text:
    Jonathan Davis, Sen., v. Carroll, Pritchard & Co. et al.
    Usufructs are not exempt from seizure, except in the single case of the usufruct, given during the marriage to the father and mother, to the estate of a minor child. 0. 0. 289. In all other cases it is subject to seizure and sale. 0. 0.525, 54T.
    The seizure of all the right, title and i/nteresi of the debtor in and to the thing seized, is a sufficient seizure of the thing itself.
    If the donor reserves to himself the usufruct of the property donated, the donation is considered void, and if the vendor retain the possession of the thing sold, the sale is presumed to be simulated. With these presumptions in his favor, the judgment creditor of the donor may seize the property donated, without having obtained a judgment annulling the donation. 0. 0.1520, 2456, 1915.
    0.P. 649, 654, 655.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Durant & ITornor, for plaintiff. Me Gay & JEdioards, for defendants and appellants.
   Merrick, 0. J.

On the 18th of March, 1854, the plaintiff subscribed his note in favor of the'defendants, Carroll, Pritchard & Co., payable on the 18th day of- March, 1855, for $1536 80. On the 23d day of June of the same year (1854) the plaintiff and his wife made a donation of the house and lot in controversy to their daughter, Mrs. L. Leeds, wife of John Leeds, the lot and improvements being estimated at $10,000.

The donors reserved to themselves, during each of their natural lives, the usufruct of the property, with all the rents, profits, advantages, rights, ways and privileges thereunto belonging. The donee, in the same act, was prohibited from selling, affecting, mortgaging, donating, leasing or encumbering said lot of ground without the previous written consent of the donors. The right of return was also stipulated in the event of the death of Mrs. Leeds, without issue, before the donors.

The plaintiff’s note being unpaid at its maturity, the defendants, Oarroll, Pritchard & Go., obtained judgment, and issued execution against the plaintiff in injunction, the defendant in that action. The Sheriff seized “all the defendant’s right, title and interest in and to a certain lot of ground situate in the First District of New Orleans, in the square bounded by Julia, Oarondelet, St. Joseph and St. Charles streets. Said lot measuring, more or less, twenty-seven feet six inches front, on the north side of St. Joseph street, between St. Charles and Carondelet streets, by a depth of about one hundred and forty feet, (more or less,) between parallel lines, bounded on one side by the property now or lately belonging to Mary A. Davis, and in the rear by property belonging to the Poydras Female Orphan Asylum : said property being known by the No. 1G6 St. Joseph street.”

The piaintiff enjoined the sale of the property, on the ground that the right to the usufruct of the property is exempt from seizure, and that the seizure of the light, title and interest of .said plaintiff in and to said lot is not a sufficient description of what was intended to be sold.

We remark, in reference to the first of these grounds, that were it conceded that a usufruct was validly retained, we are not aware of any law which exempts usufructs from seizure, except in the single case of the usufruct given during the marriage to the father and mother in the estate of a minor child. C. C. 239. In all other cases it is subject to seizure and sale. O. C. 525, 547; Act of 1842, p. 380, § 1.

The other ground of injunction presents, under the somewhat conflicting decisions of this court, more difficulty.

In the case of Trudeau v. McVicar, 1 Ann. 427, this eourt uses the following language, viz: “ The Sheriff, under his instructions, seized all the right, title and interest of the debtor in a lot of ground and buildings thereon, and advertised for sale the right, title and interest of the debtor in the property seized. This was a seizure and advertisement of the property itself. All the rights of ownership of the debtor are embraced in the description. The terms right, title and interest, used in the advertisement are not such as designate any other rights to be sold than those which the Sheriff is required by law to convey or notify the purchasers that they are to acquire anything short of the property itself. The Sheriff is only directed by law' to convey to the purchaser, at a sale under execution all the rights of the former owner to the thing sold. Code of Practice, Arts. 694, 690.”

If the case just cited is to be recognized as authority, the seizure made in the present case was sufficient in form. But the cases of McDonogh v. Gravier, 9 L. R. 542; Gales v. Christy, 4 An. 295, and Pickersgill v. Brown, 7 An. 304, are cited as authorities the other way.

In the first of these cases the objection was not so mhch that the right, title and interest of the party was seized, as that the land, the property in which the interest w'as claimed, was not sufficiently described. Indeed it does not seem to have been questioned that the seizure of the right, title and interest of a party in a thing was not a sufficient seizure of the thing itself.

In the second case it was held that “the judicial sale of the rights, claims and demands of the heirs of T. B., in right of their inheritance of their deceased father, oh their mother and tutrix, was void, by reasen of the vagueness and insufficiency of the thing sold,” and that “the nature of the rights, interests, claims, demands, should have been stated in such a manner as to give bidders a claim to their value.” Here again the objection was not that the rights and interest of the heirs were seized, but that they were not sufficiently described. A contrary doctrine would place beyond seizure the undivided interests of heirs in a succession, or a partner in a partnership, whereas it has often been affirmed by this court that the creditor cannot seize an undivided interest in an individual thing belonging to the succession or partnership, but must seize the undivided interest of the heir or partner in the whole inheritance or partnership.

The ease of Pickersgill v. Brown, 7 An. 304, depends upon its peculiar circumstances. The description of the interest seized was so complicated with the uncertainties in regard to the mortgages, that in the language of the court “ It was calculated to raise doubts and conjectures in the minds of bidders without supplying any means at the time of the bidding by which such doubts could be solved or such conjectures confined within any reasonable limits.”

This case, therefore, cannot be considered as overruling the case of Trudeau v. McVicar, 1 An. 427, and the seizure of all the right, title and interest of Danis in and to the lot described, must be held to be a sufficient seizure of the lot itself.

But it is contended that the question of the reality of the act of donation can only be tried in a direct action, and not in this summary proceeding; that peradventure on such trial that which appears to us to be void may be shown to be valid.

To this it may be answered, that if the donor reserve to himself the usufruct of the property donated, the donation is considered void, and if the vendor retain the possession of the thing sold, the sale is presumed to be simulated, and with these presumptions in his favor, it would be absurd to compel the judgment creditor to fight declared shadows and combat unreal pretensions. C. 0. 1520, 2456, 1915.

If arguments of this kind could be listened to at all by courts of justice, they would be more specious in the mouth of the donee claiming something under the act of donation, than from the donor in possession using his act of donation as a shield to protect himself whilst deriving from the property all the advantages of a real owner. Those who create clouds upon their titles for the purpose of defeating the pursuit of their creditors, have little reason to complain of seizures designed to meet the condition in which they have placed their estates, particularly as the debtor may give up property to satisfy the execution at any time within three days after notice of the seizure, and nothing prevents him from notifying the Sheriff, and giving him a true description of the property to be sold. C. P. C49, 654, 655; 6 N. S. 88; 3 Rob. 152; 9 Rob. 42, Pumphrey v. Delahousaye.

In the present case we are satisfied that the donation must be treated as null, and that, under the seizure made, the property itself can be sold, and the ownership of Jonathan Davis, Sen., divested by such sale.

The judgment of the lower court must be reversed, and the injunction dissolved, with damages; but as the judgment injoined bears the highest rate.of conventional interest, no additional interest'can be allowed.

As no appeal was taken as it respects the surety on the injunction bond, the judgment cannot be disturbed as to such surety.

It is, therefore, ordered, adjudged and decreed by the court,. that the judgment of the lower court be avoided and reversed, a-nd that the injunction issued in this case be dissolved, and that there be judgment against the demand of the said Jonathan Davis, Sen., and in favor of the said defendants;- and it is further ordered, that said Jonathan Davis, pay the said defendants, Carroll, Pritchard & Co., the sum of one hundred and; eighty dollars, as damages for the wrongful suing out of the said injunction; and it is further ordered, that said Jonathan Davis, Sen,, pay the costs of both courts,


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    Mrs. Harriet Fort, Wife, &c., v. Union Bank of Louisiana.

      Facts: — Not creating legal subrogation. Code, 2157.
    Where there is no price there is no sale.
    C. C. 2439, 2440.
    -tL PPEAL from the Second District Court of New Orleans, Lea, J.

      Elmore & King, for plaintiff. Denis, for defendant. JR. H. Marr, for executor, appellant.
   Voorhies, J.

The plaintiff claims the ownership of 230 shares of the capital stock of the Union Bank of Louisiana, alleging that she acquired the same by purchase under an execution issued on a judgment in her favor against her husband, F. M. Hereford, and prays to be recognized as such owner.

As no appeal has been taken from the judgment rendered by the court below, between the plaintiff and the bank, it is therefore unnecessary to notice the issues raised by the action of the latter. It is proper, however, to observe, that whatever may be the result of the controversy between the other litigating parties, the interest of the bank, as settled by that judgment, cannot he affected.

The executor of the late James McCalop, as intervenor, alleges that F. M. Hereford is indebted to the estate of the testator in the sum of $2379 84 with interest, according to the charter of the Union Bank, from the 26th of January, 1844, until paid, balance due on a promissory note of $3400, given by him to said bank for a loan on the 23d of December, 1842, and payable twelve months after date to the order of and endorsed by J. B. Hereford to John L. Lobdell, and by the latter also endorsed ; that in order to secure the loan thus obtained by him, F. M. Hereford also gave in pledge the 230 shares of the stock in question ; that the note was duly protested at maturity for non-payment, and subsequently reduced by partial payments to the amount claimed; and thus reduced, McCallop became the owner thereof, on the 7th of January, 1847, by payment, and as such subrogated to all the rights of the bank as plegee. The executor thereupon prays that the stock be sold after due proceedings, and the proceeds applied by privilege and preference to the payment of his claim.

The answer to the intervention sets up as matter of defence that McCalop had assumed, and was bound under his agreements of the 28th of October, 1846, and 7th of February, 1848, to pay all the debts due by F. M. Hereford to the Union Bank; that he not only refused to fulfil his obligations, but violated the same by obtaining the control of those debts, and thereby procuring the forced alienation of F. M. Hereford’s slaves, mortgaged to the bank at a great sacrifice, to wit: $9000, the difference' between the price of adjudication arid the real value thereof. F. M. Hereford claims as damages in re-convention this amount, and also the sum of $5000 as the hire of said slaves.

Prescription is also pleaded in bar to the action of the intervenor.

On the lOtlnof March, 1848, McCalop brought suit against F. M. Hereford for the recovery of the balance due on the note, (in which the allegations are similar to those set forth in the intervention,) and therein prayed for judgment in his favor, with all the rights and privileges attached to the note as subrogee of the hank. The plea of prescription is therefore unavailable.

The question which arises between the plaintiff and intervenor, and which is the principal question in the cause, is whether any right of pledge exists as claimed by the latter; or, in other words, was there any subrogation, either conventional or legal, which resulted from the alleged payments. As to conventional subrogation, it is not pretended that any such ever existed, but it is insisted that there was a legal subrogation. Subrogation takes place of right in certain cases enumerated in the Code, one of which is, for the benefit of him who being bound with others, or for others, for the payment of the debt, has an interest in discharging it;” Article 2157, § 3. The question thus presents itself, had McCalop such an interest? The record shows that F. M. Hereford’s plantation and slaves were mortgaged to secure 230 shares of the capital stock of the Union Bank of Louisiana, and also a loan obtained thereon. On the 14th November, 1843, the plantation was sold by F. M. Hereford to McCalop, the former binding himself to give to the latter a guarantee against the mortgage of the bank. Subsequently, the bank having taken steps to obtain an order for the seizure and sale of the plantation, the proceedings were suspended at the request of Hereford to effect an arrangement, through McCalop, for the payment of the debt. Accordingly, on the 28th of October, 1846, the bank received of McCalop a draft on J. B. Shaw & Co. for the sum of $5000, payable on the 4th of January, 1847, the proceeds of which when collected were to be applied, first to the payment of the note, and the remainder thereof on account of the arrear-ages on Hereford’s stock bond. In his written agreement with the bank, making this application, McCalop declares that he has assumed the payment of the stock loan, and that Hereford is to transfer the stock to him. This agreement appears to have been ratified by another of the 7th of February, 1848, in which McCalop declares that he has given to Hereford five years to pay the debt, the latter binding himself to transfer the stock to the former at a price to be fixed by .Messrs. Jacob & Frey, the president and cashier of the bank, and to give him also a mortgage on the same slaves then mortgaged to the bank, whenever so required by McCalop. The transfer of the stock was not effected, owing, it would seem, to the disagreement of the parties as to the standard by which its value should be fixed, one of them contending that it should be according to its intrinsic value, and the other, its real value in the market. An attempt appears to have been made by Hereford to put McCalop in default. Subsequently, the slaves of the former, thus mortgaged, were seized and sold under executory process procured, it would seem, at the request of McCalop. After the sale of the slaves, the stock was seized and sold under the plaintiff’s execution, as alleged by her.

Under these circumstances, it is evident that McCalop, in making the alleged payment, had not such an interest as that required by the section of ihe Article of the Code to which we have adverted, so as to give rise to a legal subrogation in his favor. According to the clear and explicit terms of his agreement with the bank, the draft of $5000 must be considered as given in payment, and not merely as collateral security as contended for.

The plea in reconvention set up by F. M. Hereford is not well founded. As a pre-requisite to the recovery of damages the debtor must be put in default; C. C., 1906, 1906; 3 R.,400. It is clear, under the circumstances, that McCalop could not have been pul in delay. The stock was to have been transferred to him at a price to be fixed by the President and Cashier of the bank. No such price has ever been fixed. “It is of the essence of a sale that the price should be certain, fixed and determined by the parties. It may be left to the arbitration of a third person; but if such person cannot, or be unwilling to make the estimation, there exists no sale; C. C., 2439, 2440.” In the absence of any specific price, it is clear that the promise of Hertford to transfer the stock to McCalop could not be carried into effect, and was therefore null and could give rise to no dam ges.

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


text:
    N. T. Edson, Curator, v. Freret Brothers—Sykes, Hyde & Co., Intervenors.
    Writs of attachments are to he satisfied out of the proceeds of the property attached according to the order of date in which the respective seizures thereof are made. Seizure secures a lien.
    Allegations contradictory of each other cannot be heard.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Bartletle, for plaintiff and intervenors.

      Le Gardeur, for defendant and appellant:
    “ There was no actual seizure by the Sheriff in tiny of the attachment cases, and consequently no privilege in favor of the intervenors.”
   Voorhies, J.

(Spofcord, J., absent.) Tire litigation in this case originated as follows: Several creditors instituted respectively attachment suits against Isaac Donshea, their common debtor, who had absconded; among others, the defendants, Freret Brothers, and the intervenors, Sykes, Hyde & Go. The attachment of the latter was levied on the 2d, and that of the former on the 9th of June, 1849, on all the property of Donshea; Freret Brothers claiming besides the vendors’ privilege, to secure $1992 55, alleged to be the price of a certain engine and boilers, included among the effects thus attached. William Wilber also bronght an attachment suit against Donshea for the recovery of $1000, alleged to be for work and labor done, &c., for which he also claimed a privilege. An order granting the writ as prayed for issued on the 31st of May, 1849. No judgments appear to have been rendered in these suits, except in that of Sykes, Hyde & Co., in which they recovered on tiie 6th of December, 1849,'the sum of $968 70, “with privilege on the properly attached.”

The evidence shows that Mr. Freret was, in the meantime, “ appointed keeper of all the machinery, engines, &c., in the building at the corner of Julia and St. Paul streets,” the same on which the attachments had been levied. On the 23d of January, 1850, Freret Brothers sold the properly thus attached for the price of $1600, payable at six and twelve months credit. Donshea having died, the plaintiff was appointed curator to his estate, arid as such instituted the present suit against Freret Brothers on the 22d of December, 1852, claiming the restoration of. the property thus sold by them, or, in default thereof, $3500 as the value of said properly. .

Sykes, Hyde & Co., through the liquidator of this firm, intervened in the present suit, alleging that the properly claimed by the plaintiff had been seized by the Sheriff at their suit, and also at the suits of others, and delivered to Freret Brothers; thai ihc judgment rendered in their favor gave them a lien on the property attached, whereby they were entitled to be paid by preference over all others out of the proceeds of the sale thereof.

The court below gave judgment against the plaintiff, dismissing his action, and in favor of the intervenors against the defendants, Freret Brothers, for the sum of $400, with interest. This appeal was taken by Freret Brothers alone from that judgment.

It is well settled in cases of attachment, that the first levy gives to the creditor a higher privilege to have his judgment satisfied out of the proceeds of the sale of the property attached, than that of a posterior levy. The intervenors’|privi-lege in this case must therefore be considered, under the evidence, as higher than that of any of the other attaching creditors. 3 L. 183, 17 L. 160, 8 L. 59, 15 L. 461, 3 R. 457.

It is alleged in the defendants’ answer that Donshea had sold the property attached to Miss Mary Collins previous to the levying of the attachments thereon, and that the sale made by them was authorized by her and the attaching creditor. No proof of any such authority on. the part of the intervenors is to be found in the record. Neither is it shown that Miss Mary Collins ever asserted any claim to the property in question during the pendency of the attachment suits. The evidence, on the contrary, justifies the inference that Donshea had never parted with his possession. Moreover, the appellants must be considered as estopped from setting up the alleged transfer as a ground of defence. In this attachment suit against Donshea, it is alleged in the affidavit that the property on which their privilege as vendors existed was still in their debtor’s possession. “ He is not to be heard who alleges things contradictory to each other.”

In relation to the appellants’ claim, as subrogees of Wilber, we do not think the Judge, a quo, erred in disregarding it. Wilber himself, sworn on behalf of the appellants, says that he sold to the latter his claim against Donshea for the sum of $150. This, coupled' with his affidavit to obtain the writ of attachment, is the only evidence in the record to sustain the claim.

We do not think that the appellants, under the evidence, have any reason to complain as to the value of the property fixed by the Judge a quo.

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


author: Voorhigs, J.

text:
    John Donovan v. The City of New Orleans.
    An action will not lie for damages resulting from a lawful act.
    C. 0. 2294.
    APPEAL from the Third District Oourt of New Orleans, Kennedy, J.

      Bright, for plaintiff and appellant. Miohel, for defendant.
   Voorhigs, J.

This is an action for the recovery of damages. In widening Roffignac street, under an ordinance of the Second Municipality, a portion of a lot of ground belonging to the plaintiff was required for that purpose. To effect the expropriation, proceedings were instituted in accordance with the provisions of the Act of 1832. Those proceedings, in which other proprietors were also parties, gave rise to a protracted litigation, as may be seen by reference to the decision of our predecessors, reported in 7 Ann. 76.

The gravamen of the plaintiffs’ action in the present case is, that he was deprived of the use of his property during the existence of that litigation, in consequence of which he was unable to rent his property on favorable terms, or to venture upon making any improvements upon the same, &c. He alleges ' that he has sustained damages resulting therefrom, to the amount of $2000, which he seeks to recover of the defendant.

The only plea set up in the defendant’s answer, is a general denial.

The court a qua gave judgment in favor of the defendant, and the plaintiff appealed.

An act done under a lawful authority, if done in a proper manner, as correctly observed in the opinion of the Judge a quo, will not, as a general rule, subject the party doing it to an action for the consequences which may flow from it. The Article 2294 of our Code, on which this action rests, is identical with Article 1382 of the Napoleon Code. Marcadé’s commentary upon this article, as to its meaning and application, leaves no room for any doubt in our minds. He says: “ II faut bien remarquer ce mot faute, dont on a quel-quefois fait abstraction et qui est essentiel á l’exactitude du principe. Oh entend souvent dire que tout fait causant du dommage, oblige son auteur á réparer ce dommage. C’est une grave erreur. L’auteur du fait dommageable n’est tenu á réparation que quand ce fait est en méme temps reprehensible, c’est-á-dire illícite et imputable tout á la fois, comme on l’a vu plus haut; en un mot, quand l’acte constitue une faute de la part de son auteur, qui, d’une part n’avait pas le droit de l’accomplir, et qui, d’un autre cóté, l’a accompli in-telligemment et avec le libre usage de sa volonté.” 5 vol. 266. Hence, an action will not lio for a damage resulting from a lawful act. It is termed in law, damnum absque injuria. Indeed, every defendant against whom an action is unsuccessfully brought, must inevitably experience some injury or inconvenience for which he receives no adequate compensation. Yet in such cases, however great may be the hardship, it is clear that the party injured is left without any remedy. The maxim, ubi jus ibi remedium, is therefore not universal in its application.

In the case at bar, the power of the corporation to make the appropriation of the plaintiffs’ property for the purpose mentioned, does not appear to have been questioned. It is not alleged, neither is it pretended, that the local authorities, in the exercise of that power, acted maliciously or without a duo regard for the rights of the plaintiff. It is true those proceedings were protracted, but it may be attributed, according to the evidence, to causes which were unavoidable and imputable, not more to the one than to the other of the parties. The case of McLaughlin, 5 Ann. 504, on which the appellant relies, we do not think is analogous to the present. There, it appeared that the proceedings had been twice commenced, and at each time abandoned. Butin the case against the plaintiff, there was no such abandonment. On the contrary, the litigation appears to have b’een terminated by the voluntary transfer of the property in question to the city, for an adequate price. The plaintiff may have, in the forum of conscience, strong claims to indemnity, as was intimated by our predecessors, but it is clear, in point of law, that his action cannot be maintained.

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


author: Lea. J.

text:
    Caroline E. Dunbar, Administratrix, v. Robert Murphy et al.
    Aa expert sued the plaintiffs in the suit in which lie had been appointed, for compensation for his services; no citation having been made on one oí said plaintiffs, it was objected by the other that the liability of co-plaintiffs for costs being joint, both should have been cited: JSeldy that the objection should have been pleaded as an exception, Um/ine UUa.

    A liability for judicial costs is solidary. By Art. 2082 it was not contemplated that a distinction should be drawn between the liability of plaintiffs and of defendants for costs.
    Art. 3508, 0. 0., refers exclusively to the fees of Parish Judges, Sheriffs, Clerks and Attorneys — compensation due to experts is,not included.
    1 PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    L W. H. Hunt, for plaintiffs. Budd & Lambert and Murphy, for defendants and appellants.
   Lea. J.

The defendant Murphy is appellant from a judgment condemning him to pay the costs of a survey made by the late George T. Dunbar, in virtue of an order of court rendered in a certain suit (not yet decided) in which Robert Murphy and Casimir Gardanne are plaintiffs and N. N. Destrehan is defendant. Murphy denies that said Dunbar was ever appointed by him, or that he was ever appointed by the court at his request, or on his application ; and further, pleads prescription. We think it is manifest, from an examination of the record of the case in which Dunbar was appointed to act as an expert, that there existed a necessity for making such an appointment; and, even assuming that there was some irregularity in the manner of making the appointment, it appears that the defendant acquiesced in and assented to it.

The value of the services rendered has been established by evidence, to which no counter or rebutting testimony has been offered.

Under these circumstances the defense is confined to three points.

1st. That the litigation, in the prosecution of which the services were rendered, was instituted jointly by R. Murphy and Casimir Gardanne, that their liability ^for costs as plaintiffs is a joint obligation, and that, therefore, Gardanne should have been made a party to the suit.

2d. That the obligation being joint each plaintiff is hound only for his virile share of the costs, and then only in the event of his being east in the suit in which such costs were incurred.

3d. That the action is prescribed.

The first objection, even conceding its validity, should have been pleaded as an exception, in limine litis.

2d. We consider a liability for costs to be solidary. By the Article 2082 of the Code, it was not contemplated that a distinction should be drawn between the character of the liability of plaintiffs and defendants for judicial costs. No reference is made to the liability of plaintiffs as they are always liable for costs.

3d. We think the plaintiffs’claim is not barred by prescription. Art. 3503 of the Civil Code refers exclusively to the fees of Parish Judges, Sheriffs, Clerks and Attorneys. Compensation due to experts is not included.

Judgment affirmed.


author: Buchanan, J.

text:
    Thomas J. May v. Mary P. Norton.
    The answers of two witnesses to interrogatories propounded to them, were written down by the commissioner as one deposition, which was signed by both witnesses — Held/: that the whole of the answers must be taken as testimony given by both the witnesses.
    APPEAL from the Third District Court of the parish of Jefferson, Burthe, J.

      Waples & Wwples, for plaintiff. Ohilton & Perlci/ns, for defendant and appellant.
   Buchanan, J.

This is a suit upon a building contract, and for extra work. The defence is that the work was badly executed, and that defendant was obliged to employ other workmen to do portions of the work over again, for which damages are claimed in reconvention.

It is in proof that defendant put the plaintiff in mord, before employing other workmen to repair the defects in the building.

There are three bills of exception taken by plaintiff: 1st. To the admission of the depositions of two witnesses, taken under commission, under interrogatories in writing. The commissioner wrote down the answers of the two witnesses as one deposition, and both witnesses signed. It is contended that the answers should have boon separately written down for each witness. This would have been more regular, but we do not think that the form adopted by the commissioner invalidates the evidence. Both witnesses have undoubtedly signed and sworn to every thing that has been written down as answers to the several questions propounded. The whole of those answers must, therefore, be taken as testimony given by both the witnesses in the cause.

The other two bills of exception relate to an assumed discrepancy in the date of the notice given by the defendant to plaintiff, as stated in the ansufer, and as given in evidence. We have not been able to detect this discrepancy in the transcript. The copy of the notice therein contained has no date. And if it had, the date would be immaterial. The date of delivery of notice is proved by two witnesses, and corresponds with the date mentioned in the answer.

Upon the merits, the conclusions of the District Judge appear justified by the evidence.

Judgment affirmed, with costs.


author: Vooehies, J.

text:
    Antoine Laforest v. His Creditors.
    The whole of the property surrendered by the plaintiff having been sold and distributed among his creditors, he, as syndic^ took a rule on the creditors to show cause why certain judicial mortgages should not be erased, on the ground that they fell by the surrender and final settlement of the insolvent's estate: EelcLy that the rule was properly discharged, the syndic being fundus oficié and therefore incapable of standing in judgment.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      M. &H. H. Taylor, for appellant. Denis, for Aicard. Pitot, for Recorder of Mortgages. Augustin, curator ad hoc, for Mrs. Snowden.

   Vooehies, J.

The whole of the property surrendered hy the plaintiff in this case was sold and the proceeds distributed among his creditors according to the tableau, which also embraced all the other assets of his estate.

The conventional mortgages existing on the property were erased by the syndic, who was the insolvent himself.

The estate was then entirely settled and the functions of the syndic consequently at an end.

The syndic, however, took a rale upon the creditors placed on the schedule to show cause why the judicial mortgages then existing should not be erased, on the ground that they necessarily fell by the surrender and the final settlement of the insolvent estate.

The rule was discharged and the syndic appealed.

We do not think the Judge a quo erred in discharging the rule. The syndic was functus officio, and therefore incapable of standing in judgment. Besides, the object of the rule was not to effect the erasure of mortgages existing on property derived from the estate, but upon property which might thereafter be acquired by the insolvent.

It is contended by the appellant, and it may be true, that those mortgages have no existence whatever with respect to new property, which, by law, is placed entirely beyond the reach of the old creditors, except by a new surrender, invoked by them. But we do not think we can express any opinion on this question, as it does not properly arise in this case.

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

Re-hearing refused.


text:
    Judson & Co. v. Lewis Hertz, Tutor, &c.
    A mortgage on the property of a minor "was attacked on the ground that the under tutor was not called to the family meeting which consented to the mortgage. The following acknowledgment, signed by the under tutor, witnesses and notary, was written at the foot of the jproces verbal of the family meeting, to wit: “ and S. N., the under tutor of said minor children, having waived due notice to attend, and having taken full cognizance of the foregoing proceedings, declared that he approved the same in every respect.” Held: that it cannot reasonably be inferred from this acknowledgment that the under tutor was absent from said family meeting. The law makes it the duty of the under tutor to oppose the homologation of the family meeting when he is of opinion that it'is injurious to the interest of the minors. Its requirements to attain that object were substantially complied with in this case.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      H. D. Ogden, for plaintiffs. Preaux & Derbes, for defendant and appellant.
   Vooehies, J.

On the 17th of December, 1849, Ester Peixotto obtained a judgment against her husband Louis Hertz for a separation of property and a dissolution of the community of acquets or gains which existed between them, and also for the sum of $2000, as her paraphernal funds. A slave and lot of ground were seized and sold on the 2d of February, 1850, under a writ of fieri facias issued on her judgment, the nett proceeds of which were credited on the writ, leaying a balance in her favor of $1821 30. The writ was not returned by the Sheriff until the 10th of October, 1851. Nothing shows that any attempt on her part, was ever made to enforce the payment of that balance. From the inception of her suit to the time of her death, which took place in September, 1853, her husband was represented to be insolvent. In September, 1851, and March, May and September, 1852, she acquired by purchase a slave and'Several lots of ground, according to the conveyances of which the price paid in cash amounted in the aggregate to $3159, and that on terms of credit to upwards of $500. It is also in evidence that expenditures were made during her lifetime for valuable improvements on some of the lots thus purchased by her, one of which, for extra buildings, &c., amounted to the sum of $950. On the 30th of September, 1852, she obtained a loan of $2400 from the plaintiffs, for which she gave them her eight promissory notes of $300 each, secured by mortgage, four .of which remaining unpaid form a part of the plaintiffs’ demand. On the 28th of June, 1853, she obtained a further loan of $2000, for which she gave the plaintiffs her promissory note, which constitutes the other part of their demand, and the only subject-matter in litigation. After her death, in order to obtain a prolongation of the payment of this note; deemed advantageous to her minor children, a family meeting was convoked at the instance of this natural tutor, Louis Hertz, to authorize him to give the plaintiffs a mortgage on the property of her succession. The determination of the family meeting advising the mortgage was homologated and the mortgage accordingly given.

The validity of the mortgage thus given, and which is sought to he enforced by the plaintiffs, is attacked by the under tutor, intervenor in the prosecution, on two grounds: 1st, “That he was not called to the family meeting, who con* sented to the mortgage in favor of Judson & Go. against the minors Hertz; and, 2d, that the debt for which the mortgage was granted was not a debt of the wife, but a debt for Hertz himself.”

We consider both grounds untenable. The following acknowledgment signed by the under tutor, witnesses and notary, is written at the foot of the act of family meeting, viz: “ And Samuel Nathan the under tutor of said minor children having waived due notice to attend, and having taken full cognizance of the foregoing proceedings, declared that he approved of the same in every respect. In faith whereof he hereunto signs his name with the said'notary and above named witnesses.” We do not think it can be reasonably inferred from this that the under tutor was absent from the meeting. The law makes it the duty of the under tutor to oppose the homologation of the family meeting when he is of opinion that it is injurious to the interest of the minors. Its requirements to attain that object were, in our opinion, substantially complied with in the present case. The cases on which the appellant relies do not appear to us to he analogous in point of fact to the present. In Commaux v. Burbin, 6 N. S. 455, it appeared that the under tutor was not present at the meeting; and it was likewise the case in Stafford v. Villain, 10 L. 328. In neither of those cases it did not appear that the under tutor had taken any part in the proceedings of the 'family meeting.

On the other point, the evidence satisfies us, as it did the Judge a quo, that the money was received by the wife and used upon her property, and consequently enured to her benefit.

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


text:
    C. Roman and C. A. Kernion v. L. E. and F. J. Forstall.
    A third person, not hound for a debt, who pays it in discharge of the debtor, and receives at the time from the creditor a subrogation to his rights, can receive from the debtor only the amount so paid to the creditor. AUter, if the transfers from the creditor were made in virtue of a sale or donation.
    C. O. S2T8.
    ÍX PPEAL from the Fifth District Court of New Orleans, AugustinT J.

      Roselius and Fite, for plaintiffs. F. A. Bradford and L. Bunion, for defendants and appellants.
   Buchanan, J.

Defendants and appellants complain of the following charge of the District Judge to the jury: “That, according to law, (C. C. 2130,) Edmond J. Forstall, having acted for the benefit of the firm, (of Roman, For-stall & Co.) was only subrogated for what he paid.”

There was no error to the prejudice of the defendants in this charge.

The notarial act of the 28th February, 1846, was a compromise of debts due by various parties to the Citizens’ Bank. The parties to the act were the Bank, through its President, and Edmond J. Forstall. It sets forth, that Edmond J. Forstall, “ desiring, by means of a compromise, to arrive at a final settlement of tho .balance of the debts due to the Citizens’ Bank by the late Madame Widow Foeyfarri, Messrs. Forstall Brothers and Messrs. Forstall, Roman & Co., which debts amount, in capital, interest and costs, to $31,854 20,” according to a detailed statement which follows, “ has proposed to the said Citizens’ Bank, in order to obtain the full and entire discharge, in favor of the succession of Madam Widow Foeyfarri, of Messrs. Forstall Brothers, and of Messrs. Forstall, Roman & Co., and of the other parties to the notes and drafts above described, with the exception of Lancaster, Derby <& Co., (acceptors of the drafts of Forstall, Roman & Co.) against whom (L., JD. & Co.) the Bank reserves all its rights, oí all the rights, titles and claims which the said Bank might exercise against the parties to the stock notes, notes or drafts above described, to give to tho Bank, in payment of the said sum of $31,854 20, four lots of ground, situated in the faubourg Delord, of the Second Municipality of New Orleans,” of which lots the description follows. “ That the Bank accepts the proposition ” for reasons stated. “ Consequently the said Fdmond J. Forstall, as a dation enpaiement of said sum of $31,854 20, gives, cedes, transfers and abandons to said Bank, with all legal warranties, four lots of ground,” as described.

The act proceeds: “ This dation en paiement is made by the said Edmond J. Forstall, to the effect of obtaining from the Citizens’ Bank of Louisiana, the full and entire discharge, in favor of the succession of the late Widow Foey-farre, of Messrs. Forstall Brothers, and of Messrs. Forstall, Roman & Co., and of the -other parties to the notes and drafts above described, (except Lancaster, Derby & Go., the acceptors of the said drafts, against whom the Bank preserves all its rights,) of all the rights, &c., which the Bank could exercise against those parties, and to liberate them, towards the said Bank, from the said sum of $31,854 20. Consequently the said B. B. Cenas, in his quality of President of the Bank, consents to a fall and entire discharge, (repeating the words of the preceding clause,) and liberates them (the succession of Widow Poeyfarré, Forstall Brothers, and Forstall, Roman & Oo.,) entirely and finally from the sum of $31,854 20, balance due by them as drawers or endorsers upon the notes and drafts above described; only reserving a recourse for payment of the two drafts of Forstall, Roman & Oo. against Lancaster, Derby & Go., of Richmond, the acceptors of the said two drafts.”

“ And in consideration of the aforesaid elation en paiement, the said Genas, in his capacity of the President of the Bank, subrogates the said Edmond J. Forstall, but without any warranty whatever on the part of the Bank, to all the rights, titles and claims, such as they are, which the Bank has or might exercise against the parties to the said notes and stock notes.”

“ The said Genas, in his quality aforesaid, now delivers to the said Edmond J. Forstall, who acknowledges it, the stock notes and notes above described. And the undersigned notary, after having made mention, at the request of the said Forstall, upon the face of the said two drafts, of the discharge consented to by the Citizens’ Bank, in favor of Forstall, Roman & Go. as drawers, and of the succession of Widow Poeyfarré as endorser, of the said two drafts, has delivered the said two drafts to the said Genas, in his quality of President, who acknowledges it.”

It is to be observed that Edmond, J. Forstall does not appear to have been personally bound for any of the debts included in this compromise.

It is further to be observed that several of those debts due by the Widow Poeyfarré, and by Forstall Brothers, were secured by mortgages.

It is proved that the four lots of ground thus transferred by Edmond J. Forstall to the Bank, realized to that institution a sum of ten thousand dollars; and the defendants have been credited in settlement of partnership with plaintiffs, by the auditors and by the special jury of merchants, who passed upon this case in the District Court, with the sum of $3464, as a proportion of said sum of $10,000, equivalent to the obligations of Forstall, Roman & Oo. included in the act of compromise with the Citizens’ Bank. Those obligations are stated by the auditors to amount to $12,994, composed of the following items:

1st. A note of F. R. & Go., endorsed by Widow Poeyfarré. $6,784

2d. A note of G. A. Dwell, endorsed by F. R. <& Go. 6,210

$12,994

Wo turn to the consideration of the argument, as presented to us by the learned counsel, on the legal effect of the act of compromise of 28th February, 1846.

The argument assumes that $12,994 was the amount of Forstall, Roman & Gods indebtedness to the Citizens’ Bank, settled by that compromise; and it is contended, on behalf of the defendants and appellants, that they are entitled to a credit, in settlement of the partnership, for the whole of that amount as transferrees of the rights of Edmond J. Forstall under the notarial act in question.

Taking for granted, argumente gratid, that defendants are such transferrees, (although there is no proof of any transfer of E. J. Forstall's rights to them,) the position of defendants appears identical, in all its essential features, with that of the plaintiff in a suit decided by the Court of Cassation in the year 1810, and reported at length by Merlin in the Questions du Droit, verbo Sub-rogation de Personne, paragraph 1.

In that case a third party (Bellanger) paid a debt, consisting of the capital and arrears of interest of an annuity secured by first mortgage upon a property, on which Bellanger held a second mortgage. The creditor and first mortgagee, by the terms of a notarial act, in consideration of said payment by Bellanger, consented in favor of his debtor a full acquittance and discharge of the debt, and subrogated Bellanger to all his rights, actions, privileges and mortgages against the debtor. The payment was made in depreciated government paper, (assignats nationaux,) which the creditor received from Bellanger at par. Several years afterwards Bellanger sued the debtor for the total amount of interest of the annuity, calculated to the date of the institution of suit, claiming to be the holder and owner of the annuity, in virtue of the subrogation which he had received from the creditor and first mortgagee. But the debtor tendered in court, in full satisfaction of plaintiff’s legal rights against him, the amount really paid by Bellanger to his creditor, being the actual cash value at the time of payment of the assignats with which that payment had been made. And the Court of Cassation decided, in affirmance of the judgments both of the court of the first instance and of the court of appeal, that the real tender was good and sufficient ; that Bellanger was only entitled to a reimbursement of the amount by him actually paid, and that the effect of the clause of subrogation in his act was not to revive for his benefit a debt extinguished by the very terms of the act, but only to substitute the subrogee in all the mortgages and privileges held by the original creditor for the reimbursement of the sum paid to the discharge of the debtor.

The doctrine of this arret of the Court of Cassation is that of the Roman and French law and of all the commentators. The contrary doctrine, which is that of the defendants in this cause, arises from a confusion of subrogation with cession or transfer. But all the authorities agree that these legal terms are not synonimous. See Merlin, Repertoire de Jurisp., verbo Subrogation, and the authorities collected by the same author in his Questions de droit, loco citato, and by Zacharise, Droit Civil Frangais, 2d vol., par. 821.

Payment is a mode of extinguishing a debt. Subrogation is a fiction of law, originating in the 26th law of the Roman Digest, title “ de fidijussoribus et mandatoribus,” by which the creditor who grants the subrogation to another who pays, “ non in solutum aeeipit, sed quodammodo debitoris nomen vendidit," whence the maxim of the civilians, “subragatus magis omissinomen, quám sohissi mdetur.”

“La subrogation,” says Marcadé, vol. &, §708, “n’étant point un achat de la créance, puisqu’elle suppose, au contraire, que cette créance est payée, et par conséquent éteinte, il s’ensuit que si cette subrogation avait été consentie pour une somme moindre que le montant de la créance, le subrogé, au lieu de pouvoir réelamer au debiteur le montant intégral de la créance, comine le pour-rait un cessionnaire, ne pourrait lui demander que la somme qu’il aurait déboursée. En effet, quand j’achéte une créance, c’est cette méme créance qui m’appartient, quelque soit d’ailleurs le prix pour lequel je l’ai achetée, et c’est cette méme créance que j’ai á recevoir contre le débiteur. II en serait de méme, si la créance m’avait été cédée gratuitement, puisqu’alors j’ai bien la créance qu’avait le précédent créancier. Mais quand, au contraire,-jai fait un paiement avec subrogation, le paiement ayant éteint la précédente créance, ce n’est plus elle qui m’appartient, c’est une créance nouvelle, resultant de ce que j’ai fait un déboursé pour le profit du débiteur. Je ne' puis done réclamer que ce déboursé, et non pas une ancienne créance, qui n’existe plus. Si pourtant,” continues Marcadé, “dans le cas d’un déboursé moindre que le montant de la créance, il résultait clairement, soit des termes de l’acte, soit des circonstances, que l’intention du créancier et du tiers, a vraiment été que ce derniereüt la créance entiére, il faudrait bien respecter cette volonté des parties; mais on ne pourrait le faire, qu’en reconnaissant que les parties, nonobstant les termes inexaets dont elles ont pu se servir, ont fait une veritable cession, et non un paiement avec subrogation.”

The exceptad case, supposed by Marcadé, certainly is not found in this record. The terms of the act, so far from expressing a transfer of the whole credit by the Citizens’ Bank to Forstall, express, with studied precision, in no less than three distinct places, the full and entire acquittance and discharge of the debtors, Forstall, Soman <& Oo. And as to the circumstances surrounding the transaction, we find it asserted in the notarial act itself, as well as in the resolution of the Board of Directors of the Bank which authorized the President to accept the terms of compromise offered, that the personal securities of the debts thus discharged are null, either because the debtors have failed or because they are entirely unable to pay their debts, (“dans l’impossibilité de s’acquitter de leurs engagemens.” Even were the terms of the notarial act, discharging Foi stall, Roman & Oo., less clear than they are, it could not be supposed, in the face of the clause just copied from the act, that the respectable parties to this notarial act contemplated a speculation upon two of the four partners of this insolvent concern, for the benefit of the other two partners, by a cession of the whole credit for one-third of its face, to two out of the four solidary co-debtors, through a person interposed. We are persuaded that we truly construe the intention of those parties, in deciding that they meant what they have said, a full, final and entire discharge of Forstall, Soman & Go., and of each of the partners of that firm, in consideration of the property transferred to the Bank by Mr. Edmond Forstall. The copy of the minutes of the Bank was properly admitted in evidence, at least to elucidate the intention of the Bank, and after the call made by plaintiffs for the production of Mr. E. J. For-stall's letter to the Bank, it was also good as secondary evidence of the contents of that letter.

Prom the facts and circumstances of the case, as well as from the expressions of the notarial act of the 2Sth February, 1846, it clearly appears that Edmond J. Forstall acted, in the words of the charge to the jury, for the benefit of the firm of Forstall, Soman & Go., or in the words of Article 430 of the Code, for the discharge of the debtor. Prom the payment thu.s.made, and the discharge of Forstall, Soman & Go's previous engagements to the Citizens’ Bank, has arisen a new engagement towards Edmond J. Forstall, or to those who may be in his rights. That engagement imposes upon Forstall, Eomam, & Go. the obligation of reimbursing to E. J. Forstall or his assigns, all that he has paid for them. And this obligation flows, not from a contract, because contracts are only formed by the agreement or convention to which Forstall, Soman & Oo. were parties. But it takes its course in equity, which forbids one to enrich himself to the prejudice of another, or that services rendered should be onerous to those who have rendered them. There has then intervened here a quasi contract, from which have resulted mutual rights and actions, which the Roman law calls negotiorum gestorum. Mr. Edmond J. Forstall has been in this transaction a negotiorum gestor, since, without a mandate, he has managed the business of Forstall, Roman & Co. All that he (or his assigns,) can ask, then, is to be indemnified for all the useful and necessary expenses which he has incurred. C. C. 2278, Inst. Just. § 1, de obi. quas quasi ce con-tractu; Dig. de Negitüs gestis; Merlin Qu. de Dr., vol. 14, p. 880.

We find no error in the allowance made by the audiiors and by the jury of discount upon the notes of defendant running from one to ten years, given to the Consolidated Association by the contract of 19th November, 1846, in exchange for the endorsement of Forstall, Roman é Oo., past due and protested.

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


author: Lea, J.

text:
    Thomas McLellan et al. v. Thomas Williams.
    A disease, to be the basis of a redhibitory action, must be suchaas would have baffled the efforts of regular medical aid promptly administered.
    When it was not ascertained of what disease the slave died, or what was the cause of his death, and he received no medical treatment, it is impossible to say that he died of an incurable disease.
    The vendor does not take the risk of the service in which the slave may be employed. He does not warrant that the slave will not be attacked by disease within the time limited, nor that the slave will resist the disease without the aid of medicine or of medical art. He does warrant against the existence of any incurable disease, but until a sufficient test of incurability is supplied by the vendee, his warranty is not broken.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Koonte, for plaintiffs and appellants. Bonford, for defendant.
   Lea, J.

This is an action to recover the price of a slave who it is alleged died of a redhibitory complaint existing at the time of the sale.

The slave was purchased on the 15th day of November, 1849, and died suddenly on the 22d day of the same month.

We concur with the District Judge in the opinion that, as it was not ascertained of what disease the slave died, or what was the cause of his death, and as he received no medical treatment, it is impossible to say that he died of an incurable disease. The fact that medical assistance could not bo obtained relieves the plaintiffs from the charge of neglect, but does not supply the defect in the proof, which, in the absence of other evidence, is essential to a recovery. A disease, to be the basis of a redhibitory action “in a ease where death ensues, must be such as would have baffled the efforts of regular medical aid promptly administered.” See 9 La. 68.

As was correctly rendered by the District Judge: ‘ ‘ The vendor does not take the risk of the service in which the slave may be employed. He does not warrant that the slave will not be attacked by disease within the time limited, nor that he will resist the disease without the aid pi medicine or of medical art. He does warrant against the existence of any incurable disease, but until a sufficient test of incurability is suppled by the vendee his warranty is not broken.”'

Judgment affirmed.


author: Buchanan, J. Spoword, J.,

text:
    The State v. Harrison, a Slave.
    The Act of 15th of March, 1855, entitled “ an Act relative to slaves and free colored persons,” is unconstitutional, because its title expresses two distinct objecis, to-wit, slaves and free colored persons, and because many of the sections of the Act embrace objects not expressed in the title.
    Slaves and free colored persons embrace two classes, which it is impossible to confound in legal parlance ; for in the eye of the Louisiana law there is, with the exception of political rights, social privileges, and the obligations of jury and militia service, all the difference between a free man of color and a slave, that there is between a white man and a slave
    This court cannot say, that one of the objects comprised in the title of the Act in question, was more in the contemplation of the Legisluture than the other, nor select between the two objects expressed, and to sustain those portions of the statutes which are applicable to the object they selected, to the exclusion of the other expressed object, not to speak of the other and widely various objects embraced in the numerous sections of the statute. The whole act is liable to the same objection, and the whole is void for unconstitutionality.
    The doctrine of all American courts is, that a Legislative Act should not be declared void, uniese its incompatibility with the paramount law be clear beyond a reasonable doubt. Spofford, J., (with whom concurred Lea, J,) dissenting.
    The argument that slaves are one object, and free colored persons another, overlooks the fact that both compose a single, homogeneous class of beings, distinguished from all others by nature, custom and law, aud never confounded with citizens of the State. No white person can be a slave; no colored person can be a citizen. A slight change of phraseology without any change of substance, will show that there is unity in the object of the law in question, as indicated by its title ; it is an act relaime to persons of color whether Bond or free. The division of this class of persons into bond and free, does not duplicate the objcQt of the If w which was intended to regulate the entire class. Spofford, J. (with whom concurred-Lea, J ) dissenting.
    The design of a title is merely to indicate the general subject of the law, and not to furnish a detailed exposition of its provisions. If the latter were the case, it would lead us to the absurd conclusion that the title should be as long as the act, unless indeed the act abounded in tautology and surplu-sage. What good sense would dictate is what the Constitution exacts, namely, that by some general but concise expression at the head of the law, the attention of both legislator and citizen should be fixed upon the main subject-matter to which all the details in the body of the statute are auxilliary. Spofford, J. (with whom concurred Lea, J.) dissenting.
    APPEAL from a special tribunal organized for the trial of a slave, parish of East Feliciana.

      Kernan, District Attorney, for the State. Me Tea, for appellant.
   Buchanan, J.

Harrison vas tried by a tribunal composed of two Justices of the Peace and ten owners of slaves, in the parish of East Feliciana, for killing another slave, on the 2d July, 1855. He was found guilty as charged, and sentenced to imprisonment at hard labor for life. The case is presented to us by bis counsel, entirely on the ground of the unconstitutionality of the Act of the Legislature under which the tribunal was organized for the trial of the prisoner; being- the Act approved 15th March, 1855, entitled “ an Act relative to slaves and free colored persons.”

It is contended, that this Act is in violation of the Article 115 of the Constitution, which reads as follows; “ Every law enacted by the Legislature, shall embra-ce but one object, and that shall be expressed in the title.” This Article of our present State Constitütion, is copied word for word from the 118th Article of the Constitution of 1845. Chief Justice Eustis, who was a prominent member of the Convention which formed the Constitution of 1845, has given us (in the case of Walker v. Caldwell, 4 Ann. 297) the following reasons for the enactment of the Article under consideration ; “ The condition of our statute law was such, at the time of the formation of the Constitution, as to imposfe on the Convention the necessity of providing in the Constitution itself for the forms of legislation. The title of a law often afforded no clue to its contents; important general provisions were found placed in Acts private or local in their operation; provisions concerning matters of practice or judicial proceedings were, sometimes, in the same statute with matters entirely foreign to them.” It was to prevent such anomalies, that the Constitution requires the Legislature to confine each Act to a single object, and to indicate distinctly that object in the title of the Act. Does the Act of 15th of March, 1865, “relative to slaves and free colored persons,” fulfil those conditions of legislative form ?

In answering that question, we are first to observe, that the title of the Act expresses two distinct objects, to wit: slaves and free colored persons. Again, the Act contains one hundred sections, many of which embrace other objects than those expressed in the title. Thus, sections 18,19, 20, 21, 22, 28, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 66, 67, 68, 69, 89, 90 and 91, treat of offences committed by any free person, white or colored. Section 33 enacts a lien or privilege on vessels. Section 61, and several other sections, restrict the control of masters, of whatever color, over their slave property. Section 70 introduced a now redhibitory action. Section 74 relates to fees of district attorneys.

Of the other sections of this Act, the following have slaves for their object: Sections 1, 2, 3, 4, 7, 9,10, 11, 13, 14, 16, 17, prescribe the penalties for crimes and offences committed by slaves. Sections 39 to 51 inclusive, and 54 to 60 inclusive, determine the mode of proceeding for the trial, and of punishment in case of conviction, of slaves accused of crimes. Sections 52 and 58 provides a compensation to owners of slaves condemned to death or perpetual imprisonment. Sections 62 to 65 inclusive, relate to the police of slaves. Sections 71 to 73 prescribes a new mode of procedure for the emancipation of slaves. Section 75 lays down a rule of evidence in relation to claims for freedom made by slaves. Sections 75 to 87 inclusive, relate to runaway slaves, to depots for their reception, and the costs of their imprisonment. Section 98 prohibits slaves from being witnesses against free colored persons either in civil or criminal matters, with certain exceptions.

The following sections relate entirely to free colored persons: 88, 92, 93, 94, 95, 96, 97, 98.

¥e perceive, by this analysis of the statute, that its objects are multifarious and that its title expresses two of those objects. .It remains to be seen how much of this statute can be considered as valid, under the provisions of Article’115 of the Constitution.

In two cases which immdiately follow each other in 5 Ann., The State v. Hackett, and Duverges v. Salter & Marcy, our predecessors, through Chief Justice Eustis, passed upon the construction of Article 115, (or lib of the Constitution then existing,) as applicable to the avoidance of statutes inconsistent in form with its provisions. In the case of Saekett, the title of the statute was, “ an Act to regulate and define the fees to be paid for the arrest and confinement of slaves.” But besides fixing the fees for such purposes, the statute went on to provide a new place of confinement in the parish of Orleans for runaway slaves, in the place of that fixed by previous laws. The court held the latter portion or the statute to be in violation of the Article of the Constitution and void ; and added : “ In deciding that the portion of the law under which the Sheriff claims is unconstitutional, we are not to he '’considered as saying that those portions of the statute which are covered by the title, are unconstitutional; the decision of the latter point not being necessary.”

In the case of Duverge’s Heirs v. Salter & Marcy, the majority of the court declared the whole of an Act of 1848, “ to give jurisdiction to the District Courts of New Orleans over causes arising under the Act of 1819, respecting landlords and tenants,” to be unconstitutional, because the statute went further than barely to give the jurisdiction expressed in the title, and prescribed certain rules of procedure ; while Judge Slidell, dissenting, was in favor of separating (hat portion of the law, the object of which was embraced in its title, from that portion which was foreign to its title.

But in each of those cases reported in the 5th Annual, the title of the statute, at least, was regular. It expressed but one object, and there might therefore possibly be some portion of the statute which could be held to be valid, to wit, that portion which embraced the single object expressed in the title. Whereas, in the Statute of 1855, now under consideration, there are two objects expressed in the title — the slave, and the free colored person — two classes which it is impossible to confound in legal parlance; for in the eye of the Louisiana law, there is, (with the exception of political rights, of certain social privileges, and of the obligations of jury and militia service,) all the difference between a free man of color and a slave, that there is between a white man and a slave.

The free man of color is capable of contracting. He can acquire by inheritance and transmit property by will. He is a competent witness in all- civil suits. If he commits an offence against the laws, he is to be tried with the same formalities, and bj' the same tribunal, as the white man.

The slave, on the contrary, is the object of contracts, not a legal party to contracts. He may be sold or mortgaged, but he cannot sell or mortgage. He can neither inherit, nor make a will, because he can possess nothing as owner. He is inadmissible as a witness in any civil suit whatever. And if accused of crime, he is tried by a special tribunal, to which the safeguards of the common law are unknown.

It has been suggested, that we may consider the objects expressed in the the title of this Act of the Legislature as one, by reading the title thus : “ an Act relative to colored persons, whether bond or free.”

The first answer to this suggestion is, that it changes the idea of the legislator, by condensing into one class what he has said should constitute two classes. And, in truth, the proposed condensation is more specious than real. For if we say, “ colored persons, whether bond or free,” do we not in substance say, “ slaves and free colored persons” ? In both forms of locution we make a distinction ; and in making a distinction, we recognize a difference.

It is evidently impossible for the court to say, that one of the objects comprised in the title of the Act in question, was more in the contemplation of the Legislature than the other. We cannot undertake to select between the two objects expressed in the title, and to sustain those portions of the statute which are applicable to the object thus selected, to the exclusion of the other expressed object, not to speak of the various other and widely different objects embraced in the numerous sections of the statute. The whole act is liable to the same objection, and the whole must consequently be declared void for unconstitutionality.

In coming to this conclusion, we have the satisfaction of knowing,' that we nave left no hiatus in the legislation of the State; as each and every one of the ninety-nine enacting sections of this Act is copied, with trifling verbal alterations, from preexisting statutes, with the exception of sections 71, 72 and 78, which treat of the mode of proceeding for the emancipation of slaves.

As to its effect upon this cause, the conclusion at which we have arrived in relation to the constitutionality of the Act of 1855, will not relieve the prisoner Harrison from the sentence, which is the foundation of this appeal. For those sections of that Act, which relate to the organization of tribunals for the trial of slaves accused of crimes, are copied from an Act of June 1st, 1846, entitled “ an Act relative to trials of slaves.” Session Acts, page 114. The proceedings in the case at bar, were regular under that statute, which, in our view, is still in force. By the 14th section of that Act, no proceeding in accordance therewith, shall be annulled or impeded by any error of form.

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

Spoword, J.,

(with whom concurred Lea, J.) dissenting. The doctrine of all American courts is, that a legislative act should not be declared void, unless its incompatibility with the paramount law be clear beyond a reasonable doubt.

It is contended that there is a twofold defect in the Statute of 15th March, 1855, “relative to slaves and free colored persons.” (Session Acts, p. 877.) First, that it embraces two or more objects; and, secondly, that it does not express its object in its title. The statute is therefore said to be doubly unconstitutional.

The argument that slaves are one object, and free colored persons another, overlooks the fact, that both compose a single, homogeneous class of beings, distinguished from all others by nature, custom and law, and never confounded with citizens of the State. No white person can be a slave; no colored person can be a citizen. A slight change of phraseology, without any change of substance, will show that that there is unity in the object of the law in question, as indicated by its title; it is an Act relative to persons of color, whether bond or free. The division of this class of persons into bond and free, does not duplicate the object of t'he law which was intended to regulate the entire class. Every “ object” is infinitely divisible. Slaves are subdivided into statu liberi and slaves for life. Could it he successfully urged that an Act “ relative to slaves for life and statu liberi'' was unconstitutional and void, for duplicity in its title and object? The case before us seems to be a parallel one.

Dismissing then the first objection, let us proceed to inquire whether the title of this law is not expressive of its object, in that reasonable sense in which the Article 1115 of the Constitution has hitherto been interpreted. The design of a title is merely to indicate the general subject of the law, and not to furnish a detailed exposition of its provisions. If the latter were the case, it would lead us to the absurd conclusion, that the title should be as long as the Act, unless indeed the Act abounded in tautology and surplusage. What good sense would dictate is what the Constitution exacts, namely, that by some general but concise expression at the head of the law, the attention .of both legislator and citizen should be fixed on the main subject-matter to which all the details in the body of the statute are auxiliary. What have we here? “ An Act relative to slaves and free colored persons.” What simpler or more comprehensive title could have been selected? What better fitted to strike the eye and call the attention of a person seeking for information upon any one of the subordinate topics which fill up the one hundred sections of this Act, so various in their details, but yet so subservient to the one great purpose of the Act itself, which is to regulate and keep in order all people of color. Their crimes and offences, as well as the crimes and offences of others against them or in relation to them, their police, the emancipation of slaves, or their conversion into free people of color, and their trial and punishment for crime, are subdivisions of the single object from which the statute never wanders. Although, for instance, section 74 fixes a fee for the District Attorney, still it is a fee for defending a suit instituted by the master for the purpose of emancipating his slave, and is therefore strictly incidental to the object of the Act. And the same is true of every other section; they are all germain to the subject indicated by the title.

The Constitution of Louisiana is not singular or original in respect of the provision under discussion. An analogous provision is to be found in the Constitutions of many of our sister States. I think, in its origin, it was intended as a guard against legislative coalitions for the purpose of carrying measures in combination,, neither of which could bo carried singly. Indeed, such was declared to be its object in the State of New York, by the highest authority. Mr. Chief Justice Ruggles-, in Conner v. Mayor, &c., 1 Selden, 272, remarked: “ The design of the constitutional provision was to prevent the uniting of various objects having no necessary or natural connection with, each other, in one bill, for the purpose of combining various pecuniary interests in support of the whole, which could not be combined in favor of either by itself.”

It is obvious, that no such vice infects the law before us. Nor does this law appear to be pregnant with any of the mischiefs sought to be prevented by the 115th Article of our Constitution, as expounded by Mr. Chief Justice Eus-tis, in the ease of Walker v. Caldwell, 4 Ann. 297, for its title affords a ready clue to its contents; it is not an Act private and local in its operation, containing important general provisions beyond its ostensible scope; nor does it conjoin provisions touching matters of practice or judicial proceedings with matter’s entirely foreign to them.

No portion of the statute could operate a surprise either upon legislator or student, as neither could be misled by the title.

On the contrary, the Act is truly an attempt to simplify and expedite the task of searching after the law, by grouping in one general statute, under a title which challenges attention, all those legislative provisions relative to people of color, which would really be less accessible to the public if they were dispersed through a multitude of statutes, although dissected and arranged with scholastic skill.

Being, therefore, of opinion that the law under which the prisoner was tried and convicted, violates no provision of the Constitution, I think the judgment appealed from should be affirmed.


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    N. C. Folger v. Mandeville Marigny et als.—James Robb & Co., Garnishees.
    Money deposited by a Sheriff in his official capacity is not liable to seizure in execution at the suit of his indiyidual creditors.
    21 PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Ogden & Leovy, for plaintiff and appellant. ' Whitaker, for defendant.
   Lea, J.

The plaintiff having obtained a judgment against Mandeville Marigny levied an execution upon a sum of money standing to his credit, as Sheriff of the parish of Orleans, on the boohs of James Robb*& Co., hankers. The only question to be "determined is, whether the -moneys deposited by Marigny in his official capacity as Sheriff, are f able to seizure in execution at the suit of his individual creditors. A statement of the case would seem to involve its solution. It is contended, however, that the Sheriff is not a depositary, and, even if he were such, that the identity of the several sums received by him was destroyed by their deposit as a common fund in the hands of James Robb & Co.; that Marigny became the debtor of the several litigants whose funds he held, and that Robb & Co. in turn became his debtors for the balance to his credit as Sheriff; and we have been referred to the decisions in the cases of Stetson et als. v. Gurney, 17th La. 162 and Longbottom v. Babcock,.§9th La., p. 50, as sustaining the plaintiff’s position.

We do hot consider those decisions as applicable to the issue presented in this case. In both the eases quoted, moneys had been placed in the hands of agents to be disbursed; to use the language of the court: “ The money was not destined to he kept and restored, but to be employed.” All that was expected from the agents by their respective prkcipals was an account of the disbursments. In the case of Stetson v. Avery, (particularly relied Upon,) the money was placed in Gurney's hands by Robertson, to be employed in the purchase of cotton This money, or a portion of it, was deposited by Gurney to Ms own credit in the Canal Bank. The court held that money confided to an agent could not be followed and reclaimed in the hands of third persons without notice. To make the ease analogous to that under consideration, let us suppose that Gurney had received money not from Robertson, but from a third person to be transmitted to him, and that having so received the money he had deposited it to Robertson's credit in bank, or to his own credit as agent of Robertson. We think that, under such circumstances, the fund would have been protected from any seizure at the suit of the individual creditors of Gurney.

Now, the Sheriff for certain purposes is constituted by law a public agent of the litigants in the several courts of which he is the executive officer. It is his duty to safely keep, as a public trustee, funds collected or otherwise received by him for the account of such litigants. It was not necessary that he should open a separate account in favor of each individual for whom he had collected money. In many cases this would he impracticable, as for instance: where the funds so held by him were in dispute. It is sufficient that he kept a separate account, as a public officer, for the benefit of the several suitors whom, in his official capacity, he represented. It is shown affirmatively by the Sheriff that the whole of the fund deposited with Robb & Co. consisted of moneys received for account of the several suitors in the courts of justice in which he exercised his functions, and that no portion of the funds thus deposited belonged to him individually. See 11th Annual, page 76, J. C. Beatty v. McLoed, tutor.

Judgment affirmed.


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    The State of Louisiana v. The Judge of the Fifth District Court of New Orleans.
    The jurisdiction of the Supreme Court in cases of appeal attaches on the filing of the bond of appeal, and the inferior court thereafter Ü&s no authority to take any steps in such cases, except such as are necessary to transmit the record. An order by the inferior court granting an extension of time to prosecute the appeal, is a mere nullity.
    APPLICATION for a Mandamus.

      Bodin, for plaintiff.
   Voorhies, J.

The application for a writ of mandamus in this case is based on the following grounds set forth in the petition :

The Fifth District Court of New Orleans having rendered a judgment in favor of J. Domingon, as curator of the estate of the late Louise Gérard, against Pierre Candau, the latter obtained an order granting him an appeal therefrom, returnable to this court. The testimony of the witnesses was not taken on the trial of the cause in the inferior court. The relator, as the defendant’s attorney called on the plaintiff’s attorney to draw up jointly with him a statement of facts in the cause; but, in consequence of the departure of the latter a few days after for Europe, it was' not effected. Subsequently, the relator being prevented by sickness, or unavoidable causes, to meet the opposite counsel for that purpose, obtained an order, ex parte, from the court below, granting him an extension of time to prosecute his appeal. On the production of the certificate of the clerk of this court, showing that the record had not been brought up, the order granting the extension of time was set aside by the court below, and the judgment ordered to be executed. A writ of fieri facias accordingly issued. The defendant thereupon moved the court for an order arresting the execution of the writ, and for a rule on the plaintiff’s attorney to show cause why a statement of facts should not be made out in pursuance of Articles 602 and 603 of the 'Code of Practice.

We do not think the Judge erred in refusing to entertain the motion. On the filing of the bond of appeal the jurisdiction of this court attached, and the in-, ferior court no longer had any authority to take any steps in the case, except such as were necessary to transmit the record to this court. The order granting the extension of time was therefore a mere nullity, this court alone having such power. C. P. 883, 7 L. 448.

It is, therefore, ordered that the application be dismissed at the relator’s costs.


author: Merrick, C. J.

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    Walker Reynolds v. William N. Batson.—Same v. James Brenford.
    In a suit, instituted by a citizen of another State, to recover.slaves from a citizen of this State, which he alleges are fugitives from his service, the slaves have, in the eye of the law, no interest in the result of the suit. The 2d section of Art. 4th of the Constitution of the United States does not contemplate a case of this kind. Were the Constitution*Construed otherwise, it would apply to all questions of ownership in slaves, between citizens of different States.
    The maxim contra non xalentem agere non currit prescripjjp, does not apply to relieve the plaintiff in a case where the plea of prescription was set up by the defendants, acquirendi causa. It has been applied to prescriptions, Uberandi causa, in three classes of cases:
    1st. "Where there was some cause which prevented the courts or their officers from acting or taking cognizance of the plaintiff’s action. A class of cases recognized by the Roman law, as proper for the allowance of the utile tcmpus. The cases of Querry's Ew. v. Toussier's Ex., 4. M. R. 609 ; Ayr'aud v. Babin's Heirs, 7 N. S. 481, and Smith v. Taylór, 10 R. R 188, are of this kind.
    2d. Where there was some condition or matter coupled with the contract or connected with the proceedings, which prevented the creditor from suing or acting. See cases of Zandryr. L'Eglise, 8 L. R. 219; JTUnt v. Curry, 6 L. It. 69.
    8d. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. The following are cases of this class: Boyle v. Mann, 4 An. 170, and Martin v. Jen/nings, 10 An. 558.
    Art. 8444 O. 0. and the Act of 1848, p. 60, declare that property in slaves is acquired by the prescription of five years, whether the parlies reside in the State or any of them reside out of it. Prescriptions run against all persons unless included in some exception established by law. C. C. Art. 3437.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore & King, for plaintiff and appellant. Gohen, for defendant. Spring, Larue and H. D. Ogden, for warrantor and other parties.
   Merrick, C. J.

These two actions are brought to recover three slaves, two in the possession of the defendant Batson, and one in the possession of Bran-ford. #

The slave in the possession of Brenford 'disappeared from the plantation of the plaintiff, his then owner, residing in the State of Alabama, in the spring or beginning of summer, 1845, and the other two slaves disappeared in August of that year. Plaintiff, supposing his slave had run away, resorted to the usual means for their recovery, without effect. With all of his inquiries, it does not appear that he was able to bear of the slaves until he discovered them in possession of the defendants immediately before bringing his suits.

The defendant Batson bought the two slaves in his possession at public auction, at the Arcade, in this city, on the 16th day of September, 1845, and title was made by a person representing himself to be Richard Teral, of Marshall county, Alabama, and the act of sale was passed before /. B. Marfa, Notary Public. The slaves, since that time, it is shown, have been in the public possession of the defendants, who has employed them on the levee and as stevedores.

The slave George was sold by John M. Bach, on the 21st day of September, 1846, to S. Gardere, the act reciting that Bach had purchased the slave from Richard Teral, on the 16th day of September, 1845, the same day that Batson purchased. Gardere sold on the 27th day of August, 1849, to the defendant Brenford. The suits were commenced on the 20th January, 1856. The good faith of these parties, the defendants, has not been questioned.

The plea of prescription of five years was interposed by the defendants and sustained by the lower court

The plaintiff, having appealed, urges upon this court that prescription does not run against him, because the slaves were fugitives, and his possession is protected by the Constitution of the United States, and because, notwithstanding all his diligence, he has been, until the commencement of the suit, unable to discover his slaves, and therefore the maxim “ contra non mlentem agere non eurrit preseriptío ” shields him from the operation of the general rule established by the Code.

On the first of these grounds it is sufficient to remark that, in the case before us, there is no proof that the slaves were fugitives, and had escaped from service or labor. On the contrary, their first appearance here was as slaves subject to service, under the control of one apparently their master, who sold them as slaves to purchasers in good faith. The controversy between these parties is one of property, in which the negroes owing service to one or the other of the contestants have, in the eye of the law, no interest in the result of the suit. There is no reason to suppose that a case of this kind was contemplated by the second section of the fourth Article of the Constitution of the United States. Were it to be construed otherwise, the Constitution would apply to all questions of ownership in slaves between the citizens of different States.

On the second ground. The suspension of prescription in order to allow for the utile tempus has generally been held by the civilians to occur only in the short prescriptions. The long prescriptions, and those by which property was acquired, with the exception of the one hundred days and the year given by the praetor, in which to claim the possessio lonorum, were reckoned continuously. See 4 vol. Savigny, p. 421, et seq., Berlin ed.

We do not think there can be found any case in our Reports, where the maxim “•contra non mlentem agere non eurrit prescriptio,” has yet been applied to relieve the plaintiff' in a case where the plea of prescription was set up by the defendants acquirendi eausa. It has been applied to prescriptions liberandi eausa in three classes of cases.:

1st. Where there was some cause which prevented the courts or their officers from acting or taking cognizance of the plaintiff’s action; a class of cases recognized by the Roman law as proper for the allowance of the utile tempus. See Digest, lex. 1, lib. 44, t. 3; Ibid, § 7, 8 and 9, lex. 1, lib. 49, t. 4.

The cases of Querry's Ex. v. Toussier’s Ex., 4 M. R. 609; Ayraud v. Babin’s Heirs, 7 N. S. 481, and Smith v. Taylor, 10 R. R. 133, are of this kind.

2d. The second class of cases are those where there was some condition or •matter coupled with the contract or connected with the proceeding which prevented the creditor from suing or acting. See cases of Landry v. L'Eglise, 3 L. R. 219; Flint v. Curry, 6 L. R. 69.

3d. The third class of cases is where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. The following are .cases of this class- Boyle v. Mann, 4 An. 170, and Martin v. Jennings, 10 An. 553.

Oases may arise to which it may be proper to apply the maxim, but we do not think the present a case of this kind. Certain it is, it is not embraced within the principles governing the classes of cases enumerated. Our courts were always open to the plaintiff, and he was prevented by no agreement with nor acts of the defendants from suing. He can be in no better situation before the courts of the State than our own citizens. The question among these .innocent persons is, on whom shall the loss fall? It is answered by Art. 8444 of the Civil Code and the Act of 1848, p. 60, which together declare that pror perty in slaves is acquired by five years, whether the parties reside in the State or any of them reside out of it.

Article 3487 of the Code provides that prescription runs against all persons unless included in some exception established by Saw. The plaintiff has not brought to our notice any such exception in his favor, nor do we think he has presented a Case of a character evidently intended by the Legislature to be excepted from the operation of the general rule of law which it has prescribed.

The judgment of the lower courtis, .therefore, affirmed.


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    Same Case on a Re-hearing.
   Merrick, C. J.

In refusing the re-hearing, we take occasion to observe that •we consider our reasoning equally applicable.to the case, if it be conceded that the slaves were stolon, as upon the supposition that they first absconded from the plaintiff’s plantation, and were afterwards found in Teral's possession as ostensible owner.

Re-hearing refused.


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    Jean Junek, Testamentary Executrix, v. L. F. Hezeau.
    A judgment was rendered by the Supreme Court, wherein it was ordered “ that the heirs of Jean Jwneít he recognized as entitled to one-half interest in thepartnership.eslablished between their late father and L. F. Hezeau; that it be decreed that said partnership has continued since the death of their father, and still exists between the said Hezeau and the said heirs of Jzunefa, and that said heirs are entitled, through their tutrix, to exercise all their rights, incident to their capacity as partners, for the protection and management of their interest in said partnership,” &c. The mandate of this court having been filed in the court a quo, plaintiff obtained a writ of possession, by which the Sheriff was ordered to put her in possession of the premises, without reserve or exception, together with superintendence, &c., of the same. The defendant obtained a rule on plaintiff, to show cause why said writ should not be set aside. Held,-: Where a matter of defence is set up against the execution of a writ .regularly issued, it is, perhaps, irregular to proceed by rule, but where the issue has reference to the regularity of the writ itself, the proceeding, being a mere incident to the judgment, maybe disposed of summarily.
    The judgment of this court did not decree that plaintiff was entitled to the exclusive possession of the entire establishment appertaining to the partnership, nor that she should divest defendant of his possession nor {so far as the partnership articles allowed it) his control over the business for which the partnership was established. Judgment affirmed, making the rule absolute.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Tissot and Filleul, for plaintiff and appellant. Eyma and Whitaker, for defendant.
   Lea, J.

This case, as presented, involves the construction of a former judgment of this court, rendered upon the issue presented by the same parties in the litigation of which this proceeding is an incident. On the 28th of April, 1856, this court affirmed a judgment rendered by the Second District Court of New Orleans, which is in the following words, viz: “ It is ordered that the heirs of Jean Junek, viz: Jean Junek, Joseph Andre Junek and Antoine Junek, be and the same are hereby recognized as entitled to one-half interest in the partnership establishod-between their late father, Jean Junéis, and L. F. Hezeau, on the 8th May, 3844. That in accordance with the prayer of the petition it be decreed that said partnership has continued since the death of tlieir father, and still exists between the said Hezeau and the said heirs of Junéis, and that said heirs are entitled, through their tutrix until they become of age, and and after that individually, to exercise all the rights incident to their capacity as partners, for the protection and management of their interest in said partnership. It is further ordered, that the defendant Louis Frangote Hezeau, do file in court, on or before the first day of December, 1854, a full and complete account of his receipts and disbursements, as manager and administrator of the cemetery of St. Vincent de Paul, and of his acts and doings as the surviving partner of the partnership of Junéis & Hezeau, established on the 8th May, 1844. It is further ordered, that the defendant Hezeau do pay the costs of this suit, and that the reconventional demand made by the defendant be rejected.”

The mandate of tins court having been registered in the District Court, the plaintiff applied for and obtained a writ of possession, in virtue of which the Sheriff was ordered to put her in possession of the premises, without any reserve or exception, together with the superintendence, administration, &c., of said cemetery, with all the utensils, articles and instruments necessary for the carrying on the business of said cemetery, &c. On the 9th Ma3r a rule was taken on behalf of the defendant upon the plaintiff to show cause why the writ should not be set aside, on several grounds, only one of which it is necessary to examine, to wit: that the judgment rendered did not entitle the plaintiff to such a writ as was issued, and under which the Sheriff was proceeding to act. Exceptions were taken to this rule, on the ground that the plaintiff could not be held to answer to a proceeding by rule for the purpose of setting aside a writ of possession, and that the rule presented issues which had been determined by the final decree of the Supreme Court.

Whore a matter of defence is set up against the execution of a writ regularly issued, it is, perhaps, irregular to proceed by rule; but where the issue has reference only to the regularity of the writ itself, as not being authorized by the judgment, the proceeding is a mere incident to the judgment, and may be examined and disposed of summarily. In this case the question was whether the judgment authorized a writ of possession.

It was competent, we think, for the Judge to entertain this inquiry as relating to one of the incidents of the judgment which it was his duty to see properly enforced.

Upon the merits, we find no error in the decree of the District Judge making the rule absolute. The judgment did not decree that the plaintiff was entitled to the exclusive possession of the entire establishment appertaining to the cemetery ; it was not the intention of the court that she should divest the defendant of his possession and (so far as the partnership articles allowed it) of his control over the business for which the partnership was established. The decree recognized the right of the heirs of Júnele toan interest in the partnership, and ordered that an account should be filed by Hezeau based upon this recognized right. The decree also recognized the right of the plaintiff in her representative capacity, to exercise all the rights incident to the capacity of her pupils, as partners, for the protection and management of their interest in said partnership. The manner in which these rights were to be exercised were not passed upon by the decree, but were left to be carried out by the District Judge according to the necessity of the case, in conformity with the spirit and meaning of the contract, as interpreted by the final decree of the Supreme Court. Wo think the District Judge did not err in making the rule absolute.

Judgment affirmed.