author: Smdex.1, J.

text:
    Drake et al. v. Jones.
    Where defendant scfcs up a discharge under the (bankrupt law .of the United States of 19 August, 184L, and plaiutiff alleges in an amended petition that the discharge was obtained iby fraud, but without sufficient specification, he may afterwards, in vacation, and without .any order from fcho judge at .chambers, file with the.clerk a .notice to the defendant specifying the acts of fraud intended to be proved; and a copy of this notice, if served on defendant in time, will suffice,'the act of Congress of 1841, which controls this subject, requiring .only,-" prior reasonable .notice, specifying the fraud or conceabnent. It is not necessary ithat the specification should have formed part of .an amended answer.
    APPEAL from the District Court of Bossier, Taylor, J.

      Lawson, for the appellants.

      Spofford. for the defendant.
   The judgment of the court was pronounced :by

Smdex.1, J.

To.an action of ¡debt the defendant pleaded his discharge in bankruptcy, under the act of Congress. At the May term of the court below, in 1847, the plaintiffs, with .the permission of the court, filed an amended petition, a copy .of whieh -was duly served upon the defendant, in August, 1847. In this the plaintiffs charged fraud, against the bankrupt, but in a very loose and vague manner. No exception to the amendment was pleaded by the defendant. On the 6th May, 1848, during vacation, and without an order at chambers, ¡plaintiffs filed in the clerk's office .a notice to the defendant, specifying certain acts of fraud intended to be proved! A copy of this notice was served by the sheriff upon the defendant, on the 11th May, 1848, four days before the session of the court, and six days before the trial. On the 17th May, the parties proceeded to trial, without objection; and, after the plaintiffs had offered evidence to establish the debt, and the defendant had offered his certificate, the plaintiffs •offered evidence in support of the charge of fraud, which, upon objections of defendant, the court refused to receive. No evidence of fraud being before them, the jury found a verdietfor the defendant.

The objection that the evidence was inadmissible uuder the first notice contained in the amended petition was tenable, because the notiee was vague and uncertain. But that was immaterial, having been cured by the second notice, to which counsel do not object on that score.

But it is urged that the evidence of fraud was inadmissible under the second notice, because that document, though marked “ filed” by the clerk, formed no part of the record ; that it was an attempt, on the part of the plaintiffs, to amend their pleadings in vacation, without an order of the court, or the consent of the defendant. It is true, that our Code of Practice requires that amendments should be sanctioned by an order of court. But, in our opinion, this subject is controlled by the act of Congress, which does not require that the certificate should be impeached upon a formal plea, but is satisfied by “ a prior reasonable notice, specifying such fraud or concealment.” We see no objection, therefore, to the filing of the notice in vacation and without leave of court, provided a copy be seasonably communicated to the bankrupt.

_ This brings us to the last ground urged by the appeliee, which is, that the notice came too late. This objection depends wholly upon the question what, in point of time, is to be considered as prior reasonable notice. It is said that six days is too short, and that to prepare himsejf to meet charges of so graye a character, the defendanfwas reasonably" entitled to a delay, at loast as long aa that given by law for answering in an ordinary litigation. We do [not deem it necessary at present, even if we were permitted to do so, to lay down an inflexible rule on this subject. The district judge having considered the notice too short, we shall not question the correctness of his opinion in that respect. But we think that, in view of all the circumstances, and especially of the fact that the defendant went to trial without objection, the court, if it still thought proper to hold the defendant to the investigation of a charge so grave upon notice so shore, ought to have done so only by a continuance of the cause. That was the extent to which the defendant should have been relieved, and by that course the rights of each litigant would have been saved.

It is, therefore, decreed that, the judgment of the- court below be reversed, and that this cause be remanded for further proceedings according to law, and with instructions to the court below, to receive the evidence mentioned in the bill of exceptions; the defendant paying the costs of this appeal.


source: Caselaw Access Project

author: Slidei/l, J.

license: Public Domain

text:
    Douglass v. Craig.
    In an action of slander defendant may offer, in mitigation, the testimony of a witness to establish that, a short time before the institution of suit, the latter heard a third person tell plaintiff, that the prosecution should not cost plaintiff anything; that plaintiff appeared not to wish to sue ; and that such third person said to plaintiff, that he intended to break down defendant, by lawsuits or otherwise. The jury might infer, from the evidence either that defendant did not consider himself injured, or that he felt conscious of his own culpability and feared an investigation, or that he was drawn into the suit, by a third person, as a means of oppressing the defendant.
    APPEAL from the District Court of Bossier, Taylor, J.

      Lawson, Gilbert and Landrum, for the appellant.

      Garrett, for the defendant.
   The judgment of the court was pronounced by

Slidei/l, J.

This is an action of damages for slander. The case was tried by a jury. They gave a verdict for the plaintiff, for one dollar damages. The plaintiff applied fora new trial, which was refused, and he has appealed.

"We have been urged by counsel to reverse this verdict rendered by a jury of the vicinage, upon a subject peculiarly appropriate for their consideration ; and the case is pressed mainly upon the ground that, a portion of the evidence was improperly permitted to go to the jury. The evidence excepted to was this; the witness deposed that, on the day on which the suit was commenced, and before its institution, he heard one Gilmer tell Douglass that the prosecution of the suit should not cost him (Douglass) any thing. That Douglass appeared not to wish to have any thing to do with it. The witness being asked by the court, why Douglass did not wish to have any thing to do with the suit, answered, thathe, Douglass, did not wish to bring a suit against Craig ; that he, Douglass, did not want to have any thing to do with Craig; that Gilmer said to Douglass that he intended to break down Craig, by lawsuits or otherwise. The district judge overruled the objection to the admission of this testimony, on the ground, as he states at the foot of the bill of exceptions, that the evidence was good to show the mind of the plaintiff, and in mitigation of damages.

We think the court did not’ err. The 'facts and conversation stated were a fair subject to go to the jury. An inference might be drawn from them that the plaintiff did not consider himself injured by the assertions of the defendant, and. was drawn into the suit as an instrument of oppression by a third party; or that he felt a consciousness of his own culpability, and feared a public investigation of his conduct. It is true that, on the other hand, an inference not unfavorable to the plaintiff might, perhaps, be deduced, namely, that he was a man averse to litigation, and who preferred to suffer an injury rather than be involved in a law-suit. But it waá for the jury to weigh the testimony, and draw their inference from what passed between Douglass and Craig, and from the surrounding circumstances, as shown by the other evidence. If the jury drew the inference unfavorable to the defendant, then they would properly estimate it in fixing the a-mount of the verdict. It was, therefore, admissible in mitigation, as having a legitimate tendency, construed in a certain sense, to reduce the damages; and it certainly was no ground of objection to it, on the plaintiff’s part, that it was on the other hand susceptible of an inference that would make in his favor.

A bill of exceptions was taken to the admission of another portion of the testimony of the same witness, which, we think, should have been excluded as hearsay. It was testimony as to Gilmer’s assertions in another conversation between Gilmer and the witness, out of Douglass’ presence. But the admission of this evidence was immaterial, as it merely showed that Gilmer instigated the suit; which was fully shown by the conversation between Douglass and Gitmer.

One of the charges made against the plaintiff, we have no doubt, from a pe. rusal of the evidence and from the lowness of the verdict, was considered by the jury as justified. The damages, it is fair to conclude, were assessed with reference to the other charge, which was not justified in the answer, nor proved to be true. It was of the gravest character; but was probably considered by the jury as uttered in the heat of passion arising from the recent violation of the defendant’s rights, which occasioned the other slanderous words. Although the amount of damages found was very low, we do not feel authorized, after a •consideration of the whole case, to disturb the verdict.

Judgment affirmed.


author: Kino, J.

text:
    Oglesby v. Drake et al.
    It is only in case of a simulated sale, not intended to convey any property, that a creditor can disregard the title of a purchaser, and commence by a seizure. In other cases the sale mnst be attacked by a direct action.
    Though an act of sals sous seing privé, which had been rendered in the office of the parish judge, do not show upon its face that it was either acknowledged or proved before its registry, tho certificate of the notary that the act was of record in his office, is such prima facie evidence that it was legally inscribed as will relieve the party offering it from the necessity of showing upon what proof it was registered.
    APPEAL from the District Court of Bossier, Olcolt, J.

      Vaughn, for the plaintiff-

      Lawson, for the appellants.
   The judgment of the court was pronounced by

Kino, J.

The plaintiff has enjoined in this suit, the execution of a , fieri facias issued on a judgment obtained by the defendants Drake Hardy, against Sabert Oglesby, Sr., alleging that the sheriff has levied upen a slave, of which he is the owner. The defendants Drake Sf Hardy pleaded the general issue, and further alleged that if there was a sale to the plaintiff of the slave seized', it was made in fraud of their rights. A judgment was rendered in favor of the plaintiff from which the defendants have appealed.

The plaintiff exhibited on the trial, an act of sale to him of the slave in controversy, executed under private signature, and recorded in the parish judge’s office, and possession under his title for several years prior to the seizure. The judge did not err in perpetuating the injunction, on these pleadings and the evidence adduced. The defendants could not attack collaterally the plaintiffs’ title, commencing with'a seizure, unless they considered the transfer a simulation, which is net alleged. See Heirs of Lindeman v. Theobald, 2 Annual Reports p. 912.

The defendants contend, that the plaintiff has failed to show a title. This objection rests upon the fact that, the act offered does not exhibit, upon its face, that it was either acknowledged by the parties, or that its execution was proved by one of the subscribing witnesses, previous to its registry. As regards the proofs upon which such acts may be admitted to record, it does not become necessary to express an opinion. When a notary certifies an act of this kind to be of record in his office, his certificate offers such frimd facie evidence that it was legally inscribed, as to relieve the party offering it from showing upon what previous proofs it was done. Ells v. Sims, 2 Ann. 254.

The further position assumed by the defendants, that the slave was, at the date of the seizure, subject to their privilege, as attaching creditors, is wholly untenable. Their judgment recognizes no such privilege.

Judgment affirmed.


author: Kins, J.

text:
    Beck v. Hunter.
    In an action by one of two makers of a joint and several promissory note, who bad paid the whole amount in satisfaction of a judgment thereon obtained against him, to recover from his co-obligor one half of the amount so paid, a transcript of the record of the action against the former, to which the latter was not a party, is, in the absence of the original note, or of any evidence of its execution or consideration, insufficient to support the action.
    APPEAL from the District Court of Caddo, Olcott, J.

      Hodge, for the plaintiff.

      Young, for the appellant.
   The judgment of the court was pronounced by

Kins, J.

This action was commenced by an attachment against the defendant, who, it is alleged, resides out of the State. The plaintiff avers that lie and the defendant were the joint and several makers of a promissory note, given to one Beni, for work and labor done for the joint benefit of the two, and that a judgment was obtained against the plaintiff, for the amount of the note, which he subsequently satisfied. He prays for a judgment for one half of the sum thus paid. The defendant was represented by a curator appointed by the court, who pleaded, as an exception, that the defendant was not properly before the court, not having been cited, and not being the owner of the property attached ; and subsequently filed' an answer to the merits, in which he pleaded the general issue, averred that the judgment against the plaintiff had been obtained by collusion, and that the defendant was, at the inception of the present action, and still continued to be, a resident, of the State.

The only evidence adduced by the plaintiff in support of his demand was, a transcript of the record of Bent v. Beck & Hunter, to which'the defendant was not a party. The original note was- not produced, and no proof offered of its execution, nor of the consideration for which it was given. This testimony is insufficient to sustain the plaintiff’s demand.

The judgment of the District Court is, therefore, reversed, and judgment rendered against the plaintiff as in case of non-suit;- he paying the costs of both courts.


author: Eustis, C. J. Sx.ibb.li,, J.

text:
    Cane et al. v. Battle.
    Where there is no provision in the act creating a partnership for its continuance in case of the death of a partner, it will be dissolved thereby ; and the partnership-name cannot bo used afterwards, so as to bind the partners, but in virtue of some new authority. Such authority may be inferred from the subseqent conduct of the parties.
    Appeal from the District Court of Caddo, Taylor, J.

      Campbell, for the plaintiffs,
    on the question of the ratification by plaintiffs, of the sale of McNeill, contended that, the ratification must be express. C. C. 2990. The difference between the provisions of this and the corresponding article of the Code Napoléon (art. 1998) will be remarked. In the Code Napoléon it is stated that the principal is net bound by the acts of the attorney, not in conformity with the power, except in so far as he has expressly, or tacitly ratified it. By our Code he is only bound in so far as he has expressly ratified it; the concluding words of the Code Napoléon, “ ou incitement,” having been omitted in the latter, though the articles, in other respects, are identical. The ratification must further be in writing, where land is concerned (2 Greenleaf, Ev. 511).; and must necessarily result from the facts, after a deliberate examination of the acts of the agent. 13 La. 158. The act must clearly and unequivocally evince the intention to ratify (17 La. 293. Story on Agency, s. 242, 253); and have relation to the particular transaction. Minas v. Bernard, 13 La. 175. '

      Landrum, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit ivas instituted, in November, 1842, by James H Cane,- Bushrod Jenkins, Frances E. Sprague and Henry M. Shreve, who allege that they are the owners of four undivided sevenths of four certain lots in the town of Shreveport, and that the defendant is in possession of them and claims them a3 owner. They claim property in the lots according to their respective interests, and for judgment accordingly. The defendant claims title under a sale from the plaintiffs’ agent, Angus McNeill, to John O. Sewall, the defendant having purchased the lots at the sale of the effects of the succession of the latter, made on the 6th of December, 1841, under an order of the court of Probates of the parish of Caddo. A judgment was rendered in favor of the plaintiffs, and the representatives of the owners of two other sevenths, who were considered as parlies lo the suit, against the defendant, for six sevenths of each of the lots; and the defondant has appealed.

There appears to have been no question as to lho capaeily of 1 ho .sevpraf parties plaintiff who claim to represent the original owners, and the argument has rested exclusively on the title of the defendant, resulting from the sale to Sewall, and its subsequent ratification.

On the 7th of February, 1837, Bushrod Jenkins, Angus McNeill, the com' mercial firm of Bennett Sf Cane, composed of William S. Bennnelt and James H• Cane, all of the parish of Natchitoches, of whiclfthe parish of Caddo, in which Shreveport -is situated, formed a part,; James B. Picket, of South Carolina, Thomas J. Williamson, of Arkansas, Henry M. Slireve, then of Kentucky, and Sturgis Sprague, of Mississippi, having purchased six hundred and forty acres of land upon which the town of Shreveport stands, formed a partnership in the above described town and the balance *>f the reserve : the town having been laid out in lots, according to a «lithographic map. The partnership was to be called the Shreveport Company ; a president and treasurer were to be elected annually; and the duty of the president was to sell lots, and give obligations for titles; he was authorized to make titles, with full guarantee. The lots to be sold alternately in all squares where sales have not been made heretofore;' the terms one-third cash, or what the president may deem equivalent thereto, .the balance in one, two, aqd three years, with ten per cent interest, payuble annually, secured by mortgage.” This clause has been considered in argument as a sufficient authority to Angus McNeill, who was the president of ,the company, to make thesale to Sewall.

There are two acts of sale from McNeill, as president, to Sewall; -the first was made by public act, before a notary in the parish of Natchitoches, on the 28th of July, 1837, and purports to convey the lots numbered 15 and 16, in block 24 ; the second was also made by authentic act before the judge of the parish of Caddo, which parish had recently been organized, was of lots 13 and 14, in block -24, and bears date the 17th day of August, 1838. The lots in the two sales, it will be perceived by their numbers, were contiguous. The terms -of payment varied from those before recited, and no cash was required on .either sale.

Bennett, one of the partners, died previously to the last sale, and Sprague, another, died .on the 5th of October, 1838. Notwithstanding the death of Bennett, McNeill, as president of the Shreveport company, by public act in Shreveport, sold forty-three lots of ground belonging to the partnership in Shrevepoit ■to different persons, between the day of Bennett’s death and that of the first sale to Sewall, to wit, between the 10th of August. 1837, and 17lh of August, 1838. There does not appear to have been any provision in the articles of co-partnership concerning its continuance beyond the life of all its members, and the law is, on this subject, as stated by the counsel for the plaintiffs. After the death of Bennett, McNeill had no right to .use the partnership name so as to bind the co-partners, unless derived from some new authority. The validity of his acts after the dissolution of the partnership, must depend entirely upon, the relations and conduct of the partners concerned-therein.

It is contended by the counsel for the plaintiffs that, the sale to Sewall is void, because McNeill, the president, did not follow the forms, restrictions, and qualifications prescribed in his written power to sell. It is true the requirements were not observed, and the lots were contiguous, instead of being alternate. The articles of partnership, in which the authority to sell was given were under private signature, and appear to have been recorded in the office of the parish judge of Natchitoches, with the map of the town as laid out on the 24th February, 1837. It is obvious that this whole affair was one of those speeulatious, which ¡were -so common at the time. The object of the partnership was, to sell their lots in such a manner as to give value to the land which remained. The expenditure of the proceeds,of the sale, which were to ba placed in the hands of the .treasurer of the company, for improving roads, streets, or any other purpose, was vested in the discretion of a majority of the .partners. Powers,of attorney were to be given to the president by each of the partners, to enable .him to execute titles. The renunciation of the rights of the wives of the partners who were married was to be given, and no dividends were to be received by such as did not furnish it. The Shreveport company was organized with the powers,of the president to sell, in order to facilitate the sales of lots, and, ,by his agency, to give an impetus to- the speculation. It is .contended for.the (defendant, that after the dissolution .of the partnership and the .consequent revocation of the powers of the president, the surviving members still authorized McNeill to act as their.agent.; that they bought .lots them.selves from him, in his capacity as president of the company; and that .he continued to dispose,of lots to other persons, subsequently to the sale to Sewall, .of the 17th of August, 1838.

In relation to the first sale, .viz., that .of lots 15 and 16, .on the 28tli of July, e J837, although McNeill deyiated from the terms and conditions of his authority .to sell, we think the silence of the parties interested for so long a period after the sale, their course .in relation .to the.other sale, and the undisturbed possession of Sewall during Ids life, amount .to a ratification which iu law results from .the voluntary execution of the sale. McNeill was the .agent .and partner of the several proprietors; he sold, and as no proof has been adduced to the .contrary, w.e are bound .to infer from .the attending .circumstances that, as his .act was never, until the .institution of this suit in 1842., disavowed, and the proceeds of the sale inured to their benefit in the partnership concern, that they .considered the sale as binding on them. At .all events, in law, they cannot be permitted, at this time, to disturb it in the hands of .a purchaser whose good .faith is not questioned. Marsh v. Smith, and cases cited, 5 Rob. 518.

But in relation to the last sale, there ,can be no question that Sewall acquired .no title whatever under it, .except that which McNeill himself had. The formal protest of a portion of the proprietors immediately after the sale was known to them., puts an end .to all doubt on .the subject. The partnership was dissolved. McNeill liad no authority to sell for his partners. No act, on (he part of the co-proprietors, has been shown, from which a ratification results. Indeed we can cometo no other conclusion than that (he sale of August, 1838, was a.fraud throughout, as there was a suit pending at the time which had been instituted in June previous, fora partition of the property .then remaining unsold, in which McNeill was a party plaintiff, and John O.. Sewall was., at the time, secretary to the company.

The judgment of the District Court is, therefore, reversed, as to the lots 15 and 16 in square n,o. 24, and,as to .them judgment is rendered for the defendant ; and in other respects it is affirmed; the .appellees paying the costs of this appeal.

Sx.ibb.li,, J.

The facts upon which this case depends are extremely complicated ; and the difficulty of ascertaining their legal effect is much increased by the obscure and hnperi'&cl manner in which portions of them are presented by the evidence.

I. The result of my examination is,.a .concurrence iuthe de.cr.e.6 with regard .to the .lots sold iu 183.7.

II. With regard to' those sold in 1838,. my conclusion to concur has been formed with more difficulty. It is not easy, in the perusal of the evidence, (much of which consists of brief admissions by the respective litigants.) to exclude the impression that, if the minute-books and'other records of the company had been produced, and the various proceedings and .acts of the company and its members down to the institution of this suit had ibeen exhibited fully and in detail, it would have presented such .a case as would have precluded ¡the plaintiffs from disturbing the third possessor. But, as the cause has been pending several years, and there is reason to believe that the defendant had .the means of fuller evidence within his reach, and with reasonable diligence could have presented it, he must abide by the case as made. It .does not show a state of facts from-which the ratification of the second sale necessarily results. The burden of proof was upon the defendant. See Bernard v. Rivas, 13 La. 174.

I, therefore, concur in .the .entire decree.


author: Eustis, C. J..

text:
    Moore v. The Mayor &c. of Shreveport.
    The corporation of a-town .cannot be made -liable for damage to -an individual occasioned by an obstruction in the street, where the injury might have been-avoided by ordinary care on the part of the plaintiff. Per .Curiam.- W e are not -to be .considered as recognizing, un. der our legislation, the right of action of an individual in any case, against a town corporation for damages in .consequence of accidents occasioned by the condition .of roads, streets, or highways.
    APPEAL fr,om the District -Court of Caddo, Taylor, J.

      R. Jones and Spofford, for the plaintiff,
    -cited .5 La. 463. 11 -La. 86. 15 La. 171.

      R. N. Wood, for the appellants,
    contended that the injury sustained by the plaintiff might have-been avoided by .ordinary care on his part, citing 2 Starkie, 536. 11 East. 60.
   The judgment of the court was pronounced by

Eustis, C. J..

This is an action instituted by the plaintiff, to recover from the corporation of the town of Shreveport, in the parish of Caddo, the sum of $2,000, damages for injury sustained by a fall in-the street of the town, alleged to be caused by an obstruction placed therein by the defendants, and by the general bad condition of -the same. There was a verdict for the plaintiff for $300, and judgment accordingly. After an ineffectual attempt,to obtain a new trial, the defendants have .appealed.

After the argument of this case was closed, the court directed the attention of counsel to the question, whether An action .of this character could be maintained .against a municipal corporation, under our laws. We had doubts.whether those corporations were responsible, and corporators could be taxed to indemnify individuals against accidents occasioned by the condition of roads, streets, and highways.

No authority has be.e,n adduced, .and we are not aware of any precedent in our jurisprudence, for such an action. We have not.au opportunity at present to .examine-the subject as its importance requires, still less to lay down and define the cases and limitations in which the action could in any event be maintained, under our legislation, nor must we be considered as recognizing the right of action of the plaintiff against the corporation. Our impression is that, in ^le english and american cases in which this action is sustained, the remedy against corporations- has been given by statute. See the opinion of Lord Kenyon in the case of Rupet and others v. The Men of Devon, 2 Durnford and East, 672; and Mower v. The Inhabitants of Leicester, 9 Mass. 248.

It does not become necessary, however, to decide this point, in as much as we are of opinion that the accident resulted from a want of ordinary care on the part of the plaintiff. The obstruction complained of was in the business part of the town, and had been permitted to remain for some time. The plaintiff was a clerk in a store, and resided there; and, with ordinary caution on his pnrt, the injury would have been avoided. The evidence, we think, conclusive, as to that fact.

In an action against a town upon the statute, for damage to plaintiffs’ stage coach occasioned by the condition of a highway, it was held that the burthen of proof was on the plaintiff, to show that he was free from negligence, that is, .using due care and skill. Adams v. The Inhabitants of Carlisle, 21 Pickering, 147. See Lane v. Crombie, 12 Pickering, 177.

On the merits, we think, the case is clearly with the defendants.

The judgment of the District Court is, therefore, reversed, and judgment rendered for the defendants, with costs in both courts. .


author: Slidell, J.

text:
    Norris v. Fristoe, Administratrix.
    The right to annul a judgment is not restricted to the cases specially enumerated by art. 607 of the Code of Practice. But to entitle a party to such relief, a case must be made out showing that it would be against good conscience to execute the judgment, and that the plaintiff could not have availed himself of the matter in the former litigation, or was prevented by fraud or accident from so doing. If there has been laches or negligence, the party cannot be relieved. The matter must be such as the defendant could not, by reasonable diligence, have known.
    The release of the sureties of an administratrix authorizes the heirs or creditors to compel her to give new security, but' does not deprive her of the right to collect the debts of the succession, until removed from office.
    APPEAL from the District Court of Catahoula, Barry, J.

      Purvis, for the appellant,
    cited C. P. 607, 6Q8, 613. C. C. 1119, 1125, 3522 § 31. 12 La. 396. 15 La. 58. 11 La. 419. 1 Rob, 115.

      Mayo, for the defendant,
    relied on 2 La. 181. 3 Rob. 225, and cases there cited.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff seeks by this action to annul a judgment which the defendant obtained against him, in March, 1848, upon a promissory note endorsed by him. He also obtained an injunction to stay execution. The present defendant pleaded the exception of res judicata, and also that the petition on its face exhibited no cause of action or ground for injunction. The exception was sustained by the court below, and the plaintiff has appealed.

The main ground for injunction and of nullity, is alleged as follows: “That said judgment is erroneous, and ought to be annulled, for the following good and sufficient causes, to wit: that said judgment was obtained by fraud, the whole debt sued for having been previously paid and satisfied, as your petitioner is informed, and verily believes, by one Edom L. Fariss, in his life time, in compli. nuce with a contract entered into with John R. Seay, the principal on the above notes, on which Sarah E. Fristoe obtained a judgment. The said J. R. Seay, having sold the property for which said note was given to said Fariss, with tho express stipulation that this note, on which the judgment herein sought to be annulled was obtained, should be paid by said Fariss ip_his life time. Which facts as above stated, with regard to the payment aforesaid, have come to the knowledge of this petitioner since the rendition of the judgment herein sought to be annulled.”

It is provided by the Code of Practice, art. 607, that a definitive judgment may be annulled in all cases where i-t appears that it has been obtained through fraud, or other ill practices, on the part of the party in whose favor it was rendered ; as, if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the paymont of a sum the receipt of which the defendant had lost, or could not find at the time, but has found since the rendering of the judgment. We concur with the plaintiff’s counsel in the position that, the relief by-action of nullity is not to be restricted to the cases specially enumerated. They are put byway of illustration, and the article may be considered as enunciating the principle that, even after judgment, a party may be relieved. But'this relief, and the conservative remedy of injunction, must be granted with great circumspection, otherwise there would be no end of litigation. Hence a case must be exhibted of matter which would make it against good'conscience to execute the judgment- — matter of which the injured party could not have availed himself in the former litigation,jor'which he was prevented by fraud orjaccident from availing himself of. The matter must also be such as the party, by the use of reasonable diligence, could not have known: for if there have been laches or negligence, that destroys the title to relief. See Story’s 'Equity Jurisp. § 887. Story’s Equity Pleadings, § 414. Garlick v. Reece, 8 La. 101. McMicken v. Millaudon, 2 La. 180.

There is "a strong analogy^between actions to annul judgments and motions for new trial; and recurring to the provisions.of our Code on the subject of new trials we find the familiar rule, that where the application is on the ground of the discovery of new evidence, it must be evidence “which he could not with due diligence have been obtained before.” C. P. 560.

Applying these rules to the present case, the petition is clearly defective. The absence of negligence, the exertion of diligence, are not alleged. We may also remark that the fact of payment, is loosely and defectively stated. The petitioner does not allege when, nor to whom, the-payment was made. The allegation that the sureties of the administratrix (the plaintiff in the former suit), have been released Jfrom liability on her official bond, was also insufficient to sustain the injunction. Assuming the allegation to be true, it does not follow that she has ceased to be clothed with authority to collect the judgment. The release of the sureties might have afforded ground to the heirs or creditors to compel her to give new security. This she may have done. Non constat that she has been deprived of heroffice, - Judgment affirmed. •


author: Sjlidell, J.

text:
    Haynes v. Heard.
    A party to an action to whom an interrogatory is propounded by bis adversary, may state in his answer any matter pertinent to the issue, and clearly connected with the facts which his adversary is seeking to establish. The answer may be qualified by the statement of facts which would prevent the consequences of an absolute and unqualified answer.
    Where, in an action on a note which is silent as to the rate of interest, a party, for the purpose of recovering a higher rate of interest than would be due on a note made in this State, interrogates his adversary as to whether the note was not executed by him in anot her State, the latter may mention in his ans wer, after denying that the note was made by him in the State indicated, that the consideration for which the note was given had failed, or that no consideration ever existed. Per Curiam: The purpose of the interrog atory being to subject defendant to a liability for a higher rate of interest, a fact going to repel that liability, by invalidating the contract, is within the fair scope of the rule.
    Appeal from the District Court of Union, Copley, J.

      Bailey and McGill for the plaintiff.

      W. J. Q. Baker, for the appellant,
    cited 9 Rob. 173. 1 La. 196. 6 Mart. N. S. 706. Evans’ Pothier, p. 445, nos. 826, 827.
   The judgment of the court was pronounced by

Sjlidell, J.

This suit is brought up'on a note of the following tenor:

“ One day after date I promise to pay Thomas Haynes, or bearer, $833 33, for value received.

November 3, 1841. "William C. Heard.”

The plaintiff alleged in his petition that the note was made by the defendant, in the State of Alabama, and that eight per cent per annum is the legal rate of interest in said State upon promissory notes after they become due and payable’ when no rate of interest is expressed. The prayer was for judgment for the amount of the note and eight per cent interest. The plaintiff accompanied his petition with the following interrogatory to the defendant. “ Was, or was not, the note sued upon made by you in the State of Alabama ? ” The defendant admitted in his answer that he made the note, but pleaded the general issue to all the other allegations of the petition. He also specially pleaded that he was induced to sign the note by fraud practiced on him by the plaintiff, and that the consideration of the note had failed. Other special matters of defence were pleaded in the answer, together with a reconventional demand. The defendant answered the interrogatory as follows. “ The note sued was not made by me in the State of Alabama. But I made it. But at the time I made it, I had already paid the plaintiff, Thomas Haynes, and those to whom he had transferred my notes, at least $2000 more than ever I had received consideration for ; and the consideration for which the note sued on was made has entirely failed.”

In Rogers v. Parmetti, the plaintiff called on the defendant to say, whether the signatures affixed to the notes on which the suit was brought had not been written by him. The defendant answered that they were, but that he had never received any legal, valuable, or good consideration therefor. The court held that the portion of the answer alleging failure of consideration was erroneously stricken out. 1 Mart. N. S. 382. This decision was, it is true, based upon the Code of 1808, and the ancient practice of the courts of Spain. In Nickols v. Peirce, 6 Mart. N. S. 703, which was decided nnder the Code of Practice, the plaintiff being asked whether he had not agreed with the defendant to erect nn engine upon a lot of ground and put the same in operation as a saw-mill',' answered that he had ; but that the defendant, having failed to comply with the’ contract, by furnishing the lot of ground, they had both agreed to recede frorri the agreement. It was held that the plaintiff was properly permitted to offer his answers in evidence. In Glasgow v. Stevenson, the party to whom interrogatories had been put with the object of establishing the existence of a bill of exchange, was permitted, in his answer, to state its loss. 6 Mart. N. S. 569. See also 1 La. 697. C. P. 353.

The principle upon which these decisions rest is, that the answers objected to were pertinent to the issue, and clearly connected with the facts which the adversary sought to establish; and that the party had the. right to qualify the answer he was called upon to make, by stating facts which prevented the consoquence of absolute and unqualified answers.

In the present case the manifest object of the plaintiff ’s interrogatory was, to' establish a basis for the claim of eight per cent interest, upon an instrument which, without the evidence proposed to be elicited by the answer, would have been presumed to fall under our own law, and bear only five per cent. The purpose' of the interrogatory being to impose such a liability, a fact going to repel that liability, by invalidating the contract, was within the fair scope of the rule.

The case of Williams v. Vance, 2 An. 908 has been cited as recognizing an opposite rule. We think otherwise. The interrogatory there was: “ Has not the' amount of said note been demanded of you since maturity.” The cotfrt considered the interrogatory as going to the question of costs dependent upon “ the' amicable demand before' suit.” An affirmative answer that a sum of money had been demanded from the defendant, would not imply the' existence of a liability for its amount.

Being, therefore, of opinion that thé court below1 erred in' striking out that portion of the defendant’s answer which implied a liability upon the note, wo' inust remand the cause.

It is, therefore, decreed that, the judgfnent of the Court below be reversed ; «nd that this cause be remanded for further proceedings according to law; théf plaintiff paying the costs of this appeal.


text:
    Whiting v. Ivey.
    Where a paifcy, Who has propounded interrogatories to his adversary, does not choo'se' to usó’ them, the latter may avail himself of them. Nor can this right be defeated by the plain» tiff’s abandoning his suit, before trial, and without’ having used the interrogatories. Where, after such an abandonment, the plaintiff institutes a second action for the same cause, defendant ni ay Offer in evidence his answers to the interrogatories propounded in the first case.
    Á manifest evasion by a p'arty to answer interrogatories pVopóunded to him, when he could not mistake their import, creates a violent presumption that a true and direct answer would have destroyed his claim or defence.
    Where the defendant, in an action on a foreign judgment rendered against a person of the same name, denies his identy with the defendant named in the transcript, he must disprove his identity. The proof furnished by the record is primé facie sufficient against him.
    APPEAL from tbe District Court of Union, Copley, J.

      W- J. Q. Baker, for the appellant.

      McGuire and Ray, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

The action is upon a judgment obtained by plaintiff against Thomas Ivey, in Alabama. The defendant answered by a general denial, and also specially denied that he was the person against whom the judgment was rendered, or that he ever gave such a note as the one upon which said judgment was rendered “as he recollects.”

At the trial of the cause the plaintiff offered in evidence an authentic transcript of the Alabama record, exhibiting judicial proceedings to judgment and execution, against Thomas Ivey, at the suit of John Whiting. The defondant then offered the petition, interrogatories, answers to interrogatories, and judgment of voluntary non-suit, in a former suit between the same parties, upon the same judgment,' and in the court in which the present suit was brought. Upon this evidence there was final judgment for the defendant. The plaintiff has appealed, and asks that the cause be remanded.

When the defendant’s answers to the interrogatories propounded in the former suit were offered by the defendant, the plaintiff excepted to the admission of the evidence upon the grounds, that the former suit was dismissed by judgment of voluntary non-suit, without any contradictory proceedings, or use made of the interrogatories, or any trial of the cause ; and that the answers could not be used by the party answering, in the trial of a new suit upon the same cause of action. The plaintiff also called the attention of the court to the fact that, the answers were offered without any previous notice of the defendant’s intention to offer them, and asked leave “to file a notice” to strike out the answers to interrogatories as evasive, which the court refused, “ on the ground that the notice to strike oat could not be filed after the trial had commenced.” To the opinions of the court admitting the evidence, and refusing the plaintiff’s application, bills of exception were taken.

The ruling of the court, on the first point, was correct. If the adversary who has propounded the interrogatories does not chose to use them, the party answering may avail himself of them. This would have been the defendant’s right in the former suit, and the plaintiff’ cannot be permitted to evade it, by voluntarily abandoning the former suit. This equitable rule was expressly recognized in Hunter v. Smith, 5 Mart. N. S. 179, and we see no reason to doubt its propriety.

As to the second point, we do not think it necessary to enquire whether the court erred in refusing to entertain an application for leave to strike out the answers. The answers received were not entitled to consideration, because they were evasive, and did not negative the existence of the judgment. The interrogatories propounded were: 1st. Do you not owe the judgment sued on in this case. 2d. Did you not owe the amount of said judgment ? If yea, have you ever paid the same ? To the first, the defendant answered : “ Not that 1 know of — has no recollection of any such judgment ever having been rendered against him.” To the second: “I never knew that I owed such a judgment — of course I never paid it.” Upon these answers, the defendant succeeded in overthrowing a solemn judgment of the Circuit Court of Alabama. But if we dissect the answer, it does not contradict the existence I or binding force of the judgment. A defendant may be legally cited in a cause, and making default, as’in this case, may really not know that a judgment was afterwards rendered against him. The answer, therefore, that the defendant did not know, nor had any recollection of, any such judgment, wasl insufficient to defeat the record. Again, if the denial of identity, which wel find in the defendant’s plea, was founded in truth, it is remarkable that! the defendant's answer to the interrogatory should have been silent on that point. The second answer is clearly evasive. The question was, whether he owed the amount of the judgment. The answer merely reaffirms the ignorance of the existence of the judgment. It is silent on the question of indebtedness. The petition and the record annexed, it must be observed, informed him that the original cause of action was a note, and the evasiveness of the answer justifies the belief that, even if he did not know of the existence of the judgment, he was not ignorant of his indebtedness.

A manifest evasion to answer questions put to a party when he could not mistake their import, creates a violent presumption that a true and direct answer to them would have destroyed his claim or defence. Knight v. Murchison, 1 Rob. 33. See also Bird v. Bowie, 3 Mart. N. S. 116. Barrow v. Sterling, 2 Mart. N. S. 55. A fortiori, an evasive answer should not overthrow the most solem evidence, a judicial record. The burden was upon the defendant to disprove his identity with Thomas Ivey named .in the record, whicb was prima facie sufficient. Jackson v. King, 5 Cowen, 237.

As the plaintiff has not asked for a final, judgment in this cause, but only that it be remanded, we will grant relief as prayed for.

It is, therefore, decreed that, the judgment of the court .below be reversed, and this cause remanded for further proceedings according to law; and with instructions to the court below to disregard the answers to interrogatories made by the defendant; the defendant paying the costs of this appeal.


text:
    Copley v. Dosson.
    The proceeding authorized by sec. 13 of the stat. of 20 March, 1839, against third persons under a fi.fct., cannot be substituted for a direct revocatory action, and be used to assail, on the ground of fraud, the title of such third person to property in bis possession.
    Interrogatories propounded to a third person under section 13, of the stat. of 20 March, 1839, though not answered on the day on which the party was cited to appear, cannot be taken for confessed without an order of court. Until such an order has been made the person interrogated may appear and answer them, and plead any defence he -could have previously offered.
    APPEAL from the District Court of Franklin, Barry, J.

      Morrison, for the appellant.

      Garrett, for the garnishee.
   The judgment of the court was pronounced -by

Kino, J.

The plaintiff, having first caused an execution to issue upon a judgment obtained against M. H. Dosson, proceeded under the 13th section of the act of 1839, to propound interrogatories to Mrs. N. C, Dosson, as garnishee, who excepted to answering them on the ground that, the plaintiff had not averred in his petition that she had in her possession property of the defendant, M. H. Dosson, or that she was indebted to Dosson; that the interrogatories were not pertinent to the legal issue between the parties, whether or not she was indebted to the defendant in execution, or had funds of his in her bands; and finally, she pleaded res judicata. The exception was sustained; md from a judgment dismissing the action, the plaintiff has appealed.

There is, in our opinion, no error in the judgment appealed from. The manifest object of the interrogatories propounded was, to assail the garnishee’s titles to property in her possession on the ground of fraud, and to test their validity in this proceeding.

It has been repeatedly held, that the proceedings in garnishment, authorized by the act of 1839, could not be converted to this purpose, .or substituted for a direct recoventory action. 1 Rob. 435. 17 La. 558.

The position assumed by the plaintiff that, the garnishee having failed to answer the interrogatories on the day for which she was cited to appear, they were to be considered as confessed, without a motion or ox'der of the court to that effect, and as precluding her from all further defence, is untenable. In the case of Sturgess v. Kendall, 2 An. 565, relied on, which was a case of attachment, the interrogatories were ordered to be taken as confessed, on a formal motion to that effect. Until interrogatories are taken by the court as confessions, the garnishee may appear and answer them, and plead all defences which he could have previously opposed to the proceedings against him.

Judgment affirmed.


author: Slideee, J.

text:
    George, Curator, &c. v. Le Grand.
    tV'here, in an action against one who had executed a mortgage on land to secure his faithful administration as curator of a succession, and who had left the State indebted to the succession for moneys received by him in his official capacity, a curator ad hoc is appointed to represent the absentee, and a judgment is rendered against him for the amount due, and ■the mortgage recognized and rendered executory, the judgment must be restricted to the property mortgaged- If has not the force of a personal judgment, rendered after citation; nor, on being recorded, can it have the force of a judicial mortgage on property held by a third person, under .a conveyance from the debtor anterior to the judgment.
    APPEAL from the .District Court of Caddo, Taylor, J.

      Wood, for the appellant.

      Crain, Jones and R. W. Richardson, for the defendant.
   The judgment of the court was pronounced by

Slideee, J.

Angus McNeill was the curator of a succession, .and gave a mortgage on .certain property i.n the parish .of C.addo to secure his faithful administration. In the spring of 1840, McNeill left the State of Louisiana permanently, and has lived in Texas ever since. Subsequently, George, who succeeded him in the curatorship, instituted an action .against McNeill. In the petition he alleges that McNeill was a defaulter to the succession, and had left the State. He prayep! that a curator ad hoc might be appointed to represent McNeill, that he might have judgment against McNeill .for the amount of the official bond, and that the mortgaged property should be sold for the payment of the idebtedness. Messrs. Frost, Gilbert Briggs, were appointed to represent the absent defendant, and were cited ip that capacity. An exception was pleaded by Frost ¿y Briggs, which is signed by Frost as curator, and by Briggs without mention of his capacity of curator. An answer in the case was signed, “Briggs S?Frost, Attorneys for defendant.” The judgment which was .rendered in 1841, decrees .that George recover of McNeill $14,622 93and| interest; that the mortgage be recognized and made executory; and that an allowance be taxed in the costs in favor .of Frost 8f Briggs, curators ad hac.l The proceedings upon .the seizure and sale under a fieri facias of the fnorjH gaged property,- as exhibited in the sheriff’s return, show that the sheriff treated Gilbert as curator, and served notice on him in that capacity.

The question presented for our consideration is, whether the judgment has the force of a personal judgment against McNeill, and, being recorded, operates as a judicial mortgage upon property íd the hands .of the defendant, hold under mesne conveyances from McNeill, by deed anterior to the judgment; or whether the effect of the judgment must be restrained' to the property, covered by the mortgagej rendered executory in that suit.,

We consider-1 the judgment as not having the force of a personal judgment rendered upon citation. McNeill was not cited, and was represented by a curator ad hoc, whose appointment was valid for the purpose of enforcing the mortgage upon the mortgaged property situated within the jurisdiction of the court. Millaudon v. Beazley, 2 An. 916. To this extent its .operation must be restrained, unless McNeill can be considered as having appeared by counsel, or otherwise become, in legal contemplation, a party to the cause. The sole facts upon which the plaintiff relies in argument are, that Frost was, as proved by a witness, McNeill’s general counsel up to the time of his leaving tho State in 1840, and that the answer is signed by Briggs Sf Frost as “attorneys for defendant.” We cannot presume that the relation of counsel and client continued between Frost and McNeill after his departure from the State; and looking to the record as a whole, we consider the mode in which they signed the answer as informal merely, and that in legal effect, it was an appearance in their capacity as curators ad hoc, under the appointment of the court. Tho decree proves that the court viewed them in that light, and their receiving the allowance taxed in their favor shows that they, so considered themselves. Upon the authority of Dupuy v. Hunt, 2 An. 562, and Broughton v. King, 2 An. 571, the peremptory exception pleaded by the defendant was properly sustained. Bídgment affirmed.


author: Kino, L

text:
    Peterson v. Burn.
    Where the plaintiff in an action to rescind the sale'of a slave on account of a redhibitory disease, and for damages for expenses incurred, presents a supplemental petition alleging that, since the commencement of the suit, he had sold the slave for a certain sum which was his full value, and reducing the claim for damages to thattextent, the character of the action is not thereby changed; hut, by disposing of the slave, the defendant placed it beyond his power to comply with the only judgment which could have been rendered in his favor — for the return of the slave, on the reimbursement of the price with damages.
    Where a judgment has been rendered against a plaintiff in a redhibitory action, he cannot institute an action qucmti minoris for the same cause. Nor can a plaintiff in a redhibitory action, who, by disposing of the slave affected with the redhibitory vice, has placed it beyond his power to comply with a judgment in his favor, change the action, by a supplemental petition, to one qisanti minoris.

    Damages for injuries sustained by a purchaser in consequence of redhibitory defects in the thing sold, can be recovered only in a redhibitory action, or an action quanti minoris.

    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Peyton and I. W. Smith, for the appellant.

      T. R. Wolfe, for the defendant.
   The judgment of the court was pronounced by

Kino, L

The plaintiff instituted this action to rescind the sale of a slave, and to recover damages, alleging that the slave was affected, at the date of the sale, with a redhibitory disease, which was known to the vendor, and not commenicated to the plaintiff: and that he had been subjected to heavy charges for medical services rendered to the slave, and for attorney’s fees. He subsequently presented a supplemental petition, in which he averred that, he had, since the commencement of the suit, sold the slave for $300, which was her full value, and to that extent reduced his claim for damages. The district judge seems to have considered, that the supplemental petition changed the action to one for a reduction of the price; but, upon the evidence, gave a judgment in favor of the defendant, from which the plaintiff has appealed.

The character of the action was not changed by the supplemental petition. The original demand was for a rescisión of the sale, and for damages. The supplemental petition merely reduced the claim for damages. The suit still preserved its original character of a redhibitory action. If the plaintiff had been successful, the judgment of the court would have decreed the return of the slave to the vendor, and the reimbursement of the price to the vendee, with such damages as he had sustained. By disposing of the slave, the plaintiff placed it beyond his power to comply with the only judgment asked for, or which could have been rendered in the event of success, and thus defeated his action. Brown et al. v. Duplantier, 1 Mart. N. S. 317.

But, if it be admitted that the object of the supplemental petition was to change the action into one for a ieduction of the price, the condition of the plaintiff was not bettered by the attempted change. The sale of the slave, as we have seen, put an end to the redhibitory action. In that suit, he could no longer possibly prevail. The resort to that action, in which he was defeated, exhausted the remedy given to him by law, and precluded hirn from a recourse to the action quanti minoris, 10 Toullier, no. 163. Troploug, Vente, no. 581. He cannot be permitted indirectly, by amending his pleadings, to accomplish that which he is forbidden to do directly,

In the case of Richardson v. Johnson, 1 An. 390, we held that, under our legislation, the only remedies by which injuries resulting from redhibitory defects can be redressed, are the actions of redhibition, and quanti minoris. Damages for such wrongs can only be assessed by judgments rendered in one of those forms of action, and cannot bei considered as a separate and independent demand. Having failed in the redhibitory action, and also in the attempt, if it ia to be so considered, to convert it into an action quanti minoris, the claim for damages must also necessarily fail. Judgment affirmed^


author: Eustis, C.- J.

text:
    Monition of Johnson.
    Where on an appeal frota a judgment dismissing an application to homologate a judicial Sufis' under the stat. of 10 March, 1834, the record, though certified as containing all the-evidence offered below, is silent as to the publication of the monition, the judgment of' dismissal must be affirmed.
    One who shows no interest cannot oppose the homologation of a judicial sale, applied for under the stat. of 10 March, 1834.
    APPEAL from the District Court of Plaquemines, Rousseau, J.

      Lombard and Bradford, for the' appellant.

      Rozelius, for the opponent.
   The judgment of the court was pronounced by

Eustis, C.- J.

This- appeal is taken from a judgment of the court of the second judicial district, dismissing a monition taken out by Geo. W. Johnson, to- confirm a sale of a tract of land in the parish of Plaquemines, made under the authority of that court. There was an opposition filed to the monition by John McDonogk, iu which he alleged certain informalities in the sale; on one of which, viz., that the sale ought to have been made by the sheriff, instead of by the administrator oí the succession to which the land apparently belonged the judge dismissed the monition.

It is not necessary to notice the several grounds on which this case has been argued at bar. It involves simply a question of every day’s practice. The party applying fur the benefit of a monition, which is to cure defects of form in a judicial sale, must bring himself within the statute of 1834. The basis bn which the courts act under it is, due notice to all parties by certain publications in newspapers, which the statute requires. The certificate shows that the record contains'all the evidence offered in the court below, and the statement of evidence contains nothing in relation to publication of the monition. On this essential point the record is silent.

■ The applicant can, therefore, take nothing by his monition, and the court did not err in dismissing it.

But the court sustained in its decree the opposition of McDonogh. Now McDonogh showed no interest, and consequently had no right to interfere with the irregularities or defects of the sale. Levingston v. White, 2 Annual R. 902. The judgment of the District Court, in this respect, was erroneous.

It is, therefore, adjudged that the judgment of the District Court be annuli* ed: that the opposition of McDonogh be dismissed, at his costs; that the monition be dismissed at the costs of the applicant; .and that the costs of this appeal be paid jointly by the appellant and appellee.


author: Eusirs, C. J.

text:
    The Charity Hospital v. Stickney.
    ííhe charge of five hundred dollars imposed by sec. 4 of stat. of 12 March, 1S3S, on theatres iti New Orleans, for the benefit of the Charity Hospital, is due every year.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, L J. and H. H.

      Strawbridge, for the plaintiffs.

      Conklin, for the appellant.
   The judgment of the court was pronounced by

Eusirs, C. J.

This case was before us, in May, 1847, and was remanded for further proceedings, the court being of opinion that the exaction for the price of a license for theatrical exhibitions in New Orleans, under the statutes of March 7th, 1814, and March 12th, 1838, was not, in its proper legal sense, a tax. Vide 2 Annual R. 551. There was judgment for the plaintiff, and the defendant has appealed.

The district judge considered that the charge of $500 on theatres, created by the law of 1838, being imposed in the stead of four annual benefits for the use of the Charity Hospital, was, by its terms, annual, and due every year. In this opinion we concur, ' Judgment affirmed.


author: King, J.

text:
    Henriette v. Duplessis.
    A nuncupative testament, executed under private signature in the country, in the presence of only four witnesses residing in the place where it was made, is valid, when from the violence of the disease with which the testator was attacked, and the distance at which other persons competent as witnesses resided, a greater number could not be procured.
    APPEAL from-the District Court of Plaquemines, Rousseau, J.

      Lombard, for the plaintiff,
    cited Code Just. b. 6, tit. 23, law 8. Code Nap. art. 9B5< French Ordon. of 1735, ss. 33 to 37. Ferrari’s Span. Library, vol. 5, verbo Testamentum.

      Preston, for the appellant.
   The judgment of the court was pronounced by

King, J.

The-plaintiff claims her freedom under a nuncupative will, executed by her former owner, Martin JDuplessis, under private signature, in the country, in the presence of five witnesses. The objections originally urged against the validity, of the will, upon which her claim for freedom depends, were considered, and most of them overruled, in the case of Sophie v. Duplessis et al. 2 Ann. Rep. 725. In that case, in consequence of certain defects of proof, a judgment was rendered as in case of non-suit, leaving the plaintiff, in any future action that she might institute, to supply those defects, and particularly to show either that the witnesses all resided in the parish in which the will was made; or, if they did not, that a greater number could not have been procured by the exercise of reasonable-diligence. On the trial of the present cause, evidence was introduced to both of these points. It was admitted that four of the witnesses were residents of the parish where the will was made. The testimony in relation to the residence of the fifth, was contradictory and unsatisfactory. The district judge, however, considered, under the evidence, that a greater number of witnesses'- could not, under the circumstances, have been obtained; sustained the validity of the will; and decreed the plaintiff to be entitled to her liberty. From this judgment, the defendant has appealed.

The evidence has not satisfied us that Ravano, one of the witnesses to the will, was,, at the date of its execution, a resident of the parish in which it was made. The only question, therefore, to be determined is, whether, considering the exigencies of the occasion when the testament was made, sufficient cause has been shown to excuse the failure to procure a greater number of-competent witnesses.

The circumstances under which the will-was made were, that Paul Comen, the person who prepared it, was called to attend upon the testator, who was laboring at the time under an attack of the cholera. Being present, he was requested by the testator to draw up his will, which Cornen at first declined, on the ground of his want of skill and ignorance of law; but being urged by the-testator, who was on the eve of dissolution, he yielded,, and used as witnesses the five persons present, of whom he himself was one. Cornen states in his testimony, '‘that he took the persons present for witnesses to the will, because the state of the deceased admitted of no delay; that the testator died of the cholera; that he died an hour, or hall an hour after the will was made, ho being too ill to sign the will.” It is further in proof that four persons lived within about a mile of the testator’s residence, and several others within about five miles, who were competent, and would have assisted as witnesses, if they had been called on. Comen says that, if he had been requested earlier to prepare the will, he could have procured the required number of competent witnesses.

The testimony of this witness, who prepared the will, satisfied the judge, in whose presence he testified, and to whom he was probably known, that the emergency was such as to render it impossible to-procure the timely attendance of a greater number of witnesses, and to excuse the failure to attempt to procure others.

It is urged that the testator made his will on the eve of his dissolution ; that he was aware of the general prevalence ,of a fatal disease, and should have prepared it earlier, when it could have been made with more deliberation, and clothed with all the forms required by law; that he could not defer making .it to the last hour, and thus create the necessity which would bring him within the exception to the rule requiring testaments to be received in -the presence of five witnesses residing in the place. However reasonable this objection may appear, the law has fixed no time previous to death within which wills are to be made. No restraint is placed upon the testator in this respect. He is indulged down to the moment of his decease, if he retain his reason, which is the only condition imposed. Indeed the execution of this solemn act is most commonly deferred, until .the near approach of death warns the testator that it can no longer be safely postponed.

The Code, in providing that nuncupative wills under private signature may be executed in the country in the presence of three witnesses residing in the place, provided a greater number can not be had, specifies none of the causes which will excuse a failure .to procure the full number. The impossibility may arise, not only inconsequence of no other witnesses residing in the neighborhood of the testator, or of the refusal of witnesses to attend ; but other causes may render it equally impracticable to procure the full number. The urgency of the occasion, when one is suddenly stricken with a violent and fatal disease, which threatens immediate dissolution, may present an impediment quite as serious to obtaining the requisite number, as a sparse population, or the unwillingness of witnesses to assist.

In the present instance, the testator was laboring under an attack of cholera, which had so far progressed before he became aware that his life was endangered, or evinced a desire to make his will, that the person who prepared the act considered that his state admitted of no delay, and that the persons present must be used as witnesses. There was a pressing necessity for immediate action. The will was evidently prepared with haste, and when completed the testator was.so far overcome by his disease as to be unable to sign, and died within half an hour or an hour after it was executed. The delay which would have attended an effort to procure other witnesses, who lived at the distance of only a mile, would, as the result proved, have probably defeated the testator’s intentions. A necessity more urgent could not well be presented for dispensing with the attendance of the full number of competent witnesses; and, in our opinion, it excuses the failure to procure them.

Judgment affirmed.


author: Eustis, C. J.

text:
    McDonogh v. Dutillet et al.
    Wher.e a plaintiff, in an action in which there is no reconventional demand, fails to appear on the day fixed for the trial, either in person or by attorney, to prosecute his suit, no final judgment can be rendered against him; the judgment should be one of non-snit. C. P-491, 532, 536,
    APPEAL from the District Court of Plaquemines, Rousseau, J.

      Roselius, for the appellant.

      Bradford, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a petitory action for a tract of land situated in the parish of Plaquemines. There was also an injunction, prohibiting the defendant from selling the land. The suit was at issue in the late court of the First Judicial District, but under the new organization of the courts was transferred, on the 20th of October, 1846, to the court of the Second Judicial District, which includes the parish of Plaquemines, in which the defendants are domiciled. On the 13th of January, 1847, the case was taken up, and afterwards, final judgment was rendered against the plaintiff, and he has appealed. It appears by the record that the plaintiff was not present at the trial, nor was any appearance entered preyious to the rendition of the judgment.

The judge erred in rendering final judgment against the plaintiff, on his failure to appear a.nd prosecute his suit. The right of the plaintiff voluntarily to abandon his suit, on paying costs, at any time before judgment, when it is before the court, and until the jury is about to withdraw, when the case is before a jury, is given to parties in the Code of Practice, arts. 491, 532. The usual order on the non-appearance of a plaintiff, where there is no reconventional demand, is of nomsuit. On this point, the practice is, we believe, invariable, "Vide Code of Practice, 536.

The judgment of the District Court is, therefore, reversed, and judgment is rendered for the defendants as in case of non-suit, the plaintiff paying the costs of the District Court, and the defendants those of this appeal.


author: Rost, J.

text:
    De Pontalba v. The City of New Orleans.
    A donation made to a,city of a hospital, which recites that it was made 11 para que sc puedan recoger los leprosos que hay actualmente en gran numero, y el publico goze de este beneficioperpetuamente, a cuyo efecto desde ora para siempre hace donación en forma, renunciando todo derecho que tenga y pueda tener a dichos edeficios y tierra que lleva bajo de los referidos linderos,” is a donation sub modo, and not a conditional donation, and the donees may, without forfeiting the donation, apply the property to another object than that contemplated by the donor. Per Curiam: There is a material difference between the motives which the donor mentions as being the cause of his liberality, and the conditions lie imposes. The failure of a condition annuls the donation, but it remains valid although the motives expressed as the cause of it be untrue.
    A donation made for the erection of an hospital, being a liberality por obra piadosa, cannot be revoked for a failure to comply with the .charge or condition on which it was made, unless ¿¡he donor has so provided expressly.

      APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Soulé, for the plaintiff.
    The donation was a conditional one, and the non-compliance with the condition entitles the plaintiff to recover the property.
    “ Maguer que qualquier home que diere alguna cosa á otre, no gela pueda despues toller, pero....si gelo dió por alguna cosa facer, y no gelo fizo: por estas cosas, ó por cada una de ellas, el que dió las cosas pueda las toller á aquel á quien las dió.” Fuero Real, lib. 3, tit. 12, p. -212.
    “ Por cierta cosa, e por señaladas razones se njueuen los omes á las vegadas, & fazer donaciones á otros ; qno si por ellas no se mouiessen, por auentura non farian las donaciones. E esto seria, como si un orne diesse á otro marauedis, o alguna eredad, diziendo señaladamente, quando se faze la donación, que lo da, porque este el otro todavía guisado de cauallo, e armas, para fazerle seruicio; dixesse abiertamente, que gelo daua poralguna lauor o seruicio que le fiziesse. E porende dezimos, que si aquel que rescibiere la donación en la manera sobredicha, cumple la conuenencia, o la postura, o faze aquello porque gelo dieron, vale el donadío en todas guisas. E si non lo cumple, o non lo faze bien, puede apremiarle que cumpla lo que prometió de fazer, o que desampare la donación que le fizo.” Partida 5, tit. 4, ley 6, p. 739.
    “ Donations are liable tobe revoked for the non-performance of the condiiton imposed upon the donee. Code of 1808, p. 222, art, 66. C. C. art. 1546.

      Preaux, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff seeks to annul a donation made by her father to the Ayuntamiento of New Orleans, on account of the inexecution of the conditions alleged to be attached to it. There was judgment for her in the court below, and the defendants have appealed.

On the 20th of April, 1785, Don André Álmonaster y Roxas, the father of the plaintiff, made to the Ayuntamiento of the city of New Orleans, a donation, in these words:

Don Andres Almonaster y Roxas puesto a su obediencia, con todo respeto dice : que ha fabricado un hospital para lazarinos con cuarto separaciones capaz de aloxar otras familias blancas, y separamente, otro con el mismo aloxamiento para la gento de color. Todo a su costa, en el estremo de una de sus haciendas de campo, ¡inmediata a esta cuidad como dos tiros de fusil, lindando con las tierras de J. Curtidos por un lado, y por el otro con una canal que se ha hecho para el baño de los infermos, que servirá de linderos a dichos hospitales ; los que dedica a vms. Graciosamente para que se puedan recoger los leprosos que hay actualmente en gran numero, y el publico goze de este beneficio perpetuamente, a cuyo efecto desde orapara siempre hace donación en forma, renunciando todo derecho qua tenga y pueda tener a dichos edificios y tierra que lleva bajo de los referidos linderos.”

The donation was accepted unconditionally, and the Ayuntamiento proceeded to take possession of the property, and to apply it to the use contemplated by the donor. Up to 1805, lepers were admitted in the hospital. After that period it was abandoned, and became the refuge of the Indians, who, after some years, set fire to it and burned it down. The ground then ceased to be used for any purpose, till 1833, when the city council passed an ordinance converting it into a cemetery. This change of destination gave rise to the present-controversy.

The plaintiff contends that the donation is a conditional one ; that the city had no right to apply the property to any other object than that contemplated by the donor; and that, .by their doing so, the donation has been avoided, and the property has reverted to her as sole heir, of the donor. The defendants deny the plaintiff’s allegations, not specially admitted, and further answer that, bj their continued possession of the property under the donation, the title was vested in them absolutely, and they had the right to apply the said property !o any public purpose they might think proper.

After this suit had been pending some years, the parties to it entered into a w*tten agreement by which the property was to be sold, and its proceeds deposited in bank, subject to the final decision of the court. The property was accordingly sold, and the only question now presented is, to which of the parties the procceeds of the sale belong.

We take this donation to be a donation sub modo. The laws cited by the plaintiff’s counsel from the Fuero Real and the Partidas were undoubtedly the general rules on the revocation of donations; but those rules were liable to many exceptions, and, in applying them, regard must be had to the distinction made by the civil .and the Spanish laws between the mode or charge and the condition. The inobservance of the condition often avoidedfhe donation, when the inexecution of the charge did not.

Thus says Pothier: If the charge on which the bequest is mado, is not in itself impossible, but fails before the legatee has been put in mora, his obligation to execute it ceases, and the legacy is due. For instance, a testator has given me a legacy, and charges me to be tutor of his children; if the judge, on the advice of the family, has appointed another tutor, as lean no longer be appointed, I am liberated from the charge, and entitled to the legacy. In such a case, the legacy made sub modo, differs from that made under the condition, if he is tutor of my children.” Pothier, des Testaments, Donations, etc., no. 114.

Merlin, deriving the doctrine on the subject from the roman law, says that a material difference must be made between the motives which the donor men. tions as being the cause of the liberality, and the conditions he imposes; because, although the failure of a condition annuls the donation, it1 remains valid, although the motives therein expressed be untrue. Merlin, Réperl. verbo Donations, sec. 6, no. 5. See also (39. 4.) D. 5 de Donationibus.

The same distinction, also drawn from the civil law, is recognized by the •english courts. The rule there is that, where a legacy is bequeathed for a particular purpose, it is not conditional, so as to fail with the purpose for which it is given. Thus, a legacy made to a woman for the maintenance of her children, has been held valid notwithstanding she has no children, or they all die. So also, where lands were given to a mother for the education and maintenace of her daughter till eighteen years old, and the daughter died under eighteen, it was adjudged a good term to the mother till the daughter would have obtained eighteen years, had she lived. Ward on Legacies, no. 142, and cases there cited. (8 Law Library.)

Delvincourt and Duranton, upon whose authority the opinion of the court below rests, were misunderstood by the learned judge. We perceive no material difference between the opinion of Delvincourt and those of Merlin and Pothier. Duranton, if his authority was so decided as the judge supposes it to be, ought not to prevail against those three commentators. But he does not greatly differ from them. He merely says that, when a donation is made ob rem fuiuram, it'is a mode affixed to the liberality, and when the motive fails the validity of the donation depends upon the intention of the donor to be deduced from the act. 8 Duranton, no. 548.

If there were still persons afflicted with leprosy when the hospital ceased to be kept up, the city authorities could no longer compel them to resort to it: and as it is not shown that any applied for admission, we must presume that the purpose of the donation failed. After its failure, the intention of the donor is immaterial. If the liberality was not made solely and exclusively for the use mentioned in the act, even according to Duranton, it did not fail with the purpose for which it was given. If, on the other hand, it was made exclusively for an hospital, it was a liberality por obra piadosa, and is governed by another exception to the general rule invoked by the plaintiff. That exception is laid down with great precision in 2d Febrero Novissimo, p. 93.

“Habiendo hablado de las donaciones propias ó puros, y causas por que pueden revocarse, resta decir algo- sobre las impropias y condicionales, pues aunque la regla general y casi invariable es el quedarrevocadas desde el momento que deja de cumplirse la condición, modo ú objeto que para su estabilidad dispuso el donante, hay casos y circunstancias en que no se observa rigurosamente.

Asilas que se hacen en favor de iglesia, hospital, ú otra obra piadosa, no quedaran revocadas por falta del cumplimiento de la carga ó condición con que se otorgaron, ámenos que expresamente lo haya dispuesto el donante.”

Unless the right of return, in case of the inexecution of the mode, charge, or condition, be expressly stipulated in the act, these donations are irrevocable.

The act in this case contains no such stipulation. The legal,, as well as the apparent title, was in the defendants at the time of the sale, and the plaintiff has failed to make out her right to recover the proceeds of it.

It is, therefore, ox-dered that, the judgment in this case be x’eversed, and that there be judgment for the defendants, with costs in both courts.


text:
    Eyssallenne v. Citizens’ Bank of Louisiana.
    Decision in Banh of Louisana v. Farrar 1 An. 49, affirmed and extended to contracts with the Citizens’ Bank.
    The charters of banks in this State hich authorize married women to bind themselves jointly na&in solido with their husbands, in any hypothecary contracts or obligations entered into by the husband with those banks, place dotal and paraphernalproperty on-the same footing.
    Decision in Citizens' Banh v. Nicolas, ante p. 112, affirmed.
    Where a surety signs an injunction bond in blank, which is afterwards properly filled up, his liability will attach from the time of his signature.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Pecquet and Moselius, for the appellants.

      Pitot, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff seeks to annul an act of mortgage entered into by her husband and herself in favor of the Citizens’ Bank of Louisiana, and has enjoined an order of seizure issued under it. There was judgment against her in the first instance, and the injunction was dissolved, with $500 damages,. in solido, against her and her surety on the injunction bond. From this judgment they have appealed.

The grounds upon which she relies are, 1st: That being a married wonxan, she could not beecome the surety of her husband. '2d. That the mortgage was given to secure loans made to her and her husband, not a loan to her husband individually, and that no loan was made to her. 3d. That by the laws in force at the time of her marriage, dotal property could not be alienated, and that posterior laws cannot impair the effect of her marriage contract. 4th. That the amount to be loaned is not specified in the act of mortgage. 5th. That the charter does not authorize the bank to require from stockholders a mortgage to secure stock loans,

These points have all been determined adversely to the plaintiff’s pretensions. The three first were passed upon, in the case of the Bank of Louisiana v. Farrar & wife, 1 An. 49; the two last were determined in the case of the Union Bank v. Guice, 2 An. 249.

In the case of Farrar Sf wife, the property mortgaged was paraphernal, while that of the plaintiff in this case is alleged to-be dotal. But all our bank charters place dotal and paraphernal property on precisely the same footing, and authorize married women to bind themselves with their husbands, in relation to both.

In the case of the Citizens' Bank v. Nicolas el al., ante p. 112, most of the points decided in the two former cases were again made, and decided in the same manner. We adhere to those decisions, and the questions they determine are no longer open for argument.

, The injunction was properly dissolved, and the damages allowed are authorized by law. The responsibility of the surety attached when he signed the bond in blank ; it was properly filled up afterwards.

Judgment affirmed.