text:
      W. S. Grayson v. Elisha Whatley, Administrator.
    A contract to run a hovso race is not prohibited by law, and money lost on such a vaco may be recov crcd by action in tho courts. But such a contracts, although permitted, aro regarded with suspicion by tho law, and the Judge is authorized to reject tho entire domand, when the same appears to him excessive.
    The obligation arising out of a contract to run a horse race, is hcreditablo between the heirs of the contracting parties.
    In all aleatory contracts permitted by our law, under Art. 2952 of tho Civil Code, the personal qualities of the contracting parties must, more or less, form a material part of the motive to tho contract, and the contract is not thoroforo asignable by one of the parties, without tho consent of tho other.
    APPEAL from the District Court of the Parish of Franklin, Mayo. J.

      Morrison & Purvis, and Harper Whyte, for plaintiff and appellant.

      C. E. Ramage, and T. S. & J. H. Crawford, for defendant.
   Land, J.

The facts of this case, as stated by the District Judge, are as follows :

Jordan W. Whatley, now deceased, and J. SReed, made a bet of five hundred dollars on the result of a horse race to be run at a future day. Each executed his promissory note in favor of the other, for five hundred dollars, as a forfeit in case either failed to fulfill his part of the contract. These notes were placed in the hands of a stake holder. Jordan W. Whatley soon after died, and Reed being desirous of drawing the bet, with that view applied to the relatives of Whatley, and among others to Elisha Whatley, the present defendant. A time was agreed upon for meeting the stake-holder and withdrawing the notes put up as a forfeit; but, for some reason not disclosed, this was never done. Ten or twelve days before the time fixed for the race, J. S. Reed sold his interest in, and incidental to the race, to the plaintiff, Grayson, for the price of fifty dollars.

On the day fixed for the race, Reed and Grayson appeared on the course, with the horse Reed was to have run. The horse was then run over the course the specified distance of six hundred yards by Gray ion, and as no person appeared representing Jordan W. Whatley, the stake-holder delivered over the note he had executed, as a forfeit, to Grayson, who claimed it, as the assignee of Reed.

On these facts, the District Judge rendered a judgment in favor of tho plaintiff for fifty dollars, from which he has appealed, and urges in this court his right to a judgment for the full amount of tho note.

The defendant is likewise dissatisfied with the judgment, and in his answer to the appeal has prayed for its amendment and the rejection of the plaintiff’s entire demand.

It is true, that a contract to run a horse race is not prohibited by law, and that money lost on a race may be recovered by action in the courts. But such contracts, although permitted, are regarded with suspicion by the law, and the Judge is authorized to reject tho entire domand, when the same appears to him excessive. C. C. 2952.

The defendant contends in his pleadings, that the plaintiff has no right of action, for the reason, that the obligation arising out of the contract to run the horse race was strictly personal in its nature, and does not bind the heirs or legal representatives of the obligor, for its performance. This position is not, perhaps, sustainable on legal principles, so far as it denies the obligation of such a contract, to be heritable as between the heirs of the contracting parties. But it is the opinion of the court, that the obligation to run a horse race, is a personal obligation, in a sense different from the technical signification of the term, that is to say, that the obligation to run a horse race is so far personal to tho contracting parties, that it cannot be transferred or assigned to a third person, by one of them, without the consent of the other.

In all aleatory contracts, permitted by^purjaiv^jmder Article 2952 of the Civil Code, the personal qualities of tho contracting parties must, more or less, form a_ 'material part"oF tlie"motive to the contract, tEd for'this"reason, the contract is 'not assignable by one of the parties, without the consent of the other.

'“ In the case before us, there is nothing to show that Jordan W. Whatley consented to the assignment made to the plaintiff, Grayson, by Reed, the contracting party. On the contrary, the assignment was made after J. W. Whatley’s death, and for the consideration of fifty dollars only, when it was evident that the race would not, in fact, be run at all.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendant, with costs in both courts.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    Slaughter & Crosby v. Milling, Sheriff, et als.
    The debtor lias tlie right to declare, when he makes a payment, what debt ho intends to discharge ; and if he does not make the imputation of payment, the law makes it for him, and declares that the payment must bo imputed to tho debt, which it was most to tho interest of tho debtor to discharge, cf those debts oipially due, otherwise to tho debt which has fallen due, though less burdensome than those which have not yet fallen due.
    The imputation, when made by the creditor, must be accepted by tho debtor, to be binding on him.
    APPEAL from the District Court of tlie Parish of Ouachita, Richardson, J.

      McGuire & Ray, for plaintiffs and appellants.

      W. J. Q. Baker, for defendants.
   Land, J.

This is a third opposition, in which the plaintiffs claim to be paid by preference out of the proceeds of the sale of a tract of land seized and sold by the Sheriff.

The alleged ground of the preference is, that plaintiffs are creditors of the debtor, by virtue of the transfer of a judgment older in date and in registry than the judgments of the seizing creditors, and that the land seized is the only property of the debtor on which their judgment can operate as a judicial mortgage.

The defence made by the seizing creditors to the third opposition is, that the judgment on which it is founded has been paid and extinguished by the debtor.

It appears that tho plaintiffs, or third opponents, were merchants with whom the debtor, Evans, was dealing, and with whom he had running accounts from year to year. And that after the date and registry of the judgments of tho seizing creditors, the debtor made payments to the plaintiffs, (to an amount exceeding the judgment on which they now claim a priority of mortgage,) after the date of the transfer of the judgment to them; but, that the payments were made without any imputation by the debtor.

The debtor has the right to declare, when he makes a payment, what debt he intends to discharge; and if the debtor does not make the imputation of payment, the law makes it for him, and declares that the payment must be imputed to the debt which the debtor had at the time most interest in discharging, of those equally due, otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable. C. C. 2195, 2162.

The imputation, when made by the creditor, must be assented to by the debtor, in order to be binding on the latter. C. 0. 2161. The imputation made by the creditor, in this case, to the accounts due Mm, cannot be considered as binding on the debtor, for the reason, that the creditor declared to him “ that his whole debt had been assumed by a third party, and that he did not look to Mm for any debt.” This declaration was made, it seems, before the payment by the third party, and before the accounts were rendered, and the debtor cannot be considered, under these circumstances, as assenting to the imputation, when he supposed that he had no interest in making it. The payment must, therefore, be considered as having been imputed by operation of law to the judgment, which was thereby extinguished.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.

Note. There is no evidence that the imputation of payment was with the assent, or upon an agreement with the “ third party ” who had assumed the payment of the debts.


author: Vookhies, J.

text:
    Heirs of McCall v. Elizabeth McCall.
    Decision in the caso of Stewart v. Stewart et al.. 13th An. 398, reaffirmed to the effect that, under tho Act of 1852, entitled “ An Act to provide a homestead for tho widow and childron of deceased persons,” if tho widow and children had collectively tlio sum. of $1000 ; belonging to all ov either of them, nothing could be withdrawn from tho estate, oven should it happen that the widow cr one minor heir was in necessitous circumstances and did not possess $1000.
    APPEAL from the District Court of the Parish of Caddo, Jones, J.

      Weems & Heath, for plaintiffs.

      L. M. Nutt, for defendant and appellant.
   Vookhies, J.

It is conceded by appellant’s counsel, that the judgment of the District Court in this cause is in accordance with the ruling in the case of Stewart v. Stewart et als., 13 An. 398.

That case involved the construction of a statute of the State approved March 17th, 1852, entitled “An Act to provide a homestead for the widow and children of deceased persons.” Sess. Acts, p. 171. It was decided that, if the widow and children had collectively the sum of $1000 belonging to all or either of them, nothing could be withdrawn from the estate, even should it happen that the widow, or one minor heir, was in necessitous circumstances, and did not possess $1000. Upon that occasion, we stated that there was much obscurity in the statute; but that we could not come to any other conclusion.

We sec no reason why this decision should be disturbed.

Judgment affirmed.


author: Voobhies, J.

text:
    Thomas Copse v. Allen W. Eddins, Administrator.
    Although a witness testifies that ho has no interest in tbo suit, yet, if it appears by his examination on tho voir dire, that he had an interest, ho cannot bo heard as a witness.
    Claims for services as an overseer are governed by the prescription of throe years.
    The prescription in this case runs against minors, reserving, however, to them, their recourse agaiust their tutors or curators.
    Where a party's services wore employed on the express promise that ho was to inherit a portion of tho estate of his employor — Bold: That prescription was suspended in favor of tho employee, until the death of his employer.
    APPEAL from the District Court of the Parish of Franklin, Mayo, J.

      T. 8. cS J. H. Crawford, for plaintiff.

      McGuire <& for defendant and appellant.
   Voobhies, J.

The plaintiff sues for the value of services rendered by him, as a laborer and overseer, on the plantation of Benjamin Hashberger, since deceased, for the whole time intervening between the years 1840 and 1857.

The defence was a general denial.

Judgment being rendered in the District Court in favor of the plaintiff, the defendant, — the administrator of the estate of B. Hashberger, deceased, — took an appeal, and filed, in this court, the plea of one and throe years’ prescription.

The evidence justifies the estimate of the plaintiff's services as fixed by the Judge. The only remaining question is, whether the claim be prescribed.

A bill of exceptions, taken by the defendant to a ruling of the court a qua, must, however, he previously noticed. ' The District Judge held that, although a witness testified that he had no interest in the suit, yet, if it appeared by his examination on the voir dire, that he had an interest, he could not be heard as a witness. This ruling is undoubtedly correct. 1 N. S. 709 ; 6 N. S. 515 ; 2 An. 584; 13 La. 488.

With regard to the question of prescription, it will appear that the claims are prescribed, unless prescription has been suspended or interrupted. More than three years had elapsed since the rendition of the services, and before the institution of the present action. C. C. 3499, 3503.

The plaintiff, it is true, was a minor until but recently. But the Code provides that the above mentioned prescriptions run against minors, reserving, however, to them, their recourse against their tutors or curators.” C. C. 3506.

The plaintiff, nevertheless, is entitled to relief upon another ground.

It is shown that, heretofore, he has been devoting all his time and industry for the benefit of his employers; that, dissatisfied with his situation, he once left them, but was induced to return on tho express promise that he was to inherit one-half of the estate of his employers; and that B. Hashberger has departed this world, without making provision for the plaintiff. The ruling in the case of Nimmo v. Walker, Ex’r, 14 An. 581, finds its application here; and wo now hold, that prescription was suspended in favor of tho plaintiff until the death of Hashberger.

It is, therefore, ordered and decreed, that the judgment of tho District Court be affirmed, with costs.


author: Voorhies, J. Merrick, C. J.

text:
    M. E. Cox, Administrator, v. W. C. Bradley, Administrator.
    Whore an appeal lias been brought up informally as to one appellant, but ho has been made an appellee by his co-appellant, the appeal will not be dismissed.
    Where an administrator ’& bond has been lost, and its existence and genuineness fully established, and it is shown that the administrator, who gave the bond, was the cleric of the court, and as such the legal custodian of the bond — Held: That it is not necessary, in such a caso, to advertise its loss, as ,. required by Art. 2259 of the Civil Code.
    In a proceeding in garnishment against an absentee, tho citation should be affixed to the court-house door, in conformity with Art. 254 C. P., and not merely served on tho curator ad hoc; and in such a case, the party seeking to detain the property of the absent debtor in the hands of the garnishee must give bond, as required by Art. 245 C. P,
    APPEAL from the District Court of the Parish of Franklin, Mayo, J.

      M. A. Jones and J. S. Crawford, for plaintiff.

      T. 0. Benton, for defendant and appellant.
   Voorhies, J.

The appeal, with regard to the appellant, Isaac Wiggins, administrator, was brought up informally, inasmuch as it was made returnable at the last regular term of the court, in the year 1858, but was brought up only at this term. The other appellant has, however, made him an appellee; aud as all the parties interested in the result are properly before us, the motion to dismiss presented by the plaintiff and appellee cannot prevail.

' The appellants were sued on their bond, as sureties of Calvin J. Bradley, former administrator of Augustus H. Bradley, deceased. The plaintiff was appointed administrator of this estate, and then obtained a judgment against his predecessor for the sum of $2,156 56, besides interest. Having exhausted the legal remedies against the principal debtor, the plaintiff sued the sureties to recover from them the amount of the judgment.

The defendant, Isaac Wiggins, administrator, filed a general denial; but the record does not show that an answer was filed by Wm. C. Bradley. We will, however, notice the points submitted in counsel’s briefs, as a defence to the plaintiff’s action.

It is contended, in the first place, that there is no evidence in the record, establishing the claim set up. The judgment rendered against tho principal debtor is prima facie evidence against the sureties; besides, all the mortuary proceedings of tho estate of A. H. Bradley, deceased, were introduced in evidence.

But it is contended that, inasmuch as the bond was not produced, owing to its loss or destruction, it was the duty of the plaintiff to have taken the oath and proven the advertisements mentioned in Articles 2258 and 2259 of the Civil Code.

The evidence shows, that the former administrator was the deputy clerk in that court; that ho had tho custody of all the papers in that office; that he filled all the ministerial duties of the clerk; that he had tho absolute control over the papers of the estate, of which he was the administrator ; that when he left tho office, the bond was not in the papers, and that after diligent search, the bond could not be found. The genuineness of this document is shown, and its disappearance accounted 'for. Were’ we to decide that the Articles 2258 and 2259 C. C. are applicable to the case of an administrator’s bond, yet, in the present caso, the evidence is so direct, that, under the very terms of the Article, it need not be supported by the oath of the party. With regard to the advertisement in the papers, how could it be expected that the loss of the bond, if lost it was, required publication, as the custodian was the principal debtor ? It were a vain formality, under these circumstances, on the part of the present administrator, to advertise the loss of the bond in question.

The objection, that the defendant, W. C. Bradley, was not properly before the court, because there was no seizure by the Sheriff to support the attachment, is fully answered by the fact of the garnishees’ acknowledgment of indebtedness. 12 An. 846, E. P. Dwight v. Drury, Mason et als.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.

Same case — On a Re-hearing.

Merrick, C. J.

A re-hearing was granted in this case as to W. C. Bradley, who was represented by a curator ad hoc.

It is contended that he is not before the court, never having been either personally cited, nor according to the rules prescribed under the head Attachment, in the case of absentees.

Plaintiff in his petition alleges, that W. C. Bradley is an absentee, and prays that a curator ad hoc be appointed to represent him, and that plaintiff have judgment against certain persons, debtors of Bradley, cited as garnishees.

The petition was not accompanied by an affidavit; no order of the court was made; ho bond was given, and no attachment issued.

The garnishees were cited to answer the petition, and petition and citation were served upon the curator ad hoc in the ordinary way.

It appears to us, that W. C. Bradley has not been properly cited.

The proceeding being intended to be in garnishment as against an absentee, among other things, the citation ought to have been affixed to the door of the court-house, in conformity to Art. 254 C. P., and not merely served upon the curator ad hoc.

Moreover, the party seeking to detain the property of the defendant in the hands of the garnishees, to answer his demand, ought to have given bond, as required by the Code of Practice, Art. 245.

The supposed debtor may suffer as much damage by the detention of his money in the hands of a garnishee, as by the seizure of a slave or any other piece of property.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment heretofore pronounced by us remain undisturbed, so far as the same affirms the judgment against Isaac Wiggins, as administrator of 'the succession of John R. JSftigent, deceased; but that, as to the said defendant, Wm. C. Bradley, and said garnishees, H. D. Yarborough and D. McLaughlin, said judgment be set aside, and the judgment of the lower court be avoided and reversed as to them; and it is further ordered, that there be judgment in favor of said defendant, Bradley, and said garnishees, Yarborough and McLaughlin, as in case of nonsuit, and that they recover against the plaintiff their costs in the lower court; the costs of the appeal to be paid one-half by the plaintiff, and the other half by the defendant, M. E. Cox, administrator.


author: Merriok, O. J.

text:
    Ross & Addison v. D. M. Pritchard, Sheriff, et al.
    The effect as regards creditors, of a judgment annulling a sale made by their debtor as fraudulent is the same, whether pronounced in a direct revocatory action, or in an injunction suit arising out of the seizure of the property by one of the creditors.
    If no objection is made to the form of proceeding, the sale may be declared fraudulent in one form as well as the other. v
    Where a creditor has treated with the transferree of his debtor }s property, as the real owner, he will be estopped from contesting the validity of the sale.
    APPEAL from the District Court of the Parish of Catahoula, Mayo, J.

      Ouny & Hawkins, for plaintiffs.

      Smith <& Spencer, for defendants and appellants.
   Merriok, O. J.

The controversy in this case grows out of the proposed distribution of the proceeds of a tract of land sold at Sheriff sale.

It appears that the judgment debtor, Henry Evans, in January 26, 1858, prior to the rendition of the judgments-against him, transferred certain real estate to Thomas D. Evans, for the price of $6000, on a credit of one and two years.

In the month of May following, the plaintiffs, Ross & Addison, and the defendants, Taylor & Raddin, obtained judgments against Henry Evans.

Ross efi Addison’s judgment was recorded on the 14th, and Taylor <& Raddin’s on the 20th of the same month.

Taylor & Raddin and some, other judgment creditors disregarded said sale from Henry to T. T>. Evans, so far as to seize the property.

Thomas D. Evans enjoined the sale. On the -issue formed on the injunction, the sale was declared simulated and, fraudulent by the decree of the court.

Whilst the controversy was pending between Taylor <& Raddin and the other seizing creditors, Ross, surviving partner of his firm, took a mortgage from T. D. Evans, who had assumed the debt, and bound himself m solido with Henry Evans for the same.

The instrument also recited, that the validity aud legality of said transfer was in litigation, and stipulated, in the event said transfer should be set aside before the 1st of January, 1860, and the whole or any part of said debí remained unpaid, that then this mortgage should be good against Henry Evans. It was further stipulated, that “ the dwration of this mortgage shall expire on the first day of January, 1860”; that Ross & Addison’s execution should be returned and released, and that “ all further legal proceedings against said property, so far as said debt aforesaid is concerned, shall be suspended until said first day of January, 1860.”

After the dissolution of the injunction in the controversy with the other creditors, and on the day of sale, Ross <& Addison placed an execution in the hands of the Sheriff, and the present proceeding is to compel the Sheriff to pay over the proceeds to them, as having the oldest judicial mortgage against Henry Evans.

The District Judge being of the opinion that, inasmuch as the sale was not declared simulated and fraudulent in a direct action, the property must be considered as subject to the judicial mortgages of Henry Evans, and distributed accordingly.

Whether there be any distinction between the fraudulent and simulated sale, as to their effects when avoided by creditors, we do not think important to decide.

But it does not seem that there exists that difference between the direct revocatory action, by regular suit, and the same demand by way of reconvention, in answer to the injunction, where the sale is claimed to be fraudulent. The issue is the same, although made up in different modes; if no objection be made, the sale may be declared fraudulent in one form as well as the other, and the consequences of the decree, when rendered, ought to be the same.

Among the seizing creditors, if the sale were declared fraudulent, the proceeds ought to be distributed pro rata, and this is the consequence of the argument urged by defendant’s counsel before this court. See 16 La. 144.

But the plaintiffs are estopped from contesting the reality of the sale from Henry Evans to T. D. Evans. They have treated with the latter as owner, and taken a stipulation from him as surety in solido, and a mortgage to secure the debt. lie is, therefore, their author as to such mortgage, and they have prolonged the period of payment.

Now, suppose the executions of Taylor <& Raddin and others had been returned, could Ross <& Addison legally have issued execution either before the 1st of Jauuary, 1860, or afterwards, against Henry Evans, and seized this property of T. D. Evans ? It is clear they could not, and that they would be driven to their conventional mortgage. How, then, can they avail themselves of a sale made upon the execution of other parties, when they could not legally execute the same property on the execution which they issued in their own names. They cannot hold Thos. D. Evans bound in solido as surety, and deny his ownership of the property.

The dismissal of plaintiff’s suit will leave the distribution among the other seizing creditors open.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that plaintiffs’ demand be rejected, and that they pay the costs in both courts.


author: Merrick, C. J.

text:
    E. S. Virgin v. Robert N. Dawson.
    Where a physician purchased a slave, whom he had examined, some lime previous to the purchase, for other parties, and had pronounced diseased, and it was shown that since the purchase lie liad treated the slave, and had declared that the disease was tho same with which he was afflicted before — Held : That under such circumstances, where the slave died, the speculative opinions of physicians who had never seen the negro, were insufficient to establish that he died of any other disease, of which the purchaser was ignorant.
    APPEAL from tbe District Court of the Parish of Franklin, Mayo, J.

      T. S. Crawford, for plaintiff.

      M. A. Jones, for defendant and appellant.
   Merrick, C. J.

This suit has been brought upon a promissory note.

The defence to the action is, that the note was given as the price of a female slave, who was afflicted with a redhibitory disease at the date of the sale, and that said slave died in consequence of said disease. The case was tried by a jury, who found for the plaintiff, and after an unsuccessful motion for a new trial, the defendant has appealed.

In a case of this kind, where the record contains evidence sufficient to maintain the verdict, we feel constrained to give effect to the same, although there may be other evidence in the record somewhat in conflict with the same; for the jury are selected from the vicinage because of their knowledge of tho witnesses, who testify before them.

In this case we find sufficient proof in the record to establish the fact that the negreas was diseased at the time of the sale, and that the defendant, who was a physician, was requested by the vendor and some other persons who were in treaty for the slave previous to his own purchase, to examine her to ascertain the state of her health, and he reported her to be diseased. After he purchased her, he treated the slave as a physician, and íd some of his conversations he pronounced the disease to be the same which he had reported when he examined her for other parties who were desirous of purchasing her.

Under this state of facts, the jury, (if they believed the witnesses,) very properly concluded that the speculative opinions of physicians who never saw the slave, were insufficient to establish the fact that she died of some other disease of which the defendant was ignorant. C. C. 2497.

This view is decisive of the controversyfor Phillips, the transferror, might have recovered upon the note.

Judgment affirmed.


author: Vooriiies, J.

text:
    Wm. Berry v. R. M. Gaudy.
    Where a party lias removed from one parish into another, and has acted in tho latter parish in such a manner as to manifest sufficiently his intention to change liis domicil, but has not made a formal declaration to that effect, if a year lias not elapsed since his removal, it is optional with a party desiring to sue him to bring the suit in either parish.
    If a person wishes to protect himself from being sued in the parish from which he romovos, ho should make an express declaration of his intention to change lus domicil.
    APPEAL from tlie District Court of the Parish of Claiborne, Egan, J.

      Drew <& Kilpatrick, for plaintiff.

      John 'Young, for defendant and appellant.
   Vooriiies, J.

The only question presented for adjudication in this cause, is whether the defendant, who had removed from the parish of Claiborne to that of Bienville, could be sued at his former domicil.

Not a year had elapsed since his removal; but the defendant had done, in the latter parish, acts which manifested sufficiently his intention to change his domicil. He had not, however, made a formal declaration to that effect.

' It was consequently optional with the plaintiff to bring suit in either parish; the Articles of the Code of Practice 167 and 168 are clear upon this point. If the party defendant wished to protect himself from being sued in the parish of Claiborne, he should have made an express -declaration, as prescribed by law. C. C. 44.

Judgment affirmed.


text:
    David Imboden v. J. G. Richardson.
    Where an objection was made to the introduction in evidence of certain depositions, upon the ground that they were not reduced to writing by the Justice of the Peace before whom they were taken, and that the procos verbal of the magistrate did not state by whom they wore reduced to writing — Held: That the presumption of law is, that the magistrate did his duty, and that the answers were written either by himself or by a person not interested in the event of the suit, and that the burden of proof was on the party objecting to rebut this presumption.
    The action of mandate arises ex contractu, and is only prescribed by teu years.
    An attorney in fact is bound to discharge the functions of his procuration, so long as lie continues to hold it, and is responsible to his principal for the damages that may result from the non-performance of his duty. He is responsible, not only for his unfaithfulness, but also for his fault or neglect.
    APPEAL from the District Court of the Parish Ouachita, Richardson, J.

      Thomas 0. Benton, for plaintiff.

      R. Ray, for defendant and appellant.
   Land, J.

The plaintiff alleges, that he specially employed the defendant, a General Land Agent, residing at Monroe, and engaged in entering swamp and overflowed lands at Baton Rouge, to enter a certain tract or parcel of land particularly described in the defendant’s receipt to him, for the money furnished for that purpose.

That the defendant, for a long time, induced him to believe, that the land had been' entered in his name, and for his use and benefit. That in the year 1857, some three years after he had employed the defendant to make the entry, and had paid him the money for that purpose, he was informed that the defendant had totally failed to enter the land, in pursuance of his express undertaking and agreement, and that the land had been entered in the preceding year of 1856, by a third party.

The plaintiff further alleges, that by the neglect of the defendant, as Ms attorney in fact, to enter the land, he has sustained damages to the amount of two thousand dollars, at least.

That he could have secured a title to the land himself, or through the agency of others; but that he trusted entirely to the fidelity of the defendant, as his agent, in entering the land for his use and benefit. And that he could have sold the land for more than the amount of damages claimed in this suit.

Upon these allegations, the plaintiff prays judgment against the defendant for the amount of the purchase money, to-wit, $225, with interest from the 4th of January, 1853, and for $2000 damages occasioned by the defendant’s negligence and breach of duty in the premises.

Our attention is first called to a bill of exceptions taken on the trial below by the defendant’s counsel, to the introduction in evidence of certain depositions which had been taken imder a commission by a Justice of the Peace.

The objections were : first, that the answers of the witnesses to the interrogatories and cross-interrogatories were not reduced to writing by the Justice of the Peace; and, secondly, that the proces-verbal annexed to the answers of the witnesses does not state by whom they were reduced to writing.

The proces-verbal of the magistrate states that the answers of the witnesses to the interrogatories wore reduced to writing in his presence, but does not state by whom. The presumption of law is, that the magistrate did his duty, and that the answers were written either by himself or by a person not interested in the event of tlie suit. The burden of proof was on the defendant, to rebut this presumption.

The defendant has filed in this court the plea of prescription of one year to the plaintiffs’ action.

The action is not ex delicto, but ex contractu — -the action of mandate, and is only prescribed by ten years. 15 An. 145. The failure of the defendant to enter the land, was not the breach of any official duty, nor was it a quasi-offence, but the breach of his contract of mandate entered into with the plaintiff for the performance of that duty; and for this breach of his contract he is liable in damages to the plaintiff.

The attorney in fact is bound to discharge the functions of his procuration, so long as he continues to hold it, and is responsible to his principal for the damages that may result from the non-performance of his duty. He is responsible, not only for his unfaithfulness, but also for his fault or neglect. C. C. 2971, 2972.

The judgment is against the defendant, for the amount of money furnished by the plaintiff to enter the land, and interest thereon from the date of its receipt, and for thirteen hundred dollars damages. This judgment, we think, is sustained -by the law and the evidence.

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


author: Merrick, 0. J.

text:
    Mahala Williams v. William G. Springfield.
    Where a suit was brought by a surviving wife, to recover a slave, upon the ground that the title of her deceased husband, under whose succession the defendant claimed the slave, was invalid, since such slave, being her separate property, was sold by herself and husband to an interposed person, from whom he was the same day acquired by her husband — Held: That whether it be regarded as a sale to an interposed person, or not, the sale was ratified when the administrator of her deceased husband’s succession filed his account and carried the price of the slave into the same, and the plaintiff claimed in his succession her marital fourth in the price of this slave.
    APPEAL from the District Court of tlie Parish of Bossier, Egan, J.

      J. D. Watkins, plaintiff and appellant.

      George Williamson, for defendant.
   Merrick, 0. J.

This suit is brought to recover a slave named Abram, of the value of one thousand six hundred dollars.

Robert J. B. Lowry, under whose succession defendant claims, had a title apparently valid. Plaintiff attacks that title on the ground that it was made by herself and husband to an interposed person from whom it was the same day acquired by her husband. It seems that tlie slave and other property had been bought by her at the probate sale of her former husband’s succession, and had been sold to the administrator of that succession, who thus became responsible for the price to the estate, and that thereupon he sold the property on time to Lowry and his wife, the plaintiff, or in other words, to Lowry.

If the administrator accounted for the price to the succession in good faith, it is difficult to see on what pretence it can be held that Owen Holmes Magee, such administrator, was a person interposed, although he subsequently sold the property to plaintiff’s husband on time. However this may be, the sale was ratified when the administrator of her last husband’s succession filed his account and carried the price of Abram into the same, and the plaintiff opposed the vouchers proposed to be allowed, and claimed the marital fourth of the succession of Lowry, as it then stood, without objecting to the price of said slave being so carried into the account. If the slave Abram were her separate property, she ought not to have claimed of Lowry’s succession her marital fourth iu his price.

Judgment affirmed.


author: Voorhies, J.

text:
    Frellson & Stephenson v. McDonald & Coon.
    It is sufficient for a party sued on a promissory note, to obtain a trial by jury, to swear that all the allegations in bis answer are true, where want or failure of consideration are substantially set forth in the answer.
    APPEAL from the District Court of the Parish of Ouachita, Richardson, J.

      Newton & Hall, and John T. I/udeling, for plaintiffs.

      Todd & Brigham, Morrison <& Purvis, McGuire & Ray, and Mathews & McFee, for defendants and appellants.
   Voorhies, J.

The defendants are sued upon four promissory notes, executed by them in favor of one James Vaughan, and endorsed by the latter.

The defence is : want of consideration for a large portion of the demand ; damages incurred by the vices existing in the title to the property for which these notes were given; danger of eviction to the defendant; and lastly, a plea in compensation for a small amount. The answer concludes by a prayer for trial by jury, supported by the defendants’ oath: “ that the consideration of the notes sued on has failed, as set forth in the petition ; that the claim in reeouvention heroin sot up is correct; and further, that all the allegations in the said answer are true.”

Although the defendants do not, in the words of the statute, swear specifically “ that they expect to prove that the notes were obtained through fraud or error, or want or failure of consideration,” yet they have sworn to the truth of all the allegations of the answer, in which the want or failure of consideration are substantially set forth. The oath, as regards the reconventional demaud, is in the words of the statute; and, although the plaintiff might be willing to allow this claim, as stated in Ms brief, yet it does not appear that he has taken, in the lower court, any step to that effect, in proper time.

Whatever may be ultimately the fate of the pleas contained in the answer, it is plain that the court cannot pass upon them for the purpose of determining whether they can be sustained : that is the very question at issue between the parties, and which the defendants endeavor to have presented to a jury. This case must be remanded, in order to be tried before a jury.

The peremptory exception filed by the defendants is in reality an answer to the merits. It was properly overruled; and so with regard to the exception of lis pendens. The former suit had resulted in a judgment of nonsuit in favor of the defendants; and the plaintiffs did not appeal. ■ The other grounds assigned in the dilatory exception will come up more properly on the merits of this controversy.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that this cause be remanded for further proceedings according to law, the appellee paying the costs of appeal.


text:
    Campbell & Strong v. J. M. Hilliard.
    The decision in the case of Martin Crane v. W. Beatty, ante p,'329, affirmed, to the effect that the provisions of the Act of March 20,1856, cannot he extended so as to authorize, and legalize transactions between debtors and creditors, wherein usurious interest is added to the sum really due, as a consideration for an extention of time, or indulgence to the creditors.
    In such cases the penalty prescribed by the Act of 1855, regulating interest, will he applied, and the forfeiture of all interest he decreed.
    APPEAL from the District Oourt of the Parish of Morehouse, Richardson, J.

      Mathews & McFee, for plaintiffs.

      Todd. & Brigham, for defendant and appellant.
   Voorhies, J.

The plaintiffs brought suit upon two promissory notes executed in their favor by the defendant.

The defence is, usury.

Upon an examination of the evidence introduced for the purpose of showing the consideration of these notes, it appears that the following amounts or items are obnoxious to the charge of usury, to-wit:

January 10th, 1856, p. c. advancing.............. $40 57
June 5th, 1855, 2£ p. c. com. advancing.............. 3 01
$43 58

It is contended on behalf of the defendant, that the whole interest stipulated, whether or not included in the body of the instrument, has been forfeited ; whilst, on the other hand, it is argued that the whole interest is recoverable, inasmuch as the rate stipulated by the instrument is not on its face usurious.

In other words, the question at issue is, whether the contract under consideration is to be regulated by the statute of March 15th, 1855, Sess. Acts, p. 352, or by the statute of March 20th, 1856, Sess. Acts, p. 130.

The same question was presented in the case of Martin Crane v. Wm. Beatty, decided in the city of New Orleans on the 28th day of May last. The court held that: “ the Act of March 20th, 1856, had in view the sale of notes and other written obligations, their discount or sale, for the purpose of raising money, and nothing more. The words interest or discount, in the sense in which they are taken in the Act, are synonimous, meaning the per centage deducted on the sum expressed in the note, bond, &c. The provision of the Act cannot be extended so as to authorize and legalize all transactions between debtors and creditors, wherein usurious interest is added to the sum really due, as a consideration for an extension of time, or for the indulgence of the creditor; and such appears to be the character of the obligations which are sought to be enforced in this case. The notes sued on were never discounted by the payee, but were taken in renewal of other notes, with the addition of usurious interest thereon.” Martin Crane v. Wm. Beatty, ante p. 329.

The penalty of the Act of 1855 being the forfeiture of the whole interest, the plaintiffs cannot recover the usurious items, amounting in the aggregate to the sum of $43 58, nor the amount of interest- stipulated in the notes.

It is, therefore, ordered and decreed, that the judgment of the District Oourt be avoided and reversed; and that the plaintiffs do recover of the defendant the sum of fourteen hundred and eighty-nine dollars and twenty-eight cents; the plaintiffs paying the costs of appeal, and the defendant the costs of the inferior court.


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    E. Barbin, Administratrix, v. Francois Gaspard et al.
    Testimonial proof is inadmissible to establish titlo to a slave by virtue of a sale — the evidence should be in writing.
    Where a slave was really bought by one party, but tho titlo was made in the Act of sale to another party, who was interposed for certain purposes — Held: That the relation of vendor and vendee as contemplated by Art. 2255 C. C., does not exist between the real purchaser in this case and the interposed party, and that such a case would not come within tho provisions of that Article.
    In a case where such relation does exist, if either party when interogated denies the sale, such denial is conclusive on the other, and testimonial proof cannot be admitted to contradict it.
    The answers of the vendor of tho interposed party to interrogataries on facts and articles propounded to him, can only be regarded in the light of testimonial proof in respect to such interposed party.
    Parol testimony to show fraud or simulation in a sale of immovable property or slaves of an ancestor, to tho prejudice of the legitime of tho forced heirs, may in a certain class of cases bo introduced, but such evidence never can be introduced by the heirs, without tho consent of the adverse party, to show title in tho ancestor to such property, for the purpose of increasing tho amount of the assets of his estate.
    Testimonial proof is not admissible for the purpose of proving that a third person was interposed to receive, or to be invested with, titlo to real estate or slaves, for the use of, and instead of the intended vendee.
    from the District Court of the Parish of Avoyelles, Cullom, J.

      APPEAL Barlow <& Waddill, for and appellant. Cannon & Irion, for defendant.
   Land, J.

This is a petitory action, in which the plaintiff, as administratrix of the succession of her late husband, Joseph Normand, and as tutrix of his minor heirs, demands the recovery of a negro girl in the possession of George W. Snoddy, one of the defendants to the suit.

The plaintiff alleges, that Joseph Normand purchased the slave from Frangois Gaspard — but that the title was made in the notarial act of sale to G. W. Snoddy, who was only a person interposed for the purpose of defeating the pursuit of Normand’s creditors, and that the sale to Snoddy was a pure simulation, without any reality whatever.

In order to establish the simulation of the sale to Snoddy, the plaintiff propounded interrogatories on facts and articles to him, and also to the vendor, Frangois Gaspard.

The answers of Snoddy deny explicitly the alleged simulation, and affirm that the sale of the slave to him was a real sale, and that he paid the price stipulated in the act of conveyance. The answers of Gaspard, on the contrary, show that the sale of the slave was intended as a transfer or conveyance to Normand, and not, as expressly declared in the act, g sale to Snoddy. The plaintiff offered to prove, in addition to the answers of Gaspard, by the testimony of witnesses, the simulation of the sale, as alleged in'her petition, — but the testimony was rejected in the court below, and a bill of exceptions was reserved to the ruling of the Judge.

It thus appears, that the plaintiff claims title to a slavz, by virtue of a sale, but is without any evidence in writing, of title, and relies on testimonial proof to establish her demand.

Evidence of this kind is insufficient to establish title, either to real estate or slaves. The Civil Code declares, that all sales of immovable property or slaves shall be made by authentic act, or under private signature ; and that a verbal sale of any of these things shall be null, as well for third persons, as for the contracting parties themselves, and the testimonial proof of it shall not be admitted. Art. 2415.

The plaintiff, however, seeks to bring her case within the provisions of Article 2255 of the Code, which declares that every transfer of immovable property or slaves must be in writing; but if a verbal sale, or other disposition of such property be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property or slaves thus sold.

It is to be observed, in the first place, that the relation of vendor and vendee, as contemplated by the last mentioned Article of the Code, does not exist between the plaintiff and G. W. Snoddy, and that the application of this Article to the plaintiff’s case, may be well questioned. But if it be conceded, that such a relation does exist, then the answers of Snoddy to the interrogatories on facts and articles must be conclusive on the plaintiff, and testimonial proof cannot be admitted to contradict them, — for the reason, that the effect of such proof would be to establish title to real estate or slaves by parol, in direct opposition to the clear and express declarations of the law in the Articles of the Code above mentioned.

It is to be observed, iu the second place, that the answers of Gaspard, the vendor of Snoddy, to the interrogatories on facts and articles propounded to him, can only be viewed in the light of testimonial proof in respect to Snoddy, and as such, are wholly insufficient to establish title in the plaintiff to the slave in dispute. These answers, it is true, were offered in evidence without objection, — but they are flatly contradicted by those of Gaspard’s vendee, and cannot be considered as evidence offered without objection, and sufficient in itself, (contradicted as they arc,) to make out the plaintiff’s case.

In the third place, it is to be observed, that this case is not one of those in which the forced heirs of the vendor may show by parol testimony the simulation of a sale by their ancestor, for the reason that the vendor of G. W. Snoddy is not the ancestor of the forced heirs represented by the plaintiff, and for the further reason, that it does not appear by any evidence recognized by law, that their ancestor ever had any title to the slave in dispute.

There is a great and material difference between the right to introduce parol testimony to show fraud or simulation, in the sale of immovable property or slaves by the ancestor, to the prejudice of the legitime of the forced heirs, and the right to introduce parol testimony to show title in the ancestor to such property, for the purpose of increasing the amount of assets belonging to his estate. The former right may, in a certain class of cases, be exercised; but the latter right never can be, without the consent of the defendant, or party claiming adversely to the heirs. It is the latter right which the plaintiff seeks to exercise in this case, contrary to the letter and spirit of the law, as well as the will of the defendant.

And finally, it may be said, that testimonial proof is not admissible for the purpose of proving that a third person was interposed to receive, or to be invested with, title to real estate or slaves, for the use of, and instead of the intended vendee, especially where there is no charge (as in this case) of fraud, or other ill practice, because the effect of such proof would be, as said before, to establish title to real estate or slaves, by parol, contrary to the express provisions of the law.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


author: Buchanan, J.

text:
    A. B. James & Co. v. J. C. Brooke.
    Where a defendant is sued as partner of a commercial firm, on an obligation not signed by him or with his name, the members of the firm are competent witnesses for him, to prove that he was not a partner.
    APPEAL from the District Court of the Parish of Natchitoches, Chaplin, J.

      A. H. Pierson and H. M. Spofford, for plaintiffs and appellants. Chaplin <& Lemée, for defendant.
   Buchanan, J.

This is a suit instituted against the defendant, as partner in the commercial firm of Wilson & Co., upon a note dated 29th April, 1851, signed Wilson & Co., and payable to plaintiffs.

The answer is a general denial.

The signature to this note was not written by defendant, but by one Francis Wilson.

The only question in the case is, whether defendant was a partner in the firm, or not, when this note was given.

On the part of the defendants, Francis Wilson and William Wilson, two of the partners in the firm of Wilson & Co., were examined under commission, and their depositions offered in evidence, to prove that defendant was not a partner in said firm. Their admissibility was objected to by plaintiff’s counsel in crossing the interrogatories; and the objection being repeated when the depositions were offered, and being overruled by the District Court, the plaintiffs excepted to said ruling.

We do not find that the court erred. The cases of McIlvain v. Franklin, 2 An., and Ellis v. Lauve, 4 An., cited by counsel of plaintiffs in argument, are not in point. In both those cases, a partner was offered by plaintiff to charge the defendant, as partner, with an obligation contracted by the witness. The court held that the witness was interested to charge the defendant, and thus divide his own responsibility.

But in the present ease, the witness is offered by defendant to relieve himself from solidarity in the witness’s obligation. It is not perceived what interest the witness can have in proving this fact. His interest would rather appear to be opposed to the evidence which he gives.

Considering the case upon the evidence, pro and contra, we are not satisfied that justice has been done.

On the part of the plaintiffs, it is proved that the house of Wilson & Co. had dealings with the plaintiffs, and incurred an indebtedness to them, about a year previous to the date of the sale of goods which was the consideration of the note now sued on; in settlement of which indebtedness the defendant gave a draft upon Henderson, Terry & Co., signed by himself with the social name of Wilson & Co. It is also proved, by a comparison of handwritings, that the defendant, about two years previous to the date of the note sued upon, wrote a letter upon the business of the said firm, and signed it with the social name, which .letter contains internal evidence that the writer was a partner in the firm, at its date. In view of this evidence, we consider it established that defendant, if not actually a partner of Wilson & Co., held himself out to the plaintiffs and others as such. But the plaintiffs’ book-keeper, examined by them, proves that defendant stated to plaintiffs, in April, 1857, in a letter, that he was not a partner of Wilson & Co. This, says the witness, was after the date when the debt sued on in this case was contracted. The date of the note sued on is, as we have seen, the day preceding the last day of April, 1857. The evidence does not explain what was the date of the sale of goods which was the consideration of this note. We view this letter of defendant, spoken of by this witness, as a notification to plaintiffs of the dissolution of the partnership of which defendant was a member; and deem it important, to a satisfactory decision of this issue, that the precise dates of the sale of goods which constituted the consideration of the note sued on, and of the reception of the letter of defendant to plaintiffs, containing the notice of dissolution of partnership should be proved, if possible. In order to give the parties an opportunity of making this proof, we will remand the cause.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that this cause be remanded to the court below for a new trial; the costs of appeal to be paid by defendant and appellee, and those of the District Court to await the final decision of the cause.


author: VooRniES, J.

text:
    Beausoliel v. Brown.
    In an action for damages arising ex delido, the single fact that the defendant was acquitted In a criminal prosecution for the offence, notwithstanding the plaintiff gave his testimony against him, unsupported by any other evidence of justification, cannot benefit the defendant where there is other evidence sufficient to support the demand for damages.
    APPEAL from the District Court of the Parish of Natchitoches, Chaplin, J.

      Levy & Tucker, for plaintiff.

      J. B. Smith, for defendant and appellant.
   VooRniES, J.

The defendant, W. J. Brown., appeals from a judgment of $500, rendered, in conformity with the finding of the jury iu favor of the plaintiff George Beausoliel.

This is a suit for damages arising ex delicto. - The defendant inflicted upon the plaintiff’s person, with a revolver, two wounds, — one in tho arm, and the other in the breast; and, aside from the question of self-defence, the damages awarded by the jury, are commensurate with the injury. It does not appear, however, that Brown acted in self-defence: indeed, the utmost that is contended for, on his hehalf, is that he and Beausoliel came to blows simultaneously, after having had some wrangling a few moments previous. But even then, it does not appear from the record whether any blow was aimed at, or given by the plaintiff, to the defendant ; nor is it made certain that Beausoliel endeavored to use his stick, further than that he raised it at the time he was shot at by the defendant.

It is true that Brown, upon being tried for the criminal offence, was acquitted, although Beausoliel had given his testimony. • This is not conclusive in the premises, and does not justify us in disturbing the finding of the jury in the civil cause, when they are borne out by the evidence in the record.

It is, therefore, ordered and decreed that the judgment of the District Court be affirmed with costs.


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    H. W. Reynolds, Executor, v. W. B. Stille.
    In a petitory action, it is incumbent on the defendant to exhibit the title under which ho claims ownership ; and an allegation mado by the plaintiff, in a previous suit for tho same cause of action, that the defendant claimed the ownership under a tax sale which the plaintiff charged to be an absolute nullity, will not be construed into an admission by the plaintiff, that he had been divested of bis title.
    The presumption omnia rite ada cannot be applied to a title not introduced in evidence) and, under such circumstances, the prescription of five years cannot be invoked to cure irregularities in tho title.
    APPEAL from the District Oourt of the Parish of Sabine, Chaplin, J.
    /. W. B. Tucker, for plaintiff.

      B. Elam, for defendant and appellant.
   Voorhies, J.

The plaintiff traces his title to the land in controversy, through mesne conveyances, from the original grantees, Anastasio Delasenda and Jose Estrado. The agent of the grantees sold to Parker & (Emichen, on the 25th of March, 1837. Parker’s heir, Julia Ann Cammack, through her agent, II. JReijnokls, made a transfer to J). D. Waterman, whose succession is represented by his executor.

The defendant, in his answer, avers that he holds the land in controversy under good and valid titles translative of property • and he interposes the plea of five years prescription.

On the trial of the cause, the defendant did not offer his title in evidence; and we would be left in the dark as to the nature of this title, which is vaguely set forth in the answer, were it not for some allegations of the plaintiff in a previous suit for the same cause of action.

In that petition, the plaintiff stated that the defendant claimed the ownership of the land by virtue of a pretended title, — a tax sale made by the tax collector, and which is charged to have been an absolute nullity. This cannot be construed into an admission, on the part of the plaintiff, that he has been divested of his title to the property; and it was incumbent on the defendant to exhibit the title under which he claims ownership. We cannot apply the presumption omnia rite acta to a title which is not introduced in evidence, and which is brought to our notice only by an allegation that it is a mere nullity.

The prescription of five years, set up by the defendant, is without foundation in this cause: the sale, the informalities and irregularities of which are thus attempted to be cured by lapse of time, is not in evidence.

Judgment affirmed.


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    James H. Barbin v. Police Jury.
    A public road established by the Police Jury is subject to the use not only of the citizens of the parish in which it is established, but of the whole State, and even of strangers or foreigners within the State.
    APPEAL from the District Court of the Parish of Avoyelles, Cullom, J.

      F. P. Hitchborn, for plaintiff. Cannon & Irion, for defendant and appellant.
   Land, J.

The plaintiff appealed to the District Court of the Parish of' Avoyelles, from the award of the Board of Commissioners appointed by the Police Jury of that parish, to lay out a public highway, in part, over the land of plaintiff, and to assess the damages due him for the expropriation of the same. And from the judgment on the appeal to the District Court, both the plaintiff and the defendants have appealed to this court.

The plaintiff commenced his appeal from the award of the commissioners, by filing his petition in the District Court, and cumulated with it, a demand for damages which had been the subject of a previous litigation between him and and the defendant, and which was decided by us at the last term of this court, but did not become final in consequence of an application for a re-hearing, until the present term.

This claim for damages related to a public road which the Police Jury had established in part, over the lands of plaintiff, from his landing on Red River to a certain point or place near the town of Marksville, and was decided against him both in the District Court and in this court, and now forms, as substantially set up in the answer of the defendant, a legal bar to this branch of his case.

If this judgment operates a hardship upon the plaintiff, as his counsel earnestly contends that it does, the hardship is the result of the plaintiff’s, contract with tlie Police Jury, which he voluntarily proposed, and urged upon their acceptance. When the Police Jury established the private road constructed by the plaintiff from his landing on Red River t'o the high land,' as a public road, they did so without any limitation or restraint on their own powers, or on the rights of the entire public to its use in all the various ways of a public road : and the position of the plaintiff that the entire public had no right to use the road after the Police Jury had established it as a public road, is wholly untenable. When the action of the Police Jury made the road a public highway, it became subject to the use, not only of all the citizens of the Parish of Avoyelles, but of the whole State, and even of strangers or foreigners within the State: and the fact of such use, does not entitle the plaintiff to any conpensation, beyond the terms of his contract with the Police Jury, as we have already held.

The damages awarded by the road commissioners to the plaintiff, were for land expropriated for a new, and a different public road, from the one established by the Police Jury, from his landing on Red River to the point near the town of Marksville, and these damages alone constituted the subject matter of appeal to to the District Court, and should not have been cumulated with any other claim, or alleged cause of action, as was done in this case.

The evidence shows that the damages assessed by the commissioners are a reasonable compensation to the plaintiff for his land taken for the public use in the form of the new road, and that he has no just cause of complaint in that respect.

The judgment is in favor of the plaintiff for fifteen hundred dollars, and must be reduced to the amount of damages assessed by the commissioners.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court on the appeal be reversed, at the costs of the plaintiff in both courts ; and and it is now ordered and decreed, that the award of the road commissioners giving to the plaintiff the sum of three hundred dollars, as damages for his land expropriated for the public use, be affirmed, and made the judgment of the court, in this case.


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    Robertson, Hudson & Pulliam v. Scales & Gibson et als.
    The title to the proceeds of a noto, bill of exchange, or account, does not pass by virtue of an order to pay over to a creditor the proceeds, when collected, given by the holder and owner to his attorney, and accepted by the attorney, but they are subject to attachment as the property of the holder, as long as they remain uncollected in the hands of the attorney.
    APPEAL from the District Court of the Parish of DeSoto, Jones, J.

      Nutt, Hodge & Parham, and /. B. Smith, for plaintiffs and appellants. Elam, for defendants.
   Land, J.

The defendants,' Scales <& Oibson, having dissolved their commercial partnership and commenced the liquidation of their affairs, placed in the hands of Scales & Wallace, attorneys-at-law, for collection, notes and accounts to the amount of some twenty thousand dollars. They afterwards liquidated their indebtedness to the plaintiffs, and gave to them their promissory notes payable at certain periods after date, at the office of Seaman, Peck & Co. of the city of New Orleans, and at the same time directed their attorneys, Scales & Wallace, to remit to Seaman, Peck & Co., out of the first moneys collected on the notes and accounts, after paying the balance due John T. Hardie & Co., an amount sufficient to pay the notes given to the plaintiffs in liquidation of the indebtedness of the firm to them. This order to remit out of the proceeds of the notes and accounts, was accepted by the attorneys, who promised the plaintiffs to execute it for their benefit.

Before the notes and accounts had been collected by the attorneys, they were attached by process of garnishment in the hands of Scales & Wallace, at the suit of various creditors of the firm of Scales & Gibson. These creditors prosecuted their claims to judgment, and obtained a recognition of privilege on the notes and accounts attached in the hands of the garnishees.

After the rendition of these judgments in favor of the creditors of the firm, the plaintiffs instituted this suit, which is a third opposition, claiming a superior privilege to the judgment creditors, on the proceeds of the notes and accounts, and a right of property therein, by virtue of the “ order to remit, and its acceptance by the attorneys of Scales & Gibson "; and' which is also an injunction suit restraining and inhibiting the parties in possession of the notes and accounts from paying the proceeds over to the judgment creditors of the firm ; and finally, an attachment suit against Scales & Gibson, on the promissory notes given in settlement of the debt due by them, as above mentioned.

The question of lgw presented in the case is, whether the order given by Scales & Gibson to their attorneys, to remit, out of the first moneys collected, after paying the balance due Hardie & Co., an amount sufficient to pay the promissory notes due the plaintiffs, and the acceptance of this order by the attorneys, rested a right of property in the plaintiffs to the notes and accounts, or their proceeds, to an amount sufficient to pay the debt due them from the firm of Scales & Gibson.

It appears from the decisions of this court, that a distinction has been made between the case of an order to pay the proceeds of goods, merchandize, or products, to a third party, followed by the acceptance of the consignee, or other person in possession, with the assent of said third person, and the case of an order to pay the proceeds of a bill of exchange, or note, when collected, to a third party, followed by the acceptance of the attorney, or other agent in possession for the holder, with assent of such party.

In the former case, the title to the proceeds passes by virtue of the order and its acceptance by the consignee, with assent of the party for whose benefit it was intended, and the merchandize is no longer liable to attachment at the suit of the creditors of the owner or consignor, although the goods remain unsold at the time of the attachment. In the latter case, it has been held, that the title to the proceeds of the note, or bill of exchange, does not pass by virtue of the order and its acceptance by the attorney, or other agent, even with the assent of the assignee or creditor, hut that the note or bill of exchange is liable to attachment, as the property of the holder, so long as it remains uncollected.

As to the case of an order for the proceeds of merchandize, see Armor v. Cockburn, 4 N. S. 668; Burnside v. McKinley, 12 An. 505, and authorities cited by counsel in argument on a re-hearing. And as to the case of an order for the proceeds of notes when collected, see Bank of Alabama v. Krafts et al., 18 La. 565, and also the case of Wilson v. Lizardie, 15 La. 255.

Although this distinction may not on first impression seem very clear in reason, or on legal principles, yet it seems to be sustainable on Articles 2612 and 2613 of the Civil Code, which require in the transfer of debts, as between transferror and transferee, the giving of the title, and as between the transferee and third persons, notice to the debtor of the transfer.

In the case at bar, no giving of title had taken place between Scales & Gibson and the plaintiffs, nor had any notice of the transfer been given to the debtors of Scales <& Gibson, prior to the attachments.

The judgment of the lower court, which is founded on the distinction referred to, must be affirmed.

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


author: Düppel, J.

text:
    Estate of Maillon, f. w. c., v. H. Lynch & Co. et al.
    The engagements and stipulations made in favor of a slave are not absolutely null and void, and cannot bo utterly disregarded aud treated as pure and simple nullities by all mankind, but only by such persons as have an adverse interest.
    A purchase made by a slave.cannot be inquired into and disturbed by one who is not affected by it; for as to such a one, if the object of the contract of sale does not belong to the slave, it enures to the benefit of the master, who alone is at liberty at any time to claim the object; aud the fact that, apparently, the owner has not exorcised his right, will not enable a party, who has failed to show any adverse interest in himself, to disturb the purchase made by a slave.
    Where the seizure of land was enjoined, upon the ground that the plaintiffs in injunction had acquired such land at a Sheriff’s sale, and the defendant raised the objection of want of registry of such sale in the Recorder’s Office — Held: That, where the evidence discloses no title in the seized debtor, the defendants having no interest in the matter, this objection cannot be urged by them.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      Osborn <& Shropshire, for plaintiff and appellant.

      Hyman & Cazabat, for defendants.
   Düppel, J.

The. administrator of the succession of M. Maillon, f. w. c., enjoined, by way of third opposition, the sale of a certain landed property, seized by the Sheriff, on two writs of fi. fa. issued at the instance of the defendants against Littleton Baily, on the allegation that the property belongs to the succession.

It appears that the land in question was acquired by M. Maillon at a Sheriff’s sale made on the 17th of January, 1842, by virtue of two executions issued by the District Oourt of the parish of Rapides, at the suits of Littleton Bailey v. W. H. Gill et al., No. 850, and W. H. White v. W. H. Gill et al., No.-.

It further appears that, at the date of said purchase, Maillon was a slave, and that she was emancipated according to the forms of law on the 2d of March, 1843, by her master and owner, Lulce Valentine, f. m. c.

The evidence is silent as to the possession and occupancy of the land, from the date of the above Sheriff’s sale to the date of the seizure made by the defendants, nor does the evidence disclose any title in the seized debtor, Littleton Bailey. The title of Maillon is resisted on the charge of fraud and simulation, growing out of the fact that it was made to a slave.

The District Judge dissolved the injunction, and condemned the succession and the sureties on the injunction bond to pay $290 special damages. The administrator appealed.

No one will deny that slaves labor under disabilities in all contracts. C. C. 35, 174, 1775. Tet they may contract for their masters, who may enforce their contracts. C. C. 1783, 1785. Hence, the engagements and stipulations made in favor of a slave are not absolutely null and void, and cannot be utterly disregarded and treated as pure and simple nullities by all mankind, but only by such persons as have an adverse interest.

If the above propositions be true, it then follows that a purchase made by a slave cannot be inquired into and disturbed by one who is not affected by it; for, as to such a one, if the object of the contract of sale does not belong to the slave, it enures to the benefit of the master, who alone is at liberty, at any time, to claim the object; and the fact that, apparently, the owner has not exercised that right, can in no way better the position of the defendants in injunction, who have failed to prove, by any evidence, title or even possession in their debtor.

And as to the want of the registry of the Sheriff’s sale in the Recorder’s Office, we are of opinion, that as the defendants, according to the above view of the case, have no interest in the matter, the objection cannot be urged by them.

It is, therefore, ordered, that the judgment of the District Court be reversed; and it is further ordered and decreed, that the writ of injunction herein issued be perpetuated, and that the defendants in injunction pay the costs of both courts.


text:
    E. McIlhenny v. A. Barbin et als.
    The plaintiff in execution, and consequently one cognizant of the facts and claiming through, him, is not (l a person having am, intei'est to annul a forced alienation, for the want of those formalities required by law in such alienations.” On the contrary, his interest seems to he, to maintain the validity of the forced alienation made at his instance, and for his benefit.
    Tho fact, that property sold by a Sheriff under execution, did not belong to the debtor in execution hut to the plaintiff in execution himself, does not render the alienation void. A person cannot sell the property of auother, but he can certainly sell his own property in any manner that he sees fit, provided no law is violated, and no person is injured thereby.
    APPEAL from tbe District Court of the Parish of Avoyelles, Cullom, J.

      H. é S. L. Taylor, for plaintiff and appellant.

      Waddill & Barlow, for defendants.
   Buchanan, J.

This is an action to annul a Sheriff’s sale of land seized under executory process, and adjudicated to defendant, Barbin; and to have the said land decreed to belong to plaintiff, as owner.

The title under which plaintiff claims is a purchase by notarial act from the Bank of Louisiana, dated the lltli February, 1857.

The Sheriff’s sale, under which Barbin, the defendant, holds the land, (and which, it is the object of the present action to annul,) was made in execution of an order of seizure and sale sued out by the Bank of Louisiana against Edwards Ogden, to satisfy a mortgage granted by the latter to the former, to secure a bond subscribed by Ogden as principal in favor of the bank, and upon which bond a balance was due and unpaid.

The petition of the bank for executory process was filed the 28th of January, 1854. The Sheriff’s adjudication to Barbin at the sale under the said writ, took place on the 1st of July, 1854.

The present suit was instituted the 4th of March, 1859.

The following are the grounds of nullity set forth in the petition of plaintiff:

1. That there was no previous .demand of the debt claimed by the bank from Ogden, as provided for by the 735th Article of the Code of Practice.

2. The notice of seizure served upon Ogden in the executory process did not give him the delay required by law, within which to make the payment, prior to the advertisement of the property seized.

3. There was no legal advertisement or appraisement of the property sold.

4. Because the land sold by .the Sheriff to Barbin was then the property of the Bank of Louisiana; and the sale of the property was, therefore, void.

5. Because the debt of Ogden to the bank was only an ordinary debt, by reason of confusion, as to the property, the moment the bank became the purchaser thereof at a sale by the assignee in bankruptcy-of one Hanna. Any claim which the bank may have had, as mortgagee of the property, was extinguished by their said purchase of the same; and nothing remained but the personal remedy of the bank against Ogden, as an ordinary debtor.

In order to understand the 4th and 5th grounds of nullity, it must be mentioned that the bond and mortgage of Edwards Ogden to the Bank of Louisiana bear date the 23d April, 1835, Ogden being then owner of the land mortgaged, .by purchase from Montfort Wells: that Ogden sold the said land to James Jackson Hanna, on the 17th March, 1836 : and that Hanna having surrendered his property to his creditors in the United States Bankrupt Court, the land in question was sold by his assignee in bankruptcy, at public sale, under an order of the court, to the Bank of Louisiana, represented by its cashier, on the 5th December, 1849.

The defendant, Barbin, pleads in his answer :

1st. That the mortgage executed by Edwards Ogden to the Bank of Louisiana on the 23d April, 1835, contained the pact de non alienando, and that the bank had her mortgage duly re-inscribed up to the date of the Sheriff’s sale to respondent under executory process issued at the suit of the said bank.

2d.. That if any equity existed between the bank and other parties, respondent was ignorant of it, and purchased the land in question as last and highest bidder at Sheriff’s sale, and paid the price which the bank, as seizing creditor, received.

3d. That plaintiff, at the time of the said Sheriff’s sale, was the agent of the Bank of Louisiana, and was cognizant of the sale to respondent; that the subsequent sale of this land by the bank to plaintiff was fraudulent, collusive, and simulated — both vendor and vendee knowing the fact of the sale under execution against Ogden, issued by the former against the land in dispute, at which respondent became purchaser.

The answer concludes by demanding damages of plaintiff, for the institution of this action, as vexatious.

From the preceding recapitulation of the pleadings, it appeal’s that the plaintiff relies upon two distinct grounds: one touching defects in the forms of proceeding in the executory process, and the other touching the conveyances of the land in question in the interval between the mortgage by Ogden and its foreclosure by the bank. Plaintiff claims that the alienation at Sheriff’s sale is void, because the forms of law were not pursued. And he claims further, that said alienation is void, because the property sold by the Sheriff belonged to another person than the debtor in execution, to-wit to the plaintiff in execution.

A remarkable peculiarity of the case is, that this Sheriff’s sale is attacked, not by the defendant in execution, but by the plaintiff in execution, that is to say, by the party who originated and directed the legal proceedings complained of, and for whose benefit they were carried on. For the plaintiff stands in the shoes of the bank, his vendor. He has no other or greater rights than the bank, of which he is assign. And besides, it is proved by O. N. Ogden, Esq., the attorney who filed the petition for the seizure and sale, that Mr. Mcllhenny, the plaintiff, was the agent of the bank, especially charged with the collection of its country debts, and who employed the witness to institute the suit. He had, therefore, a particular knowledge of, and participation in, those proceedings, in addition to the privity of interest with the bank, which the law infers from his being the bank’s vendee and assign. The plaintiff in execution, and consequently, one cognizant of the facts and claiming through him, is not, in our opinion, “a person having an interest to annul a forced alienation, for the want of those formalities required by law in such alienations” — to use the language of the court in Gravier’s Curator v. McDonogh, 9 La., quoted by counsel of plaintiff in argument. On the contrary, his interest seems to be, to maintain the validity of the forced alienation made at his instance, and for his benefit.

Again, it is contended by plaintiff, that the Sheriff’s sale was null, because the plaintiff in execution was already the owner of the thing seized and sold. Granting this to be true, the sale would not therefore be a nullity. A person cannot sell the property of another; but he may surely sell his own property in any manner that he sees fit, provided no law is violated, and no person is injured thereby. The evidence shows that the bank had purchased Hanna’s title, (who was the vendee of Ogden,) at the sale of Hanna’s assets in bankruptcy. Hanna was also the debtor of the bank by a bond, secured by special mortgage, on this same land; and the bank gave its claim on Hanna in payment of its bid at the bankrupt sale. This was in the year 1849 ; but the evidence shows that Ogden was in possession of this land, (probably with the consent of the bank,) five years after that bankrupt sale. Now, Ogden was still the debtor of the bank by act importing confession of judgment, with the clause de non alienando, and duly recorded. And if the legal adviser of the bank, and its agent for the collection of its country debts, thought an executory process preferable to a petitory action against Ogden, for the purpose of making available the property which was the security of Ogden’s debt to the bank, all that can be said is, that the bank had choson to sell, through the instrumentality of a Sheriff, aud the machinery of a suit at law, what it might have sold directly by public or private act. No law was violated by such a proceeding, nor was any person injured. Ogden never has complained. Has the plaintiff any right to complain, who had no interest, actual or contingent, in the property at the time of the sale, and who only acquired an interest three years afterwards, by a purchase made with full cognizance of all the antecedent facts, and by a deed in which he expressly dispensed the bank with warranty of his title ?

Plaintiff is without recourse against the bank, by the terms of his deed. He is also without recourse against Barbin; for he and Barbin derive title from the same author, the bank; and Barbin’s title must prevail, because it is the elder.

Judgment affirmed, with costs.


author: Ddfffl, J.

text:
    M. F. Soldini et al. v. S. M. Hyams et als.
    The surety on an administrator’s bond cannot object to tho return of nulla bona on a writ of fi. fa., on the grounds that the Sheriff made his return after the return day of the writ had passed.
    A judicial bond must bo construed by reference to the law in pursuance of which, it was given • and where no particular amount is expressed in au administrator’s bond, the surety will bo liable in tho amount for which the law direcls such a bond to bo taken,'to-wit, one-fourth beyond the estmmtod value of the movables, immovables, and of tho credits comprised in the inventory, and the fact of tho inventory not having beeu filed when the bond was signed will not alter its effects.
    An administrator is bound to render an account of the interest received by him, as also of the revenues of the estate confided to him, when kept in kind beyond a reasonable time.
    APPEAL from tho District Court of the Parish of Natchitoches, Chaplin, J

      II. Safford, for plaintiffs.

      A. II. Pierson, for defendants and appellants.
   Ddfffl, J.

The plaintiffs seek to recover from the defendants, as sureties of William Middleton, administrator of the succession of Marie Delphine Derbanne, tho amount due them by said estate, according- to the administrator’s account of his administration.

The District Judge awarded to the plaintiffs 1j>l,950 61, with interest and ■ costs.

The defendants appealed.

The defendants resist the claim on the following grounds :

1st. That the Sheriff’s return of nulla bona on the writ of ft. fa. issued against their principal, was made after the return day. _,

2d. That the bond signed by them expresses no amount, and is, therefore, without effect.

3d. That the interest charged by the administrator in his account, and which exceeds the amount of their liability, should be cut off, as an administrator only owes interest from the date of the judgment of homologation. C. P. 1007.

I. Had the Sheriff made his return before the time expressed in the writ, the defendants might possibly have found cause to complain ; but as it is, we see no weight in the objection.

II. An administrator’s bond is a judicial one, and must be construed by reference to the law in pursuance of which it was given ; the Article 1041 of the Civil Code fixes the amount of the bond at one-fourth beyound the estimated value of the movables, immovables, and of the credits comprised in the inventory, and the law, therefore, implies that the sureties, by signing the bond, intended to bind themselves accordingly : and it is no answer that the proces-verbal of inventory was not then on file in the Clerk’s office; this fact, od the contrary, explains the hiatus. Mason, Ex’r, v. Fuller & Williams, Sheriff, 12 An. 68.

III. It appears that the administrator allowed iii his account five per cent, per annum interest on the different instalments of the sale of the community property, as also on the estimated value of the separate property of his deceased wife, (whose estate he was then administering,) during the several years that he kept the latter property. An administrator is bound to render an account of the interest received by him, as also of the revenues of the estate confided to him, when kept in kind beyond a reasonable time.

In the case at bar, the administrator retained tlio separate property, which consisted principally of landed property aud slaves, from 1848 to 1853, and he became the purchaser of the greater part of the community property, and non constat that he applied the proceeds, as they became due, to the payment of the debts; and, therefore, we see no good reason to exonerate him from the payment of interest on his purchases.

The mode of computing the revenues of the separate property was most favorable to the administrator. We, therefore, conclude, that the interest allowed by the administrator was the interest due by him personally as a purchaser, the interest received from the other purchasers, and the revcuues yielded by the separate property, and consequently, that the charge was a proper one.

The District Judge based the amount of his judgment on a statement prepared by the pai’ties, but in doing this, he overlooked the last item, by which the administrator was entitled to a credit of $50, thus reducing the amount to $1,900 61: we will, in this respect, modify the judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court a qua be amended in such a manner as to reduce the sum of nineteen hundred and fifty dollars and sixty one cents, to the sum of nineteen hundred dollars and sixty-one cents, to be distributed and contributed according to the principle and basis of the judgment of the District Court, which is otherwise hereby affirmed; the appellees to pay the costs of the appeal.


author: VooRniEs, J.

text:
    N. H. White v. W. O. Winn.
    Whore work to be done on roads, levees and ditolies oil a party’s land, had been regularly adjudicated to an undertaker, according to the provisions of the Act of 1855, and upon their completion, the Road and Levee Inspector issued his certificate to the undertaker — Held: That in case of non-payment, the undertaker was not entitled to an order of seizure and sale, unless the petition was accompanied by his oath, showing the amount due.
    APPEAL from the District Court of the Parish of Avoyelles, Cullom, J.

      Cannon S Irion, for plaintiff.

      M. Ryan and Hyman <& Cazabat, for plaintiff and appellant.
   VooRniEs, J.

The works to be done to the road, levees and ditches on the land of the defendant, situated on the Achafalaya River, in the Parish of Avoyelles, were adjudicated to the plaintiff, N. H. White.

The proces-verbal of the adjudication was recorded in the Office of the Recorder of mortgages, and, upon the completion of the work, the Road and Levee inspector issued his certificate to the undertaker.

An order of seizure and sale having issued, the defendant took an appeal from the decree of the court.

The order was erroneously granted : the petition is not accompanied with the oath of the undertaker, showing the amount due. Acts 1855, relative to roads and levees, p. 394, $ 3.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that the plaintiff’s petition for executory process, be dismissed with costs in both courts.


text:
    Mrs. Joyce Holmes v. Ludger Barbin, Sheriff, et al.
    Although tlie Code does not expressly declare that a dissolution of the community shall result from a judgment of separation of property between husband and wife, yet such is the legitimate conclusion to be drawn from the textual provisions on this subject.
    One of tho objects of a separation of property is to put an end to the community.
    A creditor is entitled to levy upon property which bas been transferred by his debtor, without resorting to the ordinary action, whore such transfer is a pure simulation.
    A Sheriffs sale cannot be considered as a mere simulation, unless the seizing creditor was a party to the transaction.
    The continued possession by a seized debtor of the property sold under execution, cannot bo considered as a badge of simulation as regards the seizing creditor, who is seeking the payment of his claim, and whose claim is satisfied by the proceeds of the sale.
    ■Where the debtor transfers his property for tho purpose of injuring his creditors, and actually does injure them, although the sale may not be a simulation, they are entitled to a diroct action of nullity to secure themselves.
    An attorney ought not to testify as to matters confided to him by his client.
    APPEAL from the District Court of the Parish of Avoyelles, Cullom, J.

      Hitchborn, for plaintiff.

      Générez & 'W. B. Lewis, for defendant and appellant.
   Voorhies, J.

The title of the plaintiff to the property in litigation in this cause, is assailed on the grounds, that her purchase inured to the benefit of the community; and that the title of her husband has never been divested by the sheriff’s sale to her vendor.

The plaintiff is a married woman, separated in property from her husband, and the defendants are the seizing creditors of the latter.

The facts, which gave rise to this controversy, are as follows :

In .the year 1843 the property of the husband, James E. Howard, was levied upon by the Sheriff at the instance of some of Ms creditors, and sold and adjudicated to J. M. Havard. Several years afterwards the wife, being then duly separated in property from her husband, obtained in her name a transfer from the purchaser at Sheriff’s sale. In the meantime the parties had continued to reside upon the property, and, to outward appearance, to have in hand its whole management.

I. The defendants contend that a judgment of separation of property does not dissolve the community of acquests and gains, and that, consequently, all subsequent purchases made, either in the name of the husband or of the wife, are for the benefit of the community.

This position is untenable. It is true that the Code does not, in so many words, declare the dissolution of the community to be the result of a judgment of separation of property ; yet such is the legitimate conclusion to be drawn from the textual provisions on this subject.

The wife, who,” says the Code, “ has obtained the separation of property, may, nevertheless, accept the partnership or community of gains, which has existed till that time.” Art. 2404. And then she resumes the administration of her paraphernal property, and also of her dowry. If, at the date of the separation of property, the wife has the right to demand the liquidation of the community, it is upon the assumption that it is dissolved. There is no force in the argument that the dissolution does not take place, as a necessary consequence of the separar tion, but that it is merely optional with the wife to ask a liquidation of the affairs up to that period, without prejudice to the continuation of the common com cerns. “ The object of a separation of property is twofold : it provides for the present, by enabling the wife to recover her dowry, or other claims against her husband ; and it provides for the future, by putting an end to the community, and thus securing to the wife her individual acquisitions, or gains thereafter, in whatever manner obtained.” Davock v. Darcy, 6 R. R. 344.

Our jurisprudence is settled upon this point; and this court has even decided that: “ all purchases made by the wife in the intermediate time between the demand and the judgment of separation, must be viewed as made for her own account, and not for the community, which she had declared her wish to put an end to.” Dugas v. Her Husband et al., 6 R. R. 529. C. C. 2406.

II. The defendants in injunction, assuming that the Sheriff’s sale to J. M. Havard. and transfer from the latter to the plaintiff, Mrs. James E. Howard, were pure simulations, and that the title of the plaintiff’s husband had never been really divested, levied upon the property without resorting to the ordinary action. This course is warranted by law, provided, however that the assumption of simulation be, in point of fact, well founded. The counsel states in his brief“ that in 1843, James E. Howard, husband of plaintiff, being much embarrassed in his circumstances, procured a sale of all his property to be made by the Sheriff under a twelve months’ bond, held by Lewis <& Jewell against him, for the purpose of protecting it from the further pursuit of his creditors,” — and further, — “ that the Sheriff’s sale to Havard was simulated and fraudulent, that Havard never intended to acquire title, nor did he ever acquire any to the property, but simply lent the use of his name to protect the property irom further seizures, and with the intention of maintaining Howard in the possession and ownership of the property.”

This raises the question of fact, whether on the part of Mr. James E. Howard and his wife, and the seizing creditor and the purchaser at Sheriff’s sale, there was an understanding that all the forms of law, — from the execution to the Sheriff’s sale and the transfer from the purchaser to Mrs. Howard, — were had merely for the purpose of covering the property of the seized debtor. The Sheriff’s sale cannot be considered as a mere simulation, unless the seizing creditor was a party to the transaction. Of this there is no evidence ; but, on the contrary, it appears that the claim has been satisfied. The continued possession by the seized debtor of the property sold under execution, cannot be considered as a badge of simulation as regards the seizing creditor, who is seeking the payment of his claim, and whose claim is satisfied by the proceeds of the sale.

The adjudication to J. M. Havard was made under circumstances which denote that he purchased the property for his own protection ; for he was Howard’s surety on the very claim of the seizing creditor. And when he transferred the property to Mrs. Howard, he took good care to provide for the payment of the balance due, besides requiring, by way of reimbursement probably, a cash payment of $2000. Under these circumstances, the fact of the parties being half-brothers, does not afford suspicions as to their good faith ; nor do we see anything unusual in the stipulation, by which the plaintiff obligated herself to pay the debt, which she and her husband owed to the bank, although Havard was not a party to this debt. The bank’s claim was secured by special mortgage on a portion of this property ; and as the date of this special mortgage was antecedent to the judicial mortgage of the seizing creditor, and as the adjudication was made for an amount which did not exceed the special mortgage, the purchaser had an interest in providing for the satisfaction of the debt of the bank. In doing so he has obtained the reimbursement of his purchase money, and secured himself against the recourse of the bank aud of the seizing creditor.

The evidence does not show a case of pure sinúilation, although it appears that the family of Mr. Howard, continued, after the sale, in the possession of the property. The presumption of simulation, resulting from this possession, is rebutted by the facts which have been already considered. It may be that the creditors were injured by the course pursued by their debtor, and that such was their debtor’s purpose ; but then their remedy lies in a direct action of nullity.

III. A question having been propounded by the defendants to H. Taylor, Esq., to ascertain some fact, connected with the ownership of the twelve months’ bond of Lewis & Jewell, the witness objected to the question on the ground that he had acted as the counsel of James E. Howard, in those proceedings, and that he could not, and ought not to testify as to matters confided to' him by his client. The objection was properly sustained by the District Judge. C. C. 2262.

Judgment affirmed.