be prima fade evidence, they are not conclusive upon the minor, unless rendered to him after his majority or emancipation. McGehee v. Dupuy, 7th Rob., 229.

But as the account at bar is embodied in none of the legal categories above-mentioned ; as it is defective in precision, and professedly includes many matters entirely foreign to the tutorship; any decree that we might render thereupon, would evidently not be binding hereafter upon the minors Tucker, and would therefore be only calculated to introduce confusion and embarrassment into the ultimate settlement of the affairs of this succession. '

It is, therefore, adjudged and decreed, that the judgment of the District Oourt be reversed;■ and that the petition and account filed by the appellee, herein, on the 14th April, 1856, be dismissed, at her costs in both courts; without prejudice to appellee’s right to sue her children by her first marriage, for a settlement and partition of the community of acquets resulting from that marriage,—as also to set up and urge all the claims against her children, which are embraced in said account, in any regular and legal account of tutorship hereafter.


text:
    William Long v. Joseph T. Robinson et al.
    Damages cannot bo allowed for a frivolous appeal, when there is no moneyed judgment upon which thoy might ho assessed.
    APPEAL from the District Court of the Parish of DeSoto, Creswell, J.

      W. Long, in per pro., for plaintiff and appellant.

      J. B. Elam, for defendant.
   Buchanan, J.

This is a suit instituted in July, 1857, to annul a compromise dated the 25th May, 1849, which has already been twice before this court, viz, in 1850, 5 An. 627 ; and in 1856, not reported.

The compromise was by notarial act, and the parties to it were William Long and Joseph T. Robinson, residents of the parish of DeSoto, who declared, that “ whereas a suit in which said Long is plaintiff and said Robinson and others are defendants, is now pending in the District Court of DeSoto parish, and numbered on the docket of the said court 199, they do, by this act and in presence of their respective attorneys, make and agree to the following compromise of said suit: In consideration of said compromise, the said Robinson agrees to pay to the said Long three thousand dollars, payable as follows, to wit, one thousand dollars by a draft at sight, on the house of John Toole,' merchant in New Orleans ; one thousand dollars on the same house, payable on the first day of January next; and one thousand dollars on the same'house, payable the first day of March next. On the payment of the said drafts, the said Long agrees that a final judgment shall be entered up in favor of the said defendants in said suit, ¡fee. It is distinctly understood and agreed to by said parties, that in the event the drafts should not be paid as specified, then, and in that case, this compromise is to be null and of no effect, and that neither of the parties shall be in the least compromitted by this act or by any concessions therein contained.”

The ground upon which the plaintiff bases this suit to annul this compromise is, that on the 1st of September, 1856, the three drafts in question were presented by a notary to the drawee and payment refused. By means whereof, plaintiff alleges that the resolutory condition of the contract of compromise has taken place.

The defendant answers by a general denial; plea of res judicata and plea of real tender and deposit. The plea of res judicata is founded upon two judgments of the District and Supreme Courts, above alluded to, rendered upon as many actions of nullity for error, fraud and lesion, alleged by plaintiff against defendant in relation to this compromise; in both which actions there was judgment of both courts against plaintiff. The judgment of the District Court in the last of those two actions, rendered the 17th of March, 1855 (and affirmed in general terms by this court, August 11th, 1856), reserved to plaintiff the right to demand of defendant, Robinson, the amount of the three drafts described in the act of compromise.

The next month after that judgment was affirmed, which was six years and a half after the last of the three drafts had matured, they were for the first time presented for payment at the counting-house of the drawee in New Orleans, who, as the evidence shows, had then been dead for three years. Of course, they were not honored. But the drawer of the drafts, the defendant, Robinson, made a tender to the plaintiff, on the 20th October, 1856, of the amount of the drafts, with legal interest from the date of the judgment of the District Court, in gold and silver, in the presence of two witnesses, which Long having refused, the amount was deposited to his credit, by Robinson, in the Bank of Orleans, on the 19th of November, 1856. Eight months afterwards this suit is brought.

It appears to us that the defendant must prevail, upon two of his three grounds of defence.

The allegation of the petition that defendant had violated the condition of the compromise is not sustained by the evidence. It was the business of the plaintiff, holder of the drafts, to present them to the drawee for acceptance and payment, which he never did. On the general issue, the action must therefore fail.

But the most complete answer to this suit, is the real tender. The defendant has done more than he was bound to do, under the judgment of the 17th March, 1855. Instead of waiting, as he might have done, until plaintiff demanded of him the amount of the drafts, he went to plaintiff and proffered payment.

¥e do not allow the defendant and appellee damages as prayed for by Mm, because there is no moneyed judgment against plaintiff upon which to assess damages under Article 907 of the Oode of Practice.

Judgment affirmed, with costs.


text:
    A. Beer & Co. v. Word, Asher & Co.
    The general rule, that a party to the record is not a competent witness, must be observed, unless a necessity is shown in a particular case for a departure from it.
    APPEAL from the District Court of the Parish of Rapides,

      •J. Osborn and M. Ryan, for plaintiffs. O. N. Ogden, for defendants and appellants.
   Cole, J.

This is an action on two promissory notes, signed by Word fy Asher.

Plaintiffs allege, that Huddleston was a partner with Word § Asher in a commercial partnership, and the notes are due by them in solido.

The testimony establishes the partnership and the liability of Huddleston, who alone has appealed.

There is a bill of exceptions, taken by appellant to the opinion of the court, refusing to admit his co-defendant, Word, as a witness, in order to prove that he, Huddleston, “ was not a member of the firm of Word & Asher, when the note sued on was given, had nothing to do with the debt sued for and was not in any way liable therefor.”

It is contended that Word was called on to testify against his interest; that if the judgment were rendered against Huddleston, as well as against Word fy Asher„ he would be bound for one-third of the amount. If on the other hand, Huddleston should be released by his testimony, witness and Asher would be liable, alone for the whole debt.

Conceding that the witness, Word, would have testified to the truth of the averments, for which he was called by appellant, still this testimony could not change the conclusion to which we have arrived from an examination of the record.

No absolute necessity exists, therefore, in this case, for a departure from the general rule, that a party to the record is not a competent witness.. Rochelle and Shiff v. Musson, 3 M. 86; McIlvaine v. Franklin, 2 A., p,. 6,22; C. 2260,

Judgment affirmed, with costs of appeal.


author: Sfofford, J.

text:
    G. L. DeRussy v. S. Davis and the Police Jury of the Parish of Natchitoches.
    Where the President of the Police Jury sold at public auction the lease of a ferry for 011c year, with a privilego for five years, which privilege the purchaser announced at the sale ho availed himself of, it was held, that tho contract was not binding on tho parish, bocauso the President had transcended the power given to him. by tho Police Jury.
    APPEAL from the District Court of the Parish of Natchitoches, Chaplin, J.

      A. II. Pierson, for plaintiff and appellant.

      Safford & Chaplin, for de~ fondants.
   Sfofford, J.

The plaintiff sued out an injunction against the defendants to prevent them from infringing a ferry privilege. He contends that he had lawfully leased from the parish of Natchitoches the exclusive right to keep a public ferry across the Red River, at Grand Ecore, for the term of five years, from the 1st of January, 1856, and complains that the defendants, in January, 1858, commenced running another ferry at that place, in violation of his vested right.

The district judge dissolved the injunction for defects in the plaintiff’s title, and he has appealed.

By the A-et of March 15th, 1855, (Sess. Acts, p. 368,) the Police Juries of the several parishes were empowered to lease the ferries within their respective parishes for any number of years, not to exceed five. They were previously empowered to establish ferries, and annually let them to farm, to tho highest bidder. Acts 1813, p. T56.

By a resolution of June 9th, 1847, the Police Jury of tho parish of Natchitoches determined, that on the adjudication of public ferries, the purchasers thereof should have the privilege of extending their lease for the time of five years, on their complying annually with the terms and conditions of the sale.

But on the 3d September, 1851, this resolution was expressly repealed by the Police Jury, and the president thereof was required to sell the public ferries, deliverable on the 1st January next succeeding the adjudication, and to be kept for one year from that time of delivery.

This rule seems to have been in force at the date of the lease to tho plaintiff, DeRussy. It is true the President of the Police Jury actually sold the lease for one year, with a privilege for five, and that, in bidding’, the plaintiff announced that he availed himself of the privilege. But the President of the Police Jury had no right to transcend the power given him by the ordinance, which was not itself in violation of law. The Police Jury, it thus appears, did not authorize a sale for five years, but, on the contrary, prohibited it. Nor is the evidence sufficient to show a subsequent ratification of the unauthorized act of tho President. The district judge properly declined to assess damages in favor of defendants.

The judgment is, therefore, affirmed.


author: Spoffoed, J.

text:
    Susan Snoddy v. C. D. Brashear and Wife.
    An action of lesion, as "between tlie parties to tlie contract of sale, is not peremptorily destroyed "by an anterior sale, whicli lias never come in conflict with tlie title acquired by tho vendee.
    Tlie legal effect of a judgmont of separation of property, obtained by tho wife, is to dissolve the community, ipso facto, from the time of filing the petition for separation.
    The wife thus separated in property from her husband, when she docs iiot renounce, is not presumed to accopt tho community of acquets and gains, existing up to the date of bringing her suit ,• she has a contingent and eventual right only, to be exercised at tho expiration of the time fixed for tho community, if she chooses to accept.
    APPEAL from tlie District Court of the Parish of Avoyelles, Ogden, J.

      T. C. Manning and A. B. Irion, for plaintiff.

      H. fy S. L. Taylor, W. B. Lewis and Barlow ij‘ Waddill, for defendants and appellants.
   Spoffoed, J.

This cause is before the court for a second time. The case will be found reported in 3d An. 569.

Our predecessors there decided that, under the Louisiana Oode, the action of rescission for lesion beyond moiety must be brought against the original vendee and his heirs, and does not lio against third persons purchasing in good faith from the vendee. This opinion was not only expressed by Mr. Justice Rost, as the organ of tho court upon the first hearing, but was unanimously adhered to by his colleagues upon the re-hearing, at a subsequent term. The cause was remanded for a now trial only to obtain further evidence as to the question, whether Mrs. Brashear should be considered as a third person who had purchased in good faith.

The defendants have taken this appeal from a judgment against them upon the second trial in the District Court. The sale was rescinded for lesion, outre moitié, as against both Charles D. Brashear and his wife, and the defendants ordered to restore the land to plaintiff in default of the payment of $4700, as tho supplement of the just price, which the District Judge fixed at $5000.

A new point is made by the defendants, to wit: that the orignal plaintiff before she sold to Brashear, and before she became the confirmee of the Evan Baker claim, had sold her rights in said claim to one Spaulding. Without deciding whether such a conveyance, as is exhibited, of an uncertain and inchoate right to public land, would estop the party selling' from bringing a petitory action after being confirmed in a personal title, as against a third possessor, we think that the action of rescission for lesion, as between the parties to the contract in which the lesion is said to exist, is not peremptorily destroyed by such an anterior sale as this, which has never come in conflict with the title acquired by defendant.

The first question to be decided is, whether Mrs. Brashear is to, be considered as a third possessor in good faith. That she is, is formally and explicitly asserted, in her answer filed before tlie second trial. The plaintiff contends that she is not, because C. B. Brashear bought the land pending tho community between him and his wife. But, shortly after the purchase, Mrs. Brashear sued Mm for the restitution of her proper effects, or their value, and a separation of property. This she obtained, recovering a judgment against him also for the sum of $5996 with legal mortgage on all his property, dating back to 1834 and 1840. She neither asked nor obtained any decree against him as to the community. Indeed, she made no allusions to it in her petition. The legal effect of the judgment of separation of property was ipso facto to dissolve the community, from the time of the filing of her petition for separation. C. C. 2406; Hotard v. Hotard, 12 An. 145; Dugas v. Husband, 6 Rob. 527. But did she accept the community, which is supposed to have existed up to that date? That is a very important question as to her, for, by accepting the community, she becomes responsible for one-half its debts. C. C. 2404. Her moneyed judgment with its accompanying mortgage was for a sum which it appears all the property in the possession of her husband was insufficient to meet. A portion of it is still unpaid. It is not pretended that she has done any act going to show an implied acceptance of the community. She has not accepted it expressly. Her silence in her petition for a separation is not unmeaning.

Article 2389 of the Louisiana Code declares that “ the wife separated from, bed and board, who has not, within the delays above fixed, to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prorogation from the Judge, after the husband was heard or after he was duly summoned.’ ’ It is true, this Article speaks of the wife separated de corps only ; but when we refer to Article 2404 we find not that the wife separate in property is presumed to accept unless she renounces, as is a surviving wife in case of the death of her husband. C. C. 2382; Audrich v. Lamothe, 12th An. 76; Williamson v. Amilton, ante 387. But that she may, notwithstanding the separation judicially pronounced, accept the partnership or community of gains which may have existed up to that time. There is an evident implication that she is not presumed to accept from mere silence, but rather the contrary. “ She may, nevertheless, accept.”

Now, in all these years, the defendant, Mrs. Brashear, having shown no symptom of a disposition to accept the community which, theoretically, existed between her and her husband from marriage, until her petition for a separation of property, she cannot be considered as now having, or ever having had, any interest therein. During the time they are supposed to have lived under the community regime she had no right of control over the property acquired ; her husband was head and master ; he acquired and alienated alone ; in no one piece of property acquired did she have any special or proprietory interest; the utmost that she had was a contingent and eventual right in one-half of such of the acquets and gains as might happen to be found in their common possession at the expiration of the term fixed for the community; it was contingent upon her acceptance, unless she should choose to accept, it would be, as to her, as if no community had ever been supposed to exist. She would bo a stranger to the acquisitions. Everything done with relation thereto must be viewed as done by the husband alone. Johnson v. Pilster, 4 Rob. 71; Brossac v. Ducros, Ibid, 335.

And so we think she must be considered as a stranger to the purchase by Brashear from the plaintiff. She claims this land not through or under any community right, but as a third person buying at public sale a piece of her husband’s property in which she had no proprietory interest. The fact, that her legal mortgage may have rested on it does not divest her of her quality of “ third person.”

She appears to have proceeded in the execution of her judgment of sejjaration with sufficient promptitude to keep it alive.

We conclude, therefore, that being a third person in good faith, in the sense of the law, Mrs. Brashear, under the decision already made, is not liable to the action of lesion at the pursuit of the plaintiff.

The liability of C. B. Brashear is, to mate up the supplement of the price ; and, as was said by our predecessors in remanding the cause “ he must be held personally responsible, if there was lesion, even if his wife’s purchase should be maintained.” 3 An. 513.

But we cannot concur with the District Judge in his estimate of the just value of the thing at the date of the sale from Mrs. Snoddy to Brashear. At the former trial, in 1845, this value was fixed at $1500. In 1851 the just price of the same land, at the same date, and under the same circumstances, is fixed at $5000. This is a striking illustration of the danger of introducing lax rules with regard to the action of lesion for a deficiency in the price. Land in a wilderness, though richer than the valley of the Nile, is worthless ; while sand may be turned into gold in the neighborhood of cities. In a section of country like this, undergoing a rapid development, the fluctuations in value of real estate afford a marked contrast to the certainty and stability of prices in a country like France. In appraising the probable value of lands at a past period, it is almost impossible to guard the mind from the influence of those accidental circumstances which have given it its present value. One readily supposes that he would have had the sagacity to forsee those circumstances.

But, -to arrive at a proper appreciation of the value of property at a given period in the past, a witness should place himself at the point of time indicated, and take into account all the chances against, as well as for, a future enhancement in value.

It is, probable, from the evidence, that there was scarcely any market value for lands in the vicinity of the tract in question, at the date of the sale. Every thing was uncertain and speculative. One witness thinks this land was hardly worth the taxes then assessed. Another thinks it was worth from $12,000 to $15,000. Between such wild extremes as these, sworn to by witnesses fourteen years after the sale, it is difficult to make a sober valuation. Considering all the statements of witnesses, the clouds which overhung the title, and the impossibility of predicting results that are now historical, we think the estimate made by the District Judge on the former trial should not be enlarged.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided asd reversed ; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendant, Mrs. Eliza C. Brashear, with costs ; and, it is further ordered and decreed, that the plaintiff have judgment against the defendant, Charles B. Brashear, for the sum of twelve hundred dollars, with five per cent, interest thereon from the 29th October, 1845, until paid, and the costs of suit in the District Court; the costs of this appeal to be borne by the plaintiff and appellees.


author: Spoeeord, J.

text:
    Henry Kellar et als. v. James O’Neal, Tutor.
    Ail approval of tlio final account of tlie tutor, and an agreement, that as approved it should bo homologated, ruado by the ward, after attaining the age of majority, or being emancipated, is equivalent to a waiver of citation, and a consent judgment.
    A judgment homologating an account under such circumstances, cannot bo treated by the ward as a mere nullity, by filing an opposition to tho account homologated by his consent.
    A direct action under proper averments of fraud, or mistake, must be brought to annul such a judg-
    Whore tlio ward has givou his tutor a receipt for tho balance shown to ho due him, by tho final account, which lie had previously approved, it would seem, under tlio authority of llaydel v. Roussel, 1 An. 38, that ho would bo bound to bring a direct action against his former tutor, to annul his receipts, before ho is allowed to file an ordinary opposition to such final account.
    APPEAL from tlie District Court of the Parish of Avoyelles, Cushman, J.

      F. P. Hitchborn and W. B. Lewis, for plaintiffs and appellants.
    /. P. Wad-dill, for defendant.
   Spoeeord, J.

We find the following facts stated correctly in tho opinion of the District Judge.

“ The defendant, O’Neal, formerly tutor of the plaintiffs, filed his final account to Henry and David C. Kellar, the two eldest brothers, on the 29th April, 1851. Previously to the filing of said account, the said Henry and David- executed the following written acknowledgment and consent: ‘We, I-Ienry and David C. Kellar, have had the above account, rendered to us by our tutor,' James M. O’Neal, for ten days in our hands, and having thoroughly examined it in all its items and particulars, find it correct and approve the same. We further agree that the said James O’Neal shall have the same approved and homologated as the law directs.’

On the 9th of June, 1851, a final judgment of homologation was rendered upon said account, so far as Henry and David C. Kellar are interested.

On the 16th July, James Kellar, the younger brother, then an emancipated minor, made the following written acknowledgment and consent: ‘ I have examined the above account, rendered by my tutor, James M. O’Neal, to Henry Kellar and David C. Kellar, likewise under his tutorship, and find it correct, and accept it as though rendered specially to me, and agree that it be homologated as the account rendered to me.’

On the 21st August, 1851, all the plaintiffs signed a receipt in favor of defendant, for the balance due them on settlement as tutor

On the 18th of February, 1852, another judgment was rendered, homologating tho final account of O’Neal, tutor, as to all these plaintiffs.”

Thus much of the facts-as detailed by the District Judge.

The plaintiffs brought this action by way of opposition to the aforesaid final account of their tutor, ignoring altogether these two judgments of homologation.

The preliminary question is, whether they could thus treat those judgments as absolute nullities, or were bound to attack them directly, before contesting the correctness of the account homologated thereby, or calling for a new one from their former tutor.

The plaintiffs and appellants contend, that these judgments are absolutely void, because they were not personally cited. But their approval and agreement that the account should be homologated as it stood, was equivalent to a waiver of citation and to a consent judgment. It was therefore incumbent upon them to attack the judgments in a direct action, under proper averments of mistake or fraud in procuring their consent, and they could not treat them as mere nullities by filing a simple opposition to the account which had been thus homologated by their consent.

It would also seem, under the authority of Haydel v. Roussel, 1 An. 38, that the plaintiffs should have brought a direct action against their former tutor, to annul their receipt of August 21st, 1851, for the balance due by him to them “ on settlement as tutor,” before being admitted to file an ordinary opposition to the account which they had long previously approved as showing that balance due to them.

It is, therefore, ordered and decreed, that the judgment dismissing the opposition be affirmed, with costs.


author: Cole, 3.

text:
    H. A. Gordon v. F. Baillio.
    In an attachment suit the affidavit is not per se proof of permanent departure.
    It is not a sufficient reason to justify a writ of attachment, that the debtor, who happens to be absent, has no other property but that which is attached.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      Hyman & Cazabat, for plaintiff and appellant.

      W. B. Lewis, for defendant.
   Cole, 3.

The attachment issued in this cause cannot be sustained.

The material grounds, in favor of the issuance of the writ, arc that Baillio left .the State, had no house in the parish of his residence, and no property but that attached.

It appears, he left the parish of Rapides on the 1st of January, and the attachment was made on the 12th of the same month.

At the expiration of two months he returned.

It is not established that he intended to leave permanently the State ; besides, he was born and has always lived in the parish of Rapides.

The affidavit is not per se proof of permanent departure. It is a sufficient basis for the issuance .of the writ of attachment; but the writ will be set aside if it appears, on the trial, to have been obtained without sufficient cause.

Attachment is a harsh remedy, and can only issue in the particular cases provided by law.

It is not alone a sufficient reason to justify the writ, that the debtor, who happens to be absent, has no other property but what is attached.

Judgment affirmed, with costs of appeal.