text:
    Police Jury of the Parish of St. Mary v. R. W. Harris.
    The term “landed estate,” on which Police Juries are authorized by the Act of the Legislature to levy taxes for works of internal improvement, embraces, also, all houses, fixtures and improvements thereon, and neat cattle, horses and mules when attached to, and used on a plantation.
    The last assessment roll for State taxes is the proper basis of the levy of the parish tax for inter-ternal improvements.
    from the District Court of St. Mary, Voorhies, J. » ■

      R. If. McMillan, for plaintiff.

      J. Q. Olivier, for defendant and appellant.
   Merrick, C. J.

This suit was instituted by the-Police Jury of the parish of St. Mary, to recover for the use of the Opelousas and Great Western Railroad Company, one hundred and eighty dollars assessed on the landed estate of the defendant, estimated at $36,000.

The action is based upon an ordinance of the Police Jury of the said parish, passed in- the month of October, 1852, by which a tax of three per centum was levied on the landed estate, as expressed in the tax roll of the year 1851, and payable in six annual installments of one-half of one per cent, each, commencing on the first day of June, 1853, to pay the subscription of six thous- and two hundred and sixty-four shares of stock to said Company.

The answer alleges, in substance, that the assessment of the tax is illegal, because made upon the assessment roll of 1851, and because it was made not only upon land, but also upon the improvements on the same, the machinery, neat cattle, horses, and mules, attached to the plantation.

The Judge of the lower Court being of the opinion that the Act of the Legislature, authorizing the levying of the tax, contemplated the land only as the object of taxation, reduced the assessment from $36,000 to $22,900. He gave judgment accordingly in favor of the Police Jury for $114 50, with legal interest from June 1st, 1858, until paid.

The reduction of $13,100, made by the Judge of the lower Court, is composed of the improvements on the plantation, estimated by witnesses at, say $10,000, and the value of the horses, mules and neat cattle, attached to the plantation, estimated at the further sum of $3,100.

The defendant appealed.

Since the appeal has been pending the defendant has departed this life, and the administrators of his succession have been made parties to the suit.

PlaintiS has filed an answer to the appeal, praying that the judgment be amended so as to give the plaintiff the whole amount claimed.

The objections to the payment of this tax in the answer as urged in argument, are reducible to the two points mentioned :

1st. The tax ought to have been levied on the land alone, and not upon the improvements, and horses, mules, and neat cattle employed in cultivating the land.

2d. The assessment ought not to have been made upon the tax roll of 1851.

On the first point, we think that the term “ landed estate” contained in the Act of the Legislature, approved March 12, 1852, upon which the Police Jury were authorized, by the Act, to levy a tax to pay the amount of subscription to the stock of corporations undertaking works of internal improvement, clearly embraces not only the land, but all houses, fixtures and improvements, of every kind thereon, and all machinery, neat cattle, horses and mules, when attached to and used on a plantation or farm.

The ordinary meaning of the words “ landed estate” seems to be an interest in and pertaining to lands. Thus we say, a landed proprietor; and mean thereby any person having an estate in lands, whether highly improved or not.

The Civil Code not only includes as a part of an immovable, the buildings and other constructions thereon, whether they have their foundation in the soil or not, but, among other things, the cattle, (les animaux,) which the owner has placed upon it for its service and improvement. C. C. 455, 459.

But, in reference to taxation, the Legislature has defined what is meant by landed estate. The first object of taxation specified in the Act to provide for the government of this State, passed in 1847, is expressed in these words:

“Objects of Taxation.

“ First, all lands and lots of ground lying in the State, owned or claimed by any person or corporation, whether patented or not, including in the assessment thereof all houses, fixtures, improvements of every kind or value, thereon or affixed thereto, all machinery, neat cattle, horses and mules, when attached to and used on a plantation or farm.”

This same provision was in force at the time of the passage of the Act of 1852, and was re-enacted in the Acts of 1853 and 1855.

The assessment complained of in this case is in the precise language of the Act of 1847, and in the language contained in the forms sent by the Auditor of Public Accounts to the Assessor of the parish of St. Mary, and other parishes, to be filled up by them in the assessment of the taxes.

That this formula contains the objects of taxation intended under the term “ landed estate” will further appear by reference to the manner in which the assessment of the parish tax is made. A new assessment is not made out, but the assessment roll for the State taxes is taken as the basis of the tax for parish purposes, and the parish tax is extended over the tax roll of the State taxes, say for one-third, one-half, or whatever larger or smaller proportion thereof, the Police Jury may assess in the manner provided by law. The Legislature, therefore, in confirming the power to levy the tax upon the landed estate, must have intended it should be levied on this object of taxation as assessed on the tax roll for the purposes of the State. Art. 1847, p. 171, Sec. 84.

The fixtures upon a plantation as well as the horses and mules attached to it form so completely a part of the same, that were the tax collector to seize the tract of land for the payment of the tax he would also be obliged to seize them as constituting a part of the same. O. P.' 645.

1 On the second point, viz: that the assessment was illegal because the tax roll of the year 1851 was taken as the basis of the same, it may he observed that there is nothing in the record to show that the assessment roll of the year 1852 had been completed. Act of 1850, p. 136, Sec. 27, 28. In the absence of any allegation and proof to the contrary, it is but fair to presume that the Police Jury took the last assessment roll as the one upon which to levy the tax.

The answer in this case admits that the Police Jury submitted the ordinance to the approval and ratification of the voters of the parish of St. Mary, on whose property the tax was to he levied, and that a majority of the voters approved and ratified the same.

Now, as the Police Jury were obliged to raise a specific sum of money, viz, $156,600, to meet the subscription of stock to the Opelousas and Great Western Railroad Company, it became necessary to provide the means in such a manner that they should not be liable to fluctuation, or á tout diminution.

They therefore fixed the whole tax at three per centum on the landed estate so assessed for the year 1851, giving however to the tax payer the facility of paying by installments, instead of paying the tax at once. Had they required the payment of three per centum at once, and the voters had approved the ordinance, it would have been legal, and we cannot conceive that it is less so because the Police Jury have granted terms for its payment. Not only so, but the Act of 1852 expressly provides that the Police Jury shall pass the ordinance stating the levy of the tax, amount of subscription, the rate of taxation, and the period or periods when it shall be payable.

It also seems to be in accordance with the spirit of Art. No. — of the Constitution of 1852, which has been carried into effect as to Police Juries by the Act of the Legislature, approved the 29th of April, 1853, which prohibits them from contracting any debt or pecuniary liability without providing in the ordinance creating the debt, the means of paying the same, debt and interest.

We think for these reasons the judgment should be amended so as to allow the Police Jury of the parish of St. Mary, the full amount claimed in their petition, for the use specified.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be amended so as to allow the said plaintiff, which sues for the use of the Opelousas and Great Western Railroad Company, the full sum of one hundred and eighty dollars, with legal interest thereon from the first day of June, A. D. 1858, instead of the sum of $114 50, allowed said Police Jury by the judgment of the lower Oourt; and it is further ordered, that said sum of $180, and interest, and the costs of both Courts be paid by the said administrator and administratrix of the succession of said E. W. Harris, deceased, in the due course of administration; and it is further ordered, that said judgment, so amended, be affirmed.


source: Caselaw Access Project

author: Merkiok, O. J.

license: Public Domain

text:
    Louisa A. Cook v. T. Q. Doremus, administrator.
    A surviving spouse who has inherited an interest of one fourth of the estate of a predeceased child of the first marriage, forfeits the right of property in sueh estate by a second marriage, and becomes entitled Only to a usufruct therein.
    Article 1T46, O. 0. embraces as well, property cast by law to the surviving parent, as that which may have been donated or bequeathed.
    Article 1746,0. 0., constitutes an exception to Arts. 899-900, under the title of successions.
    A judgment against a party suing in one capacity, does not operate as res jucHeata against him, when suing, in another capacity.
    PPEAL from the District Court of St. Mary, VoorMes, J.

      J. G. Olivier, for plaintiff.

      T. H. Lewis and E. O. Brent, for defendant and appellant.
   Merkiok, O. J.

William 8. Gordy, by his marriage with Caroline E. Gordy, had four children. Caroline E. Gordy died in the month of January, 1847, and afterwards, during the same year, two of the children died, who had as their portion inherited an estate of $60,000, by representation of their deceased mother.

On the 17th of February, 1848, William 8. Gordy contracted a second marriage with the plaintiff, Louisa A Goole, by whom he had two children. In 1858, Williami 8. Gordy died, and his widow was confirmed as tutrix to the two children of the second marriage. She brings this suit as such tutrix to compel the administrator of Williami 8. Gordy, who is tutor to two of the children of the first marriage, to cause an inventory of the undivided interest of William 8. Gordy in the estates of said predeceased children to be made. The judgment of the lower Court was in favor of the defendant, and the plaintiff has appealed.

The defendant contends that the said William 8. Gordy, although entitled to the one fourth of the inheritances of each of his children who died before him, forfeited the same by his subsequent marriage, and became entitled to hold the same in usufruct only.

The solution of this case depends upon the correct construction of Article 1746 of the Civil Code, which is in these words: “ If a person, who marries a second time, has children of his or her preceding marriage, he or she cannot, in any manner, dispose of the property given or bequeathed to him or her by the deceased spouse, or which came to him or her from a brother or sister of any of the children which remain.

“ The property, by the second marriage, becomes the property of the children of the preceding marriage, and the spouse who marries again, only has the usufruct of it.”

The Prench test is, (yi its application to this case) stronger than the English or it prohibits the surviving father or mother from disposing of the property which comes from the succession of the deceased child: qui lui proviennent de la succession de quelque frére ou soeur des enfans qui lui restent.

It will readily be perceived that the case before us is within the letter of the Article of the Code cited. But it is contended on the part of the plaintiff that, “This Article is intended to apply only to testamentary dispositions or donations, and not to the portion reserved by law to the surviving parent. The expression in Article 1746, ‘ or which came to him or her from a brother or sister of any of the children which remain’ as according to the Prench text, * qui lui proviennent de la succession de quelque frére ou soeur, &c.,’ applies to such property as was donated or bequeathed by or came from the testamentary succession of the deceased child, and does not apply to the portion reserved by law to the sur _ viving parent.”

This argument is based on Articles 881, 883, 899, 900 and 1481 of the Civil Code. The first of these Articles provides, that the law does not take into consideration the origin nor the nature of the property, in order to regulate the succession. Article 883 divides heirs into three classes: ascendants, decen-dants and collaterals. Articles 899 and 900 give to the surviving parent the one fourth of the estate of their deceased child, and Article 1481 makes the surviving father or mother the forced heir of such deceased child, and prohibits the child from disposing of more than two-thirds^'of his property.

It is urged in substance that, tq construe Article 1746 so as to divest the father of the property in the succession of his deceased child, and to leave him only an usufruct, would violate Article 881, because it would be an inquiry into the nature and origin of the property, in order to regulate the succession ; that such construction would also violate Article 1481, because it would deprive the surviving parent of the interest in the succession of his deceased child, which is given as a forced heir, and that Article 1746 being under the head of donations and testaments, ought not to be construed so as to defeat the right of the parent as forced heir, and which Is conferred by the legislation under the title of “Successions” in the Code.

Article 1746 of our Code is not contained in the Napoleon Code, but it is derived from the Spanish law. It was in substance enacted in the Code of 1808, p. 258, Art. 227, although the Article of the present Code, now under consideration, is perhaps broader in its terms.

We have not been cited to, nor with our limited means of inquiry, have we been able to find, any authority bearing directly on the question before us, but we find several decisions of our own Courts in which the corresponding Article of the old Code was incidently considered, and no where do we find it intimated, that Article 1746 should have the narrow construction contended for by the appellant’s counsel. It seems to be taken for granted in all of them, that this prohibition of law applies to property inherited, as well as that acquired by will, or donation inter vivos.

In the case of Duncan's Executors v. Hampton, 6 N. S. 38, the Court says: “In the present case the fact of property having been held in common by the mother and her son, is contradicted, on the ground that as her share in the estate accrued in consequence of the death of a child, from whom on general principle she would have inherited, yet by her second marriage she lost the full right of inheritance, and only took a usufructuary interest. In support of this doctrine the appellant’s counsel rely on an Article of our old Civil Code, 227, found on p. 258, and which is retained in the new Code, Article 1746. It is true that these laws contain an exception to the general rule of inheritance by ascendants. But it is an exception which existed under the former laws of the country, and which appears to have its exceptions also unrepealed by any act of legislation since the country came under the dominion of the United States. One of these exceptions to the exception, is created in favor of women becoming widows before the age of majority, although they should marry a second time, and under its provision Mrs. De Armas rests, as is shown by the testimony in this case, for she was not of age at the death of her first husband.”

In the case of LeBlanc v. Landry, 7 N. S. 665, it was in effect decided that the heirs of the forced heir of the last surviving child of the first marriage, took (under the Code of 1808) the property of that portion of the estate of the predeceased children of the first marriage, of which the mother held the usufruct in virtue of the Article cited, of the old Code, in preference to the mother.

In the case, Venet et als, v. Theriot, 15 L. R. 111, it was held under the Code of 1808, in virtue of an exception contained in the Spanish law, unropealed by that Code, that the surviving spouse contracting a second marriage is not bound to reserve property acquired otherwise than by inheritance by the deceased child of the first marriage. But such property becomes absolutely his, from the moment of the death of such child, if purchased by him.

In the case of Urguhart v. Sargent, 2 Ann. R. 201, the doctrine of the Supreme Court mentioned in the case of Duncan's Executors v. Hampton, 6 N. S. 38, viz: that the exceptions of the Spanish law to Article 227, p. 258 of the'old Code, were not repealed by it.

We find also the argument that, in as much as Article 1746 is under a distinct title, to-wit: “ donations and testaments,” that it cannot therefore be held to limit the provisions of the Articles cited by appellant’s counsel, and found in the Code under the head of “Successions,” is answered by' the Supremo Court, in case of the Succession of Hoa, 2 Ann. R. 142.

The same argument was urged by Mr. Mazureau, in reference to Article 173ft of the Code.

In this case the Supreme Court says: “ The third chapter of the third book, of the Civil Code, beginning with Article 1480, on which the appellant relies, establishes the general principles which regulate the transmission of property by disposition inter vivos and mortis causa, and the reduction of those donations in case of excess. The 9th chapter of the same book, containing Article-1739, regulates the transmission of property between married persons by the same means. This is an exception to the general rule laid down in Chapter-3d ; it forms a seperate branch of legislation for dispositions between husband: and wife; and the intention of the law given to establish a peculiar rule applicable to them alone, and to make that rule invariably the same when there is, issue, cannot be mistaken.” What is here said in regard to Article 1739,, applies with equal force to Article 1746, which must therefore be treated as. an exception to the general rules of inheritance established by the Articles of the, Code cited by appellant’s counsel, and found under the title “ Successions.”

In regard to the objection raised by defendant’s counsel, that the record contains a judicial admission of William S. Gordy, which operates as an estopel, to his heirs, we do not find such admission in the record, neither do we think that bringing a suit in one capacity, operates as res judicata against his rights in another. Therefore if the plaintiff has any claim on account of the usufruct due the said William S. Gorchy, on the property belonging to the succession of his predeceased children, as seems to be intimated by defendant’s counsel, it must be understood that this judgment does not bar the same.

With the reservation herein indicated, we are of the opinion that the judgment of the lower Court should be affirmed.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed, and that the appellant pay the costs of appeal.


author: Lea, J.

text:
    G. Petry, Administrator, v. E. Booth, Administratrix.
    When the succession of a partner in community is unsettled and insolvent, the Court will restrain by injunction any creditor of the community from seizing and selling the community property— that property being the common pledge of the creditors of the community.
    from the District Court of Vermillion, Yoorhies, J.

      J. W. Walker, for plaintiff.

      D. O'Bryan, for defendant and appellant.
   Lea, J.

In this case the plaintiff in his capacity of administrator of the estate of his deceased wife, Salema E. Wofford, seeks to enjoin further proceedings on an execution issued for the enforcement of a judgment against him personally, on the ground that the property seized belongs to the community existing between himself and his deceased wife, of whose succession he is the administrator, the same being yet unsettled and insolvent, and on the further ground that the debt upon which the judgment against him is based, was itself a debt of the community.

It is admitted that at the death of Mr. Petry, the property seized belonged to the community, and it appears also from admissions on file that the debt sought to be enforced was contracted during the existence of the community. The property seized in execution was adjudicated to the plaintiff under the provisions of Article 338 of the Civil Code. It is 'clear, even assuming the calculation of the defendant’s counsel to be correct, that the assets of the community are insufficient to discharge the debts without a sale of at least a part of the property adjudicated, the whole of which, including that which is now the subject matter of litigation, is the common pledge of the creditors of the community. If any person other than the plaintiff, were the administrator of the succession of Mr. Petry, we think he .would have a right to demand that the adjudication bo set aside, and that the property adjudicated bo sold in the course of administration for the payment of the debts of the community; and for the purpose of protecting or enforcing- this right, that he would be entitled to an injunction to prevent the alienation of the property adjudicated.

If this would be the right of any other administrator, we think that right is not extinguished by the fact that the person, to whom the property is adjudicated, is himself the administrator.

It is ordered that the judgment be affirmed with costs.


author: Buchanan, J.

text:
    J. Muggah, Administrator, v. T. M. Tucker.
    In a suit on a note, where defendant pleads a failure of consideration, the omis of proving the failure, is upon him.
    from the District Court of St Mary, VoorMes, J

      H. Gibbon, for plaintiff and appellee.

      J. B. Lea, for defendant and appellant.
   Buchanan, J.

This is a suit upon four promissory notes; two of which are for $466 66 each, and two for $6590 83 each. The defendant pleads error and want of consideration as to the two notes $466 66. He further pleads that the consideration of the notes of $6590 83 “promises in like manner to fail” ; that said notes were given for certain land, situate in the Parish of St. Mary, and that the defendant has been sued by a person who claims the said lands by a title adverse to that for which the notes were given; that defendant has been sued by another person, who claims the vendor’s privilege on said lands ; and finally, that the measurement of the land falls short, by one third, of tho number of acres expressed in the act of sale.

Plaintiff had judgment for the amount claimed, and defendant has appealed. The controversy is one of fact, in which the burthen of proof was upon the defendant. He has failed to establish a want of consideration for the notes as alleged; the party who has brought the suit against him, mentioned in the answer, proves that the suit was for other land than that which formed the consideration of the notes of $6690 83. And as to the other notes, of $466 66, it seems at least as probable, that they were given for a dwelling house and other improvements, which undoubtedly belonged to Stansbury’s estate, as that they were given, as defendant contends in argument, for the land on which those improvements were erected. As a last resort, the defendant makes a claim in this court, which is not mentioned in his pleadings, to-wit: for a reduction of about forty dollars on each of the $6590 83 notes, as being an arithmetical error in the division of the price of the property purchased, into three installments. • It certainly would seem that such a mistake has been made; but there is some confusion and uncertainty in the evidence bearing upon this point; and it is possible that, had the defendant mentioned it in his pleadings, this small apparent error might have been satisfactorily explained. After many years have elapsed, and a large portion of the price has been paid without objection, it would be giving an undue advantage to defendant, to allow him to avail himself, in this court, of a matter of this sort, without notice given in his pleadings.

Judgment affirmed, with costs.


author: Voorhies, J.

text:
    Baptiste Calais et al. v. J. Semere.
    An absolute nullity of a testament arising- from defects of form, is cured by the lapse of five years, when the execution of the will has been ordered by a court of competent jurisdiction.
    The Probate of a will which was null for defects of form, though made <xc pCM'te, is a sufficient basis for the prescription against an action to set aside the will for nullity.
    from the District Court of St. Martin, Voorhies, J

      O. R. Mouton, for plaintiffs and appellants:
    Cited C. C. 1588, 1640, Gaude-v. Baudoin, 6 L. R. 725; 16 L. R. 80; 12 Rob. 85; 10 L. R. 538; 5 Ann. 265 ; ib. 612.

      B. Simon and A. Reblanc, for defendant:
    Cited 1 N. S. 73; 3 N. S. 368. Toullier, vol. 5, Nos. 429-30. State v. Martin, 2 Ann. 715; 3 Ann. 329 ; ib. 522.
   Voorhies, J.

The plaintiffs, as the legal heirs of Louis Semeri, deceased, seeks to set aside his will constituting Marie Martha Semeri as his universal legatee, on the following grounds: 1st. Because said testament does not on its face make full proof of itself, and is therefore null and void as a noncupative testament by public act. 2d. Because all the requisites of law for the validity of a noncupative testament have not been fulfilled, in this, that no mention is made in the said testament that the subscribing witnesses thereto were residents of the Parish of St. Martin, where it appears the said testament was made and received. It is also urged by the plaintiffs in their petition, that the judgment ordering the execution of the will is a nullity, for the following reasons: “1st. Because the said testament being defective and null, in this, that it did not bear on its face the evidence that the subscribing witnesses thereto were residents of the Parish, where it appears it was written and received, and because said testament did not make full proof of itself, the execution of the same could not be ordered by the Probate Judge, without notifying the heirs of the testator; and 2d. Because said testament has never been recorded as required by law.”

The defendant, who is the testamentary heir of Marie Martha Semeri, deceased, urges in his answer: 1st. That the testament of Louis Semeri is valid in its form, and that the residence of the witnesses is sufficiently mentioned therein, so as to show the fact on its face. 2d. That if said will contains any defects of form, the same is cured by the prescription of five, ten and fifteen years, which he pleads in bar of the present action in nullity.

The Court below sustained the plea of prescription, and gave judgment in favor of the defendant, and the plaintiffs have appealed.

We do not think the Judge a quo erred. The Civil Code, Article 3507, provides, “ that the action of nullity or rescission of contracts, testaments or other acts, &c., are prescribed by five years, when the person entitled to exercise them is in the State” &c. The defect of which the appellants complain is one of form. It is true, defects of form in a will are absolute nullities, but we think it is well settled that such nullities may be cured by the lapse of time. State v. Martin, 2 Ann. 715; 3 Ann. 329; 16 L. 91. The execution of the will in this case, was ordered by a Court of competent jurisdiction, and the judgment giving effect to the will formed a sufficient basis for the prescription of the action of nullity. C. P. 930. It is correctly remarked by the District Judge that “ it is immaterial for the decision of this case, whether the judgment of the Court of Prohates, homologating the will of Louis Semere, was or was not given, em parte ; for, such a judgment could not be a bar to the plaintiff’s right of action, if the time fixed for prescription had not run out. It is not the action of nullity of the judgment of homologation, that is prescribed by five years, but the action to set aside the will itself”

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


author: ■Lea, J.

text:
    J. L. Overton v. Ed. Simon.
    Plaintiff sued for an amount less than $800. Defendant claimed $1200 in reconvention. Betel: That the Supreme Court is without jurisdiction as to the judgment on the original demand.
    One who undertakes the superintendence of a work which is defectively executed, is responsible, in the absence of proof that the failure in his undertaking was owing to an unforeseen accident or uncontrolable event, for any direct loss or injury resulting from his negligence or want of skill.
    PPEAL from the District Court for the Parish of St. Martin, Dupré, J.
    XX .T. W. Walker, for plaintiff.

      A. Deblane, for defendant and appellant.
   ■Lea, J.

The plaintiff claims $160 for having superintended the moulding and burning of 160,000 bricks, at the rate of $1 per thousand.

Eor answer, the defendant avers that the plaintiff was employed by his overseer, John Hollander, to superintend the moulding and burning of a brick kiln, which he had instructed his overseer to make on his plantation for the purpose of constructing extensive works and improvements thereon, but that, owing to the defective manner in which the work was done, the kiln was a failure, and that he was thereby put to great expense, trouble and inconvenience in executing the brick woi’ks which the said brick kiln was intended for, by reason of which he has sustained damages in the sum of $1200, which he claims in re-convention.

The plaintiff’s claim being for less than $300, we are not at liberty to examine the correctness of the judgment appealed from, so far as it is unconnected with the reconventional claim. Assuming then, that the plaintiff rendered services under his contract to the extent allowed and recognized by the judgment appealed from, our enquiry is confined exclusively to the question of damages. The obligation and liability of the plaintiff are not to be tested by the assumption of a contract to deliver any given number of bricks; he was merely employed to assist and superintend the execution of a work undertaken by the overseer of the defendant in accordance with his instructions. But the evidence establishes beyond a doubt that the kiln turned out badly, a large portion of the bricks being unfit for use; and it does not appear from the evidence that this failure on the part of the plaintiff was attributable to any unforeseen accident or uncontrolable event. The plaintiff is therefore responsible for any direct loss or injury which the defendant may have sustained from his negligence or his want of skill. It is shown, that about 20 slaves belonging to the defendant were employed by Overton during nearly two months, and the hire 0f those slaves is estimated by one of the witnesses at from 75 cents to $3 per day; the defendant, however, estimates the damage sustained by him from the loss of time and labour of his slaves at $300, an amount far below the estimate of the witness. It appears also, that there was a waste of wood amounting to nearly fifty cords, (more than one half of the kiln being worthless,) which are valued by witnesses at from $1 to $1 50 per cord. We think, considering the whole testimony, that the defendant has sustained an actual loss of at least $350, in consequence of the waste of time and labor of his slaves, and the waste of cord wood caused by the negligence or want of skill of the plaintiff in executing his contract.

It is therefore ordered that, so far as relates to the judgment in plaintiff’s favor for the sum of $75, the appeal be dismissed, and that as relates to the re-conventional demand of the defendant, the judgment appealed from be reversed, and that the defendant, Edward, Simon, do have and recover of the plaintiff, James L. Overton, the sum of $350 with costs of suit, together with the costs of this appeal.


text:
    Cabrol v. Gourdain & Ker et al., and Gourdain & Ker v. Cabrol.—Consolidated.
    The wife is without legal eapacity to alienate or hypothecate the community property.
    A mortgage made by the wife, during the existence of the community, though made with the authorization of the husband,cannotbe opposed to the creditors of the latter as his act.
    PPEAL from the District Court of St. Martin, VoorMes, J.
    _/r\_ E. Simon and J. G. Olivier, for Gourdain & Ker, appellants.

      A. De-blane, for Oabrol, appellee.
   Buchanan, J.

There are two questions necessary to be examined in this case:

1. The capacity of Mrs. Fontelieu {L'eontine Miguea,) to hypothecate the property in New Iberia to Oabrol.

2. The sufficiency of the description of the property mortgaged.

T. Mrs. Fontelieu, obtained, on the 2d May, 1844, ajudgment of separation of property from her husband; but this judgment was never executed, and was therefore a nullity. O. O. 2402.

On the 2d of October, 1850, she purchased in her own name, authorized and assisted by her husband, a piece of ground and buildings in the town of New Iberia. This purchase must be considered as inuring to the community of acquets and gains. O. O. 2371.

On the 20th of December, 1851, she mortgaged to Jaques Oabrol, certain property, (the same which she had purchased, as above, on the 2d of October, 1850.) In this mortgage, she was authorized and assisted by her husband, as well as in another which she executed, of the same property, on the 29th of of March, 1853. Both those mortgages were given to secure the payment of notes of Mrs. Fontelieu, authorized by her husband. The property mortgaged being property of a community still existing, it is clear that Mrs. Fontelieu was without legal capacity to alienate or hypothecate it. This could only be don,e by the husband, as head of the community. But it is said, the husband was a party to the acts of mortgage, for the purpose of authorizing his wife; and, therefore, that they should be considered as the mortgages of the husband. This view would be perfectly sound, if these acts were offered against the husband. He would not be allowed to question his liability. But the mortgages are offered against bona fide creditors of the husband, by judgment, for large amounts; and against such, it would, we think, be improper, under the peculiar facts of this case, to give these mortgages any validity. The record exhibits Mrs. Fontelieu as suing her husband for a separation of property, and for paraphernal rights, in April, 1844, upon the allegation that her husband’s affairs are embarrassed. One month afterwards, she obtains a judgment according to the prayer of her petition; which she never attempts to execute. In December, 1851, goods are purchased for the husband’s store, of Oabrol, for which two witnesses state, that the note of the wife is given for $1,521 08, payable the 1st of April, 1856, or more than four years after date. On the 29th of March, 1853, a similar purchase of goods is made, if we may believe the same witnesses, in payment of which Mrs. Fontelieu gives her note for $1000, payable on the 1st of April, 1853, or three days after date. After this, Fon-telieu, the husband, has large transactions with merchants in New Orleans in his own name, which bring him in debt rising fifteen thousand dollars.

These merchants put their claims in suit, and obtained judgment in October, 1854; and Oabrol puts in suit simultaneously his note for $1,000, which was eighteen months past due, and his note for $1,521, which had yet eighteen months to run to maturity. Simultaneously with this movement of her creditor, Oabrol, Mrs. Fontelieu again sues her husband for paraphernal rights and separation of property, which suit is brought to judgment in three days from the filing of the petition.

These circumstances afford sufficient reason for questioning the good faith and reality of the claims of Oabrol, and for inferring, in the words of the petition of Gourdain .& Kerr, “ fraudulent collusion between the parties to the conventional mortgages, for the purpose, prospectively, of securing Fonte-lieu’s property from the pursuit of his creditors.

Our decision upon this point, renders it unnecessary to decide upon the objection of insufficiency of description of the property mortgaged.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; that the injunction of Oourdain & Ker, be perpetuated, and that the injunction of Jacques Oabrol be dissolved; that Oourdain & Kerr recover of Jacques Oabrol and Pierre Oabrol, principal and surety in the injunction bond, in solido, two hundred dollars damages, and three per cent, per annum interest from the date of injunction till paid, upon the amount of the judgment of Oourdain & Ker v. J. Fontelieu enjoined; that E. Girard & Oo., recover of Jacques Oabrol and Pierre Oabrol, principal and surety in the injunction bond, in solido, two hundred dollars damages, from the date of injunction till paid, upon the amount of the judgment of E. Girard & Oo. v. J. Fontelieu, enjoined ; andlastly, that Jacques Oabrol, pay costs in both courts.


author: Sfofford, J.

text:
    Susan Cormier v. J. Ryan et al.
    A judgment of separation, in favor of the wife, rendered on the 14th of November, and followed by an execution issued on the 80th of March ensuing, under which all the property of the husband was sold in satisfaction of the judgment, is a sufficient execution of the judgment within the meaning of Art. 2402 0. 0., to make the judgment valid.
    Where, after such a separation, slaves are bought by the wife, who takes title in her own name, and it is proved that she inherited, while separated, money sufficient to pay for the slaves, and no evidence is adduced to impeach the good faith of the purchaser, the court will restrain by injunction the sale of the slaves, as belonging to the succession of the husband, though inventoried as part thereof.
    PPEAL from the District Court of Calcasieu, Dupre, J.
    A Kirby, for plaintiff.

      Mouton and Morrogh, for defendants and appellants.
   Sfofford, J.

The plaintiff, widow of the late Alexander Ledoux, sued out an injunction to restrain the defendants from selling certain property which had been inventoried as the property of her deceased husband.

She claims to have been duly separated in property from her said husband, and to have acquired as her own, by just titles, the slave Brooks, aged about fifteen years, and Sylvanie, aged about twenty-six years, with her two children, Daniel and Alphonse. She also claims a lot of horses and cattle, branded 2A, appraised at $1925, all of which she alleges had been erroneouslyinventoried and ordered to be sold, as the property of her husband’s succession.

The plaintiff has had the verdict of three juries in her favor. The defendants have appealed from a judgment rendered upon the last verdict, and sustaining *11 of the plaintiff’s pretentions.

The appellants base their claim for relief upon the allegation that the plaintiff’s judgment for a separation of property from her husband is null under the Article 2402 of the Civil Code: “The separation of property, although de-c-reed by a court of justice, is null if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide, uninterrupted suit to obtain payment.”

The wife’s judgment of separation of property is in due form, and was rendered on the 14th November, 1828; it awarded the sum of $602 25 against her husband. It appears that on the 10 th March following a writ of fieri facias was, issued, and levied upon the property of her husband, which appears to have been of trifling value, and is all detailed in the Sheriff’s return. It was adjudicated to the plaintiff for the sum of $155 37, which was credited on the judgment; and there being no more property found,” the writ was returned partly satisfied.

We are of opinion that there was not such a delayin executing the judgment as to strike the judgment of separation with nullity.

It is clearly shown that the plaintiff, whilst separate in property from her husband, bought the slaves Brooks and Sylvanie, and has always kept the titles in her own name.

It is shown, moreover, that she received more than enough from the estate of her father, whilst she was separate in property to pay what she gave for these slaves.

On the other hand, no evidence whatever has been adduced to cast suspicion upon these purchases in the name of the wife.

But we find the evidence insufficient to sustain the verdict, of the jury relative to the other branch of the plaintiff’s demand, to wit, the horses and cattle.

It is not shown that she ever bought any cattle, or inherited any. Her husband dealt in cattle, buying and selling as if he was the owner. The registry of a brand in her name in 1826, before the judgment of separation, does not prove a title in her to all the cattle which her husband afterwards marked in that brand. She has had ample opportunities to show the title her petition asserts, and there must be judgment against her on this portion of her demand.

It is therefore ordered, that the judgment of the District Court, so far as it recognizes the plaintiff as owner of the slaves Brooks and Sylvanie, and her two children, Daniel and Alphonse, and perpetuates the injunction sued out to restrain the sale thereof, be affirmed. It is further ordered, that in other respects the said judgment be reversed, and that the injunction, so far as it restrains the defendants from proceeding to sell the horses and cattle inventoried as belonging to the succession of Alexander Ledoux, be dissolved. It is further ordered that, the defendants pay the costs incurred in the District Court, and the plaintiff the costs of this appeal.


author: Merrick, C. J.

text:
    W. Kilgore v. C. & G. Grevemberg.
    The servitude of drain belonging to a front proprietor .'will not authorize him to drain his plantation by artificial ditches upon a plantation in rear, when the natural drainage of the front plantation is lateral.
    from the District Court of St. Mary, Voorhies, J.

      3. C. Wilson and T. H. Lems, for plaintiff.

      J. G. Olivier and H. Gibbon, for defendants and appellants.
   Merrick, C. J.

This action is brought by the plaintiff to compel the defendants to close certain ditches which throw the water in large quantities upon the plantation of plaintiff, and to recover damages in consequence of the same.

The defendants’ plantation is situated upon the Bayou Teche, and extends back, as to a part of the same, between two and three miles.

The plaintiff’s plantation is situated a short distance in the rear of the defendants’ plantation, a tract of land intervening between them.

At the termination of the upper line of the defendants’ plantation, (this line not extending back the whole distance, but forming a corner with the back line, from which the upper rear line projects some distance below,) there is a natural ridge of land extending across, or nearly across the defendants’ plantation.

The flow of the waters from the natural drainage of the front portion of defendants’ plantation was each way along a depression or coulee directly in front, of this ridge of land; the one portion running transversely across the corner of the plantation adjoining above, into a bayou running to the rear of the plantation, and the other making off, at nearly right angles with defendants’ lower line, into a marsh. Five of the ditches complained of, cut through the ridge referred to and conduct almost the entire drainage of defendants’ plantation to the rear, at a point where it overflows the plaintiff’s. The defendants’ lower ditch running between a mile and a half and two miles, flows into a coulie extending across defendants’ plantation, and has the same tendency.

There have been two jury trials, both of which have terminated in the favor of plaintiff. The first (which was set aside by the Judge then presiding) ordered the ditches to be filled, and gave the plaintiff five dollars damages.

The last verdict gave the plaintiff two thousand dollars damages, and directed the ditches to remain open.

Judgment having been rendéred thereon, defendants have appealed. The plaintiff has filed an answer to the appeal, praying an amendment of the judgment, and .that the ditches should be closed.

On the part of the defendants, it has been contended that, under the authority of Becknell v. Wendhal, 7 An. R., 291, every front proprietor upon a water course has the right to drain his land from the front to the rear, because, as is there said, the natural flow of the water is in the direction of the swamps in the rear.

But in the case before us, it is shown that this natural drainage of the front portion of the defendants’ plantation was interrupted by a ridge of land, and that the natural drainage was lateral upon the depressed portions of the plantations both above and below. It would, therefore, be unjust to say that, because the plaintiff happens to reside upon une langue ¿le ierre in the rear of defendants’ plantation, that therefore his plantation shouldbe condemned in part to sterility. He has the same right to protection that the front proprietor has; and the mere fact of residing on the bayou, gives the front proprietor no right to occasion by artificial works the overflow of such elevated land in the rear as otherwise would not be subject to such overflow.

Two juries have found verdiets in favor of the plaintiff; and although the last verdict is, perhaps, informal, we think the issue has been, in substance, determined in favor of the plaintiff.

From their superior opportunities of judging of the locality and witnesses, we should feel a hesitation in setting aside their verdict, even if we had some doubts as to the correctness of their finding. In this case, however, the testimony leads us to the same conclusion, viz: that the issue should be determined in favor of the plaintiff; but we think he is entitled to have the ditches closed at the point of land dividing the waters of the front portion of the defendants’ plantation from the rear, and that, in consequence, the damages allowed should be reduced. The testimony is not very definite in regard to the amount of damages sustained. We think two hundred and fifty dollars all we are authorized to grant under the evidence.

It is proper to remark that we have not permitted the advantage which the plaintiff’s plantation has derived from the large canal excavated by O. Belahous-saye, to influence our opinion in this ease, for that is a matter foreign to the issue before us.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court beso amended as to reduce the damages allowed by said decree to the sum of two hundred and fifty dollars, and also, so as to order, adjudge and decree the defendants to close all the ditches and canals upon their plantation which are cut through the ridge of land formed on the upper line of the defendants’ plantation, at about the distance of 116 chains and 36 links from the Bayou Teche, on said line, and which said ridge extends from the point where the same is touched by said upper line, in an easterly direction, across or nearly across the defendants’ plantation; said ditches and canals to be closed and filled tip at the point only where they are cut through said ridge of land herein indicated; and that it is further ordered that the long ditch or canal on or near the defendants’ lower line, be closed at the point where the extension of said ridge would fall across said ditch at right angles; and it is further ordered that, if need be, a writ of distringas issue to enforce this judgment; and that the judgment of the lower court, as amended, be affirmed, and that the defendants pay the costs of both courts.


author: Spofford, J.

text:
    Gourdain & Kerr v. C. B. Baylies et al.
    Where a sale is attacked as simulated, and a pHmafacie case of simulation made out, and the purchaser fails to offer rebutting testimony to show that he actually paid anything for the property the sale will be decreed to be simulated.
    from the District Court of St. Mary, Voorhies., J.

      J. G. Olivier, for plaintiffs:
    Cited C. C., 1980,1976, 1979,1984, 2628 ; 2 N. S., 61; 2 L. R., 16; 6 lb., 588 ; 7 lb., 16 ; 4 lb., 254; 6 An. R, 646.

      Al. Tucker and T. H. Lewis, for appellants:
    Cited C. C., 1905, 1973,1974; Bauduc v. His Creditors, 4 L. R., 254; Syndic of McManus v. Jewett, 6 L. R., 538; 16 L. R., 150 ; 9 L. R., 171.
   Spofford, J.

We concur with the District Judge in the opinion that the evidence offered by the plaintiffs rendered the sincerity of the sale from Baylies to Nash so improbable, that a prima facie case of simulation was made out; the failure of the defendant, Nash, to rebut the case thus made, by competent evidence that he had actually paid anything for the slaves he pretended to purchase, justified the court a quo, under the pleadings, in subjecting the slaves in question to be seized and sold to satisfy the plaintiffs’ demand. See Birdsdale v. Lakey, 6 An., 647.

The judgment Is therefore affirmed, with costs,


text:
    James Smith’s Executor v. H. C. Dwight.
    A transfer of the title to slaves, accompanied by the delivery of the counter-letter, in which th$ vendee engages to resell to his vendor the slaves, on the payment, by the latter, of the expenses, of the keeping and maintenance of the slaves, and other claims against him, and where the vendee,, by acts and declarations, represents himself as the agent of the vendor, and renders accounts, annually of the hire of the slaves, etc., Held: not to be a vente d réméré, but a simulation.
    In a vente d réméré, the real title passes, subject to a defeasance within a limited term. The vendee-is entitled to the fruits, and is responsible for the expenses of the property.
    from the District Court of St. Mary, Voorhies, J.

      Ed. Simon, for plaintiff.

      J. G. Olivier and T. H. Lewis, for defendant and', appellant.
   Spofford, J.

In 1844, the slaves which are in controversy in this suit were-seized, under execution against Dr. James Smith, as his property, and, on the 10th December, 1844, adjudicated to James Porter. It appears, however, that they-went into the possession of the defendant, Henry C. Dwight, under an understanding between Dwight, Smith and James Porter. This understanding is proven by a letter of Dwight to Porter, dated 20th May, 1845, and the subsequent conduet of all the parties.

In the letter referred to, Dwight requested Porter to convey the negroes to himself, according to the wishes of Smith. On the 9th of August, 1845, Dwight wrote to Smith, giving him a full detail of the mode in which he was hiring out the negroes, and advising with him as if he were still their owner. On the 18th May, 1846, Pm'ler executed an act of transfer of these slaves to Dwight, without warranty, except against himself, and those claiming under him. On the 1st June, 1846, Smith, by authentic act, relinquished in favor of Dwight all right of redemption, as well as all claim he ever had in or to the slaves. This act was preceded by what is called a counter-letter, sous seing privé, couched in the following terms:

“Ur. James Smith, having this day, by act passed before-, relinquished to me, for the price and sum of $7923 55, paid to him this day, all his right, title and claim to the redemption of certain negroes purchased by me from James Porter, by act passed before J. A. Dumartrait, Parish Judge, on the -day of May; now, he it known, that I hereby engage and hind myself to sell the said negroes to the said Smith, on the following conditions: First, on his paying all costs, charges and expenses for the support and maintenance of said negroes. Second, on his repaying me the sum of $7923 55, which I have this day paid to him for the relinquishment, with eight per cent, interest annually from the first of April last. Third, on his paying me $4000, with eight per cent, interest annually from the 15th May, 1845, it being the amount I paid James Porter for the purchase of said negroes. Fourth, on his paying me the amount of any judgment, note or claim I may have hereafter transferred to me against him, with eight per cent, interest annually from said transfer, or such rate of interest as said claim may draw if over eight per cent.

Parish of St. Mary, May 30th, 1846.

Signed, Henry 0. Dwight.”

On the 1st June, 1846, the day of the renunciation before alluded to, Dwight receipted to Smith for $1900, “ towards the amount to be paid for the redemption of the negroes purchased of James Porter

On the 10th June, 1847, Dwight wrote to Smith, advising him to make a will, lest his estate fall into the hands of a stranger who “ might upset the arrangements they had made,” and recommending himself as a suitable person for an executor, “capable of working it out, and leaving something for Smith’s children.”

On March 6th, 1848, Dwight wrote to Mr. Hall, a creditor of Smith, about the claim which he afterwards settled, and which he stated, if prosecuted, would leave Dr. Smith “ without any of his negroes.”

During the years 1845,1846, 1847 and 1848, Dwight kept debtor and creditor accounts, which would seem to have been annually rendered to Smith, as they were found among his papers, and produced by his administratrix, (who is now plaintiff, Dr. Smith having died pending the suit.) In these accounts, Smith is charged with all the moneys paid out by Dwight for his account, the sums paid his creditors, the sums paid Porter upon the transfer of his title to the slaves, the taxes, etc., including a charge of $500 annually for his own services in hiring out the slaves in question. On the credit side of the accounts are large sums received for the hire of the negroes, etc.

It is also proved by witnesses, whose evidence was received without objection, that during many years, commencing with 1845, the defendant hired out the negroes, and represented himself as Smith's agent in so doing, and in collecting the hire.

In no respect did his relations towards Smith, as thus disclosed, appear to have changed for several years after he took the paper title in June, 1840.

On the 10th January, 1852, Smith instituted the present action against Dwight, in which he alleged that, under the facts stated in his petition, the contract between himself and the defendant was, in substance and legal effect, a contract of antichresis, the slaves being pledged to Dwight for a mere loan of money, and not absolutely sold, the paper title having been given to him as a security for the money advanced, imposing upon him the obligation of accounting for the proceeds of the hire and labor of the slaves, to be applied to the extinguishment of the interest and of the principal of the debt, and entitling the petitioner to the recovery of any excess over said debt. The petition also declares that Dwight had latterly refused to account, as he was bound to do, for the hire of the slaves, or to re-deliver the same to the plaintiff, although the whole of the debts, which he may have owed under the contract, had been satisfied, and there was a surplus due to him.

The defendant answered, that the sale to himself from James Porter was an absolute and unconditional sale. He admitted that he signed and delivered to plaintiff an instrument in writing, by which he agreed and bound himself, on the conditions therein stipulated, to sell to the plaintiff the property therein mentioned, and averred that he had always been ready to perform the stipulations contained therein, but that the plaintiff had never offered to comply on his part. He specially denied that the said instrument was an antichresis or counter-letter, asserting it to be an independent contract, only binding upon the parties thereto according to its tenor.

The plaintiff having died, the suit was revived in the name of his widow and administratrix, who produced the accounts before referred to, not admitting their correctness on the debit side, but to show the construction which the defendant himself had put upon the contract between himself and her deceased husband; she prayed that the property sued for be adjudged to belong to the estate of the deceased, and be put in her possession, to be disposed of in due course of administration for the benefit of the creditors, etc.

There was judgment recognising the plaintiff as the owner of the slaves in dispute, reserving to the defendant whatever rights he may have on them under the contract of antichresis.

The defendant has appealed, and the plaintiff, in answer to the appeal, has prayed for a formal amendment of the judgment.

The ground assumed by the defendant’s counsel in this court, in his oral argument, was, that the contract between the parties was a vente a réméré, and that the plaintiff having failed to comply with the only conditions upon which the faculty of redemption was granted, his petition should be dismissed.

Looking only to the instrument styled a counter-letter as the repository of the intentions of the parties, we should, nevertheless, be compelled to say that the contract lacked some of the essential features of the sale a réméré.

But it would be taking too narrow a view of the mutual obligations of the parties to derive them from this instrument alone, as the defendant seeks to do. On its face, the document refers to other documents, and to collateral facts which are absolutely necessary to be known, in order to relieve the instrument in question from obscurity. The evidence that lias been received without objection, gives us an insight into the meaning of the parties. The letters of Dwight, before and after his pretended purchase, and especially his accounts rendered to Smith, are written evidence of as high authority as the counter-letter itself, and must be considered in connection with it in searching for Jts propor interpretation. The acts of Dwight also furnish a practical commentary upon the contract; and, as no objection has been made, his oral admissions, coupled with his conduct, may be taken into account in construing the instrument to which alone he wishes to confine the attention of the court, and which, without the light of extraneous circumstances, would be hopelessly ambiguous.

Looking, then, at all the facts and documents in evidence, it is most manifest that there was no sale & rémiré. Smith never sold the property to Dwight. In the authentic act, he pretended to sell his right of redemption, but in the counter-letter, Dwight annulled even that sale. As between Smith, Porter and Dwight, the title really never went out of Smith at all, for there was an understanding between them all that the purchase at Sheriff’s sale, under execution against Smith, should hold the property for the benefit of Smith, to pay off the debts for which he was liable. Thus we see that when Porter bid in the slaves, he did not take possession, as he would have done if he had purchased for himself, but they were delivered to Dwight, the active friend and adviser of Smith, who immediately (though without even an apparent title himself,) commenced to administer the property, and to pay off debts of Smith, accounting to the latter for the hire and charging him with the expenses and payments made, and even charging him with an annual salary for his services in this behalf.

About eighteen months after he had commenced this administration, he took a transfer of Porter's apparent title, and then procured the renunciation of Smith, and gave him the counter-letter. But all this produced no change in the actual relation of these parties to each other. Notwithstanding this pretended acquisition of title, Dwight continued to render his annual accounts to Smith as before, and to treat the slaves in all respects as Smith’s.

In a sale with the right of redemption, the real title passes to the vendee, and for a fixed price. A term is limited, (which cannot exceed ten years,) within which alone the 'vendor may defeat the sale by the repayment of the price. Meanwhile, and before the exercise of this faculty, the vendee, with that single reservation, is the owner; the fruits belong to him; he owes no account for them; he pays the incidental expenses of the property as an owner.

By his uniform course of dealing for several years, by his letters, and his repeated admissions, Dwight is precluded from asserting that he made a bona fide purchase of the slaves in question, under the right óf redemption reserved to Smith.

This is sufficient to dispose of the appellant’s pretensions, and we concur with the District Judge that it is not material for the plaintiff to show, in support of the decree prayed for, that the contract of the parties was strictly and technically an antichresis.

When we survey the whole history of the case, we perceive that the counter-letter itself is in part a simulation; that it is one link in a series of simulated titles, the end and object of which was the better to enable Dwight to pay off the debts of Smith out of the revenues of the slaves taken in execution in 1844, and to save the slaves themselves for Smith or his family. Less laudable motives may have intervened on the one side and on the other. We see no positive evidence in the record that Smith, designed to injure his creditors, and the administratrix who is now plaintiff, representing in that capacity the creditors, expressly seeks to recover the property for the purpose of paying the debts. For several years Dwight appears to have manifested a willingness to carry out his part of the contract, as mutually understood, keeping the paper title only as a security against loss for advances made for the benefit of Smith, for which he charged the highest rate of conventional interest, but in all respects treating Smith as the real owner of the property.

Before the suit was brought, however, he appears to have changed his attitude, and to have discontinued the rendition of his annual accounts. His answer to the petitioner evinces that he is now disposed to recant his most solemn admissions, to break his faith, to despoil both the heirs and the creditors of the man whom he approached in the garb of a confidential friend, and to claim as his own the property he received in trust for others.

The law everywhere frowns upon such conduct as this, and interposes its arm to prevent the perpetration of such fraud. In equity, the defendant, under the facts of this case, would.be decreed to have held th© property in trust for Smtt\ and would be compelled to account fully for the fruits.

The powers of our courts are, in this respect, equally extensive. It is probable^ from his own account, that the defendant has been more than paid for all his advances, and is really in debt to the succession of Smith. If it were not so, it was easy for him to show it, and the fact that he has rendered no account since 1848, although the slaves, with their valuable revenues, have hitherto continued in his possession or under his control, is to be construed against him.

Under all the circumstances, we are of opinion that the plaintiff and appellee is entitled to the amendment she prays for in her answer to the appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended, and the defendant be ordered to deliver the property in controversy into the possession of the plaintiff, Mary G. Hill, in her capacity as administratrix of the succession of James Smith, to be administered upon according to law; it is further ordered, that a writ of possession may issue upon this portion of the judgment, after the filing of this decree in the court below; and it is further ordered, that the cause be remanded to the District Court for a final adjustment of the accounts between the parties growing out of the possession of the property by the defendant in trust for the plaintiff; and it is decreed, that in other respects, the judgment of the District Court be affirmed, the costs of this appeal to be borne by the the defendant and appellant.


text:
    The President of the Police Jury of Vermillion v. S. Comeau, Administrator.
    A tax collector who has given bond and received the assessment roll is prima facie liable for the amount of taxes due according to the tax roll, and when sued, he cannot throw upon the plaintiff the burden of proving that he actually collected the taxes.
    from the District Court of Yermillion, Voorhies, J.

      Grow & Girard,,, for plaintiff and appellant.
    Mouton, for defendant.
   Buchanan, J.

This is a suit against the representative of the Collector of parish taxes, of Vermillion parish, for the years 1846 and 1847. The suit was dismissed; the Judge not considering it proved that the assessment roll for 1846, was put into the hands of the Collector. We have not been able to take the same view of the evidence as the District Judge has done. There is no formal receipt of the Collector for the parish assessment roll, it is true; but there are several circumstances which concur to show that he must have had it, and must have made collections of taxes of 1846, which he could scarcely have done without the tax roll. We have, first, the acknowledgment of the Collector, in the bond signed by him, of the exact amount of the taxes for 1846, and of those for 1847, taken from the tax rolls for those years in the Parish Recorder’s Office ; next, the evidence of Theall, the Recorder, that he is under the impression he delivered the tax rolls to the Collector; next, the evidence of U'Bryan, that he made out for the Collector a list of the taxes for 1846 and 1847, from the tax rolls given to him by the Collector; next, many receipts of the Parish Treasurer, for amounts received by him from the Collector, exceeding in the aggregate, by two hundred and sixteen dollars, the total amount of the taxes of 1847, as shown by the bond; which excess must have come from taxes collected for 1846, the receipts also expressing (several of them) that they were for taxes of 1846, collected; lastly, a detailed statement of taxable persons insolvent, or gone away, with the several amounts assessed to them respectively, for State taxes of 1846, which must have been taken from the assessment roll of that year. .

The rule governing the liability of a Tax Collector is laid down by the Supremo Ooui't, in the case of Scarborough, v. Stevens et al., 3d Rob. Rep. Having given bond and received the tax roll, he must show that he has used due diligence ; and cannot throw the burden upon the parish, of proving that he actually received the money.

The total amount of parish taxes of 1846, according to Bernard's bond, was, --------$ 1,727 73

Upon which, he is entitled to credit, after allowing all the tax of 1847 by receipts in evidence, - - - - 216 04

$1,311 69

It is also admitted that the list of tax payers, insolvent or gone away, given in evidence, is correct. The amount of taxes thus lost to the State, according to that list, for 1846, was, $107 23 and as the parish tax for that year was 75 per cent, of the State tax, defendant is entitled to a further deduction on this account, of 80 43

$1,431 26

The judgment of the District Court, is, therefore, reversed; and judgment is hereby rendered in favor of plaintiff against defendant, in her capacity as administratrix, and to be paid in due course of administration, for the sum of fourteen hundred and thirty-one dollars and twenty-six cents, with legal interest from judicial demand (25 th July, 1854) and the costs in both Courts; this judgment to bear a legal mortgage on all the lands, slaves and real estate of Joseph JTrsin Bernard.


text:
    L. P. Canonge v. C. Fuselier et al.
    J. advanced to F. a sum of money, the latter assigning to J. all her interest in a succession and authorizing him to reimburse himself, the amount loaned, out of the first assets received from . the succession. Held: that this assignment was a mere collateral security, and that the lender had the right to coerce payment of the loan without waiting the settlement of the succession.
    from the District Court of St. Mary, Dupre, J.

      Albert VoorMes, for plaintiff.

      Edward Simon, for defendants and appellants.
   Lea, J.

On the 22d of June, 1843, P. P. Briant, the husband of Olara Fuselier, the defendant, being in want of money, addressed to Louis Janin, Esq, who was then representing as counsel the interest of said Olara Fuselier, in the estate of Edward Fuselier, a letter, from which the following is a translated extract:

“St. Martinsville, June 22d, 1843.

Louis Janin, Esq., New Orleans,

Sir : — Having the greatest need of a sum of four hundred and fifty or five hundred dollars, in order to pay a mortgage debt which cannot be put off, I take the liberty to address myself to you in the hope that your connexion with the succession of the late Edwa/rd Fuselier, will induce you to accede to my indiscreet request. I do not know exactly the portion which will fall to each of us in this succession, as our hereditary portion, but I suppose it will be at least $1,000, one thousand dollars, — I think as much. In case you shoultl possibly come to my relief I propose to you to transfer to you all my rights in this succession, and when the distribution of the assets takes place, you will commence by retaining in your hands, the sum you have advanced to me, and you will please keep the rest as a deposit.”

The proposition contained in the above extract having been acceded to, Olara Fuselier, drew a sight draft upon L. Jrnin, of which the following is a translation.

Parish oe St. Mary, July 3d, 1843.

Louis Janin, Esq., New Orleans,

Sir: — Please pay to Mr. O. P. Briant, at sight and to his order, the sum of five hundred and twenty-five dollars, and oblige your humble servant,

OLARA EUSELIER.

To authorize my wife: P. P .BRIANT.

On presentation, this draft was paid by L. Janin, upon -whom it was drawn.

On the same day that the above draft was drawn and in anticipation of its. payment by Janin, the defendant, authorized by her husband, assigned to him her hereditary portion in the succession of Edward Fuselier, authorizing him-to claim and receive it, as if it belonged to him, setting forth, however, in the act of assignment that the cession was made in consideration of the sum of' five hundred and twenty-five dollars, which the said Janin “ has paid in cash,”' and which “ he will reimburse himself with ten per cent, interest from this, day, until full payment, out of the first assets, which he will receive on account of this delegation, and on condition that he will render an account of the surplus of said hereditary portion.”

A period of nearly ten years intervened between the date of the draft and the institution of this suit, the present plaintiff having in the meantime, taken an assignment from Janin of his right and claim upon the defendant growing out of the transaction.

There is no contestation about the facts of this case. The indebtedness of the defendant is admitted, but it is urged in defence that the debt was in fact not due until the assets should be realized by the defendant from the liquidation of the succession of Edward Fuselier.

A cash advance having been made to the defendant, it was incumbent upon her to establish affirmatively the stipulation for a delay in payment upon which she relies. It is probable that, at the time the advance was made, Jardn expected to be paid out of proceeds realized from the estate of Edward Fuse-lier, and that he was willing to postpone any demand for payment until such period as he, at the time, supposed, would bo required for the liquidation of that estate, but we'do not consider that the giving or taking of collateral security, for the reimbursement of the loan, though accompanied with an authority to “reimburse himself” “out of the first assets which he should receive” imposes any obligation upon the lender to wait until the final liquidation of the estate of Fuselier, which was not legally under his control, before urging his demand.

It would not be presumed that the lender intended to grant such extraordinary indulgence, pnlcss the language of the first proposition (that upon which Jardn acted) precludes any other construction.

We consider that the contract between the parties amounts to no more than this: the defendant being in want of money, tendered collateral security for its reimbursement; of course the collateral security could not be made available until something was realized from it, but it by no means follows that the prin'cipal was bound to await the tardy liquidation of an embarrassed estate before urging payment of his claim.

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


author: Spopfoed, J.

text:
    The State of Louisiana v. Patrick Egan et als.
    It is no ground of objection to an indictment for riot that the time at which the offence is charged to have been committed, is set forth in figures or Arabic numerals.
    A judgment against one who was indicted for a riot with three co-defendants and “ divers other persons unknown,” will not be arrested because his co-defendants were found “ not guilty.” JNbn constat but that he may have been guilty of a riot with the persons unknown.
    from the District Court of St. Mary, Dupre, J.

      A. L. Tucker, for the State.

      Lea & Wilson, for defendant and appellant.
   Spopfoed, J.

Patrióle Egan having bepn found guilty under two counts of an indictment, one charging him with an assault and battery, and the other with being party to a riot, was sentenced to imprisonment in the parish prison for the term of one year, and to pay a fine of $500, &c.

From this sentence he has appealed.

He complains that his motion in arrest of judgment was improperly overruled.

There are two points upon which the defendant relies in this Court for a reversal of the judgment.

I. That the day on which the assault and battery are alleged to have been committed was not written out in full, but was set forth in the bill of indictment as the “ 7th day of April, in the year eighteen hundred and fifty-four.”

In some of our sister States who derive their criminal law, like ourselves, from England, it has been held, that the use of figures instead of words, to specify dates in an indictment, will not vitiate the indictment. See Wharton’s Prec. of Indictments, p. 9; Wharton’s Orim. Law, 111.

Without entering upon the question whether the objection here made would ever have been tenable under our law, we deem it sufficient in the present case, to refer to the Act of March 14th, 1865, § 17, (Sess. Acts, p. 174) which declares that “ no indictment for any offence, shall be held insufficient for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence, nor for stating the time imperfectly.”

Under a former decision it was not necessary to state the judicial district in which the crime was committed, the venue being sufficiently laid by stating the parish. The mode of describing the district was, therefore, immaterial. State v. Kennedy, 8 R. R. 599.

II. But the defendant urges, that the judgment should have been arrested because ho alone was found guilty of a riot, his co-defendants having been acquitted of that charge.

It is very obvious that one person cannot commit a riot. But the indictment in this case charges that the appellant and his three co-defendants, together “ with divers other evil disposed persons to the number of ten or more to the inquest aforesaid as yet unknown,” were participants in the riot. The acquittal of the three co-defendants, whose names had been learned by the Grand Jury, did not, therefore, render it impossible for the appellant to be found guilty of a riot in company with the unknown persons. 2 Hawkins P. C. 626; Rew v. Scott, 3 Bur. 1262; Wharton’s Orim. Law, 726 ; 3 Arch. 590.

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


text:
    Antoine J. Chataigne v. P. Bergeron.
    A party is liable for damages occasioned by his gross neglect, in handling his gun, though it is dis. charged accidently.
    In the assessment of damages in such cases, much discretion is left to the jury. 0. 0. 1928.
    the District Court of St. Martin, YoorMes, J.

      B. Mongé, for plaintiff.

      B. Simon and A. Déblanc, for appellant.
   Lea, J.

In this case the plaintiff claims damages, resulting from a gunshot wound inflicted by the defendant, by whom he (the plaintiff) was, as he al. leges, waylaid when passing on the public road and going peaceably to his home. The plaintiff sets forth his disabled condition and necessitous circumstances, as ehtitling thim to the damages claimed, which he fixes at $8,000 The defendant pleads a general denial. Upon the trial of the case by a jury a verdict'was rendered and a judgment entered up in accordance therewith, for $1,000.

The defendant has appealed.

The evidence for the plaintiff consists mainly in the confession of the defendant made to one of the witnesses, Henry Wallett, in which he admits that he had a quarrel with the plaintiff; that one evening at dark, he and the plaintiff met; both had guns, and after some words had passed between them, he (defendant) having stooped to pick up a stick, the gun went off, accidentally, towards the plaintiff. Without recapitulating the statement of the case made by defendant himself, it may be sufficient to say, that assuming its truthfulness, he would not be relieved from liability for damages incident to his gross neglect in handling his gun.

Considering the entire testimo^' in the case, we are not prepared to say that the jury erred in their assessment of the damages sustained by the plaintiff. In cases similar to the one at bar, much discretion in the assessment of damages, is left to the jury. 0. C. 1928, No. 8.

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


author: Spoefoed, J.

text:
    Felicite Neda v. E. Simon.
    The maker of a promissory note is not a competent witness for his surety in an action by the holder vs. the surety. His eventual liability to the surety for costs of suit, if plaintiff succeeds, is sufficient to exclude his testimony. 11 Rob. 88; 8 N. S. 266 ; 8d Starkie on Evidence 752.
    The service of citation on the maker of a note, before prescription has been acquired, will interrupt prescription as to the surety who has bound himseif m solido.

    PPEAL from the District Court for the Parish of St. Martin, Dupre, J.

      Lx. J. G. Olivier., for plaintiff.

      Alex. DeBlana, for defendant and appellant,
    on the question as to the competency of the maker, as a witness, cited: Gox v. Williams, 5 N. S. 142. Waters v. JPetrovie, &e., 5 L. 589. Johnson v. Marshall, 4 Rob. 157; 7 Rob. 244; ib. 3C0; 5 Ann. 188. As to the admissibility of parol testimony, to show that the defendant -who had expressly bound himself in solido, was merely a surety, defendant’s counsel cited: Robertson v. Hott, 2 N. S. 124; 8 N. S. 268; Dioight v. Linton, 8 Rob. '57; 3 Ann. 235; 4 Ann. 540.
   Spoefoed, J.

The defendant is sued upon a promissory note of the following tenor:

“$2000. Nouvelle-Oeleans, le 29 mai, 1839.

“ Dans un au de cette date, nous payerons solidairement, l’un pour l’autre, á Mr. Hypolite Chrétien, la somme de deux mille piastres, valeur regue, avec les intéréts de dix pour cent, l’an, a dater de ce jour jusqu’á parfait paiement.

[Signé] P. Lebesque,

Ed. Simon.”

The defendant pleads that, notwithstanding the form of the instrument, he was really but a surety for Lebesque, and that he has been discharged by the prolongation of the term of payment to his principal by the holder of the note, without his assent.

He further pleads the prescription of five and ten years.

Upon the trial of the cause he offered his co-obligor, Lebesque, as a witness, to prove the allegations of his answer; the Judge of the lower Oourt, on the objection of the plaintiff, that the witness was incompetent to testify to the facts set up in the answer, rejected his deposition, and, there being no other evidence offered by the defendant, judgment was rendered against him, from which he has appealed.

Conceding that the real character of the defendant’s obligation could be shown by parol, on the ground that his being a surety bound in solido, for the debt, was a collateral fact, and not inconsistent with the written instrument; conceding also, that the Act of 27th March, 1823, relative to the competency of makers of notes, as witnesses, has been repealed'by the Art. 3521 of the Civil Code ; still, there remains to the competency of the witness to prove that the defendant was really his surety, and had been discharged, the objection which arises from his interest in the costs. If the defendant is his surety, the witness will be liable for the costs of this suit, should it be decided in favor of the plaintiffs. If the defence sought to be sustained by his testimony prevails, he will not be so liable. It has been held by our predecessors that such an interest will suffice to exclude a witness, in a case parallel to this. See Montross v. Hillman, 11 Rob. 88. See also Lesassier v. Hertzel, 8 N. S. 266; 3 Starkie’s Evidence, 752.

We may add that the deposition, if admitted, would seem to establish only a forbearance to sue, and not a prolongation of the term.

The allegations of the defendant’s answer are sufficient to repel his plea of prescription. He avers that his solidary co-debtor, Lébesque, paid interest annually up to the 29th May, 1847, on the note, which matured on the 29th May, 1840. On the 7th April, 1849, judgment was rendered for the debt against Lébesque, in the District Court of St. Martin. This has been followed up by several executions, and the moneys made thereunder have beeu duly credited in the judgment against the present defendant. He acknowledged service of the petition in this case on the 6th March, 1853.

The acknowledgment of the debt by one solidary co-debtor, or a citation served upon him, interrupts prescription as to all the others. O. C. 3517, (French text.)

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


author: Spojtord, J.

text:
    Thos. Smardon v. C. Green et. al.
    When a Sheriff’s keeper’s claim is resisted, the more regular mode of establishing it is, by rule on both parties to the suit in which the property was seized.
    The Sheriff’s charges for keeping are not forfeited, under the Act of 18th March, 1852, Sec. 1, by the failure-to return the amount thereof into Oourt. That Act only applies to fees accruing on any “ process or paper” returned into Court.
    from the District Court of St. Mary, Voorhies, J.

      H. O. Wilson, for plaintiff and appellant.

      J. ff. Olivier, for defendant. ■
   Spojtord, J.

The object of. the rule in this case was to make the Sheriff of St. Mary liable for a large amount of costs incurred by reason of the provisional seizure of a schooner, which was finally sold, on twelve months’ credit, to satisfy a judgment obtained by the plaintiff against Green <& Landrum.

The bond was not large enough to cover the plaintiff’s judgment, and the costs'alleged b3r the Sheriff to be due. He retained the costs and paid the balance of the proceds to the plaintiff.

The chief item in dispute is the sum of $276, paid to A. Gates, as keeper of the schooner, while under seizure, at the rate of $1 50 per day.

The services are proved to have been fully worth the amount claimed, and, from the nature of the property seized, they were clearly necessary. It is also proved that the Sheriff paid the sum, after a final judgment against him, at the suit of Gates, which he contested.

The argument of the counsel for the plaintiff, (who appeals from a judgment averse to his pretensions,) is based mainly upon the statute of March 18th, 1852. (Sess. Acts, p. 224.) The first section declares : “ That the Sheriffs of the District Courts throughout the State, shall, whenever they return a paper or process into court, endorse thereon the specified items of fees claimed by them that may have accrued on said process or paper, and in default thereof, or if such fees are overcharged, the same shall be forfeited, and the said Sheriff forever barred from collecting the item of fees so omitted or overcharged.”

■ This section does not meet the present case. The keeper’s fees are not fees claimed by the Sheriff, which had accrued on any process or paper.

The third section of the same Act says: “ that the costs of the Clerk, Sheriff, witnesses’ fees, costs of taking depositions and copies of Acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.”

It would have been more regular for the keeper to have had his costs taxed on a rule against both parties in the suit, under which his appointment took place. The Sheriff resisted his demand and he sued the Sheriff. The latter could not endorse the amount on any paper or process, until he knew what the court would allow, and the judgment against him was not rendered until long after the twelve months’ bond was taken, when it was endorsed thereupon.

In this suit the bill has been again litigated contradictorily with the plaintiff, and, as we have already remarked, we think the claim a just one.

The judgment appealed from is, therefore, affirmed with costs.


author: Yoordies, J.

text:
    Christopher Steel v. Hypolite Paten et al.
    An error as to parties, made in entering up judgment, and which is apparent on the face of the record, will he corrected on appeal.
    from the District Court of St. Landry, Dupre, J.

      Swayze & Moore, for plaintiff and appellant.
   Yoordies, J.

This suit was brought on two promissory notes, secured by mortgage. A judgment by default was regularly taken and made final against the defendants.

But it appears an error was committed in drawing up the judgment against the proper parties. This appeal is taken by the plaintiff, for the purpose of correcting the error which is apparent on the face of the record.

It is, therefore, ordered and decreed, that, the judgment of the lower court be so amended as to substitute the name of Kypolite A. Paten, in lieu of that of Louis A. Paten, who was not a party to the suit, and so amended, that said judgment be affirmed, in every other respect, at the costs of the appellees.


text:
    C. A. Hardy v. Wm. Irwin et. al., Administrators.
    An appeal from a judgment against the administrator of a succession, will notlie in the name of an executor of the administrator, where it is not shown by the record that the executor is autorized to represent the succession against which the judgment was rendered, nor that the estate of the testator, represented by the executor, is affected by the judgment.
    A PPEAL from the District Court of St. Landry, Dupre, J.
    -lX MoA'tel & Hardy, for plaintiff.

      B. F. Linton, for defendants and appellants.
   Voorhies, J.

This suit was brought by the plaintiff against the defendants, William Irwin and Jane Young, as administrators of the succession of the late Frederiels, G. Kauffman, for the recovery of $431 80, alleged to be the aggregate amount of a number of claims which the plaintiff had placed in the hands of the deceased for collection. It is alleged by the plaintiff that said claims were either collected by the deceased during his life-time, or have since become extinguished by prescription, in consequence of the delay occasioned by the refusal of the.defendants to return the same.

The defendants, in their answer, denied ever having had possession of the alleged claims.

There was judgment in favor of the plaintiff, for the sum of $51, as the amount collected by the deceased during his life-time, and the defendants, on motion of their attorney, obtained in open court an order of appeal.

• The record shows that William Irwin, one of the administrators, died previous to the rendition of the judgment, and the present appeal is prosecuted in the name of Henry Irwin, as executor of the last will of said William Irwin, alone. There is neither allegation nor proof that the appellant has any authority to represent the estate of Kauffman. Neither is it shown that the estate of William Irwin is affected by the judgment appealed from.

It is, therefore, ordered, that the appeal be dismissed, at the appellant’s cost.


author: Bucjuanan, J.

text:
    W. S. Donnell v. W. H. Parrott & Wife.
    After issue joined, upon a principal and reconven tional demand, a judgment dismissing the suit on motion of plaintiff, without reserving defendant’s right to prosecute the reconventional demand, is erroneous.
    It does not prejudice defendant’s right of appeal from such a judgment, that no objection to the dismissal of the suit, was made in the District Court.
    from the District Court of St Landry, Dupre, J.

      J. E. King <& Oullom, for plaintiff.

      Muriel & Hw'dy, for appellants:
    Cited, Oalckoell y. Davis, 2 N. S. 130;
      Lanusse's Syndic v. Pimpienella, 4 N. S. 441; Adams v. Lewis, 7 N. S. 405 ; McDonough v. Hart, 3 La. R. 458; McDonough v. Gopeland, 9 L. R. 310; Wood v. Boyers, 2 Rob. 130; Low v. Thomas, 4 Rob. 138; Succession of Durnford, 8 Rob. 498; Goxe v. Downs, 9 Rob. 134.
   Bucjuanan, J.

This case is precisely similar, in its legal features, to that of Coxe v. Downs, reported in 9th Robinson. The plaintiff sued defendants for a debt alleged to be due for plantation supplies. The defendant, Mrs. Parrott, reconvened, denying indebtedness, but alleging that the plaintiff was her debtor, in a large sum, for proceeds of cotton shipped, and balance of account current. The parties went to trial upon the issue, and, after some evidence was introduced, the plantiff, by counsel, moved to discontinue the suit, which motion was granted, and judgment was rendered, that the suit be dismissed, and the plaintiff pay costs.

No objection appears to have been made by the defendant to the dismissal of the suit; but this, upon the authority of the case of Goxe v. Downs, and that of Coxe v. MoEnery, in the same volume, does not prejudice her right of appeal from a judgment which did not in terms reserve her right to prosecute her reconvention.

It is, therefore, adjudged and decreed, that the judgment of the District Court, so far as it dismisses the plaintiff’s demand, be affirmed ; but that, so far as it dismisses the demand of the defendant, Mrs. Parrott, in reconvention, it be annulled and reversed; and as to such reconventional demand, the cause is remanded to the court below, to be proceeded in according to law; the plaintiff paying costs of appeal, those hereafter accruing to abide the final decision of the cause.


author: Merrick, O. J.

text:
    J. Semere v. W. Semere, f. m. c.
    It is well settled that an authentic act may be shown to be simulated by the answers of a party to interrogatories on facts and articles. Such answers are not regarded as the parol evidence prohibited by 0. 0. 2256, 2215.
    But where the answers to interrogatories are received as written proof, in cases where written proof is required bylaw, parol evidence cannot be received to contradict them.
    from the District Court of St. Martin, Voorhies, J.

      B. Simon & A. Dublanc, for plaintiff and appellant,
    Cited : Delacroix v Prevost, 6 M. R. 276 ; Gox v. Michel, 7 L. R. 523; Badon v. Badon, 4 L. R. 169 ; 3 Rob. 452; Forest v. Shores, 11 L. R. 418; Hewlett v. Henderson, 9 Rob. 379; Succession of Thomas, 12 Rob. 219; Bach v. Hall, 3 L. R. 118; Haydell v. Betts, 6 Rob. 438; Bauduc v. Oonrey, 10 Rob. 466; 4 An. 103.

      M. Voorhies, for defendant,
    Cited: O. C. 2233, 2235 ; C. P. 354; 3 Rob. 441; 7 An. 95.
   Merrick, O. J.

This suit has been instituted by pulien Semeré, as universal legatee of Marie Martha Semeré, to annul an authentic act of sale of a slave made by the testatrix to the defendant. The plaintiff annexes to his petition the following interrogatories on facts and articles to be answered in open court, viz:

1st. Was the sale made to you of the slave Joseph, by Miss Marie Martha Semeré, on the 5th of Majr, 1849, a sale by which Miss Semeré intended to transfer to you any title to the said slave by said sale ?

2d. Have you paid the price which appears to have been received for the slave Joseph ? Have you paid any price, and was any money received from you by Miss Marie Martha Semeré, as a consideration of the sale of the 5th of May, 1849?

3d. Have you not several times, and in the presence of different persons, acknowledged that the sale of the 5th of May, 1849, was a simulated sale?

4th. Was not the sale of the slave Joseph made for the sole object that the proceedings for his emancipation should be conducted in your name ?

5th. Was it not agreed between you and Miss Marie Martha Semeré, that in case the emancipation was not completed, that the sale of the 5th of May, 1849, should be annulled ?

The petition expressly negatives any fraudulent intent in the simulated act.

The defendant excepted to the plaintiff’s petition on the ground that the act of sale, even if simulated, was good and valid as a donation, and “ cannot be annulled by an universal legatee of said Semeré, who claims under a testament posterior to the act of sale sought to be annulled.”

The Judge a quo being of the opinion that the plaintiff could not interrogate the defendant for the purpose of showing simulation in a notarial act of sale of a slave, rejected the plaintiff’s demand.

In this we think he erred. The jurisprudence of Louisiana is, we believe, well settled on this subject.

In the case of McKerall and others v. McMillan and others, 9 R. R. 19, it was held that the answer’s to interrogatories on facts and articles form a part of the pleading, so much so, that they do not require to be offered in evidence. They are not, therefore, that parol proof which defendant’s counsel supposes is prohibited by Arts. 2233, 2235, 2256, and 2415, of the Civil Code.

Article 2895 of the Civil Code provides that “ the amount of conventional interest must be fixed in writing, and testimonial proof of it is not admitted in any case.”

Notwithstanding the strong terms used in this article it has been held by our-predecessors that writing was not of the essence of an agreement to pay interest, and that the Legislature only intended to exclude testimonial proof of' such an agreement. Cox v. Mitchell, 7 L. R. 522. 6 Martin, R. 276.

In the case of Hewett v. Henderson, 9 R. R. 379, it was expressly held that the party whose conscience was sought to be probed as to the simulation of a notarial act, could not urge the want of a counter letter. Article 355 of the. Code of Practice provides in general terms that the party- who. sues for the re-, covery of a debt, or the execution of an obligation arising from a written act,, may be interrogated on the reality or simulation of the act. See also Succession of Thomas, 12 Rob. 215; Forest v. Shore, 11 L. R. 418.

It is true article No. 354 of the Code of Practice provides that the answers: of the party interrogated may be contradicted by the oath of two witnesses, or one single witness corroborated by strong circumstantial evidence, or by written proof.

But it does not follow, (as it has been urged,), that a party would, by probing the conscience of his adversary, be enabled to introduce parol proof to contra-, diet his answers in relation to a notarial act, or- the oral sale of an immo». vablo.

This Article of the Code of Practice must be construed with reference to the other provisions of law, and cannot bo held to authorize the introduction of the testimony of witnesses, only where such a mode of proof is admitted.

But where the answers of the party supply the place of written proof, (in those cases where written proof is required by law,) no parol evidence can be received to contradict them.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court, to be proceeded in according to law, and the views herein expressed ; and it is further ordered that the defendant and appellee pay the costs of this appeal.