author: Buchanan, J.

text:
    H. W. Cator, use of Central Bank of Alabama, v. H. B. Merrill & Co J. Eager, Intervenor.
    The auswers of a garnishee to interrogatories are evidence against the party wlio propounds them, unless destroyed by the oath of two witnesses, or of one single witness corroborated by strong circumstantial evidence or by written proof.
    The class of oppositions by which the property of the thing seized is claimed is a distinct suit; not so the opposition which merely asserts a lien or privilege superior to that of the seizing creditor.
    The privilege of a commission merchant or factor is two-fold : first, for advances specially made upon the goods which are seized ; and second, for a general balance of account.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Thomas J. Semmes, for plaintiff and appellant. Durant & Homar, for defendants. Bonford, Singleton & Clack, for intervenor.
   Buchanan, J.

Judgment having been obtained by plaintiff against defendants, a writ offieri facias was issued thereupon ; and Jennison Eager, the appel-lee, was cited as garnishee, and interrogatories served upon him on the 24th April, 1858. He answered that he had in his hands, at the service of the interrogatories, 629 bales of gunny bags, belonging to defendants, as collateral security, upon which he (garnishee) had issued his acceptance of said H. B. Merrill’s draft for eighteen thousand dollars, payable six months from the 12th March, 1858 ; that garnishee had also an account for charges, storage, insurance, commissions, &c., now amounting to about two thousand eight hundred dollars, which is a privileged claim upon said gunny bags.

On the 4th May, 1858, additional interrogatories were propounded to the ap-pellee, with leave of Court; to which he answered, annexing a full and detailed statement of his account with H. B. Merrill, embracing the charges on the gunny bags spoken of previously, as well as on other property, and showing a balance to the debit of Merrill of $3,143 44. This answer stated further, that the 629 bales gunny bags had been sold by garnishee since the previous answer to interrogatories, for a gross sum of $16,701 81, which he has received.

On the 14th July, 1859, after the cause had been remanded by our former decree, appellee filed his petition of intervention and third opposition in this suit, in which he alleged that he was a commission merchant, trading in this city, and that as such, he had received from H. B. Merrill the gunny bags mentioned in the answers to interrogatories mentioned above, for sale; that the said gunny bags hád been spld by him in the regular course of business; that the petitioner had advanced to said Merrill large sums on account of said gunny bags, as set ’forth in the account annexed to his answer to interrogatories above mentioned ; for which advances, as well as all other indebtedness of Merrill, petitioner had, by law, a privilege on the proceeds of said gunny bags, in preference to plaintiff.

This third opposition was tried, and upon the evidence ottered by the third opponent, was sustained, for the full amount of the proceeds of the gunny bags. Plaintiff appeals.

The first question for our consideration, is presented by a bill of exceptions to the admission in evidence, for the third opponent, of the answers filed by him as garnishee, and of the documents qnnexed to and forming part of said answers. The Court did not err in admitting the evidence. The answers of a garnishee to interrogatories are evidence against the party who propounds the interrogatories, (Code of Practice, Art. 354); and in this case those answers have not been traversed or contradicted. The objection to them is, that the issue upon the third opposition is a distinct suit from that in which the answers were filed ; and that the right asserted is different. The objection does not seem well taken. The class of oppositions by which the property of the thing seized is claimed, is indeed treated by the Code of Practice, Art. 398, as a distinct suit; not so the opposition which merely asserts a lien or privilege superior to that of the seizing creditor. Art. 401.

And although a right as pledgee was insisted upon by the garnishee, which was disallowed by the judgment heretofore rendered; yet we have seen, that his first answers to interrogatories also asserted a privilege for the amount of his account, which was, at the instance of plaintiff, particularly detailed in the account which was made a part of his second answer.

The privilege of a commission merchant or factor is two-fold; first, under Art. 3214 of the Civil Code, for advances specially made upon the goods which are seized; and second, under the Act of 1841, p. 21, (Phillips’s Revised Statutes, p. 80,) for a general balance of account.

Appellee claims the privilege of “ advances ” for an acceptance of defendants’ draft, given on the day that the gunny bags seized in this case were put into his hands by defendants.

The draft and acceptance read as follows :

“ New Obleans, March 12th, 1858.
“ Six months after date, please pay to the order of ourselves, eighteen thousand dollars, value received, and oblige H. B. Merrill <& Co.
“ To Messrs. J. Eager & Co.”
“ Accepted for amount of nett proceeds of sales of six hundred and thirty-nine bales of gunny bags, after deducting commissions, &c. J. Eager & Co."

It appears, from the evidence, that this draft was negotiated shortly after its date, by the drawers, through a banking house in New York, who discounted it at the rate of seven per cent, upon its face; that at maturity, the discounters and holders presented it to J. Eager & Co. for payment, who tendered the nett proceeds of the gunny bags, which théy stated to be $15,850 08, as the full extent of their liability ; which was agreed to by the holders of the draft, and the draft given up to the acceptor, on his payment of that sum.

It has been much contested in argument, whether a qualified acceptance, such as the one here shown, should be considered as an advance of funds under article 3214 of the Oivil Code; and as coming within the doctrine of the case of Turpin v. Reynolds, 14 La. Rep. 473. But it is needless to decide this point, as the factor or commission agent has a privilege by the Act of 1841, amendatory of the article 3214, not only for advances made on the specific thing seized, but also for his general balance in account current with the owner of the thing. And in this case, there is proved to have been such a balauce in favor of the appellee, after crediting the defendants with the proceeds of the gunny bags seized. It is not pretended that those gunny bags were sold for less than their full market value.

It is also contended by the counsel of appellant, that the opponent and appellee, Jennison Eager, is not entitled to claim the character or standing of “ commission merchant, factor, or commission agent,” in whose favor, by the terms of the Code and of the amendatory statute, the lien or privilege in question was granted. But upon this point, the evidence is with the appellee.

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


source: Caselaw Access Project

author: Duffel, J.

license: Public Domain

text:
    Succession of George Charles William Vogel.
    A supposed loss of life by reason of a shipwreck, an earthquake, a war, a plague, an explosion, and like perils, is within the sound discretion of the Judge to determine, founded on the facts of each particular case.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      C. Roselius, for appellant.
   Duffel, J.

The object of this suit is to obtain the probate of the testament of George Charles William Vogel on the ground of his alleged death.

It appears from the evidence, that Vogel disappeared very suddenly from his usual domicil in the city of New Orleans, on the 6th of January, 1858, without intimating his intention to any one, or making any preparations for a voyage, and, it is supposed, without any amount of money, or other clothes than those on his person. He is represented as having been devoted to his wife and three children, regular in his habits, careful of his health, a man of fortune and high moral principles. He had, however, of late, been laboring under a depression of mind, produced by the belief of an incoming crisis in the commercial world ; (he was, at the time, a member of the commercial firm of Schmidt & Co., (of this city), but it does not appear that his state of mind was such as to cause any uneasiness to his. family and friends.

The District Judge, after a careful review of the facts of the case, rejected the demand. Our learned brother very cogently remarks, “ Disappearances such as his are not, unfortunately, of rare occurrence. Like instances are numerous ; men apparently as happy in their domestic relations as he was, who in social position, in wealth, in the success of gratified ambition, were his equals, have been known to leave every thing which is commonly looked upon as making life dear, to wander off among strangers and perils, and bury themselves for years, without leaving a trace behind them, in places and among people who were strange, and it would be thought, repulsive to their tastes, their habits, and repugnant to those principles of honor and virtue which are the foundations of an honest domestic society.”

It is contended by the learned counsel of the appellant that the general features of our code, under the title of absentees, were taken from the Napoleon Code under the same title, and that the case at bar does not come within the scope of either.

While we admit the great similarity of the two systems, we think that they were nevertheless intended to govern, primarily, all cases of absence, by sudden disappearance or otherwise ; unless, and this is the exception, the disappearance be of such a character as to force on the mind the irresistible conviction of death. Such for instance, as a supposed loss by reason of a shipwreck, an earthquake, a war, a plague, an explosion, and like perils. And it is essentially within the exclusive province of the Judge to draw the line of distinction, by the exercise of a sound discretion, founded on the facts of each particular case.

We were not referred to any adjudged case, to the point, in France, and we have been unable, in our. researches, to find a parallel in the Journal du Palais ; but we know that none such exist in our State Reports.

The principle contended for, would, if sanctioned, be demoralizing in its effects, and tend directly to relax family ties.

The vast extent of our territory, the unbounded freedom of ingress and egress, and the characteristic propensity of our race for exploration, novelty and the acquisitions of wealth, fame and science, must have their weight in determining cases of absence by sudden disappearance ; and when viewed in the above aspect, we cannot bring our mind to the irresistible conviction, from the facts disclosed, that the disappearance of Mr. Vogel can only be attributed to an untimely end.

For the reasons assigned, the judgment of the court a qua is affirmed.


text:
    Henderson H. Harris v. N. O. Opelousas & G. W. R. R. Company.
    A claim for damages, ex delicto, is prescribed by one year. C. C. 3501.
    Damages incident to the institution of a suit for the recovery of any civil right cannot, as a general rule, be recovered upon a demand in reconvention. 3 An. 141; 12 An. 116.
    APPEAL from the District Court of the Parish of Lafourche, Roman, J.

      Clifford Belcher, for plaintiff. E. W. Blalce, for defendants and appellants.
   Duffel, J.

The defendants, the New Orleans, Opelousas and Great Western Rail Road Company, are appellants from a judgment rendered against them on their reconventional demand.

The principal demand was for $290, the alleged value of a horse which was killed by the locomotive of the Company. The killing was admitted, but attributed to unavoidable force, and the amount claimed in reconvention, $1500, is to cover the damage caused to the cars, track, &c.; by the collision.

To this plea in reconvention the plaintiff opposed the prescription of one year ; and it appears from the pleadings and evidence, that the 'reconvention demand was made some sixteen months after the collision.

The plea of prescription must, therefore, be sustained. O. C. 3501.

The rule; qua temporalia sunt ad agendum sunt ad excipiendum perpetua, does not apply to a case of this kind. Boeto v. Laine, 3 An. 141. Knox v. Thompson, 12 An. 116.

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


author: Vookhies, J.

text:
    State of Louisiana v. John W. Canady and John A. Trimble, Surety.
    ■Where the defendant was in custody at the time a bond for his release was given, neither he nor his security can he heard to gainsay the regularity of the proceeding. 13 An. 299 ; 14 An. 783.
    The objection to the mode or manner of empanneling the Grand Jury comes too late after the first day of the term of the District Court. Act of 1857, p. 180, sec. 1.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich <& DeErance, B, D. é A. W. Roberts, for defendant and appellant. James Nolan, for the State.
   Vookhies, J.

The appellant, John A. Trimble, was surety on the forthcoming bond of the accused, J. W. Canady. He urges several grounds for the reversal of the judgment of forfeiture.

1. The authority of the sheriff to take the bond is questioned, on the ground that this power was not expressly delegated to him in the decree allowing and fixing the amount of bail.

As the defendant was in the custody of this officer at the time, and inasmuch as the execution of this bond in the presence of the latter secured the discharge of the former, the surety, as well as the principal on the bond, cannot now be heard to gainsay the regularity of the proceeding.

This doctrine is laid down in the case of State v. Ansley, 13 A. 299, and is reiterated in the case of State v. Badon, 14 A. 783.

2. The objection to 'the mode or manner of empanelling the Grand Jury, comes too late after the first day of the term of the District Court, — “ All or any objections, which might or could be made on account of any defects or informality, which may have occurred, either in the formation, drawing or summoning of Jurors, or any other defect whatever in the construction of said Juries, shall be made on the first day of the terms of said District Courts, and not afterwards.” — Act 1857, p. 180, sec. 1.

3. The appellant assigns as error that there were pending two proceedings against the defendant for the same offence, one by information and the other by indictment.

The first prosecution was for the offence of stabbing D. S. Good, with intent to commit murder ; and, Good having died, an indictment was preferred for the crime of murder. The bail bond relates to the first prosecution, and concludes with the clause “ not thence to depart until discharged by due course of law.”

Both prosecutions refer to the same transaction. Their pendency, therefore, instead of being an objection to, is an additional ground for the forfeiture of the bond.

4. There is a mistake in the decretal part of the judgment of forfeiture, the name of the injured party heing substituted for that of the surety. The error is patent on the face of the judgment itself, which states that David S. Good was stabbed by the accused, — that the accused was regularly called to stand his trial, — that he failed to appear, — and that the surety was then called upon to produce the body of his principal, the name of John A. Trimble being then eor-.rectly inserted.

The minutes of the court show that the judgment of forfeiture was rendered against the surety!; and, indeed, this party is the only appellant in this cause,

We understand that the judgment of the District Court is against the surety, J. A. Trimble, who has, besides, placed that construction upon it by appealing. And, with that understanding, we will decree the affirmance of the j'udgment against the appellant-

judgment affirmed.


author: Merrick, C. J.

text:
    Stewart Haynes v. G. A. Breaux et al.—Mrs. J. Bundy et al., Warrantors.
    It is essential to the perfection of a sberilPB sale that the purchaser should Substantially comply with the terms of acjudication, which is the condition upon which the property is to ho his. The price tnust he paid or the proper sureties offered when the sale has been made on a credit, otherwise the Sheriff shall expose to sale anew the thing seized and adjudge it to another person. Therefore, every sale upon execution, which is not completed by the payment of the price to the Sheriff,
    Where a creditor enters satisfaction upon the execution to the amount of the bid, at the time of the adjudication, it might be regarded as a waiver of the right to insist upou payment in currency to the Sheriff.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      T. A. Bartlett, for plaintiff. G. A. Breaux, Durant & Hornor, J. D. Mayes and /. H. VanDolson, for defendants and, appellees.
   Merrick, C. J.

This is a petitory action. Both parties claim through Joseph Ross Purdon. — The defendants in virtue of a sheriff’s sale made in August 1842, and the plaintiff by virtue of an act signed by Purdon dated in October 1858, and confirmed by a notarial act in January 1859. The case turns entirely upon the question whether an adjudication at a sheriff’s sale without the payment of the price by the purchaser divests the debtor of his property where the sheriff refuses to execute a deed to the purchaser.

The facts which give rise to this question are in substance as follows :

On the 19th day of May 1836, James Ogilvie sold the property in controversy, a square of ground, by public act passed before William T. Lewis, a notary public, of New Orleans, to Joseph Ross Purdon, with another square, No. 28, for the price of $3,480. On the 28th of June 1842. the vendor, Ogilvie, commenced suit against the vendee Purdon, for a portion of the price, and obtained executory process against him, for the sale of the two squares of ground sold. Notice of the order of seizure and sale was served July 2, 1842, The property was appraised for the sheriff’s sale, on the 19th August 1842, both plaintiff and defendant appointing appraisers, and it would seem from the deed, which was prep^ed, but not signed by the sheriff, that the whole property was bid off by Josette Bundy‘ for the price of $335, whid} she refused or neglected to pay to the sheriff.

The order of seizure and sale with the sheriff’s return thereon is lost, but this portion of the record is sought to be supplied by the testimony of the sheriff. In his deposition he says : “ In 1842 or ’43, certain property was seized at the suit of James Ogilvie v. Joseph Ross Purdon, of the docket of that, (the District) tlourt, and adjudicated to the last bidder, who was Lesois or Josette Bundy. I cannot tell the price. The conditions of the sale were never complied with. The title was prepared and is now in the possession of T. J. Durant, Esq., but was never signed, and thus the sale was never completed. The date of the sale and the price can be obtained from the records of the Fifth District Oourt of New Orleans, where I testified two or three weeks ago.”

It does not appear that Mrs. Bundy ever went into possession of the property, but in May 1854, about twelve years afterwards, she sold the same to Mrs. Van Dalson, for $4000, John Oreen intervening in the act and guaranteeing the title. The record also contains an order from Ogilvie purporting to bear date 17th June, 1853, long after the sheriff’s office had expired, directing him, the sheriff, to pay Green the proceeds of the sale made August 1842. Green had paid the taxes from 1848 to 1852, amounting to 18 or $20. But Green was not owner of the property when he paid the taxes ; hence nothing can be inferred from this fact favorable to defendants’ title. Neither can the order of Ogilvie on the sheriff, nine years after the fruitless sheriff’s sale, for funds which were never in his, the sheriff’s hands, have any effect on the question of title, for the property offered for sale was Purdon’s and not Ogilvie’s, and if the mere knocking off of the property at the sheriff’s sale to Mrs. Bundy, did not invest her with title, the plaintiff must recover.

It ought also to be stated that in Feb. 1859, after the commencement of this suit, a rule was taken upon the ex-sheriff, Garcia, to show cause why he should not make a deed to Mrs. Bundy. The rule was discharged upon his showing that she had failed to comply with the terms of the sale, and pay the price. On the question of law previously stated, arising from the foregoing facts, we are of opinion that it is essential to the perfection of a sheriff’s sale, that the purchaser should substantially comply with the terms of adjudication, which is the condition upon which the property is to be his. The Code of Practice says, “ If the person to whom the property has been adjudicated shall refuse to pay to the sheriff the price of the adjudication, or to offer the proper sureties when the sale has been made on a credit, the sheriff shall expose to sale anew, the thing seized, and adjudge it to another person, Art. 689. This-article, therefore, in effect, declares the nullity of every adjudication at sheriff’s sale upon execution which is not completed by the payment of the price to the sheriff. See 3 L. R. 475, 7 Rob. 416 ; 10 Rob. 90; 2 An. '361; 13 An. 333. Those cases where the creditor at the time of the adjudication entered satisfaction upon the execution to the amount of the bid, are not in conflict with the preceding decisions, for such consent of the creditor at the time of the sale might be regarded as a waiver of the right to insist upon payment in lawful currency to the sheriff. See 8 Rob 450, 1 N. S. 173. And the last cited cases have no analogy with the case at bar, in which the amount of the bid has neither been paid nor credited on the order of seizure and sale to this day, notwithstanding the idle ceremony resorted to nine years afterwards by Ogilvie and Green in the order on the sheriff for the proceeds of the pretended sheriff’s sale.

The questions arising upon the demands in warranty have not been discussed before this court, and we shall remand that portion of the case for a new trial.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that the plaintiff recover and have judgment against the defendants for the said square of ground described in the plaintiff’s petition, and that a writ of possession issue accordingly; and it is further ordered, that this case be remanded to the lower cburf for a new trial upon the demands in warranty, the defendants paying the costs of the lower court, and the defendants and warrantors the costs of the appeal.

Same Case — On a Re-hearing.

A re-hearing has been granted on the questions arising on the demands in warranty.

On a re-examination of the case, it appears that the defendants, G. A. Breaux and Samuel Sumner, are entitled to recover against their immediate warrantor; the succession of Mrs. VanDalson, and in virtue of the subrogation, also, against Green and Mrs. Bundy.

It is, therefore, ordered, adjudged and decreed by the court, that so much of our former judgment as remanded this case to the lower court for a new trial, ' and as relates to the costs of the lower court, be set aside, and it is further ordered, adjudged and decreed by the court, that said Breaux and Sumner do recover and have judgment against the succession of Mrs. Marga?et Helen VanDalson, represented by J. H. VanDalson, administrator, for the sum of $1226 20, with five per cent, interest thereon from this date, to be paid in due course of administration, and that in virtue of their subrogation they have judgment against Mrs. Josette Bundy and John Green, as security for the sum of two hundred and thirty-five dollars and twenty cents, part of the same sum with like interest from the same date ; and it is further ordered, adjudged and decreed, that said succession of Margaret Helen VanDalson do have and recover judgment over in warranty against the said Josette Bundy as principal, and John Green as surety, for the sum of five hundred and thirty-five dollars and twenty cents, with legal interest thereon from this date, subject to a credit of so much of •said sum of $235 20, and interest, as shall be paid to said Breaux and Sumner on the judgment in their favor ; and it is further ordered, that said seven remaining notes for seventy dollars each, and interest at six per cent., given by said Margaret Helen VanDalson, deceased, to said Josette .Bundy, and assumed by said Breaux and Sumner, be declared cancelled, if in the possession of the said Mrs. Bundy, and in the event the administrator of said succession of Mrs. M. H. VanDalson or said Breaux and Sumner should be compelled to pay said promissory notes, or any of them, then their rights of a further recovery against said Josette Bundy and John Green, for so much as they may thus be compelled to pay, be reserved them ; and it is further ordered, that said defendants and parties cited in warranty, pay the costs, and, in the event of payment of the same by the defendants, they recover the same from said succession of M. H. VanDalson, to be paid in due course of administration and from said Green and Bundy, and in the event of payment by the said succession it is ordered that the latter have judgment over against said Bundy, as principal, and Green as surety for the same; and it is ordered that the residue of our former judgment remain undisturbed.


text:
    P. Breaux, Jr., v. Therence LeBlanc, Administrator.
    The settled jurisprudence in regard to the wife’s paraphernal property is, that the husband is presumed to exercise administration until the contrary he shown ; and that in all eases the burthen of proof to the contrary is on those who have an interest to contest it.
    A mere discharge signed by both husband and wife, where the latter acknowledges the receipt of a sum of money, is not sufficient to shift the onus of a negative proof on the wife.
    Appeal from the District Court of the Parish of St. James, Lawes, J.

      Beatty & Bush and F. P. Boché, for plaintiff. Berault <& Legendre, for defendant.
   Duffel, J.

The above entitled causes were consolidated in the court below.

One of the plaintiffe, Pierre Breaux, junior, administrator of the succession of Scholastique Breaux, widow Etienne Part, charges that said Etienne Part received, for account of his said wife, on the 6th of June 1849, #2153 25, being the inheritance of said Scholastique in the succession of her father, Louis Breaux ; whicli amount is claimed with a recognition of the wife’s legal mortgage, &c.

The plaintiff in the other case, Eugenie Part, one of the heirs of Etienne Part, demands the sale, for cash, of all the property belonging to the succession.

The District Judge ordered the sale, for cash, of all the property, rendered judgment in favor of the succession of Scholastique Breaux, for the amount claimed, ordered the payment of this amount by preference, and a distribution of the residue of the proceeds of the sale among the heirs of Etienne Part. The administrator appealed.

As we do not understand the attorneys of the appellant to complain of that part of the judgment which decrees the sale, for cash, of all the property belonging to the succession of Etienne Part, we do not purpose, to express any opinion on this branch of the case.

The only evidence adduced in support of the claim for #2153 25 is a release given by Scholastique Breaux, assisted and authorized by her husband, by public act bearing date June 6th 1849. The wife acknowledged, in said act, *o have received #2153 25, before the date of the act, and out of the presence of the notary and witnesses “ des avant-ces presentes et hors la vue du notaire et des témoins.”

The settled jurisprudence of the State, in regard to the administration of the wife’s paraphernal property is, that the husband is presumed to exercise such administration until the contrary be shown ; and that in all cases, the burden of proof, to the contrary, is on those who have an interest to contest it.

And this being the case, we do not consider a mere discharge signed by both husband and wife, wherein the latter acknowledges the receipt of a sum of money, sufficient to shift the onus of a negative proof on the wife. Vitrac v. Key, curator, 2 An. 824; Gilbert & Co. v. Elizabeth Derence and husband, 6 .An. p. 590.

There is nothing, however, in the case at bar, to show that the amount claimed was actually received during the marriage ; it was incumbent on the defendant, Breaux, Jr.;^to make this fact certain, even as against the heirs of the husband. Justice requires that the cause should be remanded, to enable the administrator of the wife’s succession to make the necessary proof. And as the succession appears to be still under administration, the claim of the wife’s succession, if proved, should be paid in due course of administration.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below remain uudisturbed in so far as it orders the sale for cash of the property of the succession of Etienne Tart, and that it be avoided and reversed in all other respects. It is further ordered, adjudged and decreed, that the cause be remanded for further proceedings, according to law, and the directions given in our opinion ; the costs of the lower court incident to the sale of the property, to be paid by the succession of Etienne Part, those of the appeal, by the succession of Scholastique Breaux, and the other fcosts of the lower court to abide its final action'.

       There seems to be an hiatus hero ; andas the able Judge who gave the decision is deceased, there is no means of explaining it. The Records have been searched in vain for the case alluded to. Owing to the occupancy of the Supreme Court room by various tribunals, civil and military, since the Court adjourned in February 1862, the records were very much scattered ; and it was with great labor that the present Reporter gathered from confused masses of papers, all of the two hundred and forty-four decisions of that Court, except twelve which he has had copied from the Opinion Book, and of which this is one.


author: Land, J.

text:
    A. S. Ellis v. W. W. Old.
    Priority of right gives priority of title in the case of a conflict between a preemption claim and the location of an internal improvement land warrant, on lands granted to the States by Congress.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellant. Selby & DeFrance, for defendant.
   Land, J.

This is a petitory action for the recovery of a tract of land. The plaintiff claims title by virtue of the location of an internal improvement land warrant, and of a patent issued by the State of Louisiana on the 27th day of April, 1854. The defendant claims title under the Act of Congress of the 4th of September, 1841, granting pre-emption rights to settlers on the public lands, and under a patent issued by the United States Government on the 30th day of April, 1859.

The Act of Congress of the 4th of September, 1841, entitled “ An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights,” is the origin of the titles both of the plaintiff, who claims by purchase from the State of Louisiana, and of the defendant, who claims as a pre-emptor by purchase from the United States.

The 8th section of this Act of Congress provides : That there shall be granted to each State specified in the first section" of this Act, five hundred thousand acres of land for purposes of internal improvement: Provided, that to each of the said States which has already received grants for said purposes, there is hereby granted no more than a quantity of land which shall, together with the amount such State has already received as aforesaid, make five hundred thousand acres ; the selections in'all of thefsaid States, to be made within their limits respectively, in such manner as the Legislatures thereof shall direct, and located in parcels con-formably to sectional divisions and subdivisions, of not less than three hundred and twenty acres in any one location, in any public land except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States ; which said locations may be made at any time after the lands of the United States in said States, respectively, shall have been surveyed according to existing laws.”

Louisiana being one of the States specified in the first section of the Act, the Legislature authorized the Register of the State Land Office, and the State Treasurer, to sell the unlocated lands donated by Congress, by issuing warrants for not less than eighty nor more than six hundred and forty acres, and selling the same in the manner prescribed by the statute for the sale of the located lands. See Session Acts of 1844, p. 62. And accordingly, the Register and Treasurer sold to the plaintiff, on the 16th of January, 1849, a warrant for one hundred and sixty-four acres of land, donated to the State of Louisiana for internal improvement purposes, by the Act of Congress above mentioned. This warrant was located by the plaintiff upon the land in dispute, and forms the basis of his' title, and is confirmed, so far as it was susceptible of confirmation, by a patent issued by the State.

The defendant’s title has its origin, as we have said, also in the Act of Congress of the 4th of September, 1841. The 10th section of this Act provides that; “ Every person being the head of a family, or widow, or single man, over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration of intention to become a citizen, as required by the naturalization laws, who since the first day of June A. D. 1840, has made, or shall hereafter make, a settlement in person on the public lands to which the Indian title has been, at the time of such settlement, extinguished, and which has been, or shall have been, surveyed prior thereto, and who shall inhabit and improve the same, and who has or shall erect a dwelling thereon, shall be, and is hereby, authorized to enter with the Register of the Land Office for the district in which such land may lie, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land,” &c. 6 vol. U. S. Statutes at Large, p. —.

The defendant, intending to avail himself of the privileges granted by the provisions of the 10th section of the Act of Congress above recited, settled, in the month of December, 1845, on the east half of the northwest quarter of section twenty-five, in township twenty, north, of range eleven, east, in the district of lands subject to sale at Monroe in this State, and on the 2d day of January, 1846, filed with the Register of the Land Office at Monroe, a declaration in writing of his intention to claim, under the pre-emption acts of Congress, the eighty acres of land above described, and also the east half of the southwest quarter of section twenty-four, in the same township and range ; and having obtained of the Register of the Land Office at Monroe a certificate of entry, showing full payment for the quarter section of land above described, a. patent was issued to him for the same by the United States Government, on the 30th day of April, 1859, as before stated.

It thus appears that the titles of the plaintiff and defendant present a case of direct conflict, under the Act of Congress of the 4th of September, 1841; and a case of conflict, which is not contemplated nor provided for in the Act itself.

The plaintiff had the right, under the Act of Congress, to locate his internal improvement warrant on any public land in the State which had been surveyed, and not reserved from sale by any law of Congress or proclamation of the President of the United States ; and the defendant had a right to make a settlement in person on any of the public lands to which the Indian title had been extinguished, and which had been surveyed prior to his settlement, and to acquire thereby a preemption right to the same. It is, however, not very clear that the plaintiff had a right, under the Act of Congress, to locate his warrant, separately, on one hundred and sixty acres of land, because the Act declares that the selections' of land donated to the State shall be located in parcels conformably to sectional divisions ■and subdivisions, ’of not 'ess than three hundred and twenty acres in any one location ; but if it be ’Conceded that this provision of the Act is directory, or its requirement may be dispensed with by the United States,.and a location' of a less ■quantity of land held to be valid, still the plaintiff’s right to acquire by a location of his warrant any part of the public domain in the State, subject to entry or sale, was not paramount to the right of the defendant, considered as a person capable of acquiring a right of pre-emption under the provisions of the same act- The right of acquisition as between the State of Louisiana, the vendor of the plaintiff, and the defendant under the Act of Congress, cannot be considered in favor.of the State, of more than equal dignity, to that of the pre-emptor; and hence, in passing ■upon the question of title between the parties to this suit, we must ascertain and give effect to the priority of right acquired under the Act, to the land in dispute.

' It appears from the evidence that the defendant’s, right first accrued, for as a pre-emptor he settled on the land in December, 1845, and filed with the Register ■of the Land Office at Monroe, on the 2d of January, 1846, a declaration in writing of his intention to claim the land under the pre-emption'Act of Congress of the 4th of September, 1841; and the plaintiff did not purchase his internal improvement warrant from the’State-until'the 16th of January, 1849, more than three years subsequent to the date of the settlement and claim of the defendant.

The plaintiff, however, cal's in aid of his title, through the testimony, his purchase of the improvements of a pre-emptor, by the name of Edins, who had settled on the eighty acres of land in section twenty-four above described,.'before, or about the time that the defendant made his settlement on the eighty acre tract in section twenty-five, before mentioned. The eighty -acres in section twénty-four is ■really the only land in controversy in this suit, for the plaintiff in locating his Internal improvement warrant, only covered with it-one-half of the pre-emption claim of the defendant.

The purchase of the improvements by the plaintiff, is of no avail, to him in making out his title, because such purchase did not convey the pre-emptive right of the settler, but on the contrary, extinguished it.

The plaintiff, on the other’ hand, seeks to impair the effect of the defendant’s title, by adducing in evidence an order from the Commissioner of the General Land Office to the Register at Monroe, directing him to return the patent issued in the name of the defendant for the land which is in controversy. But this order is of no benefit to the plaintiff, because the patent had been delivered to the defendant, and was beyond, the control of the Commissioner of the General Land Office before the receipt of his order by the Register of the Land Office at Monroe. The Commissioner states in his order no reason why the patent should be returned;; no'r is there anything in the record before ns to show that the patent was unadvisedly or -iHega'Iy issued -in the name of the defendant, for the land which the plaintiff claims in this action.

The defendant’s right having-.first attached under the Act of Congress of the 4th of September, .1841, must be maintained as the paramount title to the land, confirmed as it is by a patent issued by the United States Government, and delivered to him in pursuance of law.

The construction that we have given to the Act of Congress of the 4th of September, 1841, that is to say, that priority of right gives priority of title in the case of a conflict between a pre-emption claim and the location of an internal improvement land warrant, is in consonance with the opinion of the Attorney General of the United States, which is to the effect that the grants of land to Louisiana and other States for purposes of internal improvement, oannot be located on lands to which.pre-emption rights exist.

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


author: Meebick, C. J.

text:
    W. H. Letchford & Co. v. P. G. Dannequin & Co. et als.
    In an action for a forced surrender "by judgment creditors, other creditors of the insolvent may object to the irregularity of the proceedings.
    To justify an order for a forced surrender, the Sheriff must return the execution endorsed specifically “No property found after due' demand.,J It is his duty to seize either partnership effects or property belonging to the individual partners, if he knew of any such.
    APPEAL from the District Court of the Parish of Ascension, Lawes, J.

      W. E. Walker, for plaintiffs. Alfred Hennen, for defendants and appellants.
   Meebick, C. J.

The proceedings in this case were commenced by W. H. Letchford & Co. to compel -Dannequin <& Co. to make a forced surrender of property. The order for surrender was made, and one of the defendants was arrested and imprisoned, in order to compel a compliance with the decree. Two out of the three partners made surrenders. The appellees, A. T. Bruce & Co., took a rule upon all parties to show cause why the surrender should not be set aside. The proceedings were in the following order :

“ On the 14th May, 1860, W. H. Letchford & Co., judgment creditors of the commercial firm of P. G. Dannequin & Co., filed in the Fourth Judicial District Court for Ascension, their action against said Dannequin & Co. for a forced surrender.”
“ On the same day, by an order of the Judge, the defendants were ordered to show cause, within ten days from the service of petition and order, why they . should not pay the judgment of plaintiffs, or make a surrender of their property.”
“On the 1st June, 1860, judgment was rendered, ordering the defendants to make a surrender of their property; the judgment of plaintiffs remaining unpaid, and no cause being shown why the surrender should not be ordered.”
“ On the 13th July, 1860, defendants having failed to obey the previous order, order of arrest was granted against the defendants.”
“ On the 19th July, 1860, Gustave Blanchard, and on the 20th July, Abraham Eling, made a surrender of their property.”
“ On the 13th October, 1860, Victor Dugas was appointed provisional syndic of the insolvency.”
“ On the 3d December, 1860, the present rule, now appealed from, was taken by A. T. <& J. W. Bruce, of New York city, judgment creditors of P. G. Danne- quin, to set aside the proceedings in insolvency, on the ground of informalities in the proceedings; and issue was joined, by answer, on.lOth January, 1861.”
“ On the 14th January, 1861, judgment was rendered sustaining the rule, on the ground that the demand made by the Sheriff on the writ of fi. fa. was not sufficient.”

Letchford & Co. appeal. They contend .that “ as the defendants, P. G. Danneguin & Co., have no right, under the statute, to a rescission of the order of surrender, third parties, creditors long subsequent to the acceptance of the surrender by the court, have no right to the rule herein taken by A. T. & J. W. Bruce.”

A. T. & J. W. Bruce’s judgment was in fact, however, signed May 12,1860, before the surrender, and even before the fi. fa. issued, and is for $2370 58, and interest.

The execution on which the petition of Letchford & Co. for a forced surrender was based, issued on the 14th day of-May, 1860, and was returned in about a half an hour afterwards with the following return indorsed thereon : Received the within writ the 14th day of May, 1860, and on the same day proceeded to execute the same by calling on P. G. Dannequin, requesting him to show property to satisfy the same; and he says he has no property whatsoever belonging to the firm of Dannequin & Co. Wherefore I make my return. Ascension, May 14, 1860. (Signed) John U. Ilsley, Jr., Deputy Sheriff.”

On the question whether the appellees have the right to object to the proceeding anterior to the surrender, it is shown, as already said, that they were judgment creditors before Letchford & Co. issued their execution. .They cannot be considered as creditors subsequent to the surrender. It seems to have been decided, in 1822, that the creditors might object to the regularity of the proceedings.' See the case of Wikoff et al. v. Duncan’s Heirs, 10 M. R. 667; 14 An. 424.. We are not prepared to disturb this ruling of the court.

The Sheriff’s return is clearly insufficient to justify the order for a forced surrender. The statute authorizes the order, after the execution has been returned no property found after due demand.” The demand upon Danneguin was insufficient, because, in his reply, he left it to be inferred that the other partners had the effects of the firm. 17 L. R. 416. The return, moreover, does not show that there were not both partnership effects and property belonging to the individual partners. If the Sheriff knew of any such effects, it was his duty to seize them. See Levois v. Thibodeaux, 13 An. 264.

It is, therefore, unnecessary to consider whether the surrenders made are also formal. Judgment affirmed.

Duffel, J., recused himself for interest.


text:
    William J. Minor v. Holden Wright.
    Damages arising ex delicto cannot be recovered unless specifically proved.

      P&' curiam: A strict and rigid application of the articles of the Code on the title of predial servitudes would be destructive to agricultural industry.
    Appeal from the District Court of the Parish of Terrebonne, Roman, J.

      F. S. & J. S. Goode, for plaintiff and appellant. Connoly <& Rightor, for defendant.
   Duffel, J.

The parties to this suit are owners, each, of a plantation lying in the parish of Terrebonne, in a horse-shoe bend of Bayou Black, so that either track may properly be said to be in the rear of the other.

The plaintiff having cut a large canal along the whole extent of the dividing line of the two estates, and thrown the dirt, in the shape of a levee of 2 ft. 5 in. to 3 ft. 3 in. in height, between the canal and the defendant’s land ; the latter made two ditches, running from the front of his plantation to the plaintiff's canal, and emptying into the canal; whereupon the plaintiff instituted this action to compel the defendant to close his ditches at the points where they fall into the canal, claiming besides damages for the illegal acts of his neighbor.

The defendant, on his part, claimed the right of a legal servitude, resulting from the situation of the place, and consequently asks the removal of the levee ; he also demands that the dividing line of the rear of the two estates be judicially fixed, and sets up a claim in reconvention for the damages sustained by reason of said obstruction.

The District Judge ordered the levee to be razeed, rejected the claim in damages asserted by both parties, and adopted, as the' true line of division, the one which answered the certified sketches of the original surveys of the United States.

The plaintiff appealed.

The District Court properly rejected, in toto, the claim in damages, as neither party undertook to prove any, specifically.

The District Judge, in the absence of any suggestion of error, also correctly adopted, as the dividing line of the two estates, the one drawn by the surveyor appointed in the case, in accordance with the original surveys of the United States.

As to the point of servitude, the evidence indicates a gradual fall of the laud of the defendant, from the front to the rear, or, in other words, to the canal spoken of, with a slight tendency toward the lower back corner which is six inches lower than the upper back corner ; the fall from the front to the rear being 21 68-100 ft.

The canal of the plaintiff extends about nine arpents higher up and lower down than the whole extent of the back line of the defendant, and the waters which.accumulate against the above levee, must, either remain dormant, or find their way at each extremity of the plaintffs levee, should no obstructions exist on his neighbor’s lateral lands, to wit: the. plaintiff above and Dr. Boykin below.

It further appears from the evidence, that there is a natural flat surface, or nearly so, for a distance of. 150 feet on either side of the cana1, and that there is a swamp back, to which the accumulating water would, if unobstructed, find its way ; this swamp runs into Bayou Tiger which empties in Bayou Black, at about 22 miles below the defendant’s place.

It also appears that the defendant has cut, altogether, three ditches, which all terminate in the canal above described, two prior and one since the inception of the present action ; and that, according to the dividing line adopted and fixed by the District Judge, the levee along the canal is at some points partly on the defendant’s land.

The plaintiff’s overseer says that by opening the levee three feet at every arpent, the defendant’s land would be perfectly drained without the necessity of ditches.

It is evident, from the above resume, that the plaintiff has obstructed, in a manner unwarranted by law, the natural flow of the water of the defendant’s plantation, and furthermore that he has committed another wrong (which, however, the evidence shows was not intentional) by erecting some portions of his levee on his neighbor’s land. It is equally evident that the defendant violated the rights of property when he opened his ditches into the land of the plaintiff, for the purpose of reaching the afore-mentioned canal.

This court has, on'more than one occasion, expressly declared that a strict and rigid application of the articles of the Code on the title of predial servitudes would be destructive to agricultural industry. Martin v. Jett, 12 La. 503. Sowers & Jameson v. Shiff et als., 15 An. 300.

In determining cases of this kind, we must never lose sight of the interest of both parties, but it should be our care, whenever a legitimate case presents itself, to make such an application of the law as will, by imposing mutual obligations on the owners of both properties, render effective the servitude due to the lower estate without subjecting the upper one to unnecessary and injurious charges.

It is unnecessary to add, that we must be guided, in our appreciation, by the peculiar and varied facts of each case.

Thus in the case before us, the plaintiff should not be made to level his entire levee, should the water which flows on the flat bottom, which extends on both sides of. the canal, find its natural way to the back swamp, at the upper corner of the defendant’s land ; but in such a case the plaintiff should be ordered to leave at this point a sufficient opening to carry off all the surplus water of the defendant’s land.

To proceed further with our idea, should the accumulating water flow, on its whole breadth, by a natural slope, to the swamp, then the plaintiff should be ordered to open his levee, at such points as will fully relieve the lower estate.

We are unable, with the evidence before us, to dispose finally of this part of the case, as the location of the back swamp and the point of drainage, are net sufficiently shown ; we will consequently remand this branch of the cause.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, in so far as it rejects the several demands in damages, and fixes the boundary line between the litigants, and the costs of survey, be and the same is hereby affirmed. It is further ordered, adjudged and decreed, that as to the question of servitude, the judgment of the District Court be reversed and avoided, and that the case, on this point, be remanded back to the lower court for further proceedings according to law and the principles enumerated in our opinion ; the defendant paying the costs of the appeal, and the costs of the lower court, others than those of survey, &c., to await the final action of the court a qua.


author: Vooehies, J.

text:
    Spencer Field & Co. v. Paul Cooks et als.
    The fact that a plaintiff has, in a previous suit, recognized defendants as forming a company, without any reference to its having been regularly incorporated, is not such an admission as will estop him from showing that the company has no legal existence as a corporation. In order to estop him there should at least be an admission that the company was entitled to exercise corporate rights and privileges.
    The fact, that a party is shown to have bargained with á company through its representative officers, may, in the absence of a stipulation to the contrary, give rise to the inference that he intended to look to the members jointly for the amount of their subscription; but if, instead of a corporation, the company should form no more than -a commercial partnership, such an inference should not prevail over the recognized legal rights' of the parties — particularly where it is not shown that he was in a situation to have known certainly as to the existence or non-existence of the corporation'.
    The failure of a company, in forming a corporation, to obtain the authorization or certificate of the District Attorney or Judge, and to have the act of incorporation duly recorded, is not a mere informality within the meaning of the 8th section of the Act of 1852, bufa substantial omission which strikes the act of incorporation with nullity.
    Appeal from tie Fifth District Court' of New Orleans, Eggleston, J.

      Bonford, Singleton & Clack, M. M. Cohen and H. Dugué, for defendants and appellants. L. M. Day and B. Egan, for plaintiffs.
   Vooehies, J.

The main question at issue between these parties is, whether the defendants are a commercial firm, and, therefore, bound solidarity as partners, or whether they compose an incorporated company, the individual members of which would be bound to the amount of their subscriptions, respectively.

It is, however, contended lhat the plaintiffs are precluded' from showing that the defendants do' not constitute a corporation, because, in a previous suit, the former recognized the corporate capacity of the latter; and secondly, because the contract, which is the basis of the present demand, was made with the company,' as such.

The suit to which reference is made is not offered in evidence, — that is, the pleadings of the case. But there is in this record the following admission : “Admitted that a similar suit was brought in the Sixth District Court, on the 3d day of'June, 1856, on the same bill and note sued'on in this case, and that judgment of nonsuit was rendered, and said judgment was affirmed by the Supreme Court.”

By reference to this decision of the court it appears, that, although the members of the company were personally cited, yet there was, in the petition, no prayer for citation or judgment against them individually; and that the Bone Black Company, as such, had not been cited'at all: hence the judgment of nonsuit.

The evidence introduced in that case, in the court below, was admitted as proof on the trial of the present demand; but not so as regards the pléadings of the former suit.

The admission that the two suits are similar, is, we suppose, intended 'to' supply' this omission.

• The recognition by the plaintiffs, that these defendants were members of a company styled the Bone Black Company, and administered as a company, does not preclude them from showing that the company has no legal 'existence as a corporation. It is not the less a company, whether or not incorporated in accordance with the lawsof the State; but, as a consequence, it may or may not havé the rights and privileges which appertain to those institutions.

In order to estop the plaintiffs, there should, at least, be an admission that the company was entitled to exercise corporate rights and privileges. The petition styles the defendants as being members of the Bone Black Company, without there being any reference made to the fact of this company having ever been incorporated. There is, therefore, no judicial admission, on the part of the plaintiffs, of the existence of the Bone Black Company as an incorporated company.

But there is another ground urged as an estoppel: that the indebtedness was incurred with the company, as such. There is no doubt that the transaction was with the company, which then was represented by its constituted officers ; but the most that can be made of this, is, that in the absence of any stipulation to the contrary, it may be inferred, that the plaintiffs intended to look for payment, not to the members personally and in solidó, but to them jointly, for the amount of their subscription. Now, if it be granted that the company, instead of a corporation, was in fact a commercial partnership, it would be extremely dangerous to hold that such an implication should prevail over the recognized legal right of the parties, the more so, where it is not shown that they were in a situation to be aware of the true state of facts as to the existence or non-existence of the corporation. Parties are not presumed easily to abandon their rights.

The case of Pochelu v. Kemper is not in point. It was there decided that, having obtained a judgment against the company as a corporation, the plaintiff was afterwards estopped from denying its corporate capacity. This was a solemn admission made by the party, and acted-upon by the court in rendering final judgment. And that admission covered the very point of the existence of the corporation ; whilst, in the case under consideration, the admission falls short in this respect. 14 An. 308. .

The question then occurs whether the Bone Black Company was duly incorporated under the laws of the State. And, in this connection, it is proper to state that there is no charge preferred that the company has forfeited its charter.

The defendants’ charter is assailed on the ground that they did not comply with the law on the subject of the formation of corporations, — such, for instance, as regards the fiat of the District Attorney or District Judge, — the use of a common seal, — and the filing of the act or charter in the office of the Secretary of State. To this the defendants answer, that these forms are not essential, and that the cor-porators are protected under the 8th section of the statute of 1852, which provides as follows, to wit: Nor shall any mere informality in organization have the effect of rendering a charter null, or of exposing a stockholder to any liability beyond the amount of his stock, provided the provisions, of this Act have been substantially complied with.” Sess. Acts, p. 131.

This clause distinguishes between mere informalities and a substantial compliance. The first section makes it “ lawful for any number of persons, not less than six, on compliance with the provisions of this Act, to form themselves into and constitute a corporation for the following purposes,” &c. It is evident that the total failure to comply with the requisition to obtain the authorization or certificate of the District Attorney or Judge, and to have the act of incorporation duly recorded, is not a mere informality; and'that the parties cannot belaid to have substantially complied with the requirements of the law. The text says that it is upon the compliance with the provisions of the statute, that the parties shall form themselves into, and constitute a corporation. A non-compliance, therefore, must be fatal to the act of incorporation : indeed, this nullity results from the terms of the 8th section of the Act of 1852.

Judgment affirmed.


text:
    Joseph E. Wilson v. Alexander Wilson.
    A mandatary acting for himself as well as others cannot recover on a quantum meruit. The procuration is gratuitous unless tliorqihas been a contrary agreement. C. C. 2960.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Waples & Eustis, for plaintiff and appellant. Benjamin, Bradford & Fin-ney, for defendant.
   Buchanan, J.

Plaintiff and defendant, with others, all heirs of Joseph and Lavinia Erwin, brought a chancery suit in the United States Circuit Court in N ew Orleans, against sundry parties, to annul a compromise and settlement of the successions of the said Joseph and Lavinia, as having been made in fraud of the complainants, and in error as to their rights.

Plaintiff acted as agent of many of his fellow complainants in preparing this suit for trial; and stipulated with them for a compensation for his services so rendered, which compensation he has received.

He now sues his brother, the defendant, for the sum of five thousand dollars, being about fifty per cent, of the amount coming to the latter under the decree in the chancery suit. This demand is founded upon a contract, which is alleged in plaintiff’s petition in the following terms : i

“Tour petitioner avers that the said Alexander Wilson also employed your petitioner to prosecute his interest in the said suit, promising to pay him whatever might be the value of petitioner’s services.”

Defendant pleads a general denial; and also specially denies that he ever made any other contract with the plaintiff in regard to the institution or prosecution of the suits referred to in the petition, than one which he annexes to his answer : a contract in writing, bearing date the 24th August, 1847.

By a supplemental petition, plaintiff asked for a jury trial: which was had, and resulted in a verdict for d.efendant. Plaintiff appeals.

The question was one of fact. Plaintiff claimed upon an alleged contract; and defendant alleged a totally different contract. The jury have found this question in favor of defendant; and a careful scrutiny of the evidence has not disclosed to us any error in this finding; but the contrary.

It must be remarked, that plaintiff does not claim for professional services. He was not a lawyer, but one of the parties complainant. ' There were several lawyers engaged for the complainants, whose services have been very liberally compensated. The interest of plaintiff and defendant in the suit was equal, and their share of the judgment recovered, after deducting lawyers’ fees, was the same— about eleven thousand dollars each.

It is clear, therefore, that whatever care, pains, and time were devoted by plaintiff to this business, he was laboring for himself and in his own interest; although, in point of fact, his labor profited others as well as himself. In such a state of facts, no action could have been maintained upon a bare quantum meruit. It was incumbent to allege, and to prove, a specific contract. The contract proved in this case, does not entitle the plaintiff to recover anything from the defendant. In this connection it is not amiss to mention, as a fact proved in the record, that plaintiff has been richly remunerated by his other co-plaintiffs and co-heirs for his labor and loss of time in prosecuting his and their interests; having received, in addition to what he recovered in his own right, about forty-five thousand dollars in cash and notes at one, two and three years, proceeds of the litigation in question.

Judgment affirmed, with costs. ■


author:
Merrick, C. J.
      J. H- Langfield

text:
    Lazar Baham v. Jacob H. Langfield and N. Galatas, Sheriff.
    Where defendants take separate appeals and file distinct bonds, one trauscript will suffice. A doubtful error in the record, not essential, will not be sufficient ground for dismissal.
    The Sheriff is the officer of the law charged under the writ of execution with certain duties, and his acts (where there is no improper interference on the part of the creditor) are at the risk of the defendant in execution who has it in his power to dispense with the services of the Sheriff by paying the debt.
    Asale of the debtor’s property and the execution of a twelve months bond does not discharge the judgment.
    Appeal from the District Court of the Parish of St. Tammany, Martin, J.

      A. Hennen and J. B. Grayson, for plaintiff. Jesse JR. Jones, for defendants and appellants.
   Merrick, C. J.

The appellee moves to dismiss the appeal in this case, on the ground that the transcript is incomplete, as appears by the certificate of the clerk, —and because each defendant took a separate appeal, and but one imperfect transcript has been filed. The clerk’s certificate is in the usual form, but is followed by a qualification annexed to the statement that the transcript contains all the evidence adduced, viz : “ Except the second advertisement of timber referred to in the Sheriff's return, p. 51, and in testimony of D. Tally, page 20, which 2d advertisement I have no knowledge of — do not recollect even having seen it, and it cannot be found in my office.” There is nothing in the note of the testimony to show that the document referred to by the clerk was offered in evidence, and the testimony renders it doubtful whether any such document ever existed. The appellant cannot be deprived of his appeal by a statement of this kind volúnteered by the clerk. It may well be treated as surplussage.

On the second ground it is sufficient to observe, that we have one complete transcript containing the bonds of both appellants before us, and nothing would b.e gained by filing another transcript, except additional costs to the officers of court.

The motion to dismiss, is overruled.

Ón the merits:

J. H- Langfield

obtained judgment in solido against Louis L. Morgan, as maker, and the plaintiff, Lazar Baham, as indorser of a promissory note. Execution haying issued upon the judgment, the sheriff, Galotas, seized a quantity of hewn timber belonging to the defendant, Morgan. Baham, the plaintiff in injunction, was placed by the Sheriff as keeper over the timber. The same was offered for sale for cash with the benefit of appraisement, but not sold, for want of a sufficient bid. During the interval between the cash and twelve month’s sale, Morgan removed the timber which was in a. raft in the Chefuncte river, intend--ing to supply its place with other timbers of like dimensions and quality. He attended at the day of sale and offered the other timber, and to waive the advertisement and consent to an immediate sale, but from the absence of the Sheriff, or some other cause, the sale was not made. This execution was returned by order of Langfield’s attorney, unsatisfied. A new execution issued, and the property of Lazar Baham, the endorser, was seized. He injoined, and on the trial of the case his injunction was perpetuated, and Langfield and the Sheriff appeal.

The plaintiff and appellee, Baham, contends in this court, that the plaintiff in execution, Langfield, must be considered as trustee for the benefit of plaintiff, of the property of Morgan, seized under execution, and having lost the advantage of the seizure by the neglect of the Sheriff, his agent, and his own connivance in not pursuing his remedies against the Sheriff for such neglect, he cannot subro-gate the plaintiff, Baham, to his rights under the first execution, and the latter is, therefore, discharged.

If it be conceded that the endorser or surety has the same means of defence after judgment as before, for the subsequent acts of the creditor, we are by no means prepared to admit that the Sheriff is so exclusively the agent of the seizing creditor, that his omissions of duty are-to be visited as penalties upon such creditor without any fault on his part.

The sheriff is the officer of the law charged under the writ of execution with certain duties, and his acts (where there is no improper interference on the part of the creditor) are at the risk of the defendant in execution, who has it in his power to dispense with the services of the Sheriff, by paying the debt. See Sewell’s Sheriff, p. 191, Chap x., 2 L. R. 280. In such case, payment, or the conversion of the debtor’s property into money, under the execution, will alone discharge the execution. Even a sale of the debtor’s property, and the execution of a twelve month’s bond does not discharge the judgment. 2 An. 240; 3 An. 382.

The defendant Langfield can hardly be charged with a neglect of duty when the property was removed while under the plaintiff’s own guardianship. It follows, the injunction must be dissolved.

The judgment bears eight per cent, interest.

The defendants have proved special damages to the amount of fifty dollars, attorney’s fee.

it is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed by the court, that said injunction be dissolved, and that plaintiff’s demand be rejected, and that said defendant do recover and have judgment against the said Lazar Baham, as principal, and Gustave Dupart, as surety, in solido, for the sum of fifty dollars special damages ; and it is further ordered, that the plaintiff pay the costs of both courts.


author: Ddffel, J.

text:
    Thomas Y. Brent, Son & Co. v. James H. Shouse et al.—Twyman, Goodloe & Hoskins, Intervenors.
    A vendors privilogo does not apply to contracts made in a State where no Such privilege exists ; even if a portion of the goods were in. New Orleans at the time of the contract — movables having no situs} as a general rule.
    The vendor’s privilogo on movables is unknown to the common law.
    APPEAL from the Third District Court of !N"ew Orleans, Duvigneaud, J.

      G. P. McPheeters, for plaintiffs and appellants. Chas. A. Taylor and T. H Kennedy, for defendants.
   Ddffel, J.

The parties to this suit were before us last year, oh an appeal from the following judgment: In this case, for the reasons assigned in the written opinion of the court this day delivered and on file : It is ordered, adjudged and decreed, that the plaintiffs’ petition be dismissed ; that the attachment herein issuedibe dissolved; that the intervention herein filed by/. W.Twyman, J. R. Goodloe and J. E. Hoskins, be maintained; and that the property attached be delivered to them, and that plaintiffs pay all costs of suit.” This judgment was affirmed, with the single reservation “ of the rights of .the plaintiffs, as creditors with the vendor’s privilege.” See reported case, 15 An. 110.

The debt of the plaintiffs having matured, they renewed their action by attachment, citing all the parties to the original suit.

As the p’aintiffs avowedly prosecute this action by reason of the reservation made in our former decree, a recovery must necessarily depend on the proof of a privilege.

All the parties in interest reside in the State of Kentucky, and the sale of the movables herein attached was made in the place of their domicil.

The privilege claimed by the plaintiffs must, therefore, result from the laws of Kentucky, for the vendor’s privilege recognized under our Code does not apply to such a case.

The fact that a portion of the goods conveyed was, at the date of the contract, in New Orleans, does not alter the case, for, as a general rule, movables have no situs.

Now it is in evidence that the common law is the basis of the jurisprudence of Kentucky, and we all know that the vendor’s privilege on movables is unknown to the common law. C. C.10; Whiston v. Stodder, 8 M. 98; Colt v. O’Callaghan, 2 An. 984; Copley v. Sanford, 2 An. 335; Hennen’s Dig. p. 1070, No. 28.

The case of Beirne & Burnside v. Patton et al. 17 L; 589, is an exception to the general rule that movables have no locality, and has no application to the case at bar, for in that case the plaintiffs were citizens of this State, pursuing rights created in the State, while here they are all citizens of another State, attempting to enforce obligations and contracts created in their own State.

We therefore conclude, that the District Judge properly rejected the claim of the plaintiffs, but erred in condemning them to pay five per cent, per annum interest on the amount attached in the hands of the garnishees, as also two hundred dollars counsel’s fees. We do not think that this is a proper case for damages; it is not a case of injunction ; 'the plaintiffs are not in possession of the funds attached, and they litigated their pretensions under a decree of this Court.

It is therefore ordered, adjudged and decreed, that the five per cent, per annum interest, and the two’hundred dollars, allowed by the judgment of the District Court, be rejected, and that the judgment, amended as above, be affirmed, the ap-pellees paying costs of appeal.


text:
    The State on the relation of John Shelton et al., praying for a Mandamus v. the Judge of the Seventh Judicial District.
    "Where parties arrested for an offence punishable at hard labor appeared and waived the examination before the magistrate, whereupon the prosecuting witness — the magistrate refusing to force them to an examination — obtained from the District Court a writ of mandamus peremptorily ordering the magistrate to compel their appearance and examination, from which order the prisoners sought an appeal which was refused — Held: That under the Constitution the Supreme Court has appellate jurisdiction of questions of law in'criminal cases where the offence charged is punishable with imprisonment at hard labor.
    An appeal may be taken from a final decision of the District Court on any collateral question of law raised in a case on which the Supreme Court has appellate jurisdiction.
    Appeal from the Judge of tbe Seventh Judicial District, John McVea, J.

      McVea <& Hunter, for relator.
   Merrick, C. J.

The relators, it appears from the petition and answer, were arrested and brought before Wm. B. Gayle, Esq., Justice of the Peace for the parish of East Feliciana, on an affidavit charging them with assaulting the prosecuting witness, with a dangerous weapon with intent to murder.

When the relators were brought before the magistrate they waived an examination and tendered their bonds for their appearance before the District Court. Their bonds were accepted, and they were discharged from custody.

Subsequently, the magistrate summoned the witnesses, and notified the accused to attend at his office, in order that the examination of the witnesses might he reduced to writing. The relators attended before the magistrate with counsel, and objected to go into an examination of the witnesses, on the ground that the magistrate had no further jurisdiction over them.

The magistrate being of the same opinion, hound the witnesses over to appear before the District Court, and refused to examine them.

Thereupon the prosecuting witness applied to the District Court for a mandamus to compel the magistrate to cause the relators to come before him and examine the witnesses, in order to perpetuate their testimony. After a hearing upon the application, the District Judge made the following decree, viz : “ This case being taken up after regular assignment, and the law and the evidence being in favor of relator, it is therefore decreed, that the rule be madG absolute ; that a mandamus issue peremptorily, commanding W. B. Gayle, Justice of the Peace, to proceed and examine the parties accused in the case of the State v. John Shelton, James P. Shelton and James Mansker; that he cause said accused parties and the witnesses in said prosecution to appear before Mm on a day to be fixed by said W. B. Gayle, Justice of the Peace ; that he examine the witnesses on the part of the State, and the defendant, on oath ; that he reduce said depositions to writing, and that he return said depositions with his proees verbal to the 7th District Court for said parish, as the law directs ; the defendant to pay costs.

Prom this decree the relators, as well as the magistrate, applied for an appeal, which was refused them.

The present is an application for a rule against the District Judge, to show cause why a mandamus should not issue to compel him to grant the appeal.

The District Judge has accepted service and filed an answer in this court, and consents that if the same be insufficient, the mandamus issue at once.

He contends that his decision was right, and that the order of the court cannot work any injury to the parties.

The question before us is simply this, does an appeal lie from the order of the Judge ?

The offence charged against the relators appears to be one punishable by imprisonment at hard labor. Phillip’s Dig. p, 136, sec 9.

The Constitution gives this court appellate jurisdiction of questions of law, whenever the offence charged is punishable with imprisonment at hard labor. Const., Art. 62.

A question of law was then raised in the District Court in a case over which this court has appellate jurisdiction, and the question of law cannot be revised by this court in any other manner than by a direct appeal from the decision on this collateral matter affecting the rights of the accused, for the decision on this branch of the case is final.

Whether the District Judge was right or-wrong in his conclusions in his judgment can be fully determined on appeal.

If he was wrong in ordering the Justice of the Peace, who had decided the case on his own convictions of the law; to bring” the parties accused before him a second time and compel them by arrest or otherwise to submit to an examination which they had lawfully declined, then his decision might work' an irreparable injury by extorting from the parties statements and admissions prejudicial to their rights.

It therefore appears to us that the parties, under the Constitution, have a right to appeal. See White v. Cazenave, 14 A. 57.

The mandamus must issue.


text:
    Sampson Blossman et als. v. Captain Hooper, Steamer Laurel Hill and Owners.
    The defendant was a common carrier ; and, as such, lie was responsible for the baggage of passengers. A loss suffered in consequence of the fault of the defendant’s servant must be made good.
    Appeal from the Fourth District Court of New Orleans, Prfce, J.

      M. Grivot, for defendants and appellants. M. Reynolds and John M. Leg-gett, for plaintiffs.
   Buchanan, J.

Plaintiff’s daughter took passage on board the Laurel Hill from New Orleans to Port Hudson. Her baggage, contained in a trunk with her name on a card attached, was put on board the boat.

This trunk was put out, by mistake of the porter of the boat, at a landing in the Parish of St. James — the Vacherie post office. It was missed when the boat was just below Baton Rouge; and the porter recollecting that a trunk answering the description had been put ashore below, the Laurel Hill engaged to forward the trunk, if it could be found, by the Capitol or Princess, river packets, to Port Hudson, and thence to Clinton, via the Clinton & Port Hudson Railroad.

On the return trip of the Laurel .Hill down the river, the trunk was obtained at the "Vacharie post office, and taken by the Laurel Hill to New Orleans, where it was put on board the Princess. A receipt was taken from the Princess for the trunk, in the following words :

Received in good order, from steamer Laurel Hill, on board steamer Princess, New Orleans, April 27th-’58, one trunk, freight paid — Miss Blossman, Clinton, Pt. H. R. R., Pt. Hudson.”

The trunk was forwarded to Clinton per railroad; and when received by plaintiff’s daughter, was found to have been broken open, and robbed of the greater part of its contents.

The value of the contents of the trunk, as charged in the petition, is proved.

The evidence leaves us entirely in the dark as to the precise place at which the trunk was robbed. It is only certain that this must have been done between the original putting of the trunk on board the Laurel Hill by plaintiff, and the reception of the trunk by his agent at Clinton,

The defendant was a common carrier. As such, he was responsible for the baggage of passengers. C. C., Arts. 2722, 2725, 2936, 2937, 2938, 2939.

The loss suffered by plaintiff was the consequence of the fault of the defendant’s servant.

But it is contended by defendant’s counsel, that the liability of the defendant as carrier was released by the agreement made with plaintiff’s agent, and the subsequent delivery of the trunk to the Princess, in pursuance of that agreement. We do not so understand the legal effect of the evidence on this point. Had the trunk not been put ashore at the Yaeherie post office, the plaintiff’s daughter would have taken it ashore with her at Port Hudson, and the defendant’s responsibility of carrier would there have terminated. But inasmuch as the young lady’s baggage could not have been delivered to her at the landing of Port Hudson, and her ultimate destination was Clinton, the other terminus of the railroad, the defendant came under a special engagement to deliver the trunk to her at Clinton, and thus save her the loss of time (perhaps fruitless) of waiting at Port Hudson for the arrival of another steamboat with her trunk. Under this special contract, we hold the defendant bound for the safe delivery of the trunk and its contents in Clinton.

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

Duffel, J., recused himself for relationship to a party.


text:
    James Todd & Co. v. B. F. Young.
    The death of a party to a suit is no cause for its dismissal: the survivors of the partnership or the legal representatives of the deceased may be made parties on petition.
    Appeal from the District Court of the Parish of Tensas, Farrar, J.

      Reeves, Collier & Farrar, for plaintiffs and appellants. P. B. Shaw, for defendant.
   Land, J.

The question presented in this case for our decision is one of practice. The plaiutiffs, James Todd and John R. Pioneer, who composed the commercial firm of James Todd & Co., sued the defendant for a balance of account. After service of citation and before issue joined, John R. Pioneer died; and the defendant filed an exception to the right of the surviving partner, James Todd, to prosecute the suit and stand in judgment. Thereupon the surviving partner filed a supplemental petition, in which he prayed for permission, as liquidating partner, to prosecute the suit against the defendant for the benefit of the firm, and for such other relief as the nature of the case required. The plaintiff, in his supplemental petition, admitted the death of his partner. The exception was tried on the admission, and was sustained, and the suit dismissed at plaintiff’s costs.

The District Judge should have overruled the exception and continued the suit, with leave to the surviving partner to make the legal representatives of the deceased, parties to the suit. McCord v. The West Feliciana Railroad Company, 1 R. 519.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, and this cause remanded for further proceedings according to law; and that defendant and appellee pay the costs of this appeal.


text:
    D. S. Vinson v. Ezekiel Graves.
    The tenant of a predial estate cannot claim an abatement of the rent, under the plea that during the lease eithor the whole or part of his crop has been, destroyed by accidents, unless those accidents bo of such an extraordinary naturo that they could not have been foreseen by either of the parties at the time tho contract was made, such as the ravages of war extending over a country then at peace, &c. The overflow of the Mississippi River is of such frequent occurence that it. does not come within the above category. A crevasse itself cannot be considered as an 11 extraordinary accident.”
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow Montgomery, for plaintiff. B. D. Roberts and C. A. BeFrance, for defendant and appellant.
   Land, J.

This suit was instituted to recover the sum of six hundred and fifty dollars, the stipulated rent of a tract of land leased by plaintiff to defendant for the year 1858. The defendant in his answer admits that he leased from plaintiff one hundred and sixty acres of land, situate in the parish of Carroll, in this State, at the rate of $4 00 per acre; but pleads in bar of the demand for rent, that the land leased by him was overflowed, and remained inundated for a long period, during the year 1858 ; that by reason of the overflow, the crop planted by Mm was totally destroyed, and tlie land itself was rendered unfit for the purpose for which it had been originally leased, by reason of the continuation of the overflow until the latter part of August of said year.

The overflow, its long continuance, and the total destruction of the defendant’s crop, were fully proved on the trial in the court below ; the Judge a quo, however, rendered a judgment in favor of the plaintiff, from which the defendant prosecutes the present appeal.

The question submitted for our decision in this case is : Was the overflow of the Mississippi Riv^r during the year 1858, one of those extraordinary and unforeseen accidents which entitled the defendant, who was the tenant of a predial estate, to claim an abatement of the stipulated rent.

Article 2114 of the Civil Code, declares that the tenaut of a predial estate cannot claim an abatement of the rent, under the plea that during the lease either the whole or a part of his crop has been destroyed by accidents, unless those accidents be of such an extraordinary nature, that they could not have been foreseen by either of the parties at the time the contract was made, such as the ravages of war extending over a country then at peace, and whore no person entertained any apprehension of being exposed to invasion, or the like.

The overflow of the Mississippi River is of such frequent occurrence that it cannot be regarded as belonging to that class of oxtraordinary and unforeseen accidents which entitle the tenant of a predial estate to an abatement of the rent. Indeed the overflows of this river are so frequent that a system of levees, has been constructed under the authority of the State, for the purpose of preventing, we may say, the annual inundation of its banks; and so frequently have the waters of this river made breaches in the levees, that even a crevasse itself cannot be considered as an extraordinary accident in the sense of article 2114 of the Code, and as such entitle the tenant of a predial estate to a reduction of the stimulated rent, although such crevasse should be the means of overflowing the land leased by the tenant, and thereby destroying a part or the whole of his crop.

The periodical overflow of the waters of a river, is not an extraordinary accident ; and if a party seeks to give to an inundation that character, he must show that it was unusual, unforeseen, and one to which the country was not ordinarily subjected. See Troplong, Du Louage, Nos. 201, 211. The frequency of overflows and of crevasses in the levees on the Mississippi River, is not disputed in this case, but is on the other hand sufficiently established by the evidence.

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


author: Voorhies, J.

text:
    Felix G. Offut v. Seraphin Bourgeois et als., School Directors.
    The Act of 1855 has not fixed the amount to he paid to teachers in the Public Schools, and where there is no contraot they can recover on a quantum 'meruit

    Appeal from the District Court of the Parish of Assumption, Roman, J.

      L. D. & F. T. Nicholls, for plaintiff and appellant. Carver & Lauve, for defendants.
   Voorhies, J.

The plaintiff sues for the value of his services as a teacher of the Public Schools.

He claims on a quantum, meruit; and the defendants, who are the directors of the Public School, oppose this demand on the ground, as they contend, that, under the 16th section of the Act of 1855, organizing the Public Schools, the teachers are entitled only to a fixed rate or salary.

The section in question reads as follows :

“ Whenever the children attend any school in the parish beyond the limits of their district, their tuition shall be paid for out of the funds belonging to their district, upon the warrant of the directors of the district in which the school is kept, at the same rate as if the school were kept in their own. district, and the same shall be charged to the district to which they properly belong.”

The above section does not fix the rate of compensation due to the teacher, but merely apportions the funds of the district pro rata between those pupils who attend in the district, and in an adjoining district. ■ The object of the statute is to distribute a common fund on an equitable basis.

The 6th section of this statute does not limit the compensation of the teacher to the sum of four dollars per annum for each pupil taught. This is the amount to be paid to each parish for the number of educable children, whether or not they attend the public schools.

The law has not fixed the amount to be paid to the teachers for .their services ; and, if this matter be not regulated by contract between them and the school directors, the former’s services must be tested on a quantum meruit, and accordingly remunerated. Mailhe v. Fournet, Treasurer, 13 A. 607.

The record, however, does not show sufficiently the value of the plaintiff's services ; and, for this purpose, the cause must be remanded.

It is therefore ordered and decreed, that the judgment of the District Oourt be avoided and reversed ; and that this cause be remanded for a new trial, the defendants and appellees paying the costs of appeal.


author: Voórhies, J.

text:
    State of Louisiana, on the relation of Podesta Baptista et als., praying for a writ of certiorari, v. The Recorder of the Second District of New Orleans.
    No cerlioi'ari can issue in cases whore no appeal can be taken.
    ON the relation of Podesta Baptista et als., praying for a writ of certiorari.

      E. J. Wenck, for Relator.
   Voórhies, J.

This is an application for a certiorari on behalf of three persons, who have been committed as vagrants to the City Work House for the space of thirty days.

The jurisdiction of the Recorder in this matter is of a criminal nature; and is not subject to our revision, unless a fine exceeding three hundred dollars has been actually imposed. Oonst., Art. 62. The remedy by certiorari cannot, therefore, be of any service to the applicants, as there can be no appeal in this case.

Rule nisi discharged.


text:
    Zeigler & Marcy v. R. A. Hunter et al.
    An appeal bond is defective unless given in favor' of all tlie'parties interested in the judgment appealed from, and the appeal should he dismissed.
    Appeal from the District Court of the Parish of E. Baton Rouge, Avery, J.

      Dunn <& Herron, for plaintiffs aud appellants. Phillips, Goode, Tucker, Davidson, Burgess, for appellees.
   Land, J.

This suit was instituted on the bond of the State Treasurer, for the recovery of damages for the alleged non-performance of his official duties.

The principal in the bond,, R. A. Hunter, aud only one of his sureties,JThomas 0. Moore, were cited in the action.

They filed an exception to the plaintiff’s petition, which was sustained,Sand the suit dismissed.

The plaintiffs took a devolutive appeal in open court, but gave an appeal bond only in favor of .R. A. Hunter’.

In this court the appellees, R. A. Hunter and Thomas O. Moore, have filed a motion to dismiss the appeal on the ground that the appeal bond is defective, for the reason that it was not given in favor of all the parties interested in maintaining the judgment appealed from; this ground of objection appears to be fatal to the appeal. Cox v. Rees, 16 L. 109. Garcia v. His Creditors, 3 R. 436. Duggan v. De Lizardi, 5 R. 224. Bludworth v. Hunter, 9 R. 256. Oliver v. Williams, 12 R. 180. Cummings v. Erwin, 14 An. 315.

It is, therefore ordered, adjudged aud decreed, that the appeal taken in this case be dismissed at the costs of the appellants.


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

text:
    V. V. Esneault v. W. H. Cooley, Tutor.
    The husband has a vested interest in the dowry of his wife. He enjoys it as long as the marriage lasts, and is entitled to its administration exclusively. He is subject to all the obligations of the usufructuary. The property of dotal immovables, whether valued or not, can never be transferred to the husband even by express agreement; not only during the marriage, but by the marriage, contract; aliter as to movables and slaves.
    The husband, therefore, cannot become, even at forced sales, the adjudicatee of the wife’s dotal immovables, to her prejudice j and if he docs so purchase, the sale mures to her benefit and the property remains dotal; he becoming her creditor for the amount thus disbursed on her account out of his own funds.
    The waiver of the advertisement deprives the sale by the Sheriff of itsfcharacter of a formal sale.
    Appeal from the District Court of the Parish of Point Coupee, McVea, J.

      F. H. Farrar, for plaintiff. Defendant pro se.

   Voorhies, J.

The title to a plantation^ is tin dispute between the plaintiff, Victoire V. Esneault and her children, the forced heirs of their deceased father, S. A. LaCoste.

It is eontended on behalf of the widow, that the’alienation of this property, which was dotal, did not divest her title, because the adjudication was made to her husband.

At the time the marriage contract was executed, the property in question was mortgaged in favor of a third person, and the future husband was a surety for the principal obligation. Several months after the celebration of the marriage, the plantation was seized and sold to pay the debt. There was a waiver of the publication of the forced sale; and, S. A. Lacoste became the adjucatee, for a price equal to nearly one-tenth of the value of the thing. The adjudication was made for a sum exactly sufficient to cover the capital of the debt, with interest and costs.

It is evident that, if the husband can ever become the purchaser of dotal im-moveables belonging to his wife, he cannot do so by private sale, C. C. 2421. The question is, then, narrowed down to the case of a forced or judicial sale.

There is, in the case of Rowley v. Rowley, 19 La. 575, an obiter dictum assimilating the forced sales of the wife’s paraphernal and dotal property. Reference is thereupon made to article 2341 of the Civil Code.

Now this article declares that, “ Such immoveables may be likewise sold, with the authorization of the Judge, at public auction, after three advertisements or publications in the usual places, or in the newspapers, for the purpose of paying the debts of the wife, or of those who settled the dowry, when such debts are of a certain date prior to the marriage contract.”

It is not, however, under this text, that the creditor derives his right to cause the property to be sold, because, and more especially so in the case of mortgage debts, the right of seizure and sale is paramount to the. very contract of marriage constituting the dowry. This article merely enables the spouses, with the sanction of the Judge, to alienate dotal property with a view of paying antecedent liabilities. And this forms an exception to article C. C. 2337, which forbids the husband and wife, jointly or severally, from alienating or mortgaging, during the marriage, immoveables settled as dowry.

This faculty to sell does not enable the husband to purchase : and, in order to do so, he must derive the right from some other source. It is argued that, in as much as he may, at Sheriff’s sale, acquire the paraphernal property of his wife, there is no reason in law why an exception should be made in the forced alienation of dotal immoveables.

This argument loses a great deal of its weight when it is considered how widely different are the rights and obligations of the husband in reference to both species of property.

The husband has a vested interest in the dowry. 0. C. 2317, 2329.

He enjoys it as long as lasts the marriage. 0. 0. 2327.

He is entitled exclusively to its administration., C. 0. 2330.

He is subject to all the obligations of the usufructuary. 0. C. 2344, 575-581.

And, says 0. 0. 2335, “ The property of dotal immovables, whether valued or not, can never be transferred to the husband, even by express agreement.

The defendant’s counsel say that the prohibition, contained in the last quoted article, applies only to such transfers as may be made by the marriage contract, because this article is found in the section which treats of dowry or marriage portion, and in the midst of other articles providing for the transfer of snch property to the husband by the marriage contract. But, upon considering in reference to each other all the different rules laid down in that section as regards the alienation of dotal property previous to, and during the marriage, we conceive that the meaning of article 2335 is, that the husband can never become the ownér of the dotal immoveables, not only during marriage, but by the marriage contract. In other words, the prohibition extends, as regards immoveables, even to their acquisition by the marriage contract, whilst the rule is reversed in this respect as to moveables and slaves, which may be so acquired by the husband. Decuir v. Lejeune, 15 A.

The husband, therefore, cannot become, even at forced sales, the adjudicatee of the wife’s dotal immoveables to her prejudide; and, if he does so purchase, the sale inures to her benefit, and the property remains dotal. Toullier, vol. 14, sec. 218, 219. He becomes her creditor for the amount thus disbursed on her account out of his own funds.

Judgment affirmed.

Merrick, C. J.

I concur in the decree in this case, but I am not prepared to assert that the husband cannot in a proper case purchase the dotal effects of his wife when sold at Sheriff sale at the suit of a creditor who has obtained judgment upon a debt of a date anterior to the marriage. C. C. 2341. See Rowly v. Rowly, L. R. 575.

But in the case at bar I am of the opinion that the wife was not divested of her property for two reasons : 1st. Because the husband and wife could not sell the dotal property without the authority of justice, and as a consequence, they could not waive the formalities required by law for a forced sale. Hence the waiver of the advertisement deprived the sale of its character of a formal sale. 2d. The bid lor the exact debt and the want of registry of the deed show that it was rather an arrangement of the debt than a forced sale of plaintiff’s property.