author:
Voorhies; J.
      Lea, J.,

text:
    Succession of James H. Coleman.
    B., the guardian, appointed in Mississippi, of a minor having property in this State, filed a petition in the proper court, representing that the minor’s property here was unproductive, and that she had ho other; that it was to the interest of the minor that it should be sold, and the proceeds invested, and being unable to induce any person to become the tutor of the minor, he prayed the appointment of a special tutor and under-tutor, and that a family meeting be convoked to deliberate on the propriety of selling the property. The prayer was allowed, the appointment made, and under the advice of the family meeting the property was sold, and G-. became the purchaser. He refused to comply with the terms of the sale, on the ground (among other grounds) that no special tutor could be legally appointed to the minor.
    The appointment of a special tutor in this case was not legal, and the sale was a nullity.
    In the sale of minors’ property all the formalities of law must be observed for the validity of such
    Minors, when they become of age, can always avail themselves of nullities resulting from the omission of any of the formalities established by law in the sale of their property.
    The purchaser of a minor’s property at a judicial sale cannot be compelled to a compliance with the terms of the sale, unless the proceedings are clothed with all the formalities of law requisite to vest in him a legal title.
    The appointment of the special tutor should be considered as mere surplusage. The petition for the sale was made by the foreign guardian, and the proceedings of the family meeting advising the sale might have been transmitted to the judge by any relative, or even a stranger. (Lea, J., dissenting, with whom concurred Spofford, J.)
    Any embarrassment on the question of the right of the special tutor to receive the price might easily be avoided by making the price payable to the foreign guardian. (Lea, J., dissenting, with whom concurred Spofford, J.)
    A. PPDAL from the Second District Court of New Orleans, Morgan, J.

      Sttynep, for appellant. Olarke & Bayne, for appellee.
   Voorhies; J.

On the 3d of February, 1853, William M. Dameron was appointed administrator of the succession of the late James 3. Golemcln. On the 15 th of 'March following, Malachi Bradford filed a petition in the same court, alleging that he was the appointed guardian of his grand-daughter, Angelina Coleman, by the State of Mississippi, his domicil, where she was supported by him ; that she had no other property than that which was under tbeadministration of the court, and being unproductive, it was to her interest that the same should be sold and the proceeds thereof invested; and that he had in vain endeavored to induce some of her friends and relations to become her tutor. He concludes by praying that a special tutor and under-tutor be appointed to her, and that a family meeting be convoked to deliberate upon the propriety of the sale of the property and investment of the proceeds thereof.

On the same day, an order was granted appointing William H. Dameron as special tutor, and Thomas A. McDaunold, as under-tutor, without requiring of the former any bond and security, &c. Upon the advice of a family meeting, convened and homologated as prayed for, the property, described as a certain lot of ground in the square bounded by Constance, Magazine, Richard and Felicity streets, in the First District of New Orleans, was offered for sale at auction, and adjudicated to Alexander Gaffney, for the price of $1400, payable one-fourth cash and the residue at one, two and three years’ credit.

Upon the refusal of Gaffney to comply with the terms of the sale, a rule was taken upon him by Dameron, as curator and special tutor, to show cause why he should not do so. In answer to tho rulo, Gaffney urged several reasons for his refusal, among others: 1st. “That there was no legal order for the sale; the said order being granted on the application of a special tutor, an officer who could not be appointed to the minor for the purpose of selling the real estate belonging to the minor, and the family meeting recommending the sale was prematurely and illegally convoked. 2d. That the effects of the estate have never been delivered to the tutor, nor has he been put in possession of the same,” &c.

Gaffney is appellant from a judgment making the rule absolute.

We think the judge a quo erred. There are four sorts of tutorships known to our laws: tutorship by nature, tutorship bj' will, tutorship by the effect of the law, and tutorship by the appointment of the judge. (C. C. 264.) The law requires, in the cases prescribed, that “ the judge shall appoint a tutor to the minor, by and with the advice of the meeting of the family.” (C. C.288.) In certain cases, the judge is authorized, with the advice of a family meeting, to appoint a discreet and responsible person as tutor to a minor, who shall in all respects comply with the existing laws in relation to tutors, except that of giving security for his administration.' (Session Acts of 1834, p. 113, § 4.) “ When the minor is without a tutor, any person who has a claim against him may apply to the competent judge to request that a tutor ad hoe be appointed to him, which tutor shall not be bound to give any security, but shall take an oath before the court who has appointed him, to defend the interest of the minor to the best of his knowledge.” C. C. 295.

In cases of partition, the Code (Article 3291) provides: “ If there are several minors who have opposite interests in the partition, and have the same tutor and curator, there shall be appointed to each of them a special tutor, whose functions shall cease as soon as the partition is terminated.”

We are not aware of any other cases in which a tutor ad hoe or special tutor may be appointed to a minor. We think it is clear that the appointment in the present case docs not fall within either of these exceptions. Assuming that the property in question belonged to the minor, as alleged, it is evident that the adjudication of it under those proceedings must be considered as a nullify. In the sale of minors’ properly, we consider it to be well settled that all the formalities of law must bo observed for the validity of such sale. The conveyance derives its force and validity from the law; hence, where the law is not followed, it is clear that the authority which stands in place of the owners’ consent is wanling. Applying this principle to the case at bar, it is manifest that the minor’s consent is wanting, inasmuch as she cannot be considered as legally represented by a ¡special tutor. Minors, when they become of age, can always avail themselves of nullities resulting from the omission of any of the formalities established by law in the sale of their property. 6 R., 471; 9 ibid., 78; 2 A., 648.

The cases on which the appellee relies, to the effect that a party is not permitted to look beyond the decree of-a competent court authorizing the sale of minors’ property, are, we think, clearly distinguishable from the present. The right of a purchaser of minors’ property at a judicial sale to inquire into the regularity of the proceedings, we think may be fairly conceded, and cannot be compelled to a compliance with the terms of the sale unless such proceedings are clothed with all the formalities of law requisite to vest in him a legal title.

It is therefore ordered and decreed that the judgment of the court below be reversed, that the rule herein taken against the appellant, Alexander Gaffney, be discharged, and that the appellee pay the costs of both courts.

Lea, J.,

(with whom concurred Spoffokd, J.,) dissenting. I think the adjudication of the property to the defendant in the rule was valid, and sufficient, in law to pass a title. It was based upon—

1st. A petition to that effect, made by the foreign guardian of the minor whose capacity is not questioned, and who suggests that the sale is necessary for the support and maintenance of the minor — the property being unproductive.

2d. An order of court, based upon this petition, convoking a family meeting.

3d. The action of the family meeting, duly convened, advising that the sale be made, as prayed for.

4th. The order of sale by the judge.

5th. The adjudication made in pursuance of the order of sale thus granted.

Now, it is true that in the course of the proceedings, at the suggestion of the foreign guardian, a special tutor was appointed, and the proceedings of the family meeting were submitted by him to the court for its approval; but this appointment may be considered a mere surplusage. Any relative, or even a stranger, may have transmitted the proceedings to the judge, whose order was based upon the original application for a sale, supported by the recommendation of the family meeting. The title of the purchaser is, I think, one which the minor could never hereafter disturb. The only difficulty which could possibly arise might be incident to a question as to the right of the special tutor to receive the price; and any embarrassment on this point might easily be obviated by making the price payable to the foreign guardian, or to his order.

The minor ought not to be deprived of the benefit of a satisfactory sale of the property. It is to be observed that the foreign guardian and special tutor are both acting together in the interest of the minor, and are represented b/ the same counsel.


source: Caselaw Access Project

author: Spofford, J.

license: Public Domain

text:
    Elizabeth Kellar and Husband v. Parish & Thompson.
    Where plaintiffs allege that the defendants, and those under whom they claim, hold illegal possession, defendants’ titles are admissible to rebut the allegation of illegal possession. *
    Defendants’ titles are also admissible to prove prescription when pleaded by the original defendants, and which their warrantors were authorized and interested to maintain.
    APPEAL from the District Court, Tenth District, Parish of Carroll.

      Dubose, for plaintiffs and appellants. Selby, for defendants.
   Spofford, J.

The plaintiff has appealed from a judgment against her in a petitory action.

She complains that the District Judge erred in admitting certain title deeds and judicial proceedings in evidence which were offered on behalf of the war-rantors, Olarh and wife. The objection was, that the document had not been specially set (orth in the pleadings of Claris and wife.

The court did not err. The plaintiff herself alleged that the defendants and those under whom the defendants held had been in illegal possession of the land demanded in her petition ever since the year 1834. The titles under which that possession was hold were admissible to rebut the plaintiff’s assertion that the possession was illegal. They were also admissible to sustain the plea of prescription of ten and twenty years, which the original defendants had specially pleaded, and which their warrantors were authorized and interested to maintain. The plaintiff could not have been surprised, for these titles were substantially sot out in the answer of Kerr and wife, warrantors.

The defendants have established a title by prescription.

It may be conceded that the plaintiff’s undivided one-half interest in lot No. 6, township 21, north of range 13 east, was not legally divested, by the parish judge’s sale, of the south half of said lot, because there had been no partition, and because of irregularities in the sale and in the proceedings anterior to the sale.

Still, on the 10th February, 1836, Win. A. Xing and wife sold the whole of lot No. 6, by public act, to Zaehariah Dorsey and .Williamson Lyles, whose good faith is not impeached by any evidence, and is therefore presumed. (C. C., 3447.) On the 2d December, 1836, Dorsey sold this lot to Lyles, to effect a partition, and Lyles died possessed of the same under authentic title. At his succession sale the lot in question was adjudicated to James D. Kerr, on the 2d February, 1841 — a mortgage being reserved upon it for the payment of the price. Kerr failing to pay the price, an order of seizure and sale was issued against the land, and on the 5th May, 1846, it was adjudicated to JST. K. Olarh, and a formal deed was made to him. On the 22d June, 1850, Olarh sold the land by authentic act to the defendants, Parish & Thompson.

The citation in this suit was not served until the 26th April, 1853.

The defendants, therefore, hold the land in dispute by an unbroken chain of recorded titles translative of property since the 10th February, 1836. And the plaintiff admits that defendants and their authors have been in possession since 1834. It matters not that the title of Dorsey and Lyles was derived a non domino ; for it was formal and sufficient upon its face to transfer the property.

The plaintiff has been absent from the State since 1831. From 1834 to 1848 the term of prescription for immovables, under a title, was twenty years, as against an absentee. (C. C., 3442.) By the Act of March 14th, 1848, (Sess. Acts, p. 60,) non-residents were put on the same footing with residents in this regard; and the term of prescription thenceforward, in a case of this kind, was fixed at ten years, or reduced one-half. Reckoning the time that had elapsed prior to the statutory change according to the old law, and the time that has elapsed since according to the new law, we find that the defendants and their authors had been in possession of the land sued for in good faith, under titles translative of property, long enough to perfect their title by prescription — more than two years before the service of citation in this suit. As to the mode of making the calculation, see Shackleford v. Robinson, 10 Ann., p. 583; Goddard v. Urquhart, 6 L., 660; Xanpi v. Orso, 11 L., 57.

The judgment is therefore affirmed, with costs.


text:
    David P. Williams, Administrator, &c., of S. S. Prentiss, for the use of Wyche & Hammet, v. Govey Hood.
    Motion to dismiss appeal, on the ground that W. & H. had not joined in the appeal bond. By th& Court: The order of appeal is in favor of the plaintiff, generally, and it was not necessary that the appeal bond should be signed by W. & H. The signature of the surety is sufficient.
    The fact that the tutrix of P.’s children made herself a party to the suit is no evidence that W. & H. have abandoned the appeal. The tutrix is a proper party, for the legal title to the bill sued on is in the succession of P.
    In a suit on a bill of exchange by an administrator, the defendant will not be permitted to attack the legality of the appointment of the administrator.
    The defendant has no right to complain of the mode in which this suit is brought, for it gives him the opportunity of pleading any defences he may have against either the nominal or the real plaintiff.
    It is not competent for a party, against whom one of his letters is offered in evidence, to show by the parol evidence of the witness who wrote the letter for him that he u intended” something different from what the letter expresses.
    APPEAL from the District Oourt, Tenth District, Parish of Carroll, Per-ldns, Jr., J.

      Short & Parham, for plaintiff and appellant. Selby, for defendant.
   Spofford, J.

The administrator of the succession of the late Sargeant 8. Prentiss brought this suit against the drawer of a bill of exchange, duly protested both fpr non-acceptance and non-payment.

The bill was drawn by the defendant to the order of S. S. Prentiss, but never endorsed by the latter.

The petition alleges that shortly after the bill was drawn, the commercial firm of Wyche & Hammet advanced money on it to Prentiss, who delivered the instrument to them. The suit is brought for their use.

There was a judgment in the District Court for the defendant, and the plaintiff appealed.

Pending the appeal in this court the suit was revived in the name of Mrs. Prentiss, tutrix of the minor heirs of S. 8. Prentiss, upon a suggestion that the administrator was functus officio.

Our attention is called to a motion to dismiss the appeal.

The first point made seems to be that the real plaintiffs in interest, Wyche & Hammet, have not joined in the appeal bond.

The order of appeal is in favor of the plaintiff generally, and it was not necessary that the appeal bond should be signed by Wyche & Hammet. The signature of the surety is sufficient. Fish v. Friend, 3 Rob., 264; Wells v. Lamothe, 10 L., 411; Bank v. Erwin's Heirs, 6 L., 324; Doane v. Farrow, 10 M., 74; Richardson v. Terrel, 9 M., 34.

The other point in the motion to dismiss is that Wyche & Hammet, the real plaintiffs, have abandoned the appeal. We find no evidence of this in the fact that Mrs. Prentiss, tutrix, has made herself a party to the suit, instead of the administrator. She is a proper party, for the legal title to the bill is still in the succession of Prentiss. The equitable interest of Wyche & Hammet is only to the extent of their advances to Prentiss, who seems to have handed them the bill as collateral.

In his answer, it was first alleged by the defendant that Ba/oid P. Williams was a non-resident of the State, and that his appointment as administrator of a Louisiana succession was therefore a nullity, so that he was incompetent to sue for debts due the succession.

The defendant could not be permitted to attack the judgment appointing an administrator in this collateral manner.

It was also contended by the defendant that the administrator could not give away the funds of the estate by suing for the use of third persons.

The administrator gave away nothing. The legal title, and perhaps a residuary interest being in the succession, the administrator acted properly in bringing the suil in his representative capacity, and for the use of Wyche & Hammet, who had advanced money to the deceased intestate upon the draft.

The defendant certainly has no right to complain of the mode in which the suit is brought, for it gives him an opportunity to plead any defences he may have as against either the nominal or the real plaintiff. Dayton v. Commercial Bank, 6 Rob., 18.

This is a sufficient answer to the argument of the defendant, that Wyche & Hammet-were only interested to the extent of $500 or $600, whilst the draft is for $1550, and that the debt cannot be divided without the assent of the debtor.

The whole bill is sued for, and all the parties interested in its collection are named in the pleadings, so as to give the defendant the widest latitude in his defence.

The distribution of the money, if collected, is a matter to be settled between the succession and Wyche & Hammet, and does not concern the defendant.

Wo now come to the merits of the cause — the motion to dismiss and the exceptions being overruled.

The defence, which was successfully pleaded in the inferior court, is that the draft was given to retain the deceased payee as counsel in a suit which the respondent contemplated recommencing, in which Mr. Prentiss had been previously engaged and paid, and in which a nonsuit had been taken ; that it was given at the urgent request of Mr. Prentiss, when he was in declining health, and shortly before his death, with a view to enable him to raise money for a journey to recruit his health, that he might be able to prosecute the suit upon his return ; but that, in consequence of his premature death, the consideration of the draft wholly failed.

We are unable to concur in the views taken by the District Judge of the evidence offered in support of this defence.

The agreement of the parties was in writing. After reciting that Hood was involved in a lawsuit then pending, touching the validity and genuineness of a will of his sister, Lucinda Chambliss, in which the said Hood was instituted heir, and that he was desirous of obtaining the professional services of Mr. Prentiss in the said litigation, the latter bound himself to render such services in establishing the will, and attending to the litigation incident thereto, until the final decision of the question of the validity of said will, and for that purpose to attend the court in Carroll, or any other parish where such litigafion might be pending, as often as necessary, and to argue said cause in the Supreme Court, should it be taken there.

And in consideration thereof, Hood on his part bound himself to pay said Prentiss the sum of $2500 as a certain fee — to wit, $Í000 cash in hand, and the remaining $1500 at the conclusion of the suit. And Hood further agreed to pay said Prentiss, in case the will should be established as valid, the additional foe of seven and one-half per cent, upon the value of the property embraced in the will which Hood should receive, by establishing the validity thereof.

The $1000 were paid in Februaiy, 1849, upon the execution of the agreement.

Mr. Prentiss attended to the suit, and made a journey to the parish of Morehouse, whither the venue was changed, and where Mood's counsel, as was stated in the argument, took a voluntary nonsuit in the fall of 1849; of this no complaint is made by Hood, and the step must be presumed to have been taken in his interest.

In June, 1850, Prentiss wrote a letter to PLbod, in which he disclosed his illness and his need of funds to enable him to follow the advice of his physician, in seeking the restoration of his health by a change of climate. The letter contains the following explicit statements: “ By our agreement, in relation to your suit in the Chambliss will, the remainder of my certain fee — to wit, $1500, is wo due. General Thomas informed me you settled with him, giving your draft on your merchants here, payable in December next. I must request you to make for me a similar arrangement. I send you a draft to be signed by you and directed to your merchants here, payable 1st January, which I hope will suit your convenience. I have added in interest at six per cent, from date, though it will cost me twice that, at least, to get the draft discounted.” At the conclusion, he added that he hoped to return from the Virginia mountains in the fall, strong and vigorous, and ready to carry out such future proceedings as Hood might determine on against Chambliss and Wilson, whether as regards compromise or another suit.

To this letter Hood replied in a few days, by acceding literally to the request of Prentiss, and sending him the draft now sued on. The reply does not, even by implication, contest the assertion of Mr. Prentiss that the money was then due, under the terms of the original agreement. On the contrary, the bill itself bears upon its face an implied acknowledgment that it was due, for it was drawn, not for the sum of $1500, simply, but included an additional sum of $50 as interest for the delay that would elapse before its maturity.

We have here, then, in the writings and acts of the parties, their own interpretation of the meaning of that clause in the original agreement, which stipulated that the $1500 should be paid “at the conclusion of the suit.” However obscure its meaning might have been without such aids, we are compelled to infer that this clause really meant the conclusion of the particular suit then pending, and that the amount was due when the draft was drawn.

The District Judge would probably have come to the same conclusion but for the oral testimony of a witness, who said that he wrote the reply to the letter of Mr. Prentiss for the defendant, Hood, (who signed it,) and that he was a satisfied that, so far as Hood was concerned, he intended the draft sued on as accommodation paper, and witness mtended to embrace the same idea in the letter he wrote to Prentiss for Hood.. Witness further states that he intended in the letter to say that the $1500 was not due, but was to be given for service yet to be rendered.”

This vague testimony as to unrealized intentions affords an illustration of the wisdom of that ancient rule of evidence which forbids that written instruments shall be contradicted or controlled by parol.

The plaintiff excepted to the competency of the testimony, and we think the exception should have been sustained. It is urged here, however, that the objection was raised too late. The District Judge did not think so, for he signed the bill of exceptions without intimating any such reason for his ruling, but assigned as the true reason the fact that the witness wrote the letter at the request of Hood.

We are bound to presume, then, that the objection was raised and the bill of exceptions tendered seasonably.

The money being due according to the terms of the agreement, as practically construed by the parties themselves at the time the draft was drawn, the subsequent death of Mr. Prentiss did not discharge the drawee, Hood, from his obligation to pay it, any more than it gave him an action for the repetition of the $1000 he had paid at first, in contemplation of services to be rendered by Mr. Prentiss, “ until the final decision of the question of the validity of the will.”

It is therefore ordered that the judgment appealed from be reversed; and, proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that Mrs. Prentiss, as tutrix of the minor heirs of 8. 8. Prentiss, suing herein for the use of Wyehe & Hammet, do recover of the defendant, Govey Hood, the sum of fifteen hundred and fifty dollars, with five per cent, interest thereon, from the 4th January, 1851, until paid, and the costs of suit in both courts.


author: Spopford, J.

text:
    Ward & Jonas v. Ezekiel Graves.
    More than two clear days must elapse between a judgment by default and a definitive judgment, and the error is not corrected by the fact that the judgment was not signed for two days after the definitive judgment was rendered.
    APPEAL from the District Court, Tenth District, Parish of Carrol, Snyder, J.

      Short & Parham, for plaintiff Selby, for defendant and appellant.
   Spopford, J.

The judgment by default in this case was rendered on the 22d May: it was made final on the 24th May.

The defendant has assigned the prematurity of the definitive judgment as error patent upon the record.

It is answered that the judgment was not signed until the 26th May, and that then more than two clear days had elapsed since the preliminary judgment by default.

The error is none the less on that account; according to the record the definitive judgment was given on the 22d May [24th May. — Rep.]; the formality of signing it afterwards did not alter the fact that it was rendered too soon. C. P., 312, as amended by Act of April 30th, 1853, p. 268; C. P., 544, 546.

The exceptions filed by defendant were correctly overruled.

It is ordered that the judgment appealed from be reversed, and that the cause be remanded for a trial according to law, the costs of this appeal to be borne by the plaintiffs and appellees.


author: Lea, J.

text:
    George C. Brower v. His Creditors and the Creditors of B. Brower & Co.
    On the death of B. B. the partnership of B. B. & Co. owed his widow a sum of money. The widow married V., the surviving partner of B. B. & Co., who formed a new partnership with O. C. B. In this contract of partnership the wife of V. intervened, and consented that the money due her as widow in community of her late husband, should remain with the new firm as a loan, upon which she was to receive interest quarterly. By the Gom't: The terms of the contract of partnership show' conclusively that Mrs. Y. was not a partner, but a creditor.
    The stipulation in the act of partnership by which Mrs. V. agrees not to be considered as a creditor until all the other debts are provided for, is a contract of suretyship for her husband, for the benefit of his creditors. It is a contract entered into by her, without any consideration enuring to her own benefit, both for her husband and conjointly with him, by which she renounces her own rights as a creditor for the benefit of those who may hereafter become his creditors. Such a stipulation is repudiated by the spirit and letter of our laws.
    Code 2412.

      A PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Durant & Honor, for appellants. OlarJce & Bayne, for appellee.
   Lea, J.

The litigation in this case grows out of an opposition filed by 8. H. Moore S Go. to a claim of Mrs. Vanzandt for $9494, placed upon the tableau of distribution filed by the Syndic.

In the latter part of the year 1849 George G. Brower and William T. Van-zandt formed a copartnership in this city, which was carried on under the style of B. Brower & Go. until it was dissolved by a eessio ionorum made in 1855.

Another firm had previously existed under the same name, of which Baldwin Brower, the former husband of Mrs. Vanzandt, was the principal member. B. Brower died in 1845. The share of the legal representatives of the deceased was not withdrawn from the firm, but in pursuance of stipulations in the contract of partnership, it was continued until 1849, when the new firm was formed.

At the time the partnership was entered into between Geo. 0. Brower and Vanzandt there was due to Mrs. Vanzandt, formerly the widow of B. Brower, by the old firm, the sum of $9494 25.

In the contract of partnership between G. C. Brower and Vanzandt, Mrs. Vanzandt intervened, and consented that this balance, coming to her as widow in community of her late husband, should remain with the new firm as a loan upon which she was to receive interest, payable quarterly.

It appears from the evidence that the widow of B. Brower and wife of Van-zandt consented to look to the new firm as her debtor for the portion coming to her from the final liquidation of the succession of her deceased husband, which was in part effected by the very sale by which the new firm purchased the stock and took the place of the old firm.

Now, it is contended that Mrs. Vanzandt is not a creditor, for the reasons that she is a partner in the new firm, and liable for its debts, and that by her marriage with Vanzandt he became the absolute owner of her personal property wherever situated; and, moreover, that by her express act she has waived her right, if she ever had any, to receive a dividend.

We think the terms of the contract of partnership show conclusively that Mrs. Vanzandt was not a partner, but a creditor. That her right as such consisted in her then unliquidated interest in the succession of Baldwin Brower, and as such it was a chose in action, which up to that period had not been reduced to possession, and over which it does not appeer that her husband ever exercised any act of dominion or administration. See 2d Ann., 983; also Mercenaro v. Bertoli, lately decided ; also New York Statutes of 1848 and 1849.

Again, Mrs. Vanzandt did not lend or give money to her husband which was lent by him to the firm. By the very terms of the contract she was acknowledged as a creditor of the firm in her own right: this acknowledgment was based upon a good and valid consideration, and the only question to be determined is whether she has done any act or made any contract which debars her from urging her claim as a creditor.

We have been referred to a stipulation contained in the act of partnership, by which Mrs. Vanzandt agrees not to be considered as a creditor until all the other debts are provided for.

By whatever name such a stipulation may be called, it is nothing more nor less than a contract of suretyship for her husband, for the benefit of his creditors. It is a contract entered into by her, without any consideration enuring to her benefit, both for her husband and conjointly with him, by which she renounces her own rights as a creditor for the benefit of those who may thereafter become his creditors. Such a stipulation is repudiated by the spirit and letter of our laws. See Art. C. C., 2412.

We think there is no error in the judgment appealed from.

Judgment affirmed.


author: Spoitokd, J.

text:
    Samuel Davis v. Rosemond Dugas.
    A judgment by default in Indiana, after personal citation, when sued upon in this State, cannot be opened to let in a defence that might have been pleaded to the original action.
    The action of debt will lie here if it will lie in Indiana,* the judgment is shown to be executory in Indiana, but even if an affidavit, or scire facias, were required to revive it there, the action of debt answers the same purpose.
    A transcript of a later date than the one sued on, containing copies of writs and returns, &c. — which had been omitted by mistake in the first transcript — was properly received in evidence.
    APPEAL from the District Court, Fifth District, Parish of Assumption, Gole, J.

      0. & A. Johnston, for plaintiff Mailhot & Mills, for defendant and appellant.
   Spoitokd, J.

This is an action of debt upon a judgment rendered in the Circuit Court of Spencer county, State of Indiana.

The defendant has appealed.

He insists that the Indiana judgment was rendered against him by default only, and therefore is not binding upon him, but is open to any defence which might have been pleaded to the original action, and that the plaintiff is bound to prove his original demand.

This doctrine is wholly inadmissible. There was a personal citation by the Sheriff of Spencer county, Indiana, who certifies that he read the capias to the defendant. Although the latter made no appearance in the Indiana court, we are bound to presume that the court proceeded according to law in rendering a final judgment against him. The note which was the original ground of action has become merged in the judgment. That judgment is conclusive upon the defendant, unless he shows that he was not cited, or that the court was without jurisdiction, or that the judgment was procured through fraud.

He has failed to do either.

If the judgment were open to question, the defendant has not suggested that he had any special defence to the original action.

The distinction formerly made by Articles 746 and 747 of the Code of Practice between judgments by default or on attachment, and other judgments, was only as to the power of granting executory process in certain cases, which is now withdrawn. Act 1st June, 1846, p. 166.

The action of debt will lie upon a judgment of 'either kind.

This action will lie here, if it will lie in Indiana. The judgment is shown by evidence to be executory in Indiana; but even if an affidavit or scire facias were required to receive it there, the action of debt answers the same purpose. If the defendant has paid the debt he should have pleaded it; but he makes no such pretension.

The later transcript was properly received in evidence; it contained copies of writs and returns, &c., which had been omitted by mistake in the first transcript. Clerical errors of this kin.d are always subject to correction.

A plea of prescription based upon the statute of 30th April, 1853, was interposed by the defendant in the inferior court, but seems to have been abandoned in the argument here. It will suffice to remark upon this plea that the statute invoked by it was not approved until after the defendant had been cited to answer the present action.

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


author: Merrick, C. J.

text:
    Nicholas Barnes v. James L. Crandell, Sheriff, and H. Frellsen & Co.
    The neglect or delay of the creditor to sue, or to use legal remedies, does not release the surety.
    The surety is at liberty, if he thinks the creditor not sufficiently energetic, to pay the debt and become subrogated to his right, and manage the claim to his own satisfaction.
    It is only in those cases where the surety loses his right of subrogation by the act of the creditor that the surety is discharged.
    APPEAL from the District Court, Tenth District, Parish of Madison, Snyder, J.

      Bemiss & Wallace, for plaintiff and appellant. Short & Parham, for defendants.
   Merrick, C. J.

This suit was commenced by injunction by a judgment debtor to prevent the sale of certain slaves on execution.

The action is based on the following allegations, viz.:

“ Petitioner alleges that he is advised to say that he is released from the said Frellsen judgment, amounting to about $2480, with interest, by reason of the' said Frellsen not pursuing the principal obligor, one J. W. Boans, for whom your petitioner was merely surety, and that if timely steps had been taken by him, the said Frellsen, to secure said debt, by enforcing the special mortgage given by said Boans to secure said debt, and had otherwise pursued the necessary legal steps, he could have secured the said debt from said debtor.

“ Having failed in this, and having suffered the mortgaged property to pass from the hands of said debtor, and having lost his right of subrogation, your petitioner is advised that said Frellsen has lost all recourse upon him.”

The defendants except to the plaintiff’s petition upon the ground that he has set forth no ground for an injunction. There would be no room to doubt, were it not for the last clause above quoted ; for the plaintiff'has not alleged any fact from which it appears that as surety he has been discharged. The neglect or delay of the creditor to sue or to use legal remedies does not release tl\e surety. He is at liberty, if he thinks the creditor .is not sufficiently energetic, to pay the debt and become subrogated to his rights, and manage the claim to his own satisfaction.

But as on the trial of the exception the petition is taken as true, we have to consider the clause referred to above — viz.: “ And having lost his rights of subrogation, your petitioner is advised that said Frellsen has lost .all recourse upon him.”

We are of the opinion that this allegation cannot be taken to mean any more than this — viz.: “ Tour petitioner, having lost his rights of subrogation by the acts aforesaid, is advised,” &c.

It is only in those cases where the surety loses his right of subrogation by the act of the creditor, that he is discharged.

Whether such defence would avail the defendant whose liability has once been fixed by a judgment or not, we express no opinion. But we think that the judgment debtor who would avail himself of such fact as a defence, and require the courts to pass upon the same, should allege it distinctly in his petition. Not having done so in the case before us, we are of the opinion that the judgment must be affirmed.

Judgment affirmed.


author: Buchanan, J.

text:
    Manette and Virginie Duplessis, f. c. w., v. Betsey Young, f. c. w.
    A surviving wife is called to the inheritance before the natural brothers or sisters.
    Code 911, 91T, 918,-923.
    APPEAL from the District Court, Second District, Rousseau, 3.

      Reese, for plaintiffs and appellants. Lombard & Foulhouze, for testamentary executor.
   Buchanan, J.

The defendant, widow of Honoré Duplessis, a free colored man, was put into possession of his estate by order of court. Eive years afterwards the plaintiffs, natural sisters of Honoré Duplessis, brought this suit claiming the property left by the deceased, as his heirs; and the question presented for decision is, the priority in the order of inheritance between a surviving wife and the natural brothers or sisters.

This is the identical question determined by the court in the case of Victor v. Tagiasco's Executor, 6 L. R., 642, upon the construction of Articles 911, 917, 918 and 923 of the Civil Code. Upon the principles of that decision the defendant is entitled to this inheritance. See also Layn v. Pasco, 5 Rob., 12.

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


text:
    Warrick Martin, Syndic, v. James A. Moore.
    Under Article 172 of the Code of Practice, the signature of the advócale, or of the party may be affixed to the petition, through the agency of another.
    APPEAL from the District Court, Tenth District, Parish of Carroll, Snyder, J.

      Short & Parham, for plaintiff and appellant. Selby and Durant <& Uornor, for defendant.
   Merrick, C. J.

This suit is upon a promissory note.

The defence rests on an exception that the petition was not written or signed by Messrs. Short & Parham, whose signatures -appear to the petition as attorneys.

The proof introduced by the defendant shows that the petition and signature are in the hand-writing of A. W. Gr.een, and that the letters !‘S. So P., attorneys,” on the back of the petition, is in the hand writing of Mr. Short.

Messrs. Short & Parham prosecute the appeal in this court as counsel for the plaintiff, and it is not pretended that they did not appear and were not noted as counsel -in the court below.

In the absence of all proof to the contrary., we are 'bound to presume that the petition was written under their dictation.

It is contended by the defendant that the Article No. IT2 of the Code of Practice requires that the petition should actually 'be signed by the plaintiff, his attorney in fact, or by his .advocate.

We think, under this Article, that the signature of the advocate, as well as the party, may be affixed through the agency -of another. Any other construction might deprive a party of the most important counsel who should happen to be temporarily disabled from writing.

The defence to this suit is so devoid of merit, that had there been an answer to the appeal praying for damages as in case of a frivolous appeal, we should have allowed the same.

Judgment affirmed.


text:
    Fellows & Co. v. James G. Carson.
    The pendency of a suit by a third person for the land, however unfounded it maybe, perhaps justifies the purchaser, according to the letter of Article 2535 of the Code, in requiring security from the holder of the note given for the land, which, by the terms of the instrument, is subject to all the equities between the original parties.
    APPEAL from the District Court, Tenth District, Parish of Carrol, Snyder, J.

      Staey & Sparrow, for plaintiffs. Caldwell, for defendant and appellant.
   Buchanan, J.

The defendant being sued upon his promissory note, of which the plaintiffs are endorsees and holders, has appealed from a judgment condemning him to pay the sum unconditionally; and urges in this court, as he did in the. court below, that he is threatened with eviction from the land which was the consideration of the note sued on; and has a right, under Article 2585 of the Oivil Code, to retain the amount of this note in his hands until the holder give him security against the threatened eviction.

The suit to which defendant alludes is that of Galloioay and others against Canon, just decided in this court in favor of defendant. The favorable termination of that suit of course renders it unnecessary to amend the judgment of the Disti'ict Court; but the pendency of the suit, however unfounded it may have been, perhaps justified defendant, according to the letter of Article 2535, in requiring security from the holder of the note, who, by the terms of the instrument, was subjected to all the equities between the original parties.

It is, therefore, adjudged and decreed, that the judgment appealed from be affirmed, with costs of the District Court; those of appeal to be paid by the appellees.


author:
Spofford, J.
      Merrick, O. J.,

text:
    Franklin Haines v. Adolphe Verret.
    Plaintiff proceeded via- eoieculvQCb on a supposed authentic act of mortgage, and procured an order of seizure and sale of the land sold by him to defendant, who had neglected to pay a balance of the price. Defendant sued out an injunction on the grounds; 1. That the act was not authentic; 2. That the fees and costs of copies were exorbitant; 8. That he was in danger of eviction. Plaintiff answered the petition in injunction, admitted that the act was not authentic, and converting his proceeding into the ma or&ina/t'ia, prayed for judgment against tjie plaintiff in injunction.

      By the Court: The effect of this answer was to reinstate the parties in their original position as plaintiff and defendant in an ordinary suit. The injunction had fulfilled Us office, and the order of seizure and sale was at an end $ the petition in injunction stood as the answer to the original petition for executory process, now converted into a petition for a judgment personal against the defendant, with a recognition of a mortgage on the land.
    The petition in injunction contained a prayer for a trial by jury, which the District Court refused to allow. Hel&: the court did not err. The obligation to pay the plaintiff the price of the land was unconditional, and there was no affidavit denying defendant’s signature, or averring that it had been obtained through fraud or error, or of want or failure of consideration.
    The certificate of the Recorder was properly received in evidence. He was the obligor in the act of mortgage, and of course knew his own signature. Code, 3831,
    A mortgage is binding between the parties without registry. Code, 8316.
    APPEAL from the District Court, Fifth District, parish of Terrebonne, Cole, J.

      J. C. & A. Beatty, for plaintiff. Bush, for defendant and, appellant.
   Spofford, J.

(Merrick, O, J., dissenting.) The plaintiff proceeded 'em execiitiua upon what lie supposed to be an authentic act of mortgage, importing a confession of judgment, and procured an order for the seizure and sale of the land sold by him to the defendant, who had neglected to pay the balance of the price.

The latter sued out an injunction upon the three following grounds, verified by his affidavit:

1.That the act of mortgage was not authentic, because the term of office of the notary before whom it was passed had expired previous to the completion of the act.

2.That the fees and costs of copies were exorbitant.

3.That the defendant had just reason to fear that he would be disquieted by an action of mortgage against the land he had bought of the plaintiff, and was in imminent danger of being evicted, on account of a tacit mortgage in favor of some minors (children of plaintiff’s wife by a former marriage) of whom he was co-tutor.

He therefore prayed that the plaintiff, in the order of seizure, be ruled to give him security against eviction, before he should be compelled to pay the balance of the price.

An injunction issued, and the defendant in injunction — plaintiff in the order of seizure and sale — came into court, and answering the petition in injunction, abandoned the order of seizure he had obtained, admitted that the act was not authentic for want of capacity in the notary, but converted his proceeding-into the via ordinaria] and prayed for judgment against the defendant (plaintiff in injunction) for the sums claimed in his petition for the order of seizure and sale.

The effect of this answer was to reinstate the parties in their original position, Saines being plaintiff and Verret defendant in an ordinary action. .The injunction had fulfilled its office, and the order of seizure was at an end; the petition in injunction stood as the answer to the original petition for executory process, now converted into a petition for a judgment personal against the defendant, with a recognition of the mortgage upon the land.

This is in conformity with the usual practice when the via exeouliva is abandoned for the via ordinaria.

And upon this view of their relative positions the parties acted upon the trial. The original plaintiff, Haines, introduced his evidence first, the defendant, VeiTet, (plaintiff in injunction) then adduced his, and Haines closed with rebutting testimony,

It becomes important thus to consider the true posture of the parties in order to determine whether the Judge erred in overruling the prayer for a trial by jury, with which the petition for an injunction closed. The jury trial was refused, after the proceedings were changed into an ordinary action.

The Judge then did not err, because the defendant did not make the necessary affidavit to entitle him to a trial by jury.

His obligation to pay the plaintiff a specific sum of money was unconditional in the sense of the 24th section of the Act of 20th March, 1889. The plaintiff’s warranty against eviction from the property sold did not transform the defendant’s absolute promise to pay into a contingent obligation, any more than the implied warranty that the consideration of a promissory note shall not fail converts such an instrument into a conditional obligation. In the affidavit for an injunction, there was Ho averment that the signature to the act sued upon was not genuine, or that the same was obtained through fraud or error, or of want or failure of consideration.

The certificate of the Recorder was properly admitted. He was the obligor in the act of mortgage himself, and of course knew his own signature, C. C., 3381. Ellis v. Sims, 2 An., 254.

It would be immaterial, however, if the certificate were rejected. The mortgage is equally binding between the contracting parties without registry. C. C., 3316.

On the merits, we concur in the opinion of the District Judge, that the defendant has failed to establish that he has just reason to fear that he shall be disquieted in his possession. He was moreover aware before his purchase of the tacit incumbrance of which he complains. C. C., 2535; Rogers v. Davis, 18 L., 52,

It is,'therefore, ordered that the judgment appealed from be affirmed, with costs.

Merrick, O. J.,

dissenting. Service of petition- and citation are both necessary to bring, a party into coart.. Zacharie v. Blaudin, 4 L. R., 157.

The party so served with process is defendant. In the case before us the plaintiff in injunction had a demand,, according to his petition, against the defendant independent of the demand to rest/t'ain the order of seizure and sale. This demand conferred upon the plaintiff the right to pray for a trial by jury.

The defendant to the injunction could, if he had so chosen to do, amend his petition via exeeutiva, and pray for a citation, and thus change his proceeding into one via ordinaria.- Instead of so doing,.he admits in his answer that the injunction was well taken, and avers that he changes his action into an ordinary one, and prays for judgment on his notes against the-plaintiff in injunction. This, instead of bringing the plaintiff into court in any manner as a defendant to an original demand by way of citation, is, in my opinion, simply a changing of the executory process into an ordinary reconventional demand, and did not deprive the plaintiff in this suit of his position as plaintiff, or of his right to a trial by jury.


author:
Merrick, C. J.
     Lea, J.,

text:
    Succession of Daniel Clark.—On the Application of Mrs. Myra Clark Gaines for the Probate of the Will of Daniel Clark.
    The rules for the opening and proof of testaments, commencing at Article 1-639 of the Code, do not pronounce the penalty of nullity for their non-observance, and they nowhere say that other cases may not arise in which the strict letter of these rules may be inapplicable, and that the Judge may not receive in extraordinary cases other equally satisfactory proof that the requirements of the law have been fulfilled.
    The formalities required by law for the execution of wills are essential to their validity But whenever these forms have been observed, there is then a valid will entirely independent of its probate, or any subsequent proceedings which may be commenced on the same.
    If a will is really valid, the irregular proof on which it may have been admitted to probate will not be permitted to affect the rights of parties under it. So the olographic will of Daniel Glarh of 1811, which was admitted to probate without proof that the witnesses recognized the handwriting of Daniel OlwrTc from having frequently seen him write and sign his name, as required by the old and new Code, if it had afterwards been attacked for want of this proof, would nevertheless, doubtless have been sustained on satisfactory evidence that it was entirely written,- dated and signed by the testator.
    The loss or destruction of the will of Daniel Glarlc of 1!S18’, and the long period of time which has elapsed since his death, justify a resort to secondary evidence, wliicli would not have been necessary if the will had not been lost or destroyed, and if so long a period liad not elapsed before an attempt had been made to admit it to probate.
    Article 1648 of the Code contemplates that the olographic will should be presented before the Judge before whom it is to be proven ; yet it cannot be seriously contended that the loss or destruction of the will could prevent the legatee from establishing the will by secondary evidence.
    It is not necessary that there should be a technical coniestaüo litis, in order to give the Supreme Court jurisdiction.
    The rules established by the Code for the proof of olographic wills are imperative and prohibitory, and the court is without authority to admit to probate an olographic will not proved in’the manner required by the Code. (Lea, J., dissenting.)
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Smiley & Perrin, Bonford and Moise & W. M. Randolph, for Mrs. Gaines. G. B. Duncan, for Richard Relf.

   Merrick, C. J.

In this case we adopt the carefully prepared statement of facts of the Judge of the lower court. It is in these words, viz:

“ The petitioner alleges that on the 16th day of August, 1813, the late Daniel Olarh, her father, departed this life, having previously, viz: on the 13th day of July, 1813, executed an olographic last will and testament, by which he recognized her as his legitimate and only daughter, and constituted her his universal legatee, said bequest being subject however to the payment of certain specified legacies, and that he appointed Francois Dusuan Ae la Groix, Jemes Pitot and Joseph Bellechasse the executors of said will; that said will was wholly written, dated and signed in the handwriting of the testator, and at his death left among his papers at his residence; that after his death diligent search was made for the said will, but that the same could not be found, nor has it been since, and that it was either mislaid, lost or destroyed. It is unnecessary to recapitulate more in detail the alleged contents of the will, or to advert to the history of events, as- set forth in the petition, under which the court is called upon to recognize this lost document as a valid testament after an interval of more than forty years since the death of the alleged testator. The litigation, of which the present proceeding appears to be an up-springing shoot, is incorporated in the jurisprudence of the country, and a reference to it will not materially assist in the solution of the question submitted for adjudication.- The petitioner asks that the will, such as she describes it, be admitted to probate, registered, and ordered to be executed.

“ To entitle the petitioner to a judgment, recognizing the existence and validity of the will, it is necessary that she should establish affirmatively,- and by such testimony as the law deems requisite:

“1st. That Daniel Gla/rk did execute a last will containing the'testamentary dispositions set forth in her petition.

' “That Gl$rk died without having destroyed or revoked it.

“ In looking for the testimony which might solve the question whether such a will had ever been executed or not, a reasonable inquirer would naturally turn for information to those who were most with the deceased in the latter part of his life, and especially (if they could be found) to.those who Were with him in the last- moments of his existence, when the hand of death was on him. Such witnesses, if they had no interest in diverting his property into any particular channels, might be considered as the best and most reliable that could be produced, and it appears to be precisely testimony of this character that the petitioner presents in support of her application.

“ It appears that Boisfontaine had business relations with the deceased, which brought hitn info frequent intercourse with him, and that for the last two days of his life, and up to the moment of his death, he was with him; that De la Groix and Bellechasse were intimate personal friends, and that they were with him shortly before his death. Now these witnesses all concur in stating that Olarh said he had executed a will posterior to that of 1811. They also testify that wdthin a few months prior to his death he was making arrangements for the disposal of his property by a last will. He called on De la Groix to get his consent to act as executor, and also as tutor to his daughter Myra, expressing his intention of making generous provision for her in his will. De la Groix further states that Olarh afterwards presented to him in his <Clarh’s) ‘cabinet’ a sealed packet, which he declared to be his last will, informing him at the same time that in case of his death it would be found ‘ in a small black trunk which he had there.’

“Boisfontaine, who was with Glark whan he died, says that Clark in his last illness spoke of executing his last will, said it was to be found in a room down stairs, in a small black trunk; that he had left the greater portion of his property to his child Myra; that Belleehasse, De la drove and Pitot ivere to be his executors; and that about two hours before he died he instructed his confidential servant Lubin, that in case of his death, the small black trunk above referred to was to be delivered to JDe la Grove, and enjoined upon him, as sooil as he (Glarlc) was dead, to be sure and take it to him. He states that Glarh expressed his satisfaction that he had provided for his daughter Myra, leaving her all his estate, and that Be la Groin! had consented to act as her tutor. He also states that he was present about fifteen days before Glark’s death, when Glarh took frorfl the small black case a sealed package, and presented it to Bé la Groix, stating that it was his last will, recapitulating some of its provisions, and reminding him of his promise to act as tutor to his daughter. He further States that several persons, shortly before Glaih's death, had seen the will, and corroborated Glarh? s statement as to its contents,- and that Judge Pitot, Lynd, the notary, the wife of William Harper and Belleehasse were among the persons referred to.- Now,” the Judge á, quo proceeds, “I think there call be no doubt, setting aside the testimony of Belleehasse and Mrs. Willimn Harper, that Glarh did execute a will shortly before his death; that the principal object of making this will was to recognize as his daughter the present applicant, and to make suitable provision for her; that the' executors of this will Were Pitot, Belleehasse and Be la Groix, and that Be la Groix was appointed tutor of his daughter Myra; that this will must have b'een in existence until within a very short time previous to Ctarlds death, if not after that event,- and that Glarh himself died believing it was in existence.

“That such was the opinion of De la Groix himsSlf at the time is evident from the fact that twenty-four hours had scarcely elapsed after the probate of the will of 1811 before he made oath that he verily believed that Baniel Glarh had made a ‘testament posterior to that of 1811, that its existence was known to several persons,’ and he accordingly applied for and obtained an order of the court commanding every notary in the city to declare whether such document had been deposited with him.

“ If the foregoing facts maybe considered as proved, independent of the testimony of Belleehasse and Mrs. William Harper, the additional testimony of these last named witnesses, with reference to the form of the execution of the will and its contents will rest upon a basis of probability, which must strengthen if it does not anticipate its conviction of its truth, for it is to be remembered that Gla/rh knew how to draw an olographic will in due form, having already done So in the execution of the previous will, and knowing what was necessary to its validity, it would be improbable in the extreme that he would omit any of the few necessary formalities.

“ When Belleehasse and Mrs. Harper, therefore, testify directly to the execution of the will, as having been written, dated and signed in the proper handwriting of the testator, they testify to the existence of facts which are, at least, probable, and upon the assumption that the will was executed, are matters approaching to certainty, independent of their testimony ; so with regard to the appointment of executors, of the tutor, and of the general dispositions of the will as described in the petition.

“They state Glarh did what he told others he intended to do, and what from the whole tenor of his conduct it was Very probable he would do.

“It does not appear, however, that all the contents of the will, as sworn to by jlfrs. William Harper, are also sworn to by Belleahasse, and though the testimony of the latter does not contradict that of the former, but confirms it, yet his testimony does not relate to any portions of the will, except such as relate to its form, the institution of his daughter as universal legatee, and the appointment of Be la Croix, Pitot and Belleehasse as executors: Indeed the examination of witnesses does not appear to have been conducted with any reference to a detailed description of the will.

“They, however, both state distinctly that they read the will; that it was wholly written, dated and signed by Ciarlo; that he thereby instituted Myra Ciarlo, his daughter, his universal legatee, and appointed De la Croix, Pitot and Belleehasse his executors. From an examination of the whole testimony, and considering the conduct of the deceased, his repeated declarations up to the very day of his death, together with his anxiety to make ample provision for his daughter,” the Judge of the lower court adds, “ I feel satisfied that the legal'presumption (which in the case of a lost will would necessarily exist), that it was destroyed or revoked by the testator must be considered as satisfactorily rebutted.”

In addition to the statement of facts and conclusions in regard to them of the Judge of the lower court, it may be remarked that De la Croix states that the endorsement upon the will which he saw sealed up were in these words: “Pour étre ouvert en cas de inort.” This indorsement does not appear upon the will of 1811, and the will which he saw was doubtless the will of 1813.

In regard to the testimony of Col. Belleehasse and Mrs. William Harper, there is nothing in this record which impeaches their credibility. If it be objected that the amount of property left by Cla/i'lo may have induced them to swerve from the truth, the reply has equal force that there would be just as strong a reason for any other party in interest to, have prevented the execution of the will by its destruction.

It may be remarked further, that the universal legacy being established beyond question, the particular legacies which tend to diminish the estate which will come into the hands of thjs universal legatee are sufficiently proved on general principles against such legatee by the testimony of a single witness-, because these legacies are alleged and set up in the petition of the party who is to be charged with them, and she cannot be permitted afterwards to deny what she has alleged in her pleadings.

Agreeing fully, as we do, with the conclusions arrived at by the District Judge as to what has been proven, the only remaining question for us to solve is one of law, and it is: Has this will been proven in conformity to Article No. 159, p. 244, of the Old Code or of Article No. 1648 of the New Code, which require for the proof of the olographic will the testimony of two credible witnesses, who declare that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting, as having often seen him write and sign during his lifetime?

The witnesses have sworn that the will was entirely written, dated and signed by Daniel Clark, but they nowhere say that they have often seen him write.. They show an intimacy and relationship which leaves little room to doubt that they really were well acquainted with his handwriting, and had probably seen him write often, as required by the Code, but they have not expressly said so. The question can, therefore, be answered only by determining whether the provisions of law contained in this Article of the Code are sacramental, and must bo pursued in all cases, or whether they are merely directory, and the courts have power, in certain cases where this proof is wanting by reason of accident, to avail themselves of the secondary proof, the next best of which the nature of the case will admit.

It would seem that there was a distinction between rules of law which prescribe the form in which wills and testaments are to be made and those which direct the courts in what manner they shall be admitted to probate and ordered to be executed. The first, commencing at Article 1567 of the Civil Code, are positive enactments which are essential to the validity of the will. Their nonobservance renders the supposed will null and void by express provision of law. C. C., 1588. The rules, on the other hand, which are sketched by the Legislature for the opening and proof of testaments, commencing at Article No. 1639, do not pronounce the penaHy of nullity for their non-observance, and they nowhere say that other cases may not arise in which the strict letter of these rules may be inapplicable, and that the Judge may not, in extraordinary cases, receive other equally satisfactory proof that the requirements of the law have been fulfilled.

In a nuncupative will by public act it is required that certain formalities should be observed before a notary public and three witnesses. Without these observances the will would not exist as such.

The olographic will must be entirely written, dated and signed by the testator. Without the observance of these requirements there is no legal will.

And so of the other forms. But whenever these forms have been observed, there is then a valid will entirely independent of its probate or any subsequent proceeding which may be commenced upon the same. But the law says that this valid will shall remain inoperative until it receives the order for its execution by the Judge of the probate court. But it has never been pretended that this validity of the will is in any manner effected by the character of the proof which the Judge of the lower court may deem sufficient on which to base 1ns order. If the will is really valid, the irregular proof on which he may base his decree cannot render it invalid. The will subsists, and though the judgment might be corrected on appeal, yet, if it were suffered to remain, the courts would never permit a party to lose his rights by a mere irregularity in the proof upon which the decree was founded. Falkner v. Friend, 1 Rob., 48.

So in the case before us, the will of 1811 was admitted to probate by Judge Pitot, upon the single declaration of the witnesses “ that the same was in the proper handwriting of him, the said Daniel Clark." No one will pretend that this will was rendered invalid because those witnesses did not swear that they had often seen Daniel Clark write. Had the will afterwards been attacked on the ground that the will was not in the handwriting of Daniel Clark, it would doubtless have been sustained on satisfactory proof that it was entirely written, dated and signed in the handwriting of the testator.

The distinction which we have drawn between the positive enactments of law in regard to the form for the execution of wills and the directory provisions in regard to the proof of the same, seems to have been fully recognized by' our predecessors. In the case of Bonthemy v. Dreux et als., 12 M. R., p. 639, the court maintained a nuncupative will by private act which had been admitted to probate on the testimony of a single witness, notwithstanding Article No. 189, p. 244 of the Old Code. This distinction was also taken in the case of the Succession of Robert, Pilié, Executor, 2 Rob., 433 ; also, in effect, in the case of the Succession of Eubanks, 9 An., 147, where a witness was admitted to testify who did not possess the qualifications required by Article 1584 of the Civil Code.

This distinction also pervades the jurisprudence of France on this subject. By Article No. 1007 of the Code Napoleon it is made the duty of the Judge to make a proces verbal of the presentation of the olographic will, the opening of it, the state in which he found it, and the order of deposit with the notary. These provisions appear to be directory only. Pailliet, Note 2 to Article 1007 C. N., says: “ La presentation du testament au president du tribunal, l’ouverture des testaments par ce magistrat, et le proces verbal qu’il doit dresser ainsi que de l’état du testament, sont sans contredit des precautions que la loi a cru nécessaires, pour qu’on pút étre assuré de plus en plus de la volonté des testa-tcurs; mais la loi n’a point attache á l’inobservation de eos formalités de peine de nullité, et on ne saurait la prononcer, surtout lorsque rien n’indique la fraude de la part de l’héritier institué ou du légataire.” See note and authorities there cited.

Taking it, therefore, for granted that the distinction which we have indicated exists, the next question which presents itself is, do the circumstances of this case take it out of the rule prescribed by Artide No. 1648 of the Civil Code? We think the loss or destruction of the will, after the death of Clark, and the long period of time which has elapsed since his death, justify a resort to secondary evidence, which would not have been necessary if the will had not been lost or destroyed, and if so long a period had not elapsed before an attempt had been made to admit it to probate. We think this view of the law is fully sustained both by reason and authority.

Article 1648 contemplates that the olographic will shall be presented before the Judge before whom it is to be proven; yet no one would seriously contend that the calamity which deprived the legatee of the will would prevent him from establishing its contents by secondary evidence. Were this the law, a reward would be offered to villainy, and it would always be in the power of the unscrupulous heir to prevent the execution of the will.

The ease of Thomas et al. v. Thomas, 2 L. R. 166, was a controversy in regard to a lost will which, it had been alleged,.had already been admitted to probate. The objection to the proof was:

“That parol proof of the execution of the will could not be given in that court; that a will, being an instrument clothed with certain formalities prescribed by law in order to give it effect, no evidence of its loss or its contents could be offered until its existence with the requisite formalities had been proved.”

Judge Porter, as the organ of the court on this point, remarks with his usual felicity:

•“The first objection is entitled to more consideration, but we still believe it unsound. The law of evidence would have a poor claim to the praise justly bestowed on it if it did not foresee and provide for such a case as this. That rule which is the most universal, namely: that the best evidence the nature of the case will admit shall be produced, decides the objection, for it is only another form of expression for the idea that when you lose the higher proof you may offer the next best in your power. The case admits of no better evidence than that which you possess, if the superior proof has been lost without your fauxt. The rule does not mean that men’s rights are to be sacrificed and their property lost because they cannot guard against events beyond their control. It only means, that so long as the higher or superior evidence is within your possession, or may be rendered by you, you shall give no inferior proof in relation to it. Particular rules, which require written proof, always relax themselves to meet absolute necessity, or that necessity which is occasioned by occurrences common among men.

“ There is nothing in a will being required to be made in a particular form, which makes it an exception to this great law of necessity. It may increase the difficulty of proof, but furnishes no reason to refuse hearing it. The court in this case had proof before them, which much diminished the danger of parol evidence.”

In the case of the Succession of Maria J. Robert, Pilié, Executor, 2 Rob., 434, which was a contest growing out of an olographic will executed in France, and there deposited, the proof was by witnesses who were acquainted with the handwriting of the testatrix. It does not appear that they had often seen her write.

The court, after holding this sufficient as being all which was required by the law of France, says :

“It has been insisted, however, that Article 1648 and 1649 of our Code show that the original will ought to be produced in order to be identified with the testimony of the witnesses who have recognized it, and that in its absence the evidence would be incomplete. This position would perhaps be correct if the witnesses were in personal attendance before the court of probate. But these Articles are not negative laws; they do not say that no other kind of proof shall be admitted, and we doubt very much whether, under their application, if an olographic testament, executed here, had by some accident been destroyed before being legally proved, a true copy of it, identified with the original by the testimony of two credible witnesses who had seen both, and who would be able to swear to the genuineness of the original in the manner pointed out by law, should not be considered as sufficient compliance with the provisions of our Code. Surely we are not prepared to say that in such a case the legal rights acquired under the will would also be defeated, and that the party would be left without a remedy. This is indeed an analogous and even stronger case, and as in our opinion the law-makers cannot have intended to require an impossibility, we must conclude that, under such circumstances, the proof furnished by the appellants is a sufficient compliance with the requisites of the Codes, and that the inferior Judge did not err in ordering the execution of the will under consideration.”

In view of these decisions of our own courts in regard to tho construction of Article No. 1648, it is not necessary to examine the decisions of the court on analogous articles of the Civil. Code and the Code of Practice in order to arrive at a conclusion on this.

The doctrine of the common law is in consonance with this view taken by our own courts. The books are filled with adjudged cases in regard both to lost deeds and wills. We will content ourselves by citing one: the case of Dare v. Brown, 4 Cowen, 469. The suit was brought upon a lost will devising real estate. By the statute laws of New York, a will devising real estate was required to be proved by three credible witnesses. The Supreme Court of New York says, in regard to this lost will:

“ The will of Benijah Brown was proved by one of the subscribing witnesses. He stated it was executed in the presence of himself, James Walton, and another person whose name he did not recollect, but he had no doubt of his being a credible witness. This,” the court adds “ was all the evidence which could be expected under the circumstances of the case.”

Considering that the administration of justice requires something more than the application of the letter of the law designed for one class of cases of ordinary occurrence to all others, however they may have been modified by accident, and believing that the spirit of our laws provides for the case which the applicant has presented us, we conclude that the will of 1813, such as she has set forth in her petition, should be admitted to probate.

It has been objected (as we understand the argument) that this court has no jurisdiction of this case on appeal, under the Constitution, because there is no contestatio litis formed, and because there are no proper parties to the appeal. We dismiss this objection with the single observation, that it is not necessary under the Constitution that there should be a technical contestatio litis in order to give this court jurisdiction, and if the attorney of absent heirs was even necessary as a party, his presence here is sufficient to sustain this appeal.

We are not insensible to the argument that this claim has remained for forty years, without being set up in a court of justice in a form to be prosecuted to effect, and that rights have been acquired under the sales made under the will of 1811. The staleness of petitioner’s suit is best answered by the reference to the-litigation in which petitioner’s alleged rights have been prosecuted in other forms, and we may suppose it did not become necessary to resort to the unusual proceeding of applying for the probate of a last will until after those cases were decided.

The plaintiff presents to us a prima facie case which entitled her to relief. The decision which we make does not conclude any one who may desire to contest the will with her in a direct action, and to show that no such will was executed. On the other hand a refusal to probate the will places it beyond the power of the applicant to set up her rights under the will against any other person.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and proceeding to render such judgment as should have been rendered in the lower court, it is ordered, adjudged and decreed, that the will of Daniel Clark, dated New Orleans, July 13th, 1813, as set forth in the plaintiff’s petition be recognized as his last will and testament, and the same is ordered to be recorded and executed as such, and it is further ordered, that Frangois Dusuan de la Croix be confirmed as testamentary executor of said last will and testament, and that letters testamentary issue to the said De. la Croix, and that the costs of this proceeding be borne by the succession.

Lea, J.,

(dissenting.) The able and carefully-prepared opinion of the Chief Justice has failed to convince me that the document purporting to be the last will and testament of Daniel Clark should be recognized as such. This case turns principally upon the solution of a legal proposition, which has been correctly stated in the opinion which has been read — to wit: Whether the provisions of our Code in relation to the proof of wills “ are merely directory,” and “ the courts have power, in certain cases where the required proof is wanting, by reason of accident, to avail themselves of secondary proof — viz., the next best of which the nature of the case will admit.” It is urged, and the decree of the court has decided, that a distinction is to he drawn between the law regulating the execution of wills, and that which prescribes the manner of proving them. For instance, the law is imperative that an olographic will should he dated, and it is conceded that no amount of testimony, however conclusive, both as to the fact and even the precise date of its execution, will supply the want of a date; but tho same law, though in a different article, has declared that an olographic will must be proved by two witnesses, who possess certain qualifications, and who derive their knowledge from a particular source. This part of the law, it is decided, is not imperative, but directory, and is subject to the application of the ordinary rule of evidence — viz.: that when the best evidence is not attainable, the next best may be resorted to. A single remark made by the organ of the court with reference to the proof of the will of Maria J. Robert, (see 2d Rob., p. 432,) appears to be the basis upon which much of the reasoning in this case rests. The court remarked in that case that Articles 1648 and 1649 were not negative laws; but an examination of the case shows that this remark had no necessary logical connection with the conclusion at whieh the court arrived. The decision in that case I have no doubt was correct, not because these articles were not negative in their character, but because in the nature of things, so far as they were dispensed with, they had no application to the case in hand. One of the parties was seeking to prove a will registered in France — the laws of that country prohibiting a removal of the original. It was held that that portion of the articles referred to which required the production of the will was not applicable.

It was in this connection that the learned judge who rendered the opinion made the remark that these articles were not negative; but no such proposition was necessary to his conclusion. It appears to me that it was a case in which a negative law was not applicable. So in the case of Eubank, recently decided, which is quoted by the Chief Justice as being one “wherein a witness was permitted to testify who did not possess the qualifications required by Article 1684 of the Civil Code.” The only question was, whether a woman could be one of the witnesses to prove an olographic will. It was held that she might be, and that Article 1684, which prescribes that no woman shall be a witness to a will, has reference exclusively to subscribing witnesses, but had no application to the proof of olographic wills. I have examined the decision with care, and I have entirely misunderstood it if either the learned judge who wrote it, or the court which assented to it, intended to sanction the doctrine that a witness should be permitted to testify who did not possess the qualifications required by law. Again, the case of Thomas v. Thomas, referred to, was one in which the ordinary rules of evidence regulated the proof of the contents of a lost will, but an examination of the case shows that it had nothing to do with the probate of a will.

In a question involving title, proof was offered, not to have a will probated, but to establish the contents of a will which had been probated, and which, after its probate had been lost in the parish judge’s office, it was held that such a case was to be regulated by the ordinary rules of evidence. No question was presented with reference to the substitution of those rules for the positive provisions of the Code. Without entering into a more protracted examination of the cases referred to, I may be permitted to say that in none of them, in which the pleadings call for it, have I found a recognition of the doctrine that the articles of the Code regulating the proof of wills could be set aside or dispensed with, as not being imperative and prohibitory. And were it otherwise, I should consider the doctrine one which no precedent could consecrate. Laws, whether directory or prohibitory, are alike entitled to obedience; different consequences may attach to the violation of these laws, but though cases may occur to which they are not applicable, laws can never be dispensed with except by a power which is above the law, or one which violates it. Now, it appears to me that the character and meaning of the law may be determined by a reference to its object. If the object of the law in reference to the proof of wills was to regulate the measure of evidence only in cases where that measure was .attainable, then it is evident that it is mere surplusage. A law which prescribes that a certain amount of proof shall be required to establish a will, provided the applicants can produce it; and if they cannot procure it, that they may proceed to prove it in any other manner which may be satisfactory to the magistrate, carries within itself an inherent nullity. It would be operative only when it was useless, and would cease to be operative upon the first attempt to give it a practical effect.

The article referred to in this case, therefore, is not only negative, but negation is of its very essence; deprive it of its negative character and it ceases to be a law at all — it exists only as it prohibits. When the law, therefore, says that the olographic will must be proved by two witnesses, it means, as it appears to me, that one witness shall not prove it; and so with regard to every other provision applicable to the case presented. If any party in interest should appear before us on an appeal from a decree of a probate court admitting a will to probate upon the testimony of one witness, I apprehend that we should have very little hesitation in reversing the decree, no matter how well it might be fortified by proof that it was impossible to obtain two witnesses, or that witnesses who might have proved it were dead. I think we should say, in such a case, that the article was prohibitory, and that the ordinary rules of evidence were not applicable and could not be substituted for the positive statutory provisions of the Code.

If, then, the article of the Code is imperative and prohibitory, as I think it is, it is the duty of the magistrate to whom a will is offered for probate to see that the requirements of the law are complied with. If it is an olographic will which is offered for probate, it is his duty to require that it shall be proved by two witnesses who recognize the document as being wholly written, dated and signed by the testator; and the knowledge of this fact they must have acquired from having frequently seen him write and sign his name. And it appears to me that the magistrate receiving the proof of the will cannot dispense with any of these requirements without an omission of duty. Having considered the general rules regulating the proof of wills, it remains to be determined how far the case presented furnishes such an exception as to justify a departure from their ordinary application. It is admitted — and on this point there is no division of opinion — that in no part of the testimony is it stated that either of the witnesses ever saw Clark either write or sign his name; but it is urged that this being the case of a lost will, the rules regulating the proof of testaments not lost are not applicable.

So far as the articles of the Code were not intended to apply to such a case as that presented, they of course cannot be invoked or enforced.

When the law, therefore, refers to the production of a will, the ease of a lost will, so far as it relates to its production, is not contemplated, any more than in a provision referring to the presence of witnesses in court reference can he supposed to be had to a case where the witnesses are dead or absent. Acting upon this reasonable doctrine, the inferior court allowed proof to be offered of the fact that a document purporting to be a last will and testament of Daniel Ciarle had been either lost or destroyed, and also proof of the contents of the document supposed to be lost. The recorded testimony of witnesses long since dead was received in evidence both as to the character and contents of this document. All that the dead had sworn to, and all that the living could swear to, was received without objection. If more testimony was not received it was because no further testimony was attainable; but upon a consideration of the whole of it the court thought, perhaps erroneously, that the proof did not meet the requirements of the law. The inferior court considered that, without assuming that to have been proved which it is admitted was not proved, it had no authority to admit the will to probate; and it is because (as it appears to me) this court has assumed that the witnesses, if they could be brought to life, would swear to what they have not sworn to; would give testimony beyond what they had already given; would, in fact, give a particular answer to a particular question that I feel compelled to dissent from the opinion which has been rendered.

I have endeavored to show, that if the witnesses were alive, it would be the duty of the court to inquire into the particular sources of their knowledge of Claris's handwriting. Now, in my opinion, the court was not authorized to assume that an answer to the question whether they had frequently seen OlarTc write, would have been an affirmative one. Eor a legal inference, the court was not, it appears to me, authorized to travel beyond the record, and as a mere deduction of fact, it, by no means, follows that familiarity with Glarh's handwriting and signature must have been based upon the fact that they had ever either seen him write or sign his name.

Every person who has been called upon frequently to receive the proof of wills, and indeed every person who has had occasion to examine frequently the handwriting of different persons, must recognize it at once, as within bis personal experience, that such knowledge of one’s handwriting is often acquired in a manner to enable any one to swear to it with all reasonable certainty, without ever having seen the writer put pen to paper. It is not my purpose to elaborate this point or to extend my remarks beyond what may be considered necessary to a statement of the views upon which my dissent is placed. I withhold my concurrence in the decree which has been rendered, because, in my opinion, it substitutes conjecture for certainty in proceedings in which, above all others, neither assumption nor conjecture are admissable.

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


author: MERRICK, C. J.

text:
    Same Case on a Re-Hearing.
   MERRICK, C. J.

A re-hearing was granted in this case to consider the propriety of amending the judgment heretofore rendered, so as to reserve Richard, Relf (inadvertently made a party to the record in this court) the right of hereafter contesting the decree.

The counsel for the appellant make no objection to the amendment, but propose that this right should be limited, so that he should be permitted to attack the will by a direct action only.

We are referred-to an expression in the opinion read, wherein we say that the decree which we make (admitting the will to probate) does not exclude any one who may desire to contest the will with the appellant in a direct action, and to show that no such will was executed. This must not be understood as expressing the opinion that other means of defence may not be used, as by way of answer or exception, whenever the will is set up as a muniment of title. Kilgore v. Ratliff's heirs, 2 N. S., 301; O'Donogon v. Knox, 11 L. R., 888; Robert v. Allier, 17 L. R., 13.

It will be time to express an opinion upon this point whenever the question is properly presented.

Without indicating what modes of defence parties may adopt, we think the judgment in this case should not conclude Richard Relf, but that he, as well as those not parties to the suit, having an interest so to do, should be allowed to oppose to the will when set up against them, whatever defences the law permits in like cases.

It is, therefore, ordered that the judgment heretofore pronounced by us in this case, be amended by adding to the same the words: Reserving to said Richard Relf the right, if any he have, to oppose said will in any manner allowed by law, as fully as he could have done had he not been a party to these proceedings.


text:
    David C. Griffing v. Stephen M. Routh.
    A runaway slave, supposed to belong to defendant, was concealed in defendant’s fodder house, among the fodder. Two slaves of defendant were sent to capture him. They thrust a broadsword into the fodder to frighten him out, and in so doing, inflicted a wound of which he died. By the Oov/ri: It was a grossly negligent and wanton act on the part of the defendant’s slaves to thrust a dangerous weapon like a broadsword into the fodder where they believed afellow-slave was concealed. It matters not that they did not intend to kill him. The master is liable for the damage done by this inexcusable negligence and barbarity, to the extent of being compelled to pay for the slave killed or to abandon his own guilty slaves to the person injured.
    Code, 180,181, 2300.
    APPEAL from the District Court, Tenth District, Parish of Tensas, Snyder, J.
    Farrar, for plaintiff. Ohilton and W. M. Perkins, for defendant and appellant.
   Spofford, J.

Some slaves of the defendant killed a slave of the plaintiff under the following circumstances :

The defendant was absent at the north. One of his slaves ran away. A runaway was ascertained to be lurking about the premises. The defendant’s overseer, supposing him to be the runaway slave of the defendant, sent the driver with another of the hands to the fodder-house, with orders to capture him. They found that the fugitive was concealed under the fodder. With a view to frighten or force him out, one of them began thrusting a broadsword (used for pruning hedges) down into the fodder. In doing so, he plunged the sword into the runaway’s abdomen, and wounded him so severely that he died in a few hours, notwithstanding surgical aid was procured as soon as possible. It turned out that he was the slave of the plaintiff.

A jury of the vicinage rendered a verdict in favor of the plaintiff for the value of the slave thus killed ; and the District Judge, refusing a motion for a new trial, gave judgment pursuant to the verdict. The defendant has appealed.

The appellant complains that there is not sufficient evidence that the plaintiff owned the boy that was killed. We think his own admission is sufficient.

He contends that if the slave did belong to plaintiff, then, being a runaway, he could not be worth $1200, the sum awarded by the jury. There is positive evidence that he was worth that sum, which the jury believed.

Again, it is urged that the slave killed was himself acting wrongfully, being at the time a runaway and a trespasser, and that, as he brought his death upon himself, the plaintiff cannot recover.

But the wrong doing of the slave did not contribute naturally and directly to his being killed with the broadsword. This distinguishes the case palpably from the cases of Lesseps v. The Pontchartrain Railroad Company, 17 L., 361, and Fleytas v. Pontchartrain Railroad Company, 18 L., 339, cited by the defendant’s counsel. In one of these cases, the slave was killed in consequence of his own temerity in driving his cart across the railroad track, when he knew the cars were approaching at full speed; in the other, the slave was lying on the track asleep, intoxicated, or in a fit, (of which there was no evidence,) and the opinion of the court states that the testimony did not show that the engineer was guilty of a want of due care.

It was a grossly negligent and wanton act on the part of the defendant’s slaves to thrust a dangerous weapon, like a broadsword, into the fodder where they believed a fellow-slave was concealed. It matters not that they did not intend to kill him. The master is liable for the damage done by their inexcusable negligence and barbarity, to the extent of being compelled to pay for the slave killed, or to abandon his own guilty slaves to the person injured.— “ The master shall be answerable for all the damages occasioned by an offence or quasi-offence, committed by his slave, independent of the punishment inflicted on the slave.” C. C., 180; see as to abandonment, Arts. 181, 2300.

The judgment is, therefore, affirmed, with costs.