author: Ludblihg, G. J.

text:
    No. 896.
    Susan C. Palfrey vs. M. T. Gordy, Sheriff, et al.
    In her petition of'injunction the plaintiff alleges that she is a mortgage creditor' with vendor’s privilege upon the property seized for $i6,666, with interest, etc.; that the property had been seized and taken possession of by the sheriff under executory process issued under her debts; that yrfiile the property was under ■her seizure a Compromise was made with her debtor, D. B. Penn, by which'he transferred to her the property for the unpaid price, subject to.-the right oí re-, demption which he reserved; and that the act was duly recorded; she alleges that the’judgments obtained in the parish ’ court of St. Mary, iri'distinct'suits', against her debtor, D. B. Penn, by certain laborers for sums under- five hundred dollars, but amounting in the aggregate to seyeral thousand, are null. and. void from the vrañt of citation, etc. The defendants objected to the jurisdiction of the district court which had issued plaintiff’s injunction,'and the exception was sustained- , ,
    The district court clearly had jurisdiction of this ease. The property was under seizure under the order of seizure and sale obtained by plaintiff before the seiz-•ur.es of defendants. ' -The,jiation enpaiemmt with fheresolutory condition vested the title in plaintiff, and she had the-right to enjoin the sale thereof under defendant’s judgments and where judgments are opposed to their holders ; the nullity thereof.may be shown in any court. The-parish court-could not have • passed upon the Questions raised by the petition of injunction for want of ju7 risdiction ratione mafenee. 'The casé is remanded.' ’ ■ " ; ’
    APPEAL from the Third Judicial District .Court, parish of ; St.- Mary; Tj-cáji, .1’.
    Ered. Gates, for plaintiff and appellant.

      D. Caffery, foj defendants and appellees.
   Ludblihg, G. J.

On the nineteenth of September, .1873, executory. pro7 cess issued on two mortgage notes of $23,333 33, in favor of J. B. Marsh, executor, and S.,0. Gates (Widow Palfrey), and the Bicohoc plantation was seized on the third of January, 1874. On the tenth of November, .1873, an agreement was entered into between Mrs. Palfrey, acting for herself an,d as tutrix of her children and D. B. Penn, by which the payment of said notes was prolonged from year to year, on condition that ,the milker, D. B. Penn, should pay, on or before the fifteenth of January, 1874, the interest, so as to reduce the whole debt to fifty thousand dollar^ at that date,, which .was to bear interest at eight per cent.per annum, payable in: January and July of’.each year, and the principal; thus fixed Jo. be reduced - by the payment of an annual installment of at least five thousand dollars, commencing on the first of March, 1875, and it was further stipulated that this agreement was not to affect or change the rights of the parties as they then existed.

On the sixteenth of January, 1874, the same parties entered into another agreement by notarial act, duly recorded in the parish of St. Mary, in which it is recited that the Ricohoc plantation was purchased by D. B. Penn from the said Mrs. Palfrey, widow and tutrix, and that the price represented by the notes on which executory process had been issued was unpaid, and, referring to the agreement above mentioned, it was stipulated that the said plantation and appurtenances then under seizure as aforesaid should be turned over and delivered unto the said Mrs. Palfrey, “who is to have the entire management and control of the same until the fifteenth of January, 1875, to be run and all expenses paid out of crops, the surplus, if any, after paying necessary expenses, to be credited on the debts evidenced by the notes aforesaid. Any debts now due by D. B. Penn which the said Mrs. Palfrey may be compelled to pay shall be charged in the expense account and be a debit by said Penn. An acceptance of three thousand five hundred dollars, due November 1,1874, shall be given by said Penn, and all discounts submitted to for the purpose of reducing the same to -cash shall be charged to and borne by the said Penn. The property thus turned over shall remain in the possession of Mrs. Palfrey until a full compliance be made with the terms of the agreement above referred to, dated the tenth of November, 1873, and the said agreement shall remain in full force and effect, except that the present agreement in the nature of a compromise is to be indorsed on the original of said agreement of the tenth of November, 1873, as a 'compliance with the terms stipulated for 1874. And in ease on the fifteenth of January, 1875, the said Penn finds it impossible to comply with the stipulations of said agreement of November 10,1873, then and in. that case he hereby binds himself to retrocede the said plantation with its fixtures and appurtenances for the amount of the debt. The noncompliance by the fifteenth of January, 1875, with the terms of the agreement of 1873 shall be taken as a default, and no other putting in default shall be necessary. The right to redeem and recover possession of said plantation and appurtenances during the year 1874 is reserved and conceded to the said Penn upon his complying with the terms of the agreement of 1873, he taking the plantation in the condition it may be,” etc. A large number of judgments for sums under five hundred' dollars was obtained by the laborers and executions were issued and seizures made of mules, furniture, implements, and crops on Ricohoc plantation. Provisional seizures had been previously made on the twenty-ninth of January, 1874.

In her petition and injunction the plaintiff alleges that she is a mortgage creditor with vendor’s privilege upon the property seized for $46,-666 66, with eight per cent interest from the twentieth of October, 1869; that the property had been seized and taken possession- of by the sheriff under executory process issued under her debts ; that while the property was under her seizure, a compromise was made with her debtor by which he transferred to her the property for the unpaid price, subject to his right of redemption, the substance of which act has been already stated, and that said act was duly recorded. ’ She avers that the value of the property seized under each and every one of the separate executions exceeds in value eight thousand dollars ; and she attacks the validity of the several judgments obtained in the parish court on the ground that they are absolute nullities for want of citations, etc. She further alleges that by law the privilege of the laborers is confined to the crop of 1873, which was sold by the debtor Penn before the seizures, through their negligence, laches, or with their consent, and that they have no privilege on the property seized..

The district court clearly had jurisdiction of this case. The property was under seizure under the order of seizure and sale before the seizures of defendants; the elation en paiement, with the resolutory condition, vested the title in the plaintiff, and. she had a right to enjoin the sale thereof under defendants’ judgments if her allegations be true: and when judgments are opposed to third holders they may show in any court their nullity. The parish court could not have passed upon the questions raised by the petition of injunction for want of jurisdiction ratione materias..

It is therefore ordered that the judgments on the exceptions, which dismissed ,the suit, be overruled, and that the case be remanded to the court a qua to be proceeded with in accordance with the views herein expressed, and that the appellees pay costs of appeal.

Eehearing refused.


source: Caselaw Access Project

author: Ludeling-, C. J.

license: Public Domain

text:
    No. 900.
    Daniel McDaniel vs. Dominique Lalanne et al.
    On the twentieth oí February, 1857, Fontenot sold to Barlow the property covered by the mortgage in question in this suit. This act was not recorded till the thirteenth of September, 1858.
    On the' fourth of November, 1857, Barlow exchanged the property for another piece of property with McDaniel, who was a witness to the act of sale from Fon-tenot to Barlow, in which the mortgage was created on the property.
    On the seventh day of February, 1850, McDaniel transferred two undivided thirds of this property to Reed and Fontenot. Thus, it is evident that when McDaniel alienated the property the mortgage had been duly recorded and bound his transferees. But McDaniel was a witness to the act of mortgage, and therefore a party to the act, and.registry was not necessary to bind him.

      'Article 334á o£ the Civil Code creates no exception in this matter. Article 3342 declares; “ But these mortgages are only allowed to prejudice third persons when they have been publicly inscribed in records kept for that purpose,” etc.
    Article 3343 defines who the third parties referred to are; and article 3344 declares; “ Consequently neither the contracting parties; nor their heirs, nor those who were witnesses to the act by which the mortgage was stipulated .can take advan- . tage of the non-inscription of the mortgage.” Thus they are affected by the mortgage, notwithstanding its non-inscription, not bécause of their knowledge of its existence, as assumed by defendants in this case, but because they are not third parties. ' .......
    The transferees of McDaniel, in examining the chain of title to him, must have seen that he was a witness to the aét of mortgage, which wa's duly recorded when they acquired title from him; ■ and all persons are presumed to know the law.
    It is impossible to see why a third possessor of mortgaged property should not plead prescription against the mortgage note, although a judgment has been .rendered on the note against the debtor. He -was río party to the suit, and his rights were not affected by the. judgment.
    If the mortgage note was prescribed when the suit against the debtor was instituted, ■ the mortgage was dead; for the accessory obligation perishes with the prescription of the principal obligation, and it was not in the power of the dobtor-or. of the court to revive the mortgage affecting property in the hands, of third persons.
    The acts interrupting prescription which plaintiff offered to prove by parol were not done by the deceased debtor, but by his administrator after his death, and the rule of law invoked was inapplicable. Therefore the j udge a at to erred in rejecting tho evidence.
    A PPEAL from the Eighth Judicial District Court, parish of St. Landry, Laurent Dupré, Acting Judge.

      J. M. Moore, for plaintiff and appellant. Henry L. Garland, for defendant and appellant.

      Martel & Hud-speth and Lewis & Bro., for warrantors.
   Ludeling-, C. J.

This is an hypothecary action to enforce payment of a mortgage note executed by J. B. A. Fontenot for a portion of the price of thé property a part of which is now in the possession of the defendants, Dominique Lalanne and Etienne Forest. Etienne Forest filed for answer a general denial, and called Theodule Fontenot and the estate of Barlow in warranty, to defend this suit.

The answer of Lalanne is a general denial and a call in warranty of his vendor, David Morgan, and of John Beid and Theodule Fontenot, Morgan’s vendors. The demand for a money judgment against the war-rantors was reserved.

Benjamin Woodworth and wife, representing David Morgan’s estate, Theodule Fontenot, John Beed, and Elisha Andrus, administrator of the estate of John S. Barlow, deceased, answered the case in warranty and denied all the allegations of the plaintiff’s petition. Subsequently, the prescription of' five and ten years against the plaintiff’s demands was pleaded.

The lower court sustained this plea and dismissed the suit.

On the twentieth of February, 1857, Jean B. Fontenot sold to John S. Barlow the property covered by the mortgage in question. This act was not recorded till the thirteenth of September, 1858.

On the fourth of November, 1857, Barlow exchanged the property for another piece of, property with McDaniel, who was a witness to the act of sale to Barlow in which the mortgage was created on the property. On the seventh day of February, 1859, McDaniel transferred two undivided thirds of this property to Beed and Fontenot. Thus it is evident that when McDaniel alienated the property j the mortgage had been duly recorded and bound his transferees.

McDaniel was a witness to the act of mortgage, and, therefore, a party to the act. O. 0. 3342, 3343, and 3344. And registry was not necessary to bind him.

But the defendants say that the exception to the rule that registry is necessary to affect third parties, created by article 3344 0. 0., can not be ■extended. We do not believe that article 3344 creates any exception. Article 3342 declares: “ But these mortgages áre only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose, and in the manner hereinafter directed.” Article ■3343 defines who the third persons referred to in article’ 3342 are, and article 3344 declares: “ Consequently, neither the contracting parties, nor their heirs, nor those who were witnesses to the act by which the mortgage was stipulated, can take advantage of the non-inscription of the mortgage.”

They are affected by the mortgage, notwithstanding its non-inscription, not because of their knowledge of its existence, as assumed by defendants, but because they are not third parties. And the transferees of McDaniel, in examining the chain of title to him, must have seen that he was a witness to the act of mortgage, which was duly recorded when •they acquired title from him, and all persons are presumed to know .-the law.

Another question to be decided is, can a third possessor of mortgaged ¡property plead prescription against the note, although a judgment has /been rendered on the note against the debtor ?

We are unable to perceive why he should not be allowed to plead pre.•scription in such a case. He was no party to the suit, and his rights were not affected by the judgment. If the note were prescribed when ■the suit against the debtor was instituted, the mortgage was dead, for the accessory obligation perished with the prescription of the principal •.obligation, and it was not in the power of the debtor, or of ’the court, to revive the mortgage affecting property in the hands of third persons. Besides, the textual provisions of the court declare that: “ Creditors .-and all other persons who may have an interest in the acquiring of an estate, or the extinguishment of an obligation by prescription, shall have .a right to plead it, even in case the person claiming such estate, or bound by such obligation, should "renounce such right of prescription.” C. C. 3466.

The case in 13 An. 205, cited, is not in point, and what was said on this subject in the case in 2 An. p. 367, King vs. Hickey, is not approved. See 8 An. 504; 16 An. 345; O. C. 3466.

The note was due bn the first of January, 1859, and the suit was instituted on the tenth of December, 1866; It was prescribed, unless the current of prescription had been interrupted. This the plaintiff offered to prove, but he was not allowed to do so. The plaintiff offered to prove by parol that payments had been made on the note by the administrator of the deceased debtor, which was objected to on the ground that it was inadmissible to prove an interruption of prescription of a debt of a dead person by parol.

The court a qua erred.

The acts interrupting prescription, which plaintiff offered to prove, were not done by the deceased debtor, but by his administrator after his death, and the rule of law invoked was inapplicable. R. S., section 1442.

It is therefore ordered that the judgment of the lower court be reversed, and that the case be remanded to be proceeded with according to the views herein expressed, and that appellees pay costs of suit.


author: "Wyly, J.

text:
    No. 970.
    J. M. Lapeyre vs. W. F. Weeks et al., Testamentary Executors.
    This is a suit to recover judgment for the amount of two drafts against the executors of Mary 0. Moore and John Moore, who, in their life-time, were, the one the tutrix and the other the co-tutor of the minor, David Magill. The drafts were accepted, and plaintiff acquired them before due. The plea that defendants were bound as indorsers or sureties can not be sustained.
    The defendants can not be regarded as indorsers of the drafts. In indorsing the drafts they omitted adding their capacity of tutrix and co-tutor, which was set forth as drawers. . In this fiduciary capacity the drafts were not indorsed and completed by the drawers, unless this court should regard their signatures as given in that capacity.
    Bills drawn by a fiduciary to his own order are not completed unless indorsed in the samo capacity as drawn. This court regards the drafts as completed, and must therefore consider that defendants indorsed them in the same capacity in which they drew them.
    The tutrix and co-tutor, administering the plantation of the minor, Magill, had the right to draw those drafts on the factors of the plantation of said minor. The drafts were predicated on the crops, which were not shipped to New Orleans, where the factors resided, on account of the war. The tutrix had authority of the court to borrow money on mortgage to carry on the plantation. If she could accomplish this object without the mortgage, she not only had the right, but it was her duty, to execute for the minor the less onerous obligation. There is nothing in the record to fix the liability of the drawers individually,

      APPEAL from the Third Judicial District Court, parish of St. Mary.. Train, J.

      A. Trudeau and JS. Simon, tor plaintiff and appellee.

      De-Blanc & Fournet, J. M. Moore, and Charles B. Singleton, for defendants and appellants.
   "Wyly, J.

This is a suit against the executors of Mary C. Moore and John Moore, who in their life-time were the tutrix and co-tutor of the minor, David Magill, to recover judgment for the amount of two drafts which said tutrix and co-tutor drew in March, 1862, on Darby & Tre-mo ulet, of New Orleans, who were the factors of the plantation owned' by said minor and cultivated by Mary C. Moore, tutrix. The drafts were accepted, and plaintiff acquired them before duo. He seeks to hold Mary C. Moore and John Moore, or their successors, liable for these drafts which they drew in their fiduciary capacity on two grounds:

First — They arc bound as indorsers or as sureties.

Second — They are bound because they had no authority to draw the drafts as tutrix and co-tutor.

No notice of dishonor was given to Mary C. Moore and John Moore; but plaintiff contends they were entitled to no notice.

We do not regard Mary C. Moore and John Moore as indorsers of the drafts. In indorsing the drafts they omitted adding their capacity of tutrix and co-tutor. The drafts were drawn to their own order by Mary O. Moore as tutrix and John Moore as co-tutor. In their fiduciary capacity the drafts were not indorsed and completed by the drawers, unless we regard the signatures of Mary C. Moore and John Moore as made in that capacity.

Bills drawn by a fiduciary to his own order are not completed unless indorsed in the same capacity as drawn. We regard these drafts as completed, and must, therefore, consider that Mary C. Moore and John Moore indorsed them in the same capacity in which they drew them.

Had this tutrix and co-tutor administering the plantation of the minor, David Magill, the right to draw these drafts on the factors of the plantation of the minor ? The drafts were predicated on the crops of 1862,. which were not shipped to New Orleans on account of the war.

We think the tutrix not only had the right, but it was her duty, to obtain supplies and conduct the plantation of the minor as a prudent man-would do his own. She had authority of the court to borrow money on a mortgage to carry on the plantation. She was enabled to accomplish the object, however, without mortgaging the property of the minor by-obtaining the discount of these drafts on the acceptance of the factors-of the plantation. Where the court, on advice of a family meeting, authorized the tutrix to borrow money to support the slaves and carry on the plantation, and she found she could accomplish the object without mortgage, she not only had the right, but it was her duty, to execute for the minor the less onerous obligation.

• Mary 0. Moore as tutrix, and John Moore as co-tutor, committed no fraud in drawing the drafts in question. The acceptance by the drawers admitted their authority to draw.- Besides, the evidence shows that these drafts were given at the request of the drawers. We find nothing to fix the liability of the drawers individually.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled; and that there be judgment for defendants, appellee paying costs of both courts.

Rehearing refused.


author: Howell, J.

text:
      No. 944.

    James Todd vs. M. T. Gordy, Sheriff, et al.
    The homestead law, being in derogation of the common right given to creditors on the property of their debtors, must be strictly construed.
    This law says that one hundred and sixty acres of ground and the buildings and improvements thereon, occupied as a residence and bona, fide owned by the debtor, shall be exempt from seizure under execution. This evidently refers to the actual residence of the debtor, occupied by him as proprietor, and not that he may select any' one hundred and sixty acres of ground included within the whole property.
    This case illustrates the intent oí tho law to preserve to the debtor his homo, provided it does not exceed two thousand dollars. Here the residence or dwelling of the debtor is worth over ten thousand dollars, and, of course, he could not retain it under tho law. But the law does not say that he may take any other portion of the land on which the dwelling occupied by him is not situated, and ■establish a residence for the purpose of securing a homestead. It is only the ■ground on which is the building occupied as a residence that may constitute a homestead for the unfortunate debtor — his constant, usual residence.
    Therefore the plaintiff is not entitled to homestead on any part of his plantation other than the ground, to the extent of one hundred and sixty acres, on which stand the buildings and improvements occupied by him as a residence. Tho ■ law does not give him tho right to change his residence after seizure, for the purposed establishing a homestead on another and less valuable part of the land, and thus evade the restriction in the law as to the value of the property to be claimed as a homestead. His creditors contract with him in this respect with reference to the character, value, and condition of his residence.
    The motion to set asido the writ of fieri facias on the ground that tho seizure of the part of the property was not affected by the injunction against the sale of the whole plantation could not be granted. The validity of the seizure of tho part claimed as a homestead was dependent on the injunction, and the release of the •other property from the seizure did not embrace that embraced in the injunction. Tho action-of the court on the rule was nothing more than tho action of tho court on the injunction.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Fred. Gates, for plaintiff and appellee.

      I). Caffery, for defendants and appellants.
   Howell, J.

The plantation of plaintiff having been seized under a fieri facias in the case of the American Colonization Society vs. J. Todd, he obtained an injunction to restrain the sale of one hundred and sixty acres thereof, claiming it as a homestead. The defense to this claim, besides the general denial, is, that a few days before that fixed for the sale the plaintiff abandoned the dwelling on the plantation, in which he had always resided as owner, and moved temporarily into a small house near by, which, with the other improvements, was never in good faith occupied as a residence by the plaintiff; that plaintiff, knowing that the value of the dwelling, being largely over two thousand dollars, barred the right to a .homestead, made the change to evade the law in this respect, and that by abandoning his bona fide and only residence just prior to- the sale he virtually acknowledged that he had no right of homestead; and that the notes given by plaintiff for the price of the whole property, secured by mortgage and vendor’s privilege, are outstanding and unpaid, and hence the plaintiff can not claim a homestead. There was judgment in favor of the plaintiff, and the defendant, the Society, appealed.

The law is that “in addition to the property and effects now exempt from seizure and sale under execution, one hundred and sixty acres of ground, and the buildings and improvements thereon occupied as a residence, and bona fide owned by the debtor, having a family, or mother, father, or person or persons dependent on him for support; also, certain movables; provided, that the property herein declared exempt from seizure and sale does not exceed in value two thousand dollars; and in cases of excess, any sale thereof under execution shall be taken from the lot of ground and buildings herein mentioned, and not from the other property herein mentioned as being exempt from seizure and sale; and pj'ovided further, that no debtor shall be entitled to exemption provided for in this section whose wife shall' own in her own right and- be in the actual enjoyment of property worth more than one thousand dollars.

Second — “ That no property shall, by virtue of this act, be exempt from sale for non-payment of taxes or assessments levied pursuant to law, nor for debt contracted for the purchase price of said exemption property, nor for money due for rents bearing a privilege on said property under existing laws.”

This law, being in derogation of the common right given to creditors on the property of their debtors, must bo strictly construed. It says one hundred and sixty acres of ground and the buildings and improvements thereon, occupied as a residence and bona fide owned by the debtor, shall be exempt from seizure under execution. This evidently refers to the actual residence of the debtor occupied by him as proprietor, and not that he may select any one hundred and sixty acres of ground included within the. whole property. This case illustrates the intent of the law- to preserve to the debtor his home, provided it does not exceed two thousand dollars. Here the residence or dwelling of the debtor is worth, over ten thousand dollars, and, of course, he could not retain ir. under the law. But the law does not say he may take any other portion of the land on which the dwelling occupied by him is not situated, and establish a residence, for the purpose of securing a homestead. It is only the ground on which are the buildings occupied as a residence that may constitute a homestead for the unfortunate debtor — his constant, usual residence.

Suppose a debtor should own one hundred and sixty acres of land worth ten dollars per acre, and put on one end of it a dwelling-house worth ten thousand dollars, and near by he should erect a small building for other purposes, could he, when his property is under seizure, leave the costly house, move into the small one, and retain it and all the land not occupied by the large house as a homestead, thus leaving to his creditor simply a large dwelling-house in a rural district, without land ? Such, we think, is not the intention of the law-maker.

We therefore conclude that the plaintiff is not entitled to a homestead on any part of his plantation other than the ground, to the extent of one hundred and sixty acres, on which are the buildings and improvements occupied by him as a residence, and that the law does not give him the right to change his residence, after seizure, for the purpose of establishing a homestead on another and less valuable part of the land and thus evade the restriction in the law as to the value of the property to be claimed as a homestead. His creditors contract with him, in this respect, with reference to the character, value, and condition of his residence and the adjoining land.

In regard to the motion to set aside the writ of fieri facias, on the ground that the seizure of the part of the property was not affected by the injunction, we are of opinion that it was not a good ground, as the validity of the seizure of the part claimed as a homestead was dependent on the injunction, and the release of the other property from the seizure did not affect that embraced in the injunction. The action of the court oh the rule was nothing more than the action of the court on the injunction.

It is therefore ordered that the judgments appealed from be reversed and the injunction dissolved, with two hundred dollars damages and costs in both courts.


author: TaliaferRO, J.

text:
      No. 4884.
    Michael Reilly vs. Succession of C. Reilly.
    A till of exceptions was taken to the admission of Mrs. C. Reilly, the testatrix, as a witness, on the ground that by law the husband and wife can not testify for or against each other, this being a suit against the succession of her husband. This objection was properly overruled.
    At the decease of the husband the feelings and influences supposed to exist during the conjugal state, tending in their character to render evidence given by one of ' the spouses to affect the"other partial and unreliable, ceased. The policy of tlio law which forbids during marriage the husband or wife to testify for or against each other also ceased. Oessante ratione, cessat el ipsa lex.

    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      T. A. Bartlette, for plaintiff and appellant.

      Breaux, Fenner & Hall, for defendant and appellee.

       All the decisions of the Supreme Court for 1876 were delivered on the twenty-, sixth of June, 1877, immediately after a contract had been made for their publication with the State, and it is through an error of the contractor who had mislaid some of the manuscript, and not through the fault of the reporter, that the May eases were not published in their regular order. — Rep.

   TaliaferRO, J.

The plaintiff sues the succession of his deceased brother for twelve hundred dollars for labor and services alleged to have been rendered during the life-time of the deceased in superintending Ms business, which seems to have been that of keeping a stable-yard, supplied with carts, drays, horses, mules, gear, etc., for the purpose of hauling and transportation generally within the line of his calling. The plaintiff alleges that he commenced these services in November, 1868, and continued them until the decease of his brother, and afterward for the benefit of his succession to the month of November, 1872. Prom the plaintiff’s statement in his petition there was no contract between himself and his brother as to the amount he was to be paid for the services he was to render, but that his brother agreed to pay him a reasonable compensation.

Tnis claim of the plaintiff against the succession of his brother is regarded in no favorable light by the widow and executrix of his estate. In her answer she pleads a general denial. She especially denies that plaintiff ever had charge of the business of the deceased, and then declares the truth to be that‘for a long period, and for a much greater length of time than plaintiff alleges he took care of deceased’s business, the deceased supported him, the plaintiff being, during that time and at all times, unable or unwilling to do any thing for his own support, and that during the whole time aforesaid he was living at the premises of respondent’s husband on sufferance merely.

The executrix pleaded the prescription of one year under article 3534 of the Civil Code.

The judge a quo found the plaintiff had failed to make good hi® demand, rendered judgment against him, and in favor of the defendant. The plaintiff appealed.

A bill of exceptions was taken to the admission of Mrs. Widow Christopher Reilly, the testatrix, as a witness, on the ground that by law the-husband and wife can not testify for or against each other, this being a suit against the succession of her husband. ■ This objection was properly overruled.’ At.the decease of the husband, those feelings and influences supposed to exist during the conjugal state, tending'in their character to ■ render evidence given by one of the spouses to affect the other partial and unreliable, ceased. The policy of the law which forbids, during marriage, the husband or wife to testify for or against each other also ceased. • • Cessante rations cessat et ipsa lex.

The testimony abundantly sustains the judgment of the court below. It shows satisfactorily that the plaintiff did not expect to be paid wages by his brother. He never made any demand of him for work done; was present when the other laborers about the yard were paid off by the week, and never received or demanded payment for any thing he did himself. His pretense that he was his brother’s superintendent is wholly ignored. He seems to have been addicted to dissipation, going out, as the witnesses have it, “ on sprees.” On several occasions he absented himself. It was with much difficulty that his brother tolerated him about his house at all. In short, it fully appears that the plaintiff was a kind of pensioner on the bounty of his brother; was unthrifty and not well calculated to take care of himself, and was in a dependent condition upon his brother, who neither needed nor wanted his services.

It is ordered that the judgment appealed from be affirmed with costs.;


author: Wyly, J. Taliaferro, J. Wyly, J.,

text:
    No. 5781.
    P. Irwin, Tutor, vs. City of New Orleans and E. Waggaman, Sheriff.
    Several grounds are set up for the injunction in this case, the most important being that there was no legal notice or citation, wherefore the payments for taxes relied on by the defendants were null and void, inasmuch as the publication directed to Richard Murphy, who had been dead for years, was no notice to the minor, Richard James Downey, who aeauired the property in Question from Richard Murphy as testamentary heir in 1867. The court decided in accordance with these views, but on rehearing reversed its former decision by reason of the law and evidence being in favor of defendants.
    APPEAL from the Superior-District Court, parish of Orleans. Hawkins, J.

      T. Gilmore & Sons, for plaintiff and appellant.

      Samuel P. Blanc, Assistant City Attorney, for defendant and appellee.
   Wyly, J.

P. Irwin, tutor of the minor, Richard James Downey, has enjoined the defendants from subjecting the property described in the petition, which said minor acquired in 1867 as testamentary heir of Richard Murphy, deceased, to sale in satisfaction of three judgments described in the petition, which the city of New Orleans recovered' against Richard Murphy for taxes due the city for the years 1870,1871, and 1873.

These judgments were obtained by confirming defaults after the usual publication of notice to taxpayers, and the notice was directed to Richard-Murphy, although he had been dead for several years.

Several grounds are set up in the petition for the injunction, the most important being there was no legal notice or citation, and the judgments, are therefore void. The .publication directed to Richard Murphy, who. had been dead for years, was no notice to the minor, Richard James Downey, who acquired the property in question from Richard Murphy as testamentary heir in 1867. The judgments were obtained without legal notice or citation, and they are consequently void. City of New Orleans vs. Heirs of Schmidt, 10 An. 771; City of New Orleans vs. Heirs of de St. Romes, just decided.

It is therefore ordered that the judgment herein in favor of defendants be annulled, and it is decreed that the injunction sued out by-plaintiff be made perpetual, without prejudice to the city of New Orleans in another proceeding to claim the taxes in question. It is' further ordered that appellee pay costs of both courts.

On REHEARING.

Taliaferro, J.

Upon a reconsideration of this case we think the judgment first rendered erroneous. The evidence and the facts of the case we conclude authorize a reversal of our first decree.

By reason of the law and the evidence in this case being in favor of the defendants, it is therefore ordered and adjudged that the decree first-rendered by this court in this case be annulled and set- aside. It is further ordered that the injunction sued out by the plaintiff be dissolved- and his demand rejected; that ¡there be judgment in favor of the defendant for the amount claimed for taxes, and that the suit be dismissed at plaintiff’s costs.

Wyly, J.,

dissenting. No legal right should be divested without due process of law, and no one should be condemned without a hearing.

In the case at bar judgment was rendered for city taxes, and the property of plaintiff, the tutor of the minor, Richard James Downey, has been seized, and is about to be sold. Tet the record discloses the fact that said judgment was rendered without citation, actual or constructive.

In the case of the City of New Orleans vs. Heirs of Schmidt, 10 An. 771, it was held, that “by the act of 1852, section thirty-five, relating to the collection of taxes in New Orleans, the publication in a newspaper has the effect of a citation duly served, and it should be subject to the same rules as the citation of which it is the equivalent.” Turning to •section thirty-five of the act of 1852,1 find'the following provision: “ On the first Monday of July of each year, the treasurer shall put in suit in a court of competent jurisdiction all unpaid bills for taxes, and shall by an advertisement published in the official newspaper of the Council cite all defaulters to appear in fifteen days from the date of the first insertion of said advertisement before the respective courts in which said bills are put in suit, and answer to the demand contained in said tax-bill; no petition shall be necessary, but the tax-bill shall be considered as a petition; and the said advertisement shall be considered as a citation, and no other service of citation shall be necessary; said advertisement shall contain the names of the defaulting taxpayers, the amount claimed f-rom each, and the name of the court in which the bill is filed; each defaulting taxpayer shall pay twenty-five cents for the costs of the citation by advertisement, together with such subsequent cost as may accrue in the suit.”

In my opinion citation by publication must conform to the law, “ said advertisement.shall contain the names of the defaulting taxpayers and the amount claimed from each.” And if it is not as required by law, the advertisement is not a citation and the judgment obtained will be an absolute nullity. In the case at bar the name of plaintiff was not contained in the advertisement; it was, therefore, no citation to him, and the judgment sought to be enforced against his property is void.

It is true the name of Richard Murphy, who died in 1867 and bequeathed the property in question to the minor, Richard James Downey, represented by plaintiff, was contained in the advertisement, but he was nota delinquent taxpayer in 1874. The delinquent taxpayer was plaintiff, who for five years had been in possession' as owner. Notice to a dead person whose succession had long been closed, and the property transmitted to the universal legatee, was not notice to the heir.

If a suit had been instituted by a person claiming the property, citation addressed to Richard Murphy would not suffice to bring into court his universal legatee. Likewise an advertisement containing the name ■of Richard Murphy, deceased, will not be a citation to his universal legatee.

The argument in support of the position taken by the majority of the court is an argument of convenience. The assessor may not have known in 1872, when he assessed the property, that Richard Murphy died in 1867, bequeathing the property to the minor represented by plaintiff. But for the sake of convenience in assessing, property and in advertising notice to delinquent taxpayers, I do not think substantial rights should be destroyed. I do not think that one should be condemned unheard simply because it might be inconvenient to find the name of the true owner of the property when the assessment is made and when the advertisement is published to delinquent taxpayers. The public interest does not require such a sacrifice for fear the revenue officers of the city may be put to some trouble in discharging their duties.

The right of a citizen to be heard before he is condemned I think is paramount to any considerations of the character stated.

I therefore dissent in this ease.


author: Ludeling, C. J.

text:
    No. 5603.
    Paul Poincy vs. Mrs. V. C. Burke et al.
    The'court a qua erred in dissolving with damages the injunction taken by plaintiff to prevent the sale of a certain painting, the ownership of which he claimed, and which was seized as belonging to the artist, T. S. Mo'ise. at the suit of defendant in injunction.
    The pretext that it is only the interest of Moise in the property which was seized, ■ and that, if he had.no interest, nothing was seized and no injury could result to the plaintiff, is unsound.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Ldbatt, Aroni & .Clinton, for plaintiff and appellant.

      B. Shackelford, for defendant and appellee.
   Ludeling, C. J.

The plaintiff alleges that he is the joint owner with Yictor Pierson of a painting called the. “ Firemen’s Pictures,” now on exhibition; that the sheriff has seized, at the suit of Mrs. Y. C. Burke, all the right, title, and interest of T. S. Mo'ise in said painting, and has advertised the sale thereof. He alleges that said Mo'ise does not own any portion of said painting; that petitioner and his co-proprietor for the advice and assistance given them by said Mo'ise promised to give him a part of the net profits made by the sale of the painting, if any profits be made, and that neither Mo'ise nor his creditor has any right to force a sale thereof, as the property belongs to said petitioner and said Pierson. A motion to dissolve the injunction on the face of the papers was maintained and the injunction was dissolved with damages. We think this judgment erroneous. From the allegations of the petition, it is manifest that the purchaser at the sale, if made, could have had a right to claim possession of the painting, and that it would have been the duty of the sheriff to deliver it to the vendee, and if the owner had stood by and permitted the sale he might have estopped himself from denying Moise’s title. The pretext that it is only the interest of Moise in the property that was seized, and that if he had no interest, nothing was seized, and no injury could result to the plaintiff, is unsound.

It is therefore ordered and adjudged that judgment on the rule and exception be overruled; and that the rule and exception be dismissed,, and that this case be remanded to be tried according to law.


author: Taliaeerro, J.

text:
    No. 6266.
    W. P. Kellogg, Governor, etc., vs. Charles Clinton, Auditor, et al.
    The court below erred in refusing to order a special jury of merchants for tho trial of this ease, as reauired by one of the parties and assented to by the other. It is one peculiarly demanding a jury of men skilled in accounts and having a practical knowledge of book-keeping,.competent from their skill and experience to adjust books of accounts, to correct erroneous entries, to establish proper balances, and to fix the exact state of numerous and complicated business transactions. The ease is remanded.
    APPEAL from the Superior District Court, parish of Orleans. Saw-kins, J.

      A. P. Pleld, Attorney General, B. S. Marr, J. B. Cotton, and J. Q. A. Fellows, for plaintiff and appellant.

      Semmes & Mott, A. & W. Voorhies, and C. 8. Bice, for defendants and appellees.
   Taliaeerro, J.

This suit is brought against the defendant and the sureties on his appeal bond to render them liable; in solido, for the amount thereof, and to recover judgment, individually against the defendant, Clinton, for large sums of money, besides, upon the alleged ground of unfaithfulness on the part of Clinton in the .discharge of his duties as a public officer of the State.

The petition charges against him that he has not “ well and faithfully discharged and performed all the duties incumbent on him as Auditor of Public Accounts ” of said State of Louisiana, as he had promised and bound himself to do by the above-written obligation, but that he has on divers times and sundry occasions, acting in his said capacity of Auditor, violated, betrayed, and broken the conditions of his said official.bond, and has thereby caused the State great damage and injury. The petition then proceeds to enumerate various acts of the Auditor alleged to be in contravention of law, specifying in detail the acts complained of and the dates when the same were committed and wherein they are unwarranted by law.

The answer of defendants is a general denial.

The plaintiff afterward filed a supplemental petition in which the State claims additional large sums of money which it is alleged the Auditor and his sureties are bound for, on the ground of his issuing warrants illegally, misapplication of public funds, and for other causes.Subsequent to the filing of this amended petition, it seems the parties agreed to have the ease tried before a special jury of merchants, which the judge a quo refused to have called, as appears by the following bill of exceptions found in the record: “ Be it remembered, that when this case was called for trial, Wednesday, the twenty-second of June, 1875, and pending a discussion as to the right of State, plaintiff, to trial by jury, as prayed for in a supplemental petition, filed heretofore, on the eighth of June, 1875, the counsel for defendants proposed that the trial should be by a special jury of merchants, which proposition was immediately accepted by the Attorney General in behalf of the State, whereupon the Attorney General informed the court that both parties were willing to have.a trial by a special jury of merchants, which statement, was confirmed by the counsel for the defendants, and the Attorney General, on behalf of the State, moved the court, the counsel for the defendants assenting thereto, to order a special jury of merchants to be summoned by the sheriff; that the court refused to order a special jury of merchants to be summoned, being of the opinion and upon the ground, as stated by the court, that the law does not authorize the court to order a special jury; but the court stated that if both parties assented to a jury the court would order a-jury .to be draw$, selected, and summoned in the mode and manner prescribed by the general law, and not otherwise; that thereupon the counsel for the State objected and reserved the point, stating-to-the court that a bill of exceptions would be prepared embodying the rulings of the court and the objections to the same, whereupon the counsel for defendants stated that they withdrew their consent to a trial by jury, their consent being given simply to a trial by a special jury of merchants.

“ And to the rulings of the court refusing to allow a trial by a special jury of merchants, and in refusing to order a special jury of merchants to be summoned by the sheriff, the State, plaintiff, by the Attorney General, then and there excepted, and now tenders this bill of exceptions for approval and signature.

“(Signed) JACOB HAWKINS, Judge.”

The case was tried by the court without the intervention of a jury-Judgment was rendered in favor of the defendants, and the plaintiff has appealed.

We think the court erred in refusing to order a special jury of merchants for the trial of the case. It is one peculiarly requiring a jury of men skilled in accounts and having a practical knowledge of book-keeping, competent, from their skill and experience, to adjust books of accounts, to correct erroneous entries, to establish proper balances, and to fix the exact state of numerous and complicated business transactions. We deem it proper to the end, that the various irregularities, errors, and illegalities alleged to exist in the office, books, accounts, and vouchers of the Auditor of Public Accounts, as well as all the other issues involved in this controversy may be examined into and be tried by a special jury, in conformity with the provisions of article 2153 of the Revised Statutes, page 425.

It is therefore ordered that the' judgment appealed from be annulled and reversed. It is further ordered that this case be remanded to the court of the first instance; that the judge thereof be and he is hereby direóted to issue an order to the civil sheriff of the parish of Orleans to summon according to law a special jury of merchants to attend in said court for the purpose of trying this case, and that the same be proceeded with before said jury in conformity with law. It is lastly ordered that defendants pay costs of this appeal.


author: Taliaferro, J.

text:
    No. 6079.
    J. Faust, Brother & Co. vs. Glynn & Wintz. Charles Cavanac and James Ricketts, Sureties.
    Judicial bonds are solidary obligations, and this is a judicial bond which is sought to be enforced. The judge a quo erred in not rendering judgment*» solido against the sureties.
    APPEAL from the Fourth District Court, parish of Orleans." Jjyrich, J.

      I. Tharp, for plaintiff and appellant.

      F. G. Zacharie, for defendants and appellees.
   Taliaferro, J.

This is an appeal taken from a judgment rendered on a rule against Cavanac and Ricketts as sureties on an appeal bond, decreeing that each of the said sureties pay his virile share or part of the judgment obtained by the plaintiffs, Faust & Co., against the defendants, Glynn & Wintz.

The plaintiffs complain that the court below decreed that the sureties sued on the bond of appeal were jointly bound each for one half the judgment appealed from, when they should have been condemned in-sólido.

Judicial bonds are solidary .obligations, and this is a judicial bond. The bond recites: “Know all men by these presents, that we, P. J. Glynn and H. S. Wintz, as principals, and Charles Cavanac, and James Ricketts, their sureties, are bound, etc., in the sum of thirteen hundred dollars, for the payment of which we bind ourselves, our heirs, executors, and administrators firmly by these presents,” etc.

The court erred in not rendering judgment in solido against the sureties.

It is therefore ordered that the judgment appealed from be annulled and reversed, and, proceeding to give such judgment as should have been rendered in the case, it is now ordered that the rule be made absolute, and that the plaintiffs, J. Eaust, Brother & Co., recover against the said sureties, Charles Cavanac and James Ricketts, Jr., in solido, the sum of $845 10, with six per cent per annum interest from December 25,1871, and ten per cent damages on the same until paid, and costs in both courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 5966.
    Mrs. E. J. Lavergne vs. City of New Orleans.
    The law prescribes the necessary formalities to recover a tax-judgment. The advertisement of the tax-hills is sufficient notice. Plaintiff has never sold or disposed of the property. It was assessed in the name in which she acquired it. Her second husband was not a necessary party. The proceedings are regular. The objection as to the area of the lot is of no importance, at least to plaintiff. If the sheriff sells more than she owns, she will not be injured.
    APPEAL from the Superior District Court, parish of Orleans. Haw-Id ns, J.

      Julien Michel, for plaintiff and appellant.

      Samuel P. Plane, for defendant and appellee.
   Wyly, J.

Plaintiff appeals from the judgment dissolving the injunction sued out by her to restrain the execution of certain tax-judgments which the city of New Orleans recovered against her.

The grounds for the action are:

First — That she was not legally cited ;

Second — That her husband was not made a party;

Third — That the notices of seizure were not served on her in her name;

Fourth — That the advertisement of the sale was not made in her name;

Fifth — That the measurement of the property described in said advertisement is not correct, and far exceeds the real area of said property! '

The main objection is that the assessments, the publication of the tax-bills, the judgments, the notices of seizures, and the advertisements— indeed, the whole proceedings — were conducted in the name of Widow Maloncey Soniat Dufossat, in whose name the title on the public records ■appears, notwithstanding the fact that this lady had previously married a second time, and her present husband, Jules Lavergne, was not made a party. There is no force in this objection.

The law prescribes the necessary formalities to recover a tax-judgment. The advertisement of the tax-bills is sufficient notice. Plaintiff ■has never sold or disposed of the property. It was assessed in the name in which she acquired it. Her husband was not a necessary party. The proceedings are regular. The objection as to the area of the lot is of no importance, at least to plaintiff. If the sheriff sells more than she owns, she will not be injured.1

Judgment affirmed.

Behearing refused.


text:
    No. 4931.
    Carl Kunmengeiser vs. Louis Juncker et al.
    On the trial of this suit, which is a petitory one, the plaintiff offered witnesses to prove a private agreement between himself and the defendant, by wliieh the ' latter agreed to take the property in question in his name for the benefit of the plaintiff, or, in other words, to contradict the notarial act of sale and prove title to real estate by parol. This was objected to, and the objection should have been maintained.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Kennard, Howe & Prentiss, for plaintiff and appellee.

      8am-bola & Dueros, for defendant and appellant.
   Ludeling, C. J.

This is a petitory action. The plaintiff alleges that he purchased the property -in question, and by agreement with defendant had the title to the property placed in the name of defendant, who executed the notes for the credit portions of the price. The title to the real estate shows that the defendant purchased the property and executed his notes for the credit part of the price and paid the cash installment. On the trial the plaintiff offered witnesses to prove a private agreement between himself and the defendant by which the latter agreed to take the property in his .own name for the benefit of the plaintiff, or, in other words, to contradict the notarial act of sale, and- prove title to real estate by parol. This was objected to on the ground that parol evidence was inadmissible to contradict the written title or to establish title to real estate. The objection should have been maintained. The Civil Code, article 2440, declares: “All sales of immovable property shall be made by authentic act or under private signature. Except as provided in article 2276, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.”

“Neither shall parol evidence be admitted against or beyond what is ■contained in the acts, nor in what may have been said before or at the time of making them, or since.” 0. 0. 2276.

Here the effort was to destroy the written recorded title of the defend■ant, and to establish a -title to the property in favor of the plaintiff by parol evidence. 12 An. 213 ; 5 An. 132, 204; 3 Rob. 452 ; Barbin vs. Gaspard, 15 An. 541.

This view renders it unnecessary to notice' other points made by defendant.

It is therefore ordered that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant rejecting the plaintiff’s demand with costs of both courts.


text:
    No. 5775.
    L. H. Gardner & Co. vs. Levasseur & Co.
    'This casa turns on a ciuestion o£ novation. The original notes of Levasseur & Co. to plaintiffs were given up to the former with the exception, perhaps, of one of them not in the possession of the plaintiffs at the time. An exchange of notes took place. Plaintiffs received the new notes executed in their favor hy defendants in pursuance of an agreement entered into between the parties. The intention to extinguish the old n.otes and substitute the new ones to represent the reduced'amount of the indebtedness as fixed by the compromise and adjustment of their affairs by the parties, is sufficiently apparent. The plaintiffs therefore had no right to enforce payment of the original notes, which were no longer obligations against the defendants.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      T. M. Gill and Kennarcl, Howe & Prentiss, for plaintiffs and appellees.

      A. & W. Voorhies, for defendants and appellants. G. Schmidt, for Charlotte Anderson.
   Taliaferro, J.

In the month of June, 1873, Levasseur & Co., finding themselves failing in their business, effected a settlement with their creditors by obligating themselves to pay them thirty-three cents on the dollar, one half in twelve months, the other half in eighteen months. A written agreement to that effect appears to have been signed by all their creditors, the plaintiffs among the rest. But it seems that between L. H. Gardner & Co. and Levasseur & Co. the arrangement was that the latter . should give to the former seven promissory notes each for the sum of $261 05, payable respectively on the fifteenth of November, 1873, fifteenth of January, 1874, fifteenth of March, 1874, fifteenth of May, 1874, fifteenth of November, Í874, fifteenth of December, 1874, and fifteenth of January, ■1875; and that Gardner & Co. were to surrender to Levasseur & Co. ■ their four notes, aggregating in amount $4568 51, held by Gardner & Co. It appears that the first note of the series of four held by Gardner & Co. was not in their possession at the time this arrangement was entered into and was not delivered to Levasseur & Co., but the other three notes were delivered. The seven notes of Levasseur & Co. in favor of Gardner & Co. were executed and delivered to them.

On the first day of October, 1873, about three months and a half after entering into the above agreement, Levasseur & Co. sold out their entire stock of merchandise to Edward Leon Levasseur, a youth of about twenty-one or twenty-two years of age, a son of P. "W. Levasseur, one of the firm of Levasseur & Co. The consideration for which this sale was made was the sum of $10,104, of which the amount Of $168 04 was deducted as being due the purchaser for services as clerk for Levasseur & Co., and for the remainder he gave twenty-seven promissory notes, drawn to his own order and indorsed by him, payable at different periods. The sale and transfer was made by notarial act by which the vendor’s lien and privilege upon the property sold was expressly recognized and stipulated in favor óf the vendors or any future holders of the said promissory notes. Edward L. Levasseur, the purchaser, went into possession of the store, the stock of goods, and the fixtures, etc., on the first of October, 1873. The notes, or many of them at least, it appears, went soon after the sale into the hands of third holders.

On the twenty-second of November following, L. H. Gardner & Co. brought suit against Levasseur & Co. upon the four original notes of Levasseur & Co. for their indebtedness of $4568 50, ignoring the compromise agreement on the alleged ground that its conditions were violated by Levasseur & Co. by their failure to pay the first of the new series of their notes given in pursuance of the agreement and which fell due on the fifteenth of November, 1873. In a supplemental petition L. H. Gardner & Co. ¡Drayed for and obtained a writ of attachment against Levasseur & Co., and caused it to be levied on the eighth of December, 1873, upon the stock of goods and contents of the store in possession of Edward L. Levasseur, treating the same as the property of their debtors, Levasseur & Co.

The answer of Levasseur & Co. contains a general denial. They admitted they signed the notes sued upon, but averred that the notes on which they are sued were settled for by new notes given in full payment for the old ones, which were novated and extinguished, and now constitute no obligation against them. They allege that by the illegal attachment taken against them by the plaintiffs they have suffered damages to the amormt of ten thousand dollars. They pray that the plaintiffs’ demand be rejected with costs, and they set up a reconventional demand for ten thousand dollars damages, and pray judgment against the plaintiffs accordingly. .

The ease was tried twice in the court below, with the same result in. each trial. Judgment was rendered in favor of the plaintiffs for the amount claimed, with .privilege as attaching creditors. The defendants’ reconventional demand was rejected. The defendants have appealed.

We think there was a novation. The original notes of Levasseur & Co. to L. H. Gardner & Co. were given up to the former, with the exception, perhaps, of one of them, not in the possession of Gardner & Co. at the time the exchange of notes took place. L. H. Gardner & Co. received the new notes executed in their favor by Levasseur & Co. in pursuance of the agreement entered into between the parties. The intention to extinguish the old notes and to substitute the new ones to represent the reduced amount of the indebtedness as fixed by the compromise and adjustment of their affairs by the parties, wo think sufficiently apparent. The plaintiffs, therefore, had no legal right to enforce payment of the original notes, whieh were no longer obligations against Levasseur & Co.

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

Rehearing refused.


author: Ludeling, C. J. MobgaK, J.,

text:
    No. 5715.
    Stoddard Howell vs. City of New Orleans.
    This is an injunction suit to restrain an execution obtained on a tax-judgment in favor of tho city against the defendant. The grounds are that.the property was not legally or properly assessed; that the defendant was not cited; and that the evidence did not authorize tho judgment. Except as to the alleged want of citation, the objections are not grounds for an injunction. Tho errors should have boon corrected before tho judgment became res judicata.

    But on the trial of tho injunction no evidence was adduced to prove a want of citation.
    APPEAL from the Superior District Court, parish of Orleans.- Hawkins, J.

      George L. BrigTit, for plaintiff and appellee.

      Samuel P. Blanc, for defendant and appellant.
   Ludeling, C. J.

This is an injunction suit to restrain an execution obtained on a tax-judgment in favor of the city against the defendant» The grounds for the injunction are that the property was not legally and properly assessed; that defendant was not cited; and that the evidence did not authorize the judgment. Except as to the alleged want of citation, the objections are not'grounds for an injunction; the errors should have been corrected before the judgment became res judicata.

But on the trial of the injunction no evidence was adduced to prove a want of citation, nor have the alleged irregularities in the proceedingssince the judgment been proved. :

It is therefore ordered that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant and against the plaintiff and the surety on the injunction bond in solido for twenty per cent on the amount of the judgment enjoined, and costs, and that the injunction be dissolved.

MobgaK, J.,

dissenting. I can find no evidence that there was any citation of any kind served on the defendant, or that he was brought into court under any of the forms required by law. I therefore dissent.


author:
Howell, J. Wxxr, J.
     Mor&an, J.,

text:
    No. 3698.
    Perez & Betancourt vs. the New Orleans Mutual Insurance Company and Other Insurance Companies.
    These cases turn on the validity oí a policy of insurance on a sea vessel.
    The fact that there are circumstances and actions which are suspicious or which are not satisfactorily explained to all who may be interested, can not be held by courts of justice as contradicting and overcoming the direct, positive testimony of an unusually largo number of witnesses whose veracity is not impeached, and most of whom are not shown to have any interest in committing perjury.
    APPEAL from the Fifth District Court, parish of Orleans. •Beaumont, J. Jury trial.

      George L. Bright, for plaintiffs and appellants.

      William II. Hunt, M. M. Cohen, Ellis, McEnery & Ellis, A. Voorhies, and Fin-ney & Miller, for defendants and appellees.
   Howell, J.

The plaintiffs, residents of Mexico, sue the defendant company for the value of one fifth of three boxes of silver bullion and one half of five hundred and fifty-eight bales of tobacco and thirty-two boxes of vanilla beans, shipped on the schooner Antonietta, at Yera Cruz, on the tenth of November, 1868, insured in an open policy with the defendants on the twenty-fourth of the same month, and lost on the ninth of December, same year, 1868, by perils insured against, as alleged.

The answer admits the insurance, hut denies that the goods were ever shipped by plaintiffs on said schooner or were lost as alleged, and avers •that the pretended losses were fraudulent, because, if the said goods were ever on board of said vessel, they were taken off by or for the plaintiffs before the vessel sailed; that the goods were not on the said vessel at the time of the alleged loss thereof, and could not be, as there was more cargo on the-manifest than said schooner could contain; that said schooner met with no bad weather, and was not lost by any of the perils insured against, but was, with the knowledge and consent of the plaintiffs, fraudulently lost and sunk for the purpose of defrauding the respondents; that said schooner sailed by the coast of Yucatan, the more readily to effect the fraudulent loss; that the officers and crew left' the vessel in good weather and a calm sea, and could have saved the silver bullion had it been on board; that the assured, or one of them, were the owners of the vessel at the date of the alleged loss; that plaintiffs practiced concealment, misrepresentation, and fraud in effecting the insurance, and had a Valid contract been made it would have been void by reason thereof, and that the plaintiffs had no insurable interest in'the property insured.

The case was tried before a jury, a verdict rendered in favor of defendants, and from the judgment thereon the plaintiffs appealed.

The defendants contend that when the vessel was lost, the alleged cargo, for which indemnity is claimed, was not on board, because it is proved that so large a cargo could not have been stowed in the said vessel.

It is true that several witnesses give it as their opinion that the vessel could not carry the quantity of cargo specified in the bill of. lading, and three of the sailors or employees thereon, who were brought to this city from Mexico to testify swore that a much smaller quantity was on board ■at the date of the loss, and that the vessel was scuttled by the captain and other officers. The testimony of these three witnesses is destroyed, in our estimation, by the fact that they made contrary statements under oath in Mexico, and the opinion of the other witnesses on behalf of defendants is overcome by the positive testimony of the captain, who was the sole owner of the vessel, the other employees thereon, the parties who were employed in Yera Cruz to put the goods on the vessel in that port, and the shippers, who were the merchants and agents of the plaintiffs in making the shipment. They are unimpeachecl, and they state positively that the goods described in the bill of lading and invoice were actually put on the said vessel, and some of them say more could have been put on. In corroboration of this, the dimensions of the vessel and the several kinds of packages are given, and from the arithmetical calculations thereon which are presented we are not prepared to say that the vessel was incapable of carrying such a quantity of cargo. The fact that there are circumstances and actions which are not satisfactorihj explained to all who may be interested, can not be held by courts of jitstice as contradicting and overcoming the direct, positive testimony of an unusually large number of witnesses, whose veracity is not impeached, and most of whom are not shown to have any interest in committing perjury. We have carefully examined and weighed the testimony of the witnesses for both plaintiffs and defendants, and we cannot agree with the jury in the estimation they have placed on it. By all the means of interpreting evidence adduced in courts of justice, we are constrained to accept the direct, positive testimony of unimpeached loitnesses, most of whom were actors in and eye witnesses to the facts as to which they testify, in preference to the opinions of others, who had no direct knowledge of such facts.'

"We conclude that the cargo was on the vessel, as described in the bill of lading and asserted by a large number of witnesses. No satisfactory or rational motive in the captain is shown why he should commit the frauds and crimes, or in the many other parties to conspire with him to commit the crimes charged as necessary to sustain the defendants’ theory of this case.

By the same rule of weighing and construing evidence, we must decide all the other points of defense against the defendants, who are insurers on an open policy, and took the risk upon a presentation of the description and value of the goods insured, and it devolved on them to make out their defense. We are constrained to hold them to their contract.

It is therefore ordered that the judgment appealed from and the verdict of the jury herein be set aside, and it is now ordered that the plaintiffs recover of the defendants the sum of f30,342, with legal interest thereon from judicial demand, all in the gold coin of the United States, and costs of suit.

On BeheaRinu.

Wxxr, J.

After re-argument and mature deliberation, we have come to the conclusion that our former judgments herein are correct.

It is therefore ordered that our former judgments in these cases remain undisturbed.

Mor&an, J.,

dissenting. In all these cases I dissent from the conclusions of the majority, upon the following grounds, which I will elaborate hereafter:

First — I think there was misrepresentation in effecting the insurance.

Second — Concealment of facts, which, if disclosed, would have made the companies decline the risk.

Third — I think the vessel was not of sufficient capacity to contain the cargo which it. is alleged was on her.


author: Mor&an, J.

text:
    No. 4687.
    Richard Hewett vs. the New Orleans and Carrollton Railroad Company.
    In claims for damages in consequence oí a malicious prosecution it is a fundamental principle of law in reference to such actions, that the prosecution complained of should be shown destitute of a probable cause, what will or will not amount'to a probable cause will depend upon the circumstances of each particular case.
    In the ease at bar the defendants were not the aggressors. They discharged the plaintiff, a car-driver in their service, for a violation of his contract, and said that he had appropriated fares to himself, under the circumstances of the case, as shown by the evidence in the record, the plaintiff put himself in the position of having the charge made against him, and he can not hold the defendants liable for a malicious intent toward him, when the defense which they set up to his action against them was founded on his own act. Therefore the claim of plaintiff for damages on the ground of his having been maliciously and unjustly slandered can not be maintained.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J. Jury trial.
    B. King Cutler and W. H. Cooley, for plaintiff ¡and appellee.

      L. TS. Simonds, for defendants and appellants.
   Mor&an, J.

Plaintiff was a car-driver in the service of defendants and was discharged hy the defendants from their employ. He sued for wages due at the time of his discharge before a justice of the peace.

The answer was that he had “ violated his duty and acted unfaithfully in collecting and receiving fares from passengers contrary to orders, and in appropriating fares for himself instead of putting them in the box.”

He had judgment in his favor. The company appealed to the Third District Court. In that tribunal he had judgment again. He now brings this suit against the company, claiming five thousand dollars damages for having willfully and maliciously accused him of the crime of purloining money belonging to the company, and in spreading the same upon the records of the courts of the country.

The defense is a denial that there was any malice or bad intent entertained toward him on the part of the defendant in any of the matters 'referred to in his petition.

The case was tried by a jury, who found a verdict in favor of plaintiff ■for two thousand dollars. . Defendants appeal.

The contract between the plaintiff and defendants was that he should forfeit all wages that might be due him, and render himself liable to be ■discharged, if he was discovered taking or receiving in his hands any money or tickets tendered or paid for fare by passengers, or should he fail in any instance to cause the same to be put in the box. '

Either of two circumstances, therefore, was sufficient to authorize his ■discharge:

First — Taking or receiving in Ms hands any money or tickets tendered or paid for fare.

Second — Failing, in any instance, to canse the same to be put in the box.

- The witness, Kirby, who informed upon the plaintiff, says that he got on the car which was in charge of the plaintiff at Carrollton; that he gave the plaintiff a nickel, and that he (plaintiff) did not put it in the box; that he rode on the car to Napoleon Avenue; that witness was on the platform of the car all the time he was riding, talking to the plaintiff, and that if he, plaintiff, had put the nickel in the box, he, witness, thinks he would have seen him do it.

Eitzcompton, a witness for the defendants, says that he was in the car when Kirby entered it; that Kirby gave the driver a dime, who returned him two nickels, one of which he dropped into the driver’s hand; that after riding a littte distance, about two squares, the driver handed him,, the witness, the nickel and told him to drop it in the box, saying that he did not receive fares; that Kirby was inside the car all the way.

Hewett, the plaintiff, swears that he never received a nickel belonging to the defendants, appropriating it to his own use. He says that he might have received a nickel from Kirby, but not with the intention of keeping it. He says: “ I might have given him change. He gave me a dime, and I gave him back the change. He handed me back a nickel,, which made me suppose that I gave him too much change. I gave it to Mr. Fitzcompton, who, I believe, put it in the box.”

The testimony of the plaintiff and his witness, without any regard to what is sworn to by Kirby, satisfies us that the defendants had, under their agreement, the right to discharge' him from their employ, and that he had'forfeited the wages which were due to him.-. Plaintiff’s explanation of the facts is shallow and altogether unsatisfactory. If he really believed that he had given Kirby too much change, why did- he give the fare to Eitzcompton to he put in the box ? TMs explanation seems to have been an after thought. He could not have discovered his error, if' he really believed that the nickel which Kirby gave him was in return of' an excess of change, unless he had counted all the money he had about his person. It can not be supposed that he took this precaution.

Neither does the testimony of Eitzcompton help him, for he swears that Kirby gave the plaintiff a dime, and received back two nickels, one of which he dropped into the plaintiff’s hands, and that they had ridden two blocks before he gave it to the witness, asking him to put it in the box.

' The testimony of the plaintiff and his witness satisfies us that the plaintiff did take from Kirby his fare, which, under his contract, he was-prohibited from doing, and which forfeited his wages and authorized his discharge. .

Lid this authorize the defendants in setting up as a defense to the suit instituted by the plaintiff against them, that he had appropriated fares to himself instead of putting them in the box?

We think the law of the case is correctly laid down in Talbert vs. Stone, 10 An. 637. There, plaintiff had employed the defendant as overseer of his plantation. He discharged him and brought suit against him for the price of a mule, the hire of three slaves, the keep of a horse, and for six hundred dollars, which, plaintiff alleged, the defendant had stolen from him. Lefendant reconvened, claimed his wages as overseer, and asked for five thousand dollars damages, on the ground that plaintiff, “ in violation of good faith, discharged this respondent without compensating him for his labor, and from unjust and malicious motives charges this respondent with theft, in order to injure the character of this respondent and excite prejudices in the mind of the community against him.” . One jury found a verdict in favor of plaintiff for $603 60. This court reversed the judgment and remanded the cause for a new trial. On the new trial, judgment was rendered in favor of defendant on his reconventional demand, allowing him as wages two hundred and twenty-ñve dollars, and thirty-five hundred dollars damages.

On appeal this court said: “ The first and most important matter to be examined, is the claim for damages for a málicious prosecution. It is' a fundamental principle of law in reference to such actions, that the prosecution complained of should be shown to have been destitute of probable cause. Greenleaf on Evidence, section 449. What will or will not amount to probable cause, says that author, section 455, will depend upon the circumstances of each particular case. And again: .Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting.” And the verdict of the jury, as regards the damages, was entirely set aside. The court further said that “ because there is not sufficient legal proof to convict the defendant of the crime charged, it by no means follows, necessarily, that plaintiff is to be mulcted in damages' for- having made the charge.” ■

Now in the case at bar the defendants were not the aggressors. -They discharged the plaintiff for a violation of--his contract. When sued for wages they set up his violation of his contract, and said that he had appropriated fares to himself. The evidence of the plaintiff and his witness, showing, as we think it does* that' he received the- fare, and that fact being made, known to the defendants,-it- seems to us that they had cause to set up in defense to the action brought against them that ho had appropriated their money to himself. If ho took it without authority and in violation of bis contract, tbe presumption is a natural one that he took it for his own use. He put himself in the position of having the charge made against him, and he can not hold the defendants liable for malicious intent toward him, when the defense which they set up to his action against them was founded on his own act.

, It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of defendants with costs in both courts.


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    No. 5810.
    Rufus Waples vs. City of New Orleans.
    Under the circumstances oí the ease the city is responsible for the injury which was done to the property which it had leased from plaintiff during 'the continuance of the lease. The fact that the plaintiff received rents to the first of September, 1873, when the premises were vacated by defendant, without demanding payment for the balance of the rents or for damages, does not estop him from now demanding them.
    APPEAL from the Superior District Court, parish of’Orleans. Haiv-kins, J.

      Rufus Waples, in 'propria persona, appellant.

      B. F. Jonas, City Attorney, and Samuel P. Blanc, Assistant City Attorney, for defendant and appellee.
   Ludeling, C. J.

This suit is for the balance of rent due for the lease of a house and outbuildings, and for damages resulting from injuries done to the property.

It appears that in 1871 the plaintiff leased to the defendant a large house with brick basement, several upper rooms, front and back galleries, etc., for a school-house ; a smaller house for the portress, and.outbuildings; on the lots were also trees and shrubbery. The main building was in good condition when rented, and in consideration of the low rent, forty dollars per month, the lessee was to keep the property in order free from costs to the lessor.

In August, 1873, the lessee vacated the premises. The plaintiff was absent at the time, and he was ignorant of the abandonment of the leased property until his return in April, 1874. No notice of the lessee’s intention to terminate the lease was given. When the lessor returned the fences were all gone, the outhouses, trees, shrubbery, etc., were destroyed, and the main building had been so far destroyed as to be beyond repair, except at an expense which would not justify the undertaking; only the frame was left. One witness estimates the damages, after the frame had been carried away, at three thousand dollars ; another witness testified he would not estimate it so high.

We think it was the duty of the lessee to give the notice required by article 2686 of the Civil Code: “ The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other at least fifteen days before the expiration of the month which has begun to run.” And, in default, the lease continued until the end of the month which had begun to run when the plaintiff returned and found his property abandoned and in the condition above mentioned. It has already been stated that the obligation of the lessee, assumed in consideration of the low rent, was to keep the property in order, but, without any stipulation, the obligation of the lessee, under the law, was to take care of the property “as a good administratpr.” C. C., art. 2710. This was not done, and the city is responsible for the injury which was done to the property during the continuance of the lease.

The fact that the plaintiff received rents that were due up to the first of September, 1873, without demanding payment for the balance of the rents or damages, does not estop him from now demanding them.

We think the evidence justifies us in fixing the damages at twenty-five hundred dollars, and the rents at forty dollars per month during eight months, from the first of September, 1873, to the end of April, 1874

It is therefore ordered that ..the judgment of the lower court be reversed, and that there be judgment in favor of the plaintiff against .the defendant for twenty-eight hundred and twenty dollars, with five per cent per annum interest on three hundred and twenty dollars from judicial demand, and five per cent per annum interest on the balance from this date, and costs of suit.

Behearing refused.


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    No. 4816.
    Marx Israel vs. Teutonia Insurance Company.
    The difference between the amount sworn to by the assured and the value proved on the trial is not necessarily evidence of fraud and false swearing on his part.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier ¡ J. Jury trial.

      Cotton & Levy, for plaintiff and appellee.

      Hudson & Fearn, for defendants and appellants.
   Howell, J.

This is an action on a policy of insurance for the sum of §4505 14, the amount of the sworn statement made by the plaintiff of his loss under an. article of the policy. This amount is credited by $364 06, amount for which the damaged goods were sold, leaving the sum of $4141 08, for which judgment is asked.

' The defense is that the claim for loss is grossly exaggerated, and that plaintiff had forfeited all claim under the policy by false swearing with the design of defrauding the company.

The case was tried before a jury who gave a verdict for $2250, with interest, and from a judgment thereon the defendants appealed.

• The appellants asked the court to charge that “the jury will consider whether the discrepancy between the account sworn to by the plaintiff, and the value as proved on the trial, is to be fairly attributed to an intention to defraud the insurer or to an innocent intention on'the part of the assured ; that the burden of explanation is on the plaintiff; and that if the discrepancy is unexplained to the satisfaction of the jury upon a' fair consideration of the whole evidence, it imposes upon the assured a forfeiture of all claims under the policy.” The judge said, “ this is too broadly stated,” and gave the following charge:

“ I charge you, gentlemen, that you will consider whether the discrepancy or the difference between the account sworn to by the plaintiff, Israel, and the value as proved on the trial is to be fairly attributed to an intention to defraud the company or to an innocent error on the part of the plaintiff. The burden of 'explaining this difference is, no doubt, Upon the plaintiff. If the discrepancy is not explained to your satisfaction upon a fair consideration of all the facts of the case, it would or it may impose upon the assured, the plaintiff in the case, a forfeiture of all claims under this policy. But, gentlemen, in order to ascertain the effect of the failure of the plaintiff in explaining the discrepancy, you must consider all the facts of the case, and if, upon the consideration of all the facts of the case, you find that the plaintiff has not explained, or has failed to explain the difference between the sworn account as presented by him and the value of the goods damaged, as proved on the trial, then it would be for you to decide whether that would raise in your minds such a suspicion of bad faith on his part as to incur the forfeiture of ariy claim against the company. With this limitation, I will charge you that the difference between the amount sworn to by the plaintiff and the amount proved on the trial of this case is to be considered as evidence of fraud and false swearing, so as to bring him under the clause No. 9 of the policy. It is to be taken with the qualification that I have given you in the charge. This clause No. 9 provides that if the party assured shall be guilty of false swearing with a view to defraud the company, then he shall forfeit his policy and forfeit any right to claim under the policy.”

Taken all together the charge given differs from that asked only in making the jury the judge of the law and facts of the case, in which there is no' error.

Upon an examination of the record we see no reason for changing the verdict. In Beck vs. Germania Insurance Company we held that the difference between the amount sworn to by the assured and the value proved on the trial is not necessarily evidence of fraud and false swearing on his part, and we can not say that the jury in this case have erred in their .estimate of the evidence.

Judgment affirmed.


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    No. 6051.
    Charles Maduel, Dative Testamentary Executor, et al., and Mr. and Mrs. Conte, vs. P. H. Mousseau and Others. The Union Insurance Company or New Orleans, Garnishees.
    the answer to the first interrogatory, taken alone, may not he so explicit as required. But it is settled that where, by answers to other interrogatories in the same connection, a given interrogatory, not fully answered, is in previous or subsequent answers explicitly answered, this is sufficient.
    The judge a quo did not err in permitting the defendants to answer certain inter- . rogatories, to which at first they had excepted. They had the right to-except, and, the exception being overruled, they had the right to answer.
    from the Fifth District Court, parish of Orleans. Cullom, J.

      George L. Bright, for plaintiffs and appellants.

      M. M. Cohen and Chiapella, for defendants and appellees.
   Taliaeerro, J.

The plaintiffs having obtained judgment for a large sum against F. P. Martinez, a former dative testamentary executor of J. M. Cabillero, deceased, and against the sureties on his official bond, A. Chiapella, Antonio Palacio, and Charles Levoque, issued a writ of fieri facias, and propounded interrogatories to the Union Insurance Company, made garnishee. Five interrogatories were propounded. A. Chia-pella, president of the company, and one of the sureties against whom the judgment above referred to was rendered, filed answers to the first, second, and third interrogatories, and excepted to the fourth and fifth as' irrelevant, and which it was alleged the garnishee was not required to answer.

A rule was taken against the company to show cause why the same judgment rendered against the defendants in execution should not be rendered against it for evading and failing to answer the interrogatories. To this rule the garnishee first filed the plea of prematurity, on the ground that the exceptions should have been fixed for trial and passed upon before an issue could be made on the first three interrogatories. This plea was dismissed, and the exceptions to the fourth and fifth interrogatories taken up and overruled. At this stage of the proceedings the garnishee moved to file answers to the fourth and fifth interrogatories and to file supplemental and explanatory answers to the first, second, and third interrogatories, the whole supported by their affidavit and that of their counsel, showing that the garnishee had instructed its attorney to deny all indebtedness and all property rights and credits, except the ten shares of stock admitted in the answers, and that the attorney received these instructions, and, if they were not complied with, the error or fault is his and not the garnishee’s. This motion, after argument, was submitted, and to the decision of the court allowing the garnishee to file answers to the fourth and fifth interrogatories a bill of exceptions was taken by the plaintiffs; and to that part of the decision which disallowed the filing of the supplemental and explanatory answers to the first, second, and third interrogatories the garnishee took a bill of exceptions. The objections of the plaintiffs to the answers of the garnishee are that the interrogatory inquiring whether the garnishee had in its possession or under its control at the time of notice of seizure, or of service of the interrogatories, any money, rights, credits, or other property whatsoever belonging to or due to said defendants, etc., is answered evasively and not directly and categorically; the answer being: “ We have no money in our hands belonging to the defendants in writ, A. Chiapella, etc., nor do we owe them any thing or either of them any money, nor did we owe them or either of them any money at the time of the service of the interrogatories herein, and the said Chiapella owns ten shares of the capital stock of the Union Insurance Company, of the par value of one hundred dollars each, and this is the whole extent of the interest of the said Chiapella in the capital stock of the company.”

The answer to the second interrogatory is “ the Union Insurance Company of New Orleans does not, at present, nor did it at the time of the seizure and service of the interrogatories herein, owe any money to the said Chiapella. * * * And respondent avers that it has no funds or money in its possession belonging to or due to the said Chiapella, nor does it owe any thing to or have any funds and moneys in its possession .for the other defendants.”

In answer to the fifth interrogatory the garnishee repeats and reaffirms its answers to the first, second, and third interrogatories, as disclosing all its relations between themselves and the defendants, to neither of whom do they now, nor did they at the time of notice of seizure and service of interrogatories herein, nor in the intervening time, owe any sum of money whatever or any thing else, that is, property o f any kind whatever, or hold now, or at the time of seizure and service of interrogatories herein any property in which they may be in any way interested, except what is stated in regard to the salary of the president and his ownership of the'ten shares of stock. .

The judge of the lower court deemed the interrogatories to have been fully answered, and rendered judgment in favor of the plaintiffs, subjecting the ten shares of stock shown by the answers to be held by Chia-pella, one of the defendants, to be seized and sold under the fieri facias issued by the plaintiffs. From this judgment the plaintiffs appealed.

We concur with the judge a quo that tfie interrogatories were suffi•ciently answered. We find nothing on a pretty thorough examination of the record that authorizes us to suppose there was any purpose to evade the direct answers which the law requires to be made to interrogatories, under pain of having them taken pro confesso.

The second interrogatory propounded in this case is drawn with so much particularity, embracing so large a variety of transactions, such an ■extensive range of business, inquiring of the company relative to its .transactions with so many persons, corporations, etc., that it necessarily assumes' large dimensions, and may not be free from the objection that it may confuse or mislead.

The answer to the first interrogatory, taken alone, may not be so explicit as required. But it is settled that where, by answers to other interrogatories in the same connection, a given interrogatory not fully answered by the answer to that particular interrogatory is in previous or subsequent answers explicitly answered, it is sufficient.

We think the court a qua properly refused to permit the first, second, and third interrogatories, to be enlarged or explained by the defendants. We also approve its action in permitting the defendants to answer the fourth and fifth interrogatories, to which at first they excepted. They had the right to except, and, the exception being overruled, they had the ■right to answer.

The draft and purport of the first three answers, and those of the fifth answer, clearly and fully answered all the interrogatories propounded. See the case of Hennen vs. Forgee, Pike, Brother & Co., garnishees, not yet reported, Opinion Book 44, p. 513.

It is therefore ordered that the judgment appealed from bo affirmed ■with costs.

Rehearing refused.


text:
    No. 4887.

      Thomas J. Semmes vs. Edward W. Burbank.
    It is clear that the.Marshal could only make a valid title to tlie confiscated property embraced in the decree of condemnation, for that was all that became vested in the united States, and he could not sell property not authorized by the writ put into his hands for execution. Plaintiff’s title has never been divested as to tho property' in controversy, and he must recover it with rent, as he claims.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch., J.

      Semmes & Molt, for plaintiff and appellee.

      Felloivs & Mills, for defendant and appellant.

      Carried by writ of error to the Supreme Court of the United States.

   Wyly, J.

This is a petitory action for recovery of one half of lot No. 15, fronting on Edward street, in the square bounded by Annunciation, Benjamin, St. Thomas, and Edward streets. Defendant claims title under the decree of confiscation and the sale by the Marshal under a writ of venditioni exponas in 1865. He admits the property belonged to plaintiff, but contends that the title was conveyed to him by said proceedings. Plaintiff concedes the regularity of the confiscation proceedings, but avers the property in question was not embraced therein.

It appears plaintiff owned several lots in the square mentioned. By the decree of condemnation his title was divested of lots fourteen, sixteen, seventeen, and part of eighteen. Lot fifteen was not mentioned either in the libel, the monition, or the decree of condemnation. Tho venditioni exponas authorized the sale of the property described in tho libel. The Marshal’s deed, however, embraced lot fifteen.

It is clear the Marshal could only make a valid title to the property embraced in the decree of condemnation, for that was all that became vested in the United States; and he could not sell property not authorized by the writ put into his hands for execution.

Plaintiff’s title has never been divested as to the property in controversy, and he must recover in this suit.

He claims rent for his property unlawfully held and detained by defendant. From the evidence we fix the rent at the rate of five dollars per month from twenty-seventh December, 1866.

It is therefore ordered that the judgment herein in favor of plaintiff be amended so as to condemn defendant to pay plaintiff five dollars per month for rent from twenty-seventh day of December, 1866, until possession of said property is delivered to plaintiff, and as amended it bo affirmed. It is further ordered that defendant pay costs of both courts. Rehearing refused.