text:
    John A. P. Maples et al. v. Mitty and Sarah, f. w. c.
    Children to the extent of the legitime are not considered as heirs, but as creditors of their father’s estate. They are entitled to the revocatory action only for the enforcement of their legitime, beyond that they are mere ordinary heirs and cannot be heard to allege the turpitude or defeat the judicial confession of their father. Yide Succession of Trimmett, decided in 1854, opinion book 24, page 323.
    APPEAL from the District Court of St. Tammany, Watterson, J.

      ff. S. Lacy, R. A. Upton, and Martin & Childress, for plaintiffs.

      A. Hennen, and J. R. Jones, for defendants and appellants.
   Buchanan, J.

This is a suit instituted by the children and forced heirs of Nathaji Maples, deceased, to set aside sales, made by the said Nathan, of the defendants in the cause, to one Jenny Broxton, their mother, as being simulated and in fraud of plaintiffs’ rights as- forced heirs. By a supplemental petition, the plaintiffs moreover pray that the emancipation of the said Jenny Broxton, and of her husband, Phillip Broxton, made many years before the sales of defendants to Jenny, be also revoked and set aside for the same reasons.

The question of the validity of the emancipation of Jenny Broxton and Phillip Broxton, cannot be considered by us. Both of those persons were dead at the time of the institution of the suit; and, even supposing that the action granted by Article 100 of the Civil Code, to revoke an emancipation made in fraud of the portion reserved to forced heirs, may be instituted after the death of the person emancipated, which we doubt, yet no issue has been joined upon this portion of the case, by any person claiming capacity to represent Fhillip or Jenny Broxton.

The defendants except to the action, “because the same is disrespectful to the memory of the father and mother of plaintiffs, and such action cannot be sustained or allowed in a court of justice, as it casts a stain upon the character and reputation of their ancestors.”

It is viewed by us as settled, that the children of the deceased, to the extent of the legitime, are not considered as ■ heirs, but as creditors of their father’s estate (Rachal v. Rachal, 4 An. 500); and that the law gives to the children the revocatory action, only for the enforcement of their legitime. Succession of Tritnmell, decided in December, 1854, but not reported.

In tlie last mentioned case, the language of the court, through its organ, Chief Justice Slidell, was as follows :

For their legitime, they are, in legal Contemplation, creditors. Beyond it, thej'' are mere ordinary heirs, and as such cannot bo heard to allege the turpitude, or defeat the judicial confession of their ancestors.” Opinion Book 24, page 323.

In the present case, tlie verdict of the jury affirms the simulation of the two sales from Nathan Maples to Jenny Broxton, set forth in the petition, namely: 1st. That of defendant Mitty and her child Joseph Robigo, on the 21th October, 1831 ; and, 2d, that of defendant Sarah and her three children, Arabella, Susan and Mary Jane, on the 31st January, 1840.

With regard to the first of these sales, the record does not enable us to say, with confidence, that the conclusion of the jury was erroneous. There was a conflict of testimony; and in such cases much weight is due to the jury’s appreciation of the credibility of the witnesses who testified before them, and who were personally known to them.

Supposing the sale of Mitty and her child to have been simulated, we are next to inquire, (under the ruling in the case of Trimmell’s Succession,) whether the said pretended sale prejudiced the plaintiffs’ legitime. On this point, Abraham, Penn, a witness of plaintiffs, testifies that Mitty and her child were worth, in his opinion, from eight hundred to one thousand dollars, in 1831; and John A. P. Maples, one of the plaintiffs, examined as a witness on the same side without objection, estimates the value of Mitty and her child, at the time of the sale, at one thousand dollars. Nathan Maples, the father of plaintiffs, died in 1841. His inventory is in evidence, and shows him to have been possessed, at the time of his death, of property to the amount of three thousand one hundred and thirty-eight dollars. It is not shown that his succession owed any debts.

Prom these facts, we conclude that the value of Mitty and her child did not equal the disposable portion of Nathan Maples’ estate, being one-third of the same; and, consequently, that plaintiffs cannot revoke the sale of Mitty by their father, on the ground of simulation.

As to the sale of Sarah and her children, we are of opinion that the evidence disproves the charge of simulation. The consideration of that sale, expressed in the deed, was “ eight hundred dollars, all cash in hand well and truly paid, the receipt of which is hereby acknowledged, and acquittance granted therefor.” On the same day, (31st of January, 1840,) and before the same notary, (the parish Judge of the parish of St. Tammany,) on which and before whom the sale of Sarah, from Nathan Maples to Jenny Broxton was passed, the vendee, Jenny Broxton, made a sale to Mrs. Mao'y Maples, wife of Nathan Maples, and by him authorized, of two lots of ground in the town of Covington, with all the buildings and improvements thereon situated,” for and in consideration of the sum of eight hundred dollars, all cash in hand paid, the receipt of which is hereby acknowledged by the said vendor and an entire acquittance and discharge granted therefor.” The price of the lots sold by Jenny Broxton, and that of the slaves purchased by her, thus appear to be identical; and the probability is, that the transaction was in reality an exchange of the slaves for the lots, although the vendor of the slaves was Nathan Maples, and the vendee of the lots was Nathan Maples' wife. Por Mrs. Maples was a party to the sale by her husband, for the purpose of renouncing her mortgages and privileges; and Nathan Maples, as we have seen, was a party to the sale of the lots, for the purpose of authorizing and assisting his wife to make the purchase.

The lots thus sold appear to have been treated in subsequent proceedings, as Nathan Maples' property, with his wife’s acquiescence. As such, they were inventoried; and were subsequently purchased by his widow, at the probate sale of his effects, for the price of their estimation in the inventory, six hundred dollars. The title of Jenny to the lots thus sold by her, is proved by other evidence in the record. There is no doubt, therefore, of the reality of the sale of the said lots by Jenny. It is true, that they are shown to have originally cost Jenny only one hundred and twenty dollars, and that the same lots were subsequently adjudicated to Mrs. Halsey, at the probate sale of the effects of Mrs. Mamy Maples, for one hundred dollars. But these variations of the market value of the lots, do not avail to make out the case of plaintiffs. Granting that Nathan Maples and his wife gave much more for the lots than they were worth, yet lesion is very different from simulation. The plea of ulation denies the reality of the sale. It does not seek relief on account of the inadequacy of the consideration. Here, the proof leaves no doubt on our minds that there was a real Iona fide consideration for the sale of Sarah and her children, passing from Jenny Broxton to Nathan Maples.

It is, therefore, adjudged and'decreed, that the verdict and judgment appealed from be reversed; and that there be judgment in favor of defendants; the plaintiffs and appellees to pay costs of both courts.

Merrick, C. J., declined taking part in the decision of this case.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    Edward S. Bodett v. William Lees & Co.
    The mere delay to make payment of the amount of an award, when the debtor has taken no steps to set it aside and has not denied its obligatory force, and when no formal demand upon him to enforce it has been made, will not subject the debtor to the payment of the stipulated penalty in addition to the amount of the award.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      P. E. Bonford, for plaintiff,

      J. Q, A. Bellows, for defendants and appellants.
   Merrick, O. J.

This suit is brought upon the following award and agreement, viz:

We, John MeOlain and Jonn G. Poindexter, chosen as arbitrators by William Lees & Go., of this city, and Edward T. Bodett, also of this city, after a full and impartial examination of all the points of difference between said parties, and taking into consideration the whole subject-matter thereof, agree that the following statement, made by us, shall he considered as final and just, and recommend that the parties accept tlfe same, and let it be the end of said controversy.

New Orleans, April 16t7i, 1855,

William Lees & Go.

To Edward S. Bodett, Dr.

To this, admitted by your acceptances.................., $115 3Q

To full pay, as per contract for one month................. 125 00

To this amount, for levee expenses...................... 80 OO

To this amount, for expenses and time while sick.......... 47 20

Total........ $817 50

Having agreed to the above, we hereunto sign our names in our aforesaid capacities, on the 16th day of April, 1855, at the city of New Orleans.

[Signed] John McClain.

“ John G-. Poindexter.

“ We hereby hind and obligate ourselves, our heirs, and asaigns, each to the other, in the just .and full sum of two hundred and fifty dollars, lawful money of the United States, to agree to, and be bound by, the decision above rendered by the arbitrators as chosen by us.

[Signed] Edward S. Bodett.

“ William Lees & Co.

New Orleans, April 16th, 1855.

! u • ;.j)ai niff b: ;.cUii: ion *o hi-'. d 'mand for the amount of the v.v vd, ,>!lc, cs, tno -..(tin ' ' ,• o a- and neglected to pay petitioner the r.’iu nt .!-■ ■- :-d j,M .> ;i idth'hm iiag their obligation so to do: and r'c.-. no ucmue . h-;i -reO)’ 5'■ -' hire become indebted to petitioner in the furl'- umof Uvc'hundred er = Civ dollars, -he penalty fixed by said bond a:'. 1: .. :‘hid dama'-'

T. nefondnntii u'.mil tlu: correr ipr: of plain,ills’ demand for the amount, of the award, and plead the want of an amicable demand for the same, and deny all the other allegations of the petition. The court having sustained plaintiffs’ pretensions the defendant has appealed.

The testimony does not show, that any demand had' been made upon the defendants to pay the award previous to the institution of the suit. Even if such demand had been made we are by no means prepared to say, that the mere neglect of the defendants to make payment would have rendered them liable for both the award and the penalty.

Art. 1929, O. 0., declares, that “ The damages due for the delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

Art. 2121, “The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He cannot demand the principal and the penalty together, unless the latter be stipulated for mere delay.”

And by Art. 3073, O. 0., it is announced, that “It is usual to undergo (impose) a penalty of a certain sum of money in the submission which the person w.ho shall contravene the award, or bring an appeal therefrom, shall he bound to pay to the other who is willing to abide by it: but this covenant is not obligatory, (essentielle,) and the submission may subsist without the penalty.”

By Art. 3097, it is provided, that if a party appeals from the award he should first pay the penalty, but if he reverses the same on the appeal, the penalty shall ho refunded him, but not if the award is affirmed.

In view of all these provisions of law we think it is clear, that the plaintiff has neither alleged nor proven a sufficient ground upon which the penalty of the bond can be declared forfeited. The defendants merely “ bound and obligated themselves,” under the penalty, “ to agree to, and he hound by, the decision rendered by the arbitrators.” They do not appear to have taken any steps to set aside the award, nor have they denied its obligatory force. Their delay to make payment, at least without a formal demand upon them, eatsnot be construed into such a forfeiture.

So much, therefore, of the judgment of the lower court as gives the plaintiff the penalty in addition to the award is erroneous.

The want of an amicable demand is not urged in this court as a ground of reversal of the judgment as to the costs.

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 this court, that George Edwards, curator of the succession of Edward S. Bodett, deceased, do have and recover judgment against the defendants, William Lees and Maxwell Felton, in solido, for the sum of three hundred and seventeen dollars and fifty cents, with legal interest thereon from the 10th day of April, 1855, until paid; the plaintiff and appellee paying the costs of tlie appeal, and the defendants the costs of the principal demand hi the lower court, the costs of the sequestration having been disposed of by our former decree.


author: Merrick, C. J.

text:
    Britton Bennett v. J. H. Wheeler.
    The Board of Underwriters in New Orleans being a body composed of private individuals, without being incorporated, and through their treasurer having received on deposit money to which the plaintiff was entitled, it was held: that a suit to recover the money could be maintained against the treasurer in his individual capacity.
    APPEAL from the Fifth District Court of New Orleans, Augvstin, J.

      T. TF. Gollens, for plaintiff.

      M. M. Cohen, for defendant and appellant.
   Merrick, C. J.

The defendant acts as the secretary and the treasurer of the Board of Underwriters in this city. Ho is also a member of such board as well as secretary of the Home Mutual Insurance Company. The objects of the formation of the Board of Underwriters is stated by the president, who was examined as a witness in this case, to be, “ To establish uniform rates of premium ; that uniform policies may be issued; that uniform usages and customs of the port may be established; for the establishment of agents at home and abroad ; to control generally the underwriting of New Orleans; to receive salvage money by consent’, and to distribute it.”

The plaintiff having the sum of $982 50 in the hands of C. P. Bennett, his brother, deposited it with Messrs. Cleveland, Brothers & Co. of this city.

It appears that the plaintiff had been second clerk on the steamboat T. P. Leathers, and had obtained this money, or the principal part, by salvage of cotton thrown overboard at Tompkins’ Bend in 1854, to save the T. P. Leathers from sinking. The plaintiff was discharged at the time of the accident, it seems, to enable him to remain and save the cotton and claim salvage: the steamboat, which was barely able to keep afloat, having proceeded to New Orleans for repairs.

C. P. Bennett was the captain and owner or part owner of the T. P. Leathers, and had a claim for insurance against the Home and Sun Mutual Insurance offices. Being informed that the insurance companies would not settle with him unless the money was paid over, ho directed Cleveland, Brothers & Co. to pay over this money to the defendant. They, without doubting C. P. Bennett's authority lo direct the payment, complied with the request.

Under the direction of the president of the Board of Underwriters, or some other member of the same, the defendant gave the following receipt, viz:

New Orleans, December Aih, 1854.
“Received of Messrs. Cleveland, Brothers & Co., nine hundred and thirty-two dollars and fifty cents.
$932 50.
[Signed] James H. 'Wheeler,
Secretary of the Board of Underwriters of Pm Orleans."

The defendant, as the treasurer of the Board of underwriters, it appears, has the money still in his possession. The present action is brought against him individually, to recover back the sum of money deposited with him by Messrs. Cleveland, Brothers & Co. (as plaintiff alleges) without authority.

We understood the defendant’s counsel in his oral argument to waive the question, whether the plaintiff could, after his alleged discharge as clerk, claim salvage on the cotton saved by him. The money, it is clearly shown, was deposited with Cleveland, Brothers & Co. by the plaintiff. Now, in a controversy between the plaintiff and the defendant, or the Board of Underwriters, for this sum of money, it is difficult to perceive by what argument they can successfully contest the right of the plaintiff to the fund. If it should turn out that the plaintiff is bound to refund any portion of the money to any other person, as improperly received by him, it would be no answer to such demand, that -plaintiff’s agents had improperly deposited it with the Board of Underwriters, who refuse to surrender the same. Plaintiff would in such case be bound to answer for the conduct of his agents.

The question then which presents the only real difficult}*-, as we conceive, is whether the suit can be maintained against the defendant in his individual •capacity? Were the Board of Underwriters an incorporated company, and the defendant only acting as the secretary and treasurer of such incorporated Company it is most clear, that the action could not be maintained in its present form. And it is possible that if the Board of Underwriters had in this transaction considered themselves as the mere agents of the Home and Sun Mutual Insurance Companies, an'd placed this sum of money to their credit, that the action could not have been maintained without a demand first made upon those companies and without making them parties to the suit.

But, as the case now stands, wo find the Board of Underwriters to be a body composed of private individuals, who undertake to act as quasi agents for the benefit of several insurance companies in matters principally commercial. We do not understand their acts to be binding upon the companies except so far as special power is granted, or their acts p.re ratified. They appear to maintain a separate organization, having a distinct treasury, and are maintained by voluntary assessment upon the companies for which they assume to act. In the instance before us they have departed from their usual line of duties, and received a sum of money from a third person on deposit: for it is not pretended, that the Board of Underwriters themselves have any claim to this fund.

The president of the board, who is also president of the Cresent Mutual Insurance Company, says, that “He does not set up any claim to this money, tior does the office he represents.” Did the Home and Sun Mutual Insurance companies conceive that they had any valid claim they would doubtless have intervened in these proceedings.

In regard to all business transacted by the Board of Underwriters in which they do not assume to act as agents, and which have not the express sanction of the respective insurance companies recognizing them as their agents, and particularly in the receipt of this sum of money, in which their agency is not apparent, they must be considered as partners. Whether they are to be considered as commercial partners, and hound in solido as such, or not, we do not think it important further to inquire: for if it be conceded, that the other partners have equally with the defendant received the irregular deposit, Art. No. 2928, C. 0., binds each of them to restore the same.

The fact, therefore, that the defendant acted as secretary and treasurer as well as a member of the Board of Underwriters, cannot relieve him from responsibility. If he be not responsible as secretary and treasurer, he is responsible as a member of the board; and, being treasurer, he will not find it difficult to free himself from liability by restoring the money, which he has in possession, to him who appears to be the legal owner.

Judgment affirmed.


author: Spofford, J.

text:
    R. W. Rayne v. David Taylor & Co.
    Entries made by a Clerk in his employer’s books, are prima facie evidence in favor of the former against the latter, when it is shown that the books were annually examined by the employer and that balance-sheets were semi-annually furnished to him, which embraced the disputed items.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      O. B. Singleton, for plaintiff.

      Bwant & Hornor, for defendants and appellants.
   Spofford, J.

There was no error in overruling the peremptory exception. There were no partnership accounts to settle, and it was competent for the plaintiff to demand the balance due him on the “loan account” merely. If there had been any equally liquidated sum due by the plaintiff to the defendant on other accounts, it might have been pleaded in compensation.

The reconventional demand was unconnected with the main action, and was properly disregarded.

It being proven that the books kept by the plaintiff’s son were annually examined by the defendant, who .spent a portion of his time each year in New Orleans, and that balance-sheets, including the account sued upon, were forwarded to him semi-annually, we think there was no error in admitting the books in evidence. The defendant appears to have found no fault with the entries when they were communicated to him. Coupled with the oral testimony they make out a prima facie case for the plaintiff, which has not been rebutted by evidence on the part of the defendant.

There was error in allowing interest at the rate of eight per cent., in the absence of a legal contract to that effect.

It is, therefore, ordered, that the judgment of the District Court be so amended as to reduce the interest upon the principal sum therein awarded, from eight per cent, to five per cent, per annum, and that, as thus amended, the said judgment be affirmed; the costs of this appeal to be borne by the-plaintiff and appellee.

Merrick, C. J., not present at the argument, took no partin the decision.


author: Buciianan, J.

text:
    John S. Spencer v. Thomas and Charlotte Banister.
    Where in a suit to enjoin a seizure of property as illegal and to recover damages, the judgment maintaining the injunction is silent as to damages, it is equivalent to a rejection of the claim for damages, and will sustain the plea of res judicata, in a subsequent suit for damages.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      8. L. Woold/ridge, for plaintiff.

      Durant & Mornor, for defendants and appellants.
   Buciianan, J.

The plaintiff having hired a house of the defendant, Charrlotte Banister, at the rent of seventy-five dollars per month, payable monthly, became indebted in two months rent, which he neglected to pay; and defendant sued out a writ of provisional seizure in the Pourth District Court of New Orleans. Plaintiff, by a separate action in the same court, enjoined the execution of the writ of provisional seizure, on the ground that the Sheriff had seized and taken into possession under the same, the instruments, tools and furniture necessary for the carrying on of his profession, also of his bed and bedding, &c., all which plaintiff alleged were exempt by law from seizure; wherefore he prayed that the injunction be perpetuated, and for damages in the sum of five hundred dollars against said Charlotte Banister, for the illegal seizure. After hearing evidence upon this petition, the Pourth District Court rendered, on the 23d of Ajiril, 1855, the following judgment:

“It is adjudged and decreed, .that the injunction be maintained, so far as tho same applies to the articles above mentioned, and that the said injunction he dissolved and dismissed as regards any other articles seized, the plaintiff paying costs of suit.”

It will be observed, that this judgment, although it partially perpetuates the injunction, awards no damages as claimed. On the 15th of May, 1855, being eighteen days after the signature of the judgment of the Pourth District Court just recited, the plaintiff brought the present action in the Sixth District Court of New Orleans, claiming three thousand dollars damages for an illegal seizure of his bed and bedding, and the tools and implements by which plaintiff gains a livelihood, “ which by law are exempt from seizure and sale.”

The seizure mentioned in this petition, is tho same which was tho subject o" the injunction in the Pourth District Court. The plea of res judicata put in by tho defendant, Chm'lotte Banister, to the present action, should have been maintained by the court below. The silence of the judgment of the Pourth District Court upon the plaintiff’s claim for damages for the same seizure, was equivalent to a rejection of that claim. Delahaye v. Pellerin, 2 Mart. 142; Robertson v. Penn, 2 La. 61; Williams v. Painpade, decided in December, 1855, and not reported. See Opinion Book 25, p. 463.

The difference in the amount of damages claimed in the present action, from that previously claimed, is of no consequence. The cáuse of action is substantially the same; an illegal seizure of effects exempted by law from' seizure.

As to the defendant, Thomas Banister, ho seems to have merely appeared in the suit for rent, to assist and authorize his wife, for whose behoof alone judgment was prayed, and who made the affidavit for the provisional seizure.

Judgment reversed, and judgment for defendants, with costs in both courts.


author: Spoffobd, J.

text:
    W. B. Partee, Trustee, &c. v. Succession of H. R. W. Hill—Mrs. Mary R. Lester, Intervenor.
    The appointment by will of trustees to receive a sum of money bequeathed by the testator and to pay the interest on it annually to the legatee, will be disregarded if thejegatee refuses to aoquiesce in the creation of such an'agency.
    The legatee under such a disposition, is capable of standing in court and directly demanding payment of the legacy.

      .Fidei-eommissa, the trusts of the English law, cannot be created in Louisiana and enforced in our courts.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      L. Ehmton, for plaintiff and appellant.

      O. T. Estlin, for defendant. J, 3. Brickell, for intervenor.
   Spoffobd, J.

The late James Pick made the following bequest in his last will:

“ I give and bequeath to my niece Mary R. Todd, wife of Sterling H. Lester, and to her heirs, forty thousand dollars, and appoint as trustees, to invest the same and pay to her after receipts thereof, the interest annually, my friends James Lea MeLane and Willia/m B. Pa/rtee, or either of them, in case of resignation or death of the other.”

By another clause of the will, the legacy was not demandable until seven years had elapsed after the testator’s death.

That time having expired, and MeLane, one of the persons named as “ trus. tees,” having resigned or declined to act, Partee brought this suit against the representative of Pick's succession, for so much of the legacy as he averred to be due to Mrs. Mwy R. Lester. That lady, assisted by her husband, intervened in the suit, and denied the right of the trustee, Partee, to claim the sum bequeathed to her, averring that he had become wholly insolvent, and that the clause of the will appointing- him trustee was void by the provisions and poli, cy of our law. She claimed a judgment in her own fayor for the fund sued for by Partee. Her pretensions were sustained in the lower court, and Par-tee has appealed.

It is clear that the bequest was to Mary R. Todd, wife of Sterling 3. Lester, and her alone. No interest in this legacy was to vest in any one else. If the clause referring to the trustees be considered as mandatory, in other words, as a condition or mode clogging the title of Mrs. Lester, then it is void, and must be considered as not written. New titles cannot be invented by testators. Absolute ownership bequeathed to a specific person, cannot be crippled by the appointment of supervisors of a class unknown to our laws, who shall, for the period of their natural lives, keep the owner out of possession against his will, and manage for him what ho is capable of managing for himself Eidei-commissa, the trusts of the English law, cannot be created in Louisiana and enforced in our courts. C. C. 1507, 1500; Clague's Widow v. Clague's Executor, 13 La. 7; Harper v. Stanborough, 2 An. 381; Succession of Franklin, 7 An. 412.

If the clause concerning the trustees he regarded as advisory merely, it need not be expunged from the will. If the legatee had chosen to avail herself of the testator’s recommendation, Partea might have sued; for her acquiescence would have made him her agent, and he would have derived his powers from her, not from the mere force of the testator’s will. We have expressed our views upon this subject in the case of the Society for Orphan Boys v. New Orleans, 12 An. 63.

But as she repudiates his authority, he is acting against his principal and cannot be heard; the will gave him no such interest in this legacy as would entitle him to demand it against the remonstrance of the party to whom it was bequeathed. She is capable of standing in court, and the judgment in her favor s' b" » naued.

Judgment affirmed.

Mekkkik, O. j., took no part in the decision of this cause, not having heard the argument.


author: Spokford, J.

text:
    Charles Fonda, Dative Testamentary Executor, v. G. L. Broom and D. N. Hennen.
    In a suit for damages where one of the defendants is charged with aiding and abetting the other in the commission of a wrong or injury, he has a right to demand a severance, and trial by jury.
    from the Sixth District Court of New Orleans. Tried by a Jury before Cotton, J.

      Dmant & Honor, for plaintiff and appellant.

      Benjamin, Bradford. & Finney, for defendant Hennen, appellee.
   Spokford, J.

So far as the defendant Hennen is personally concerned, this must be regarded as an action in damages against him for wilfully aiding Geo. L. Broom, as executor of the will of Samuel Broom, to waste the estate and defraud the heirs and creditors.

Under such allegations as those made in the petition, and the separate answer of Hennen, there was no error in permitting a severance or a trial by jury as to Hennen, who is the only appellee. The discretion of the District Judge in this matter was not restrained by any arbitrary rule in the Code of Practice.

An examination of the record has not enabled us to say, that the jury and the court below erred in concluding that the charges of fraud and mal-practice against the appellee were insufficiently proven.

Judgment affirmed.


author: Spoffokd, J.

text:
    Municipality No. 1, Praying for the Opening of Bienville Street, v. Laurent Millaudon.
    The confirmation of the tableau of assessment against property owners for their share of the benefit conferred by opening and improving streets, will not authorize the ordinary writ of Ji. fa. to be issued against the party assessed.
    The statute regulating that subject specially prescribes the mode of procedure, and being in derogation of the ordinary rules of practice should, therefore, be strictly pursued.
    APPEAL from the Eifth District Court of New Orleans, Augustin, J.

      Parker & Davis, for plaintiff and appellant.

      Benjamin, Bradford & Finney, for defendant.
   Spoffokd, J.

Proceedings were taken under the Act of March 30, 1832, p. 131, to open and improve Bienville street, in the city of New Orleans. In pursuance of the provisions of that statute, the report of the commissioners, assessing various sums against the appellee, Millaudon, for his share of the benefit conferred by the improvement, was duly “ confirmed.”

The appellants then took a rule on Millaudon to show cause why execution should not issue against him for the sums thus assessed; and they have taken this appeal from a judgment dismissing the rule.

The question whether execution will issue upon a confirmed report of commissioners in regard to the opening and improvement of streets, as upon money judgments, is to be solved by the terms of the Act of 1832. That Act provided an entirely new and artificial method of procedure, in derogation of the ordinary rules of practice. The Act, therefore, should be strictly pursued. We find ho warrant in any of its sections or provisions for the position assumed by the appellants, that the confirrriation of the tableau of assessment by the court, will authorize the ordinary writ of fi. fa. to be issued against a party whose proportional contribution is assessed by the report. On the contrary, a different mode of procedure upon the confirmation of the report, is specially prescribed and must be followed. Section seventh excludes the inference that execution was to issue upon the confirmed report as upon a judgment; it declares that the sums so assessed, “shall be borne, reimbursed and paid, together with six per cent, interest thereon from 30 days after the confirmation of saidreports, * * *” by the parties benefited; “ and the sums so assessed shall be a lien on the lands" as a mortgage, when recorded; “and the owners of said property shall also be liable in a personal action for the same” ; “ and the personal action and the action to enforce the privilege may be cumulated; and, in default of payment of the same,” or if the owners of the lots assessed be not found, “ the corporation may, by resolution, direct orders of seizure and sale to be sued out of the court by which said assessment was confirmed, against the property assessed as aforesaid,” &c., &c.

So, by the sixth section, the reciprocal remedy of the owner in who>.< favor an assessment has been made by the report against the city, after an unsuccessful application for payment, is to sue for and recover the same of the city, with six por cent, interest.

"We are not permitted to depart from the plain terms of such a statute as this, and, under the guise of construction, to give additional remedies in aid of its supposed objects.

Judgment affirmed,

Buchanan, J., took no part in this case.


author: Buchanan, J. Spoitord, J. Merrick, O. J.

text:
    S. J. Hoggatt v. Martha A. Gibbs, Tutrix.
    &UCHANAN, J. The testator, who lived in Mississippi, owned, besides his property in that State, a large real estate in Louisiana, worth $840,000. He bequeathed to his daughter, a married woman, $20,000, upon the express condition that she should renounce, within twelve months after his disease, all claims upon the property of his succession situated in Louisiana: failing in which, she should forfeit the legacy of $20,000. This sum wa> paid to her, and a deed of relinguishment executed by her in accordance with the requirements of the will. She received also the further sura of $25,000 from the property of the lather’s succession situated in Mississippi. Held: That the receipt of these sums did not amount to a valid ratification of the act of relinquishment of her claims upon the estate of her father situated in Louisiana; that this deed of relinquishment was without effect, whether tested by the law of Mississippi or of this State, if the law of the former State is to govern, the deed would be void for want of the acknowledgment of the grantor, a married woman, apart from her husband, before a Judge or Justice of the Peace, that she signed, &c., without threats or compulsion of her husband. If the Mississippi statute, prescribing these formalities, be laid out of view, the general principle of the common law, which prevails in Mississippi, that a married woman being considered mbpoieéaie HH, can, in general, do no act to bind her, Would render this deed equally inoperative. 2. If the deed of relinquishment be judged by the law of Louisiana, it is equally void, as not having a lawful purpose. The testator left three children, who are his forced heirs, as to his real estate and slaves, situated in Louisiana, and the clause of his will requiring one of them to relinquish her lawful claim as heir to one-third of his Louisiana property, exceeding in amount to $100,000, on receiving $20,000 cash frotn his executors, under the penalty of being completely disinherited, waá contrary to law, and, therefore, not a valid cause or consideration for the deed of relinquishment. The two sums of $20,000 and 25,000 must be viewed simply as so much received by her on account of her inheritance, and which she may be bound to collate.
    StOFFOkn, J., concurring. Held : That in so far as the deed of relinquishment affected property situated in Louisiana, its force and effect must be determined by the law of this State, but expressed no opinion upon the validity of the deed, under the law of Mississippi.
    Merrick, O. J., also concurred in the opinion of Buchanan, J., hut did not consider it clear that the deed of relinquishment should be considered as void; and doubted whether this deed should, be set aside without plaihtiffs órst tendering to the defendants the $45,000 which was received as its consideration out of the Mississippi estate, and which the testator hada right to withhold from his daughter.
    APPEAL from the District Court of Madison, Ewrrar, J.

      G. Eustís and II. Gaither, for plaintiff and appellant.
    <7. Eoselius and A. Snyder, for defendant.
   Buchanan, J.

The defence to this action consists of the following exceptions ; upon which the cattse was dismissed in the District Court:

1st. That plaintiff is estopped from maintaining this action, because his mother, Mrs. Agnes WilUamis, through whom he claims, did, on the 22d of April, 1854, make a full ratification of her deceased father’s will, and renounced all claim to the property mentioned in the petition.

2d. That plaintiff’s mother received the legacy of twenty thousand dollars bequeathed by her father, and thereby x’atified the will.

3d. That plaintiff’s mother again ratified the will of her father by receiving, in accordance with the terms thereof, her proportion as residuary legatee, to wit, the sum of twenty-five thousand dollars.

4th. The plaintiff’s action of rescission on account of lesion, is barred by the prescription of one year.

Upon the first of these exceptions the question arises, whether the form and effect of the deed of relinquishment and quit claim of the 22d of April, 1854i are to be governed by the law of Mississippi or of Louisiana.

The deed was made in Mississippi; and it was intended to have effect both in Mississippi and in Louisiana — in Mississippi, because both the grantor and the grantees (the children of Anthony Eoggatt) resided in Mississippi; and in Louisiana, because the thing conveyed or relinquished by the deed, was an interest in land, &c., in Louisiana.

If the law of Mississippi is to govern, the deed would be void for want of the acknowledgment of the grantor, a married woman, apart from her husband, before a Judge or Justice of the Peace, that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any threats or compulsion of her husband. See Hutchinson’s Digest, page 608. And if it be objected that the Mississippi statute here quoted, refers by its terms only to lands lying and being in that State, yet it seems to be a general principle of the common law which prevails in Mississippi, that a married woman can, in general, do no act to bind her; she is said to be sub potestate viri, and subject to his will and control. 1 Peters, 339. That law presumes a feme covert to act under the coercion of her husband, unless before a court of record, a Judge, or some commissioner in England, by a separate acknowledgment out of the presence of her husband ; and in these States, before some court or ju. dicial officer authorized to take and certify such acknowledgment. 12 Peters, 375.

And if the relinquishment and quit claim of the 22d of April, 1854, be judged by the law of Louisiana, it is equally void. Eor that law requires that every contract should have a lawful purpose or motive. Civil Code, x\rt. 1772. An obligation without a cause, or with an unlawful cause, can have no effect" O. O. 1887.

Now, the cause or motive of the contract in question is stated on its face to be, a provision or provisions in the last will of the late Nathaniel Eoggatt, the father of the grantor and the grandfather of the grantees, by which the said Eoggatt devised to the grantees, as surviving children of his son Anthony, his lands, slaves, &c., in Madison parish, Louisiana, which the record shows to be worth three hundred and forty thousand dollars, and to his daughter, Mrs. Agnes Williams, the grantor, a sum of twenty thousand dollars in cash ; and further, that if the said Agnes Williams should fail to make and deliver to said Nathaniel's executors, within one year after his decease, a deed relinquishing all her lawful claims to any share or portion of the property thus devised to the children of Anthony, then the devise in favor of said Agnes should enure to the testator’s son Anthony and his lawful children.

Nathaniel Eoggatt left three children, Anthony, Charlotte and Agnest Those three children were his forced heirs, as to his real estate and slaves, situated in the State of Louisiana. Civil Code, Art. 10. The clause of Nathaniel Eoggatt's will obliging Agnes to relinquish her lawful claim as heir, for or.c-third of his Louisiana property, which third exceeded one hundred thousand dollars, upon receiving- twenty thousand dollars cash, from his executors, under the penalty of forfeiting those twenty thousand dollars, and thus being completely disinherited, was contrary to law, and is, therefore, not a valid cause, motive, or consideration for the deed which is pleaded as an estoppel, in the first exception of the defendants. C. C. 1613, 1616, 1488, 1506.

The receipts, by. plaintiff’s mother, of the two sums of twenty thousand, and twenty-five thousand dollars respectively, which are pleaded by defendants in bar of this action, cannot have that effect, for reasons above given. They are to be viewed as so much received by Mrs. Williams, on account of her inheritance, and which the plaintiff may be bound to collate in the partition, that will take place between the parties. Indeed, so far as relates to the sum of twenty-five thousand dollars, paid to Mrs. Williams by the executors, as shown by her receipt, it was a distribution of property of Nathaniel Noggatt, not devised in his will at all; in relation to which he consequently died intestate.

Upon the fourth exception, this action is not viewed by the court as one of rescission of a contract for lesion. O. C. 1855; see also Art. 1870.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the exceptions filed herein be overruled, and the cause remanded to be proceeded in according to law; and that defendant and appellee pay costs of appeal; the costs of the court below to abide the final judgment on the merits. *

Spoitord, J.

In so far as the act executed by Mrs. Agnes Williams, on the22dof April, 1854, is to operate upon property situated in Louisiana, its form and effect is to be determined by the law of Louisiana alone. I, therefore, express no opinion upon the validity of that act under the law of Mississippi.

In all other respects, I concur in the opinion of Mr. Justice Buchanan.

Merrick, O. J.

. It is with groat hesitation that I yield to the decree in this case my concurrence.

As it respects this controversy, the effects left at the decease of Nathaniel Noggatt must be considered as forming two successions. The one subject to the laws of his domicil in Mississippi, and composed of his lands and slaves in that State, and such movables as might be considered dependant upon that domicil; the other, his real estate and slaves in Louisiana, governed by the laws of the latter State.

Over the first, he had full power by the laws of Mississippi, to dispose by will, and could give all or a part to strangers or his children, as he should see fit.

The bequest of $20,000 and the residuary legacy of $25,000, must be considered as coming from the Mississippi succession. Conceding, therefore, that the will contains a fidei comnissum prohibited by our law, I have doubts whether affairs had not arrived at that stage, at the time the authentic act was passed before the commissioner Wood, to admit of a valid ratification; and, further, whether the plaintiff canmow bo permitted to set aside the act without first tendering to defendant the $45,000 which his ancestor has received as its consideration out of the Mississippi estate, and which no law prevented Nathaniel Noggatt from withholding from his daughter.

These doubts I surrender to the clearer considerations of my colleagues.


author: Buchanan, J.

text:
    Lloyd Skannel v. S. W. Taylor.
    A general printed notice in the newspapers of the dissolution of a copartnership, is not sufficient to hind one who has had dealings therewith; such person is entitled, to special notice. Even if special notice is given, accompanied with the notification that certain persons will carry on the business, and settle that of the late commercial firm, these persons will be considered as agents of this firm for the settlement of its indebtedness,
    "Where a creditor of the former partnership drew on these persons (who continued the social style of the late firm) for account of a balance due him by the former partnership, and his drafts are protested for non-payment, and paid by the drawer super protest, a member of the former partnership who is sued for such balance, cannot maintain that there was a novation of the debt; the drafts are to be held as having been drawn on his agents by his authority.
    The possession of protested drafts by the drawer is prima facie evidence of their payment by him.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Olarh & Bayne, for plaintiff.

      J. B. & O. T. Bernias, for defendant and appellant.
   Buchanan, J.

Defendant was partner of a commercial firm with which plaintiff did business. During .-uch partnership, defendant’s house fell in debt to plaintiff. On the first of July, 1851, a notice of the dissolution of the partnership was published in the newspapers. In the same notice, it was stated that the business of the firm would he continued by the two persons named, “ who alone will settle that of the late partnership.”

The two persons named in the notice (neither of them being the defendant) used, it seems, the same social style as the previous house, which had incurred the indebtedness to plaintiff. Plaintiff, several months after the notice of dissolution, drew several drafts upon the house, which were accepted and charged to him in account current, but which were protested at maturity for non-payment, and paid by the plaintiff super protest.

Defendant being sued for the balance due plaintiff by his former house, pleads that the debt has been novated, by the acceptance on the part of the plaintiff of a new debtor, to whom he had delegated the payment of this debt by the notice of 1st July, 1851. There is nothing in the transaction amounting either to a delegation on the one side, or the acceptance of a delegation on the other.

A general printed notice in the newspaper of a dissolution of a copartnership, is not sufficient to bind one who has had dealings with the copartnership. Such a person is entitled to special notice. 3 Kent, 07; Story’s Partnership, §160; 7 Annual, 638; 22 Wendall, 194. And notice cannot be inferred in this case, from the fact of plaintiff’s drawing bills upon the new house, for the firm or social name was unchanged; and he might have supposed the partners were unchanged. But supposing direct and special notice brought home to plaintiff of the announcement given to the public through the newspapers, still the defendant’s case would be in no better a position. Eor that same announcement informed the public that certain persons (who afterwards chose to use the late social name,) would continue the business, and settle that of the late partnership. Eor the purposes of settlement of this debt and all similar ones, therefore, the persons named in the advertisement were constituted the agents of defendant, who withdrew from the firm ; and the drafts drawn by plaintiff afterwards, were drawn upon defendant’s agents by his authority.

The possession of the protested drafts by plaintiff, is prima facie evidence that ho has paid them to the payees or endorsees of the same.

Judgment affirmed, with costs.


author: Voobhies, J.

text:
    A. Beer & Co. v. Their Creditors.
    Xn a contestation between opposing creditors and the syndic of an insolvent, on their oppositions to the tableau of distribution filed by the latter, the decision of the court below on each of the claims in litigation, is a separate judgment belonging to the party in whoso favor it was rendered, and binding upon all parties who did not appeal from it; nor can such judgment be disturbed on appeal, unless the party having an interest to maintain it is made a party to the appeal.
    Creditors whose claims have been disallowed, cannot make themselves parties to the appeal without giving bond; the appeal bond given by the syndic, will not suffice to maintain the appeal on the part of such creditors; these creditors are alone aggrieved by the judgment disallowing their claims, and not the estate represented by the syndic. In conflicts between creditors in which the syndic is without interest, he cannot be permitted to interfere, and cannot maintain an appeal.
    1 PPEAL from the Sixth District Court of New Orleans, Sowell, J.

      Roselius, for the insolvents, appellants.

      Phillips and Race & Foster, for appellees.
   Voobhies, J.

Wilson G. Sunt & Go., Pierson & Dunn, Auguste Wetter, D. Kelha/m, and the Louisiana Mutual Insurance Company, creditors of the insolvents, opposed the tableau of distribution, filed by the syndic in this case, on the following grounds :

“1. Because the sum of $4,397 61 of the funds collected by the syndic has been wrongfully retained or diverted from the creditors in the two items $2,017 65, mostly for syndic’s expenses, and the item of $2,379 96, retained for sundry purposes.”
“2. Because the sum of $4,700 has been wrongfully retained by Edwan'ds & Fauchet. The proceeds of sale should bo put down at $9,300 50, instead of $9,590 50.”
“3. Because the syndic has wrongfully placed on the tableau about one hundred and twenty-seven names as creditors for various amounts, when in fact there are no other creditors of this insolvency than these five opponents. These opponents, therefore, aver that each and every one of the other creditors of A. Beer & Go. have compromised, or been paid such claim or claims as they may have had against the insolvents, and have ceased to be creditors thereof, and cannot share or participate in the funds in the hands of the syndic, to the prejudice of these opponents and their payment in full, with interest and costs.”

1st. On the first ground, the item of $2,017 65, was reduced to the sum of $1,179 53, and the one of $2,379 96 rejected.

2d. On the second, the court held that the sum of $4,710, instead of $4,700, was properly retained by 8. Friedlander, the holder of the notes secured by mortgage on the slaves sold by the Sheriff to him for that sum, in payment of said notcr.

3d. And on the third, the Judge a quo considered that it should “ be sustained as to all the creditors on the tableau, who had not appeared to establish their claims,” giving a list of those who had, &c.

The hilan of the insolvents exhibits a list of one hundred and thirty-two oreditors, whose claims amount in the aggregate to §314,201 70, and of whom only eighty-six appeared at the meeting and voted for syndic, &c. On the trial, according to the statement of the Judge, twenty-six of the creditors who appeared at the meeting and fourteen who did not, failed to appear and make proof of their claims.

An appeal from this judgment was granted to the syndic on his motion in open court, suggesting that there was error in the same, “ as well to the prejudice of the creditors of the insolvency as to himself as syndic aforesaid, upon his furnishiug bond and security conditioned as the law directs.”

On motion of Alfred Phillips, Esq., attorney appointed to represent the absent creditors, it was ordered that he should be permitted to join in the de- ' volutive appeal thus granted to the syndic.'

The syndic alone gave a bond of appeal with Ecmid Goodman as surety, leaving the obligee’s name and the title of the suit in blank.

The opponents, William G. Hunt '& Go: et al., have moved to dismiss^the appeal on three grounds:

“ 1st. That there has been no legal bond given by the appellants.
113d. What purports to be the appeal bond does not name the appellants and appellees, nor does it give the title of the suit in which judgment was rendered from which they appeal.
“ 3d. These opponents are in no wise parties to this appeal, having neither been cited or mentioned in the appeal bond, as appellees.”

It is clear that the decision of the court below upon each of the claims in litigation, must be considered a separate judgment belonging to the party in whose favor it was rendered, and binding upon all parties who did not appeal from it. 2 An. 546, Girod v. His Creditors. It follows then, as a consequence, that such judgment cannot be disturbed on appeal, unless the party having an interest to maintain the same has been made, a party to the appeal. In the case at bar, the syndic’s claim for commission, &e., has been reduced, as we have seen. This is a judgment in favor of all the creditors against him, which consequently cannot be disturbed, without making them parties to the appeal.

The creditors whose claims have been disallowed by’the judgment, are alone aggrieved by it, and not the estate represented by the syndic. In conflicts between creditors, in which the syndic is without interest, he cannot be permitted to interfere. Ferguson et al. v. Their Creditors, 19 La. 278; Kohn, Syndic, et al. v. Wagner et al., 1 R., 275; Pandelly v. His Creditors, 1 An. 22. In the present case, it would seem to us, that it ought to be a matter'of indifference to the syndic whether the claims of those creditors were allowed or not, the effect of which, if disallowed, would only result to the benefit of the others, and not to the detriment of the estate.

It appears to us clear, that the absent creditors whose claims have been disallowed by the judgment of the court below, cannot be considered parties to this appeal, as no bond of appeal appears to have been given by them.

As to the syndic, it appears to us also clear, that his appeal must be dis ■ missed on the ground, that all the parties having an interest in maintaining the judgment, have not been made parties to it. Even conceding that the bond thus given be binding upon him in favor of the opponents, still we do not think it could be so considered fas to the other creditors who have an interest in maintaining the judgment. This objection is considered fatal, and may be noticed, ex officio, at any time, even without any motion to dismiss, by the court. 11 An. 409; Simmons v. His Creditors, 12 An.

It is, therefore, decreed, that the appeal be dismissed at the appellant’s costs.


author: Cole, J.

text:
    H. J. Masson et al. v. Bertrand Saloy et al.
    A mortgage executed by defendant on property claimed by plaintiff, pending the suit of the latter for its recovery, is without effect against him.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Hamner & Hangs, for plaintiffs.

      C. Boselius, for defendants and appellants.
   Cole, J.

This is an appeal taken by B. Saloy, one of the defendants, from a judgment ordering the erasure of certain mortgages made by James E. Armor, on the property of plaintiffs.

James E. Armor, pretending to be the sole heir of Josephine Armor, deceased, caused himself to be put in possession of the property of her succession, by a judgment of the Second District Court, in April, 1854.

In June, 1854, Henry J. Masson, one of the plaintiffs, instituted suit in the Second District Court, as heir of Mrs. Armor, and claiming of James E. Armor the whole succession, alledging that the said Armor held the same fraudulently.

In July, 1855, there was judgment in favor of H. J. Masson, recognizing him as one of Mrs. Armor’s heirs, and declaring James E. Armor without any lights to said property.

An appeal was taken by Armor from this judgment, and subsequently to the appeal, on account of his inability to justify his security for a suspensive appeal, he abandoned all his pretensions, and made a quit claim, putting plaintiffs in possession of all the estate of Mrs. Armor, by notarial act.

Pending the suit of Masson v. Armor, for the recovery of the estate of Mrs. Armor, James E. Armor executed two mortgages on certain property belonging to the succession: one on the 20th November, 1854, in favor of J. McCormick, the interest of which is now in the defendant, and one on the 10th of January, 1855, in favor of defendant.

As these mortgages were executed on property claimed by Masson pending his suit to recover the same, they are without effect so far as he is concerned. C. C. 2427, 2428; Citizens' Bank v. J. E. Armor et al., 11 An. 468.

The allegation of fraud and collusion is not sustained by the evidence.

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


author: Spoeford, J.

text:
    The State ex rel. J. B. Harper & Son v. The Judge of the Ninth Judicial District.
    The Act of 19fch of March, 1857, providing for an interchange between the Judges of the 7th and 9th Districts, intended that, after the elections of April, 1857, those Judges should first hold the regular series of jury terms, each in his own district, before commencing the interchange.
    The meaning of ambiguous words, &c., in a law, may be ascertained by examining and comparing with them the context of the law, and by considering its reason and spirit, and the cause inducing its enactment. O. O. 16, 18.
    an application for a mandamus to the Judge of the Ninth Judicial Dis_ trict, Ean'ralson, J.

      U. B. & E. Phillips, for relator.
   Spoeford, J.

The issue presented by the District Judge in his answer to the application for a mandamus, compels us to construe the Act, approved March 19th, 1857 (p. 270,) “to require the Judges of the Seventh' and Ninth Judicial Districts to interchange.”

It provides that after their election in April next, and after the first terms of their courts in their respective districts, the Judge of the Seventh District shall preside and hold the courts in the Ninth District, and the Judge of the Ninth District shall preside and hold the courts in the Seventh District, and so to continue alternating and interchanging, as not to hold courts consecutively in the same district for the trial of jury cases, as long as there are any recused cases in either of said districts.”

Looking not to any single word but to the whole scope of this statutory provision, we think its obvious meaning is, that the Judge of each of the two districts in question, shall hold the regular series of jury terms, first throughout his own district, and then throughout the other district; for the Judge of each district is not required to commence a system of interchange, until he shall first have held “ the courts,” not a court in his own district; each is then required to preside and hold “ the courts,” not a court in the neighboring district; and this system thus inaugurated, is to be kept up by each Judge alternately holding the “ courts” (i. e., the series of courts) in his own district and in the neighboring district, until the recused cases to be tried by preference are exhausted. The restriction upon the Judges “ not to hold courts consecutively in the same district for the trial of jury cases,” does not, as the respondent contends, inhibit them from going through the pa/rishes of the same district consecutively, to hold a regular series of interchange terms, hut was intended to prevent them from holding two series of interchange terms consecutively in the same district.

“ Where the words of a law are dubious, their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences, may be compared, in order to ascertain their true meaning.” O. O. 16.

“ The most universal and effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.” O. O. 18.

It is, therefore, ordered, that a peremptory mandamus issue, commanding the Honorable the Judge jof the Ninth District to hold said term of court on Tuesday, the 15th of December instant, as prayed for.


author: Voorhies, J.

text:
    Briget E. Porche, wife of J. A. LeBlanc, v. J. A. LeBlanc et al. and J. A. LeBlanc, Tutor, v. A. Miltenberger et als.—Madeline Breaux and E. Porche, Intervenors.
    Where the wife renounces, in favor of a mortgage creditor of her husband, her prior tacit mortgage on his property, for the restitution of her paraphernal effects, such renunciation, which is a mere waiver of the rank to which her mortgage was entitled, does not subrogate the creditor to the wife’s paraphernal claims against her husband; and this creditor, not being the transferee of these claims, cannot exercise the wife’s right of mortgage. In asserting his claims upon the mortgaged property he can look only to his own mortgage, taking effect from the date of its inscription. Such a renunciation by the wife does not contravene Art. 2412 of the O. O. and is expressly authorized by the Act of 1838. A declaration, in the act of renunciation, that it shall deprive the wife irrevocably of all recourse on her husband’s property, will not invalidate the contract, but may be treated as mere subterfuge, and is not binding on her. Nor does the husband’s iiaving stipulated with his creditor to procure his wife’s renunciation affect in the least its validity, without proof of threats of violence on his part, or of fraud.
    The vendor of an immovable or slave must cause the act of sale to be duly recorded, in order to preserve his privilege; if not so recorded within six days from its date, if passed in the place where the registry of mortgages is kept, adding one day for every two leagues from the place where it was passed to that where the Register’s office is kept, it has no effect as a privilege — i. eit confers no preference over creditors who have acquired a mortgage in the meantime, which they have recorded before it; but it will étíli avail as a mortgage, and be good against third persons from the time of its being recorded*
    A resolutory condition is implied in every commutative contract, where either party fails to comply with his obligations; but such contract is not dissolved of right, and the party complaining of its breach may either sue for its dissolution, or demand a specific performance.
    Compensation must be pleaded specially.
    A merchant’s books are not evidence in his favor,* nor can they be used as such by his creditors to' establish a debt claimed as being due to him, especially where no fraud or collusion between the mercnant and his alleged debtor is charged or proved ; nor can a partner be received as a witness to prove a debt due to the partnership.
    Art. 2260, C. C., must be construed as applicable to cases in which the interest of an ascendant or descendant of the witness is directly involved.
    A bill of exceptions which does not state the grounds on which it is taken cannot be examined.
    APPEAL from the District Court of Terrebonne, Qole, J.

      L. Bush, for plaintiff.

      A. Beatty & Malhiot, for defendants, intervenors and appellants.
   Voorhies, J.

The forced alienation of the property of Joseph A. LeBlanc, made _ at the instance of several of his judgment creditors, has given rise to various oppositions on the part of some of his other creditors, claiming to be paid by preference out of the proceeds of the sale.

1. Briget B. Porche, his wife, alleges that he is indebted to her for her paraphernal property in the sum of $7081- 81, secured by a legal or tacit mortgage, for which she claims to he paid by preference over the other creditors. It is shown, that on the 29th of May, 1851, A. Miltenberger & Go. accepted a draft drawn on them by Joseph A. LeBlanc for the sum of $1400, payable on the 20th of February, 1852, for the security of the payment of which the latter mortgaged to the former the property thus sold, stipulating at the same time to procure the renunciation of his wife in their favor. The mortgagees also stipulated to accept the drafts of the mortgagor, for his accommodation, for an additional sum of $8000, payable at any time after the maturity of the one above described, and to be identified by the Notary with the act of mortgage. The inscription of the mortgage thus given appears to have been made on the 7th, and the renunciation of the wife on the 30th of June, 1851. The evidence establishes the receipt by LeBlanc of the following sums of money for the account of his wife, to wit: in May, 1850, $250 77; in May, 1851, $1101 44; in May, 1852, $749 70; and in May, 1853, $728 06. In passing on her claim, the court below decreed, in distributing the proceeds of the sale, that A. Miltenberger & Go. bo allowed $250 77, “being the amount to which Mrs. B. B. Porche is entitled from May, 1850, and to which A. Miltenberger & Go. are entitled by virtue of the renunciation of the said Mrs. LeBlanc.” And 'further, “to Mrs. B. E. Porche, wife of J. A. LeBlanc, for the use and benefit of A. Miltenberger & Go., subrogated to her rights by virtue of her renunciation, $1101 44, due as of May, 1S50.”

Briget E. Porche is appellant from the judgment thus rendered against her in favor of A. Miltenberger & Go.

We think the court below erred in holding, that the appellees were Subrogated to the rights of the appellant. The rank to which her own mortgage was entitled, was the only thing yielded by the latter’s renunciation in favor of the former. A mortgage is merely the accessory to a principal obligation. It follows then, as a natural consequence, that the right of mortgage can only be exercised by the obligee or transferree of the principal obligation. The appellees were not the transferrees of the claim of the appellant against her husband ; hence they could not exercise her right of mortgage. In asserting their claims to a preference, they could only look therefore to their own mortgage, taking effect from the date of its inscription on the 7th June, 1851. But it is conceded on her part, that the sum of $250 77 constitutes the only matter in contestation, as the proceeds in question are absorbed by other mortgages acquired previous to the receipt of the other sums by her husband.

The validity of the renunciation, attacked on several grounds, and its admissibility in evidence, are therefore the only remaining questions submitted to our decision. In regard to the latter, as the objection could only go to its effect, we think it was properly overruled by the court below. It is urged that “ the wife, under Article 2412 of the Civil Code, whether separated in in property by contract, or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.” But the appellant in this ease cannot be considered as having contracted, any such obligation. It is true the renunciation of the wife in the case of Qasquet v. Pimitry, 9 L. R. 589, was considered as having the effect of making her surety for the payment of her husband’s debts. But the law then in force, conceding the correctness of that decision, was subsequently so modified by the statute of 1835 as to authorize expressly the wife of full age to make such renunciations as the one under consideration. The declaration in the act of renunciation in the present case, that such renunciation deprived the appellant, irrevocably, of all recourse on the property of her husband, did not have the elfect of invalidating her contract, inasmuch as such declaration may be treated as mere surplusage, and not binding upon her, Neither do wo consider her husband’s stipulation to procure her renunciation as affecting in the least her contract with the appellees, in the absence of' any allegation or proof of threats of violence, or fraud on his part. The act of renunciation, in which the description of the property, as well as the nature of her claim upon the same is fully set forth, refers specially to the act of mortgage in favor of the appellees. Both these acts must, therefore, be taken together, as the evidence of the contract between the parties ; for we are not aware of any law which requires the nature and amount of the debt due by the husband to be specifically set forth in the renunciation which the wife makes of her right of mortgage.

2d. At the judicial sale of the estate of Oliver LeBlane, deceased, made in the parish of Assumption on the 8th of July, 1848, Joseph A. LeBlane, then a' resident of the parish of Lafourche, became the purchaser of a slave named Gabriel for the price of $1580, payable one-third in March, 1849 ; one-third in March, 3850, and one-third in March, 1851 ; with interest thereon at eight per cent, per annum, from their maturity until paid, for which he gave his three promissory notes, to the order of, and endorsed by, M. A. LeBlane, and identified by the notary with the act of sale. To secure their payment, a special privilege was reserved on the slave.

The act of sale was recorded in the parish of Assumption on the 2Sth of September, 1848 ; in the parish of Lafourche on the 4th of September, 1851; and in the parish of Terrebonne, to which Joseph A. LeBlane, the vendee, had removed on the Cth of October, 1851.

Madame Breaux, the surviving spouse of the deceased, and administratrix of his succession, claims the vendor’s privilege on the proceeds of the slave Gabriel, embraced in the property thus seized and sold, and adjudicated to A. Miltenberger & Co. for the price of $1400.

By the judgment of the court below, from which the administratrix is appellant, her claim to a mortgage and privilege was recognized to take effect only from the 6th of October, 1851, the date of the inscription of the act of sale in the parish of Terrebonne, giving the preference over her to the other creditors, whose mortgages and privileges had been previously recorded.

The appellant has submitted two questions for our decision.

“ 1st. As to the relative rank of the said vendor’s privilege, and the tacit and judicial mortgages.”

2d. Whether, in case said vendor’s privilege should be considered lost from non-registry within duo time, any change should be made in the judgment, in view of the danger of A. Miltenberger & Go., as purchasers of the slave Gabriel to be evicted by an action in rescission of the adjudication of July, 1848, for non-payment of the prico.”

In order to preserve his privilege, the law requires the vendor of an immovable or slave to cause the act of sale to be duly recorded. His privilege is valid against third persons from the date of the act, when such act has been duly recorded within six days from its date, if passed in the place where the registry of mortgages is kept, or adding one day more for every two leagues from the place where it was passed to that where the Register’s office is kept. O. O. 3238, 3240. But where the act has not been recorded within the time thus prescribed, Article 3241 of the Civil Code declares, “it shall have no effect as a privilege, that is to say, it shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage in the mean time, which they have recorded before it; it shall, however, still avail as a mortgage, and be good against third persons from the time of its being recorded.” In the case at bar it is clear, that the act of sale, in consequence of its non-registry within the time required by law, can have no effect as a privilege. As a mortgage, it can only take effect in favor of the appellant from the date of its inscription on the 6th of October, 1851, as decided by the court below.

The only question involved in the issue joined between the parties in this case is, whether the appellant is entitled to the vendor’s privilege on the slave Gabriel. It is clear, therefore, that the question as to the danger of the eviction of the purchasers of the slave can not be raised by the appellant. Had the sale been on credit, in case of such danger, A. Miltenbergm' & Go. alone might, perhaps, avail themselves of the objection to suspend the payment of the price. (O. O. 2535.) But it is plain the appellant could not. Besides it is not very clear that the cause assigned by the appellant, would afford legal grounds of eviction. A resolutory condition is implied in every commutative contract, where either of the parties fail to comply with his engagement. But such contract is not dissolved of right; the party complaining of its breach may either sue for its dissolution, or demand its specific performance. The vendee’s failure to pay the price, gives to the vendor the right to claim the dissolution of the sale. O. O. 2041, 2539. Whether the appellant’s claim to the vendor’s privilege in this case amounted to an implied ratification of the judicial sale, and consequent abandonment of her right to claim the dissolution of the sale from the deceased to the seized debtor, is a question on which we think it is unnecessary for us to express any opinion. We are, therefore, of opinion, that the judgment of the court below on this branch of the case ought not to be disturbed.

3d. On the 10th of April, 1851, Henry M. and Henry G. Thibodeaux obtained a judgment against Joseph A. LeBlane on two promissory notes, drawn by him and Bantin, as commercial partners, each for the sum of $3500, payable, one in February and the other in March, 1851, to the order of and endorsed by Evariste Borehe, who was also sued by them as endorser. This judgment, recorded in the parish of Terrebonne on the 17th April, 1851, was transferred to Evwriste Borehe on the 1st of September, 1854, the transferrers acknowledging the receipt of $7000 on the 9th of May, 1851, as the consideration of the transfer with the right of subrogation to him.

Borehe also filed duo opposition in this case, claiming a preference on the Sheriff’s sale for the payment of his judgment, secured by a judicial mortgage resulting- from the registry thereof.

A. Miltenberger & Go. are appellants from the judgment of the court below sustaining his opposition, to which there appears to be no answer either by the appellants or the other seizing creditors.

In is urged in the appellant’s brief, that the judgment thus transferred to Porche is extinguished by compensation ; that he was in the habit of trading with LeBlane, who was a merchant keeping a regular set of books, which exhibit the following balances against him, to wit: $3219 58, due 1st March, 1849; $2688 89, due March 1st, 1S50; and $322 ; making, with 8 per cent, interest thereon from maturity, a few dollars more than the amount of his judgment.

On the trial below, Porche objected to the introduction of LeBlane’s commercial books, and to the testimony of Bantin, on the grounds : 1st, because the evidence was inadmissible under the pleadings, no allegation having been made of his indebtedness to LeBlane; and even had such an allegation been made, the evidence would still have been inadmissible, inasmuch as the claim urged against him is unliquidated, and not allowable as a plea in compensation; 2dly, because the books could not be used in evidence against him in favor of LeBlane or the creditors of LeBlane ; and, 3dly, because Bantin was incompetent as a witness to prove tho correctness of tho books or accounts of the firm of LeBlane & Dantin, of which he was a member, on the score of interest.

We think the court below erred in overruling these objections. Conceding, for the sake of argument, that the compensation urged by the appellants against the appellee was at all available, as a matter of defence, it should have been specially pleaded. “ Tho books of a merchant cannot bo given in evidence in their favor; the3>- are good evidence against them, &e.” O. C. 2244. If the merchant cannot give his books in evidence in his favor, it seems to us to follow as a natural consequence, that his creditors also cannot exercise that right, especially in the absence of any allegation or proof of fraud and collusion between the former and his debtor against the latter.

The objection to Dantin’s competency as a witness, on the ground stated, appears to us to be well taken, and ought to have been sustained by the court below.

The decision of the question as to tho sufficicnc3r of the evidence to sustain the ground of defence urged by the appellants, is therefore considered by us as immaterial. The judicial mortgage in favor of Evariste Porehe is, therefore, entitled to take effect from the 17th of April, 1851, the date of the recording of his judgment in the parish of Terrebonne.

4. An opposition was also filed by Joseph A. LeBlanc, as natural tutor to his minor children by a former marriage, in which he alleges that they are entitled as heirs of Marie Gelina Thibodeaux, their deceased mother, to the following sums, secured by a legal or tacit mortgage, $1000, which he received in 1845 on account of his said deceased wife from the estate of her mother, Marie Rosalie Ehjmel, deceased spouse of I-Ienry M. Thibodeaux, and converted to his own use and benefit; and $3710, the one-half of the property of the community between him and his said wife, which was dissolved by her death on tho 10th July, 1840.

Tho court below considered that tho minors were entitled to recover the sum of $1388 32, §1000 of which as the paraphernal property of their mother, and the residue as her interest in tho community, and accordingly gave judgment in their favor.

A. Miltenberger & Go. are also appellants from this judgment.

It is insisted by them, that tho evidence is insufficient to establish the parapliermal claim of §1000, without the testimony of E. Porehe and L. Barras, to the admission of which our attention has been directed to two bills of exceptions taken by them on tho trial below.

Porche's incompetenc}'- as a witness is placed on the ground, that Briget E. Porehe, his daughter, is one of tho parties litigant in this case.

Tho Article 2200 of tho Civil Code, on which the appellants refy for the exclusion of this witness, must be construed, in our opinion, as applicable to cases in which tho interest of an ascendant or descendant is directly involved in the controversy. In the present ease the claim of tho minors is opposed only by the appellants. Had it been also opposed by Briget E. Porehe, then tho objection to the competency of the witness would certainly have been good.

The other bill of exceptions merely sets forth, that L. Barras on his examination “ stated his belief that H. M. Thibodeaux had paid /. A. LeBlanc the amount coming to the wife of said J. A. LeBlane from the settlement of the estate of her mother, wife of said H. M. Thibodeaux, but did not know it himself, and the creditors objected to such evidence, &c.” As the grounds on which this objection rests are not stated in the bill of exceptions, we are not permitted to examine it. Duplessis v. Kennedy, 6 L., 242. We have, however, given to the testimony the legal effect or weight to which it is entitled, taking into account the fact, that the witness should have stated the circumstances on which his belief was founded.

The appellants also insist, that the other amount allowed to the minors is not sustained by the evidence. The only question presented on this point is one of fact. A careful perusal of the evidence has satisfied us of the correctness of its decision by the court below.

It is, therefore, decreed, that the judgment of the court below, so far as it declares A. Miltenberger & Go. to be subrogated to Briget E. Rorche’s right of mortgage, be amended in favor of the latter by reversing and avoidingthe same, as prayed for in her answer to the appeal; that the mortgage claim of said A. Miltenberger <fi Co. be only classed to be paid in preference to that of the said Briget E. Porche, by virtue of the renunciation of the latter ; and that, in all other respects, said judgment be affirmed, with costs.

Spoffobd, J., and Cole, J., took no part in this decision.


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    A. Hatchett v. Steamer Compromise and Owners.
    The clause in a steamboat’s bill of lading reserving the privilege of reshipment, implies an obligation on the part of the boat to reship, if the stage of water in the river does not permit her to prosecute her voyage to her point of destinaion, and the reshipment is possible; and the additional expense of thus forwarding the goods by another boat, is charged to the boat with which the original contract of affreightment was made, the consignors being bound to pay only the freight specified in the bill of lading.
    Low water is not to be classed among the dangers of the river, excepted in the bill of lading, and which absolve the carrier from his obligation to deliver the goods without unnecessary delay and in good order and condition.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore & King, for plaintiff.

      J. Vanmeter, for defendant and appellant.
   Buchanan, J.

The plaintiff claims of defendants under a contract of affreightment, by which the latter bound themselves to carry merchandise from New Orleans to Shreveport, for one dollar and fifty cents a barrel, with the privilege of reshipping. The Red River being at a low stage of water, the Compromise could not get further up than Alexandria, and availing herself of the clause of the bill'of lading, transferred the freight to a boat of less draft, the White Cliffs, to be taken from Alexandria to Shreveport. But the White Cliffs put the freight ashore upon the banks of the river at points short of the port of destination; and the plaintiff was only able finally to obtain his goods, by making a contract directly with the White Cliffs, for a very greatly advanced rate of freight. He brings this suit to be reimbursed the difference between what he contracted to pay the defendants, and what it actually cost him, to get his goods to Shreveport.

We are of opinion, that the clause in the bill of lading in this record, “with privilege of reshipment," implied an obligation to reship, if the stage of water in the Red River did not permit the Compromise to prosecute hervoyageto Shreveport, and if reshipment was possible in any steamboat that could m&ke the voyage; and that the additional expense of forwarding the freight by another boat, is chargeable to the Compromise. The obligation of this common carrier under his bill of lading, was to deliver the goods at Shreveport, without unnecessary delay, in good order and condition, unto the consignees, or assigns, they paying the specified freight and no more (the dangers of the river and fire only excepted). Low water is not to bo classed among the dan" g-ers of the river, which absolve the carrier from this conventional obligation.

The judgment of the District Court is, therefore, affirmed with costs.


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    Holland v. Duchamp.
    An appeal will not lie to the Supreme Court in an injunction suit to arrest the execution of an order of seizure and sale for a less amount than three hundred dollars, although the preperty seized Is worth more than $800, and the plaintiff in injunction claims in his petition a larger sum for damages and attorney’s fees.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      J. Livingston, for plaintiff and appellant.

      S. Pedesdaux, for defendant.
   Cole, J.

A motion has been made to dismiss this appeal on the ground, that the matter in dispute does not exceed three hundred dollars.

Plaintiff sued out an injunction to arrest the execution of an order of seizure and sale, granted on a mortgage note of $250.

He maintains that this court has jurisdiction, because the land seized on which the mortgages existed, is worth more than $300, and because he has asked, in the petition of injunction, for five hundred dollars damages and one hundred dollars attorney’s fees.

The value of the land seized, cannot invest this court with jurisdiction, because in order to relieve the land from the seizure, it would be necessary to assume jurisdiction over a suit of an amount less than $300.

The same objection applies to the damages claimed, for they are averred to have been suffered from the illegal and premature issuing of an order of seisure and sale for an amount less than $300, and we could only decide on the liability of appellee for the damages, by inquiring into the correctness of that judgment.

It is clear that this court is without jurisdiction of this cause.

It is, therefore, ordered, adjudged and decreed, that this appeal be dismissed with costs.


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    Jamison & McIntosh v. L. C. Duncan.
    The Art. 671C. O. being derogatory of the right of property must be strictly construed. The right granted thereby to the first proprietor of lands in cities, who builds, to take possession of the land of his neighbor for the foundation of his building, must be confined to the side walls, and cannot prevent the latter, who afterwards builds, from occupying the whole front of his land, but he has no right to avail himself of the side wall before paying half the cost of its execution.
    Damages refused to a builder against whom an injunction has been sued out, where the whole foundation of his claim for damages is a supposed hindrance thrown in his way In executing a building contract which confessedly required for its execution the use of a side wall erected by the plaintiff in the injunction, and for which he has not been compensated, where the party against whom damages are sought to be recovered, has resorted to legal means to maintain what he conceives in good faith to be his just rights.
    The courts should restrain within reasonable bounds, the infliction of pecuniary penalties against a party who has only attempted to pursue what he in good faith supposed to be his legal rights, according to the forms of law.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Dwrant & Horner, for plaintiffs.

      G. B. Duncan, G. Boselius, and J. McOonnell, for defendant and appellant.
   Buchanan, J.

This suit has grown out of that of Ducan v. Labouisse and others, reported in 9th Annual.

Its history may he stated as follows : Lucius O. Dunoan, the defendant, being the owner of a lot of ground on Oarondelet street, in the city of New Orleans, on which he erected a house, availed himself of the right given him by the Art. 671 of the Code, to put one-half of the side-wall of his house on a lot adjoining, which was then vacant. Subsequently, Mr. Labouisse, the owner of the vacant lot, intending to improve the same, made a contract with Jami-son & McIntosh, the plaintiffs, by which the latter agreed to erect for Labouisse, for a price stipulated, a five story store, of which the depth from the street, height of stories, size of timbers, openings, slating, copper and tin works, flooring, partitions, plastering, stairways, marble mantels, flagging, water-works, and all other works and materials, whether specified or not, were to be of the same quality and finish as the adjoining store (above mentioned), belonging to Lucius O. Duncan, with some exceptions specified; of which one was, that the entire front of the store was to be of the best Quincy granite, built and finished off precisely in the same manner as another store indicated.

Now, the store of Mr. Dumcan-was supported in front upon cast iron columns of which one faced the side wall, on the side towards Labouisse's lot; one-half of said column standing in front of the portion of the side wall which had been built on Labouisse's land.

In the execution of the contract with Labouisse, Jamison & McIntosh proceeded to make use of the side wall erected by Duncan, as a wall in common, without having made the previous indemnification required by Art. 672 of the Code, in order to render it such. They also commenced cutting the cast iron column at the corner of the wall in two, perpendicularly, for the purpose of removing the one-half thereof, and replacing the half thus removed by a column of Quincy granite, in conformity with their contract aforesaid. At this stage of the proceedings, Dunccrn commenced suit against Labouisse and Jamison & McIntosh, alleging that the iron column in question had been erected by express agreement with Labouisse, and that the half of the side wall, erected by Duncan, had not been paid for by Labouisse. The petition concluded with a prayer for an injunction to prevent Labouisse and Jamison & McIntosh, “from proceeding to the injury or des’ruction of the said wall or any part thereof.” A writ of injunction issued upon this petition, commanding Jami-son & McIntosh and Labouisse “not to injure the iron column of the wall of the building.”

Judgment was rendered in that suit in the District Court, decreeing “ that the injunction so far as it prohibits the use of the division wall between the properties of the plaintiff and the defendant Labouisse, be maintained, and that the defendants be prohibited from the further construction of any works upon said wall until it shall have been made a wall in common, as provided by law; and that as respects the cutting of the iron pillar in front of said wall, up to the division line of the two properties, that the injunction be dissolved.” From this judgment a suspensive appeal was taken to this court, and the judgment of the District Court was affirmed, “without prejudice to Duncan's right of action for damages for the breach of Labouisse of the alleged parol agreement between Labouisse and Duncan, mentioned in the petition.” 9 An, 49 and 607.

It appears that Jamison & McIntosh suspended all work upon the building from the time that the injunction was served upon them (April, 1853), until after the judgment of the Supreme Court was rendered (January, 1854); and have brought the present action for a thousand dollars and upwards, damages alleged to have been incurred by the issuing of the injunction aforesaid, and stated in a bill of particulars annexed to the petition under the heads:

1st. Of interest upon the installments of the price of contract, while the building was suspended.

2d. Of increase in the price of building materials between the periods of suspension and resumption of the work.

3d. Of extra labor in removing granite.

4th. Of lawyer’s fees paid in defending the injunction suit.

The District Court, acting upon the evidence adduced upon these different items (except the last, upon which there was no proof), has given judgment in favor of plaintiffs for six hundred and ninety-eight dollars and twenty-five cents, from which the defendant appeals.

It is manifest that the elements of damage which make up the judgment herein, are erroneous. There was no reason for the suspension of the work upon the building contract, except the volition of plaintiffs. The writ of injunction served upon them, merely required of them not to injure or destroy the iron column. And the evidence, even of plaintiffs’ witnesses, proves that the building might have been completed according to contract, without disobedience to this injunction. The only consequence would have been, that as thus completed, the corner of Laboidsse's front wall adjoining Duncan, would have been supported by an iron column instead of a granite one, which the contract called for. It is proved by several witnesses, and the statement is not contradicted, that the iron column would have supported the additional weight. Supposing that the building had been thus completed, the evidence shows us that, upon the dissolution of the injunction, the iron column, or the half of it, could have been removed without difficulty or danger, and a granite column substituted in its place. The column to be substituted would necessarily have been of the same height as the one removed, for we have seen that the building contract refers to Duncan! s store, as the guide for the height of the stories. The extra cost of this operation is all that the plaintiffs could have been properly entitled to under the evidence.

Parties are too prone to exaggerate their own damages ; and there is nothing which more frequently requires the careful attention of the courts, than the restraining within reasonable bounds the infliction of pecuniary penalties in civil suits, for acts of commission or omission. And this attention is the more required, when, as in the present case, a party is sued for damages for having attempted to pursue what he supposed, in good faith, to be his legal rights, according to the forms of law.

In the case of Duncan v. Labouisse, this court, for the first time, interpreted the law of walls in common, in a very important particular. Basing ourselves upon the doctrine of one of the most eminent of French commentators (Toullier), we held that the Article 671 of our Code, was derogatory of the right of property, and should therefore be strictly construed; and that the right of the first proprietor of land in cities, who builds, to take possession of the land of his neighbor for the foundation of his building, must be strictly confined to the side walls, and cannot prevent his neighbor, who afterwards builds, from occupying the whole front of his land, as shown by his titles, in such a manner as his taste may dictate. That this question was by no means unattended with difficulty, in its application to this case at least, is proved by the fact, that two of the five Judges of this court dissented from the judgment rendered.

And it is proper that the regard for the right of property, which has dictated the strictness of our rule as to one of the parties, should also have effect in construing the rights of the other.

Accordingly, it was held by the judgment of the District Court in the case of Duncan v. Labouisse, which we affirmed, that those plaintiffs had no right to make use of the side wall which Duncan had erected at his sole expense, before paying Duncan the half of the cost of erecting the same ; and the evidence shows that the plaintiffs paid nothing towards the cost of the said wall, until after judgment of the District Court pronounced in the injunction suit. Tet the whole foundation of the present claim for damages is a supposed hindrance thrown in the way of plaintiffs in executing a building contract, which confessedly required for its execution the use of the side wall thus erected by the defendant.

He who seeks equity must do equity. We are of opinion that plaintiffs have failed to make out a cause of action.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and judgment is hereby rendered for the heirs of defendant, with costs of both courts.