author: Howebb, J.

text:
    No. 1397.
    T. B. Lee v. Levi Hubbell.
    An injunction will not bo maintained, on grounds which, might have been pleaded before judgment.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      D. O. Labnü and A. Walker, for plaintiff and appellee.

      Elmore Ss King, for defendant,
   Howebb, J.

The defendant, Hubbell, having obtained a judgment on a note made by the plaintiff, Lee, issued execution thereon, when the latter enjoined the writ, on the grounds that, “since the said judgment was rendered he had discovered evidence that the said note was lohg ago extinguished and paid, and that he could not have discovered such evidence before said judgment was rendered, with the greatest diligence on his part.”

A. motion was made to dissolve the injunction on the face of the papers, which was properly overruled. The defendant then pleaded the general denial, claiming the maximum damages allowed by law, and $100, special damages for lawyers’ fees, and from a judgment perpetuating the injunction, he has appealed.

Lee, in his petition, alleges that he has brought an action to annul the judgment enjoined, but we have no other evidence of such a suit, and we mnst dispose of this, as simply an injunction of an execution, on principles governing such actions.

The facts, as presented in the record, are briefly these: Lee, being indebted to the firm of S. McConnell & Co., gave them his note to their order, which, when it fell due in the Bank of Louisiana, was renewed for a less sum, and this again, when due, for a still less sum, which operation was several times repeated. One of these notes was for $800, dated September 9th, 1861, due at sixty days, and on 11th November, 1861, was protested for non-payment. On the 25th of the latter month, McConnelL & Co., took it up by having another note, given by Lee to their order in renewal for the sum of $720, at sixty d:dys, discounted by the bank, and paying the balance themselves in cash. After this, McConnell & Co., transferred the $800 note, thus taken up by them, to Hubbell, who brought suit on it and, after a special defence thereto by Lee, obtained the judgment enjoined in this proceeding.

The plaintiff has made no effort to show, as alleged, that he discovered the evidence of extinguishment or payment after the rendition of the judgment against him, or that he could not have discovered it prior thereto. On the contrary, it is apparent that he was aware, before such date, of the fact or transaction, which he construes into an extinguishment of the note, and, as contended by the defendant, he should have set it up as a defence to the suit on the note. The only fact, urged by him as operating a payment as to himself, was the giving of the note for the sum of $720, in lieu or renewal of that for $800, which he certainly knew at that time as well as after judgment was rendered against him on the latter note.

“ An injunction will not be maintained, on grounds which might have been pleaded in defence before judgment,” 12 A. 181; 8 A. 101; 6 A. 800; 3 A. 209; 1 A. 284. The injunction should have been dissolved. -

We deem it unnecessary, to express an opinion upon Lee’s liability (if any exist) to McConnell & Co., on the note for $720, or whether, upon evidence being admitted, he could, in this suit, have limited Hubbell’s right to recover only the amount of the latter note of $720.

The "judgment enjoined bore legal interest, which should be increased to eight per cent, to be calculated on the amount of the judgment from the date of the service of the injunction to its dissolution, and for which .with $125, as damages (no special damages having been proven) judgment should begiven against plaintiff and his surety in solido. See Hen. Dig. p. — No

It is therefore ordered, that the judgment appealed from be reversed. It is further ordered that the injunction herein, be dissolved, and that the defendant Levi Hubbell, recover of Thos. B. Lee and Robert H. Bowles in solido, eight per cent, interest, on eight hundred dollars, from the 25th of June, 1866, to date of this judgment, and the sum of one hundred and twenty-live dollars, with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 1383.
    Levi & Navra v. Solomon Levy.
    The act of the Legislature of 1855, authorizing the arrest of a non-resident debtor, who has absconded from his residence, is an exceptional statute, and must be construed strictly.
    JLi RPEAL from the Sixth District Court of New Orleans, Duplantíer, J.
    -A?. D. Craig & J. B. Cotton, for plaintiffs and appellants,

      JPhillvps & Levy, for appellee.
   Wyly, J.

This suit was instituted by plaintiffs to arrest their debtor, the defendant, Solomon Levy, under the provisions of the act of 1855, authorizing the arrest of non-resident debtors who have absconded from their residence.

Under these proceedings Solomon Le.vy was arrested in this city, charged with absconding from bis residence at Camden, Arkansas. ' A rule was taken by defendant to set aside the arrest, on the ground that the affidavit was untrue; which rule on the trial thereof, was made absolute, defend. ,t ordered to be discharged, and the writ of arrest quashed. Plaintiffs have appealed.

This case only presents questions of fact. Did the defendant, Solomon •Levy, abscond from bis residence at Camden, Arkansas, as alleged by plaintiffs ?

As a general rule, debtors cannot be imprisoned for debt, and the law of 1855, authorizing their arrest, must be regarded as an exception to the rule. Viewed in that light, it must be construed strictly; and it devolves on the creditor, seeking this harsh remedy, to make out tho case, and show that the party arrested is clearly one of those contemplated by the act. ' The District Judge who tried the case below, after carefully examining the character of the evidence, was of opinion that plaintiffs herein failed to establish their charge against defendant. • .

We find upon examining the record, that defendant left Camden-, Arkansas, in broad daylight, in the presence of a crowd of citizens, to whom he was well known; that he had openly stated Ms intentions to ■come to New Orleans; and there appears to have been no secretive, clandestine, or fraudulent act shown in bis departure from Camden.

Indeed, the captain of the boat on which he came, testifies as follows : “I know Solomon Levy, he came down with me on the last trip. I knew he was coming down with us; he told me so, the first morning we got to Camden; about fifteen or twenty persons were present at the conversation, at a grocery store; I know they heard the conversation. Mr. Levy told me he was coming back with me.”

This statement is corroborated by the evidence of the other officers of the boat, which shows that defendant left Camden openly, and not clandestinely. We cannot perceive in the conduct of the defendant, who evidently came to this city to get married, anything to warrant the allegation of plaintiffs, that he had absconded from Ms residence in Arkansas, especially when it is shown that he left Ms house, his furniture, his children and Ms servants behind him.

We are of opinion that the District Judge, did not err in his decision. It is therefore, ordered and adjudged, that the judgment appealed from, be affirmed with costs.


author: ""ho-weee, J.

text:
    Nos. 1372 & 1472.
    Kaspar Auch v. Mrs. M. T. Labouisse & E. V. Saucier.—Consolidated cases.

    "Where the owner of a lot cf ground erects a wall along the line, and the adjoining"proprietor after-wards erects a building or wall which is attached to, and rests on the wall first built, the party t , first building the wall, which, has thus become a wall in common, may recover from the other one-half of tne cost of erecting the wall in common.
    Where it is shown that the wall in common was in existence at the date of the lease, and the lessor is sued for one-half of the cost of erecting the wall, he cannot call the lessee in warranty.,
    APPEAL from the Second District Court of New Orleans, Thomas, J.

      J. B. Cotton, for plaintiff and appellant.

      T. H. Kennedy, Saucier & Mkhinard, for appellees.

      Breaux <& Fenner, for warrantors.
   ""ho-weee, J.

Plaintiff claims of defendants one-half of the value of a partition wall, with interest from the day when, as alleged, it was made a wall in common. The defendants deny any liability, because the building, alleged to rest on the partition wail, was erected by their lessees, to whom they had leased their property, for a term of years, with the privilege of erecting improvements thereon at their own expense, and under the obligation to warrant the lessors against any cost thereof. They further aver that the wall in question was built several years before,' and at a cost infinitely less than the amount claimed, and they call their lessees in warranty, who allege that the party wall, being in existence at the date of the lease, was a part of the premises leased by them, to the use of which they are entitled by the contract of lease.

Judgment was rendered in favor of plaintiff for half of the cost of the wall, and dismissing the call in warranty, from which plaintiff and defendants have both appealed.

Although the wall was intentionally not used as usual in the erection of contiguous buildings, yet the evidence shows that the new building rests upon, and is attached to the wall built by plaintiff, and the defendants, as owners of the adjoining lot, are liable.

The cases of Hoffman v. Laurans, 18 L. 70, and Sewell v. Duplessis, 2 R. 6G, relied on by the defendants, are not in point, as in them the undertakers or builders were seeking to enforce, against the owners of the soil, the rights specially existing in their favor against the lessors, who had contracted with or employed them. In this case the liability rests upon a different provision of law. The owner of a partition wall is authorized, by the terms and spirit of the law, to look only to the adjacent owner of the soil, and not to those who hold under him. 0, 0, 671, 672.

The main question, as between plaintiff and defendants, is, whether the article 672 or 680 of the Oivil Code shall be .applied to this case, We are of opinion that the former must apply.

It provides that, “if the neighbor be willing to contribute for his half to the building of the wall thus raised, then this wall is a wall in common between the proprietors. The neighbor who has even refused to contribute to the raising of this wall, preserves still a right of making it a wall in common by paying to the person who has made the advanoe, the half of what he has laid out, for its construction, according to the rules hereafter established.”

This article," we think, contemplates reimbursement to the party who erects the wall and nothing more. It says, “by paying to the person who has made the advance, the half of what Tie has laid out for Us construction.” He has the advantage of using the soil of his neighbor for the support of half of the wall, which half may become the property of such neighbor upon his reimbursing what the half cost.

In the case of Graihle v. Howe, 1 A. 140, relied on by plaintiff, it was held that this article did not' apply, because the defendant became the owner of his lot after the wall was built, and could not therefore have been called on, and have refused to contribute to the construction, and should consequently not be made to pay more than the wall was worth when used by him.

We have no occasion to deny the correctness of this doctrine, but we do not think it can be invoked to put the defendant in a worse position than he would be, if shown to have refused, when called on to contribute. The article says, if he refuses, he may still become part owner of, and use the wall upon paying the half of its cosí. If he should not or could not refuse, he certaiuly should not be made to pay any more.

In the case of Murrell v. Fowler, 3 A. 165, the wall was wholly on the land of the plaintiff, and came clearly within the 680th article.

In the case of Davis v. Graihle, 14 A. 338, the defendant was made, by the District Court, to pay the cost of half of the wall, and the judgment was affirmed, sustaining the view we take.

We conclude that defendants are liable for only half of the price advanced by the plaintiff in this instance. But the judge a quo has made an error as to this cost, to the prejudice of plaintiff. The evidence shows that there are 44,876 bricks in the wall, instead of 38,754, half of which at $17 00 per thousand, for the price and laying, amounts to $3S1 45, for which plaintiff should have judgment against defendants. He was also improperly condemned, jointly with the defendants, to pay costs.

We do not see any error in dismissing the call in warranty. There is nothing in the contract of lease which makes the lessees responsible for this wall. It was standing when they leased the premises, and whether used by the express authority of the defendants or not, the latter knew that it was used, as shown, and did not object. By the contract of lease all the improvements made by the lessors are to belong, without compensation, to the lessors, at its termination. We think the right to the use of the wall passed with the property, as it was not excluded by the contract, and that the objections to the testimony in regard to defendants’ conversations with the lessees, as to the use thereof, were properly overruled.

It is therefore ordered, that the judgment appealed from, be amended by increasing the amount thereof, from $329 40 to $381 45, and by condemning the defendants to pay all the costs of the main action in the lower court; and that as thus amended, it be affirmed. Costs of appeal to be paid by defendants.


author: Howerr, J.

text:
    No. 1389.
    Converse, Harding & Co. v. Bloom, Kahn & Co.—A. Levi, Appellant.
    ■Where the judge of tbe District Court- has, •xoffit-io, made art or tier in general terms granting a new trial in a cause, he cannot afterward and before the new trial, sign the judgment as to one of the parties defendant. An execution issued on a judgjnent thus signed, will be quashed on motion.
    APPEAL from the Third District Court of New Orleans, Fel/owes, J.

      W. Grant, for plaintiffs.

      Race, Foster & E. T. Merrick, for Levi> appellant.
   Howerr, J.

This suit was instituted on a promissory notó signed by Bloom, Kahn & Co., a firm composed' of S.. Bloom, S. Kahn, S. Auber and A. Levi, and being dissolved at the date of the suit, the defendants severed in the defence.' Ac the trial, A. Levi only, was represented by counsel, and the following'judgment was rendered: “It is ordered, adjudged and decreed, that the plaintiffs, Conversa, Harding & Co., recover of the defendants, Bloom, Kahn & Go., and S. Bloom, S. Auber, Samuel Kahn and A. Levi insólido, the sum of seven hundred and three dollars, and seventy-seven cents, with legal interest from the 5th of April, 1861, till paid, and costs of suit.

“Rendered January 21st., 1867. Signed February 5th, 1867, as to defendant, A. Levi, the other defendants, being allowed a new trial.

(Signed) “E. T. Feuoowes, Judge.”

On the 23d of January, before the lapse of three judicial days, counsel for the other three defendants filed a motion for a new trial, when immediately, and without said motion being fixed for a hearing, the following order was made : “ On motion of E. W. Huntington, of counsel, for Bloom, Kahn and Auber, and on filing his application and grounds for a new trial, the Judge, ex officio, ordered that a new trial be granted in this case, and that the same be put on the issue docket to be called and fixed regularly. ”

Subsequently, a fieri facias was issued against A. Levi, when all the defendants joined in a rule to quash the writ, on the grounds that a new trial had been granted in the case, and there was no judgment on which execution could issue. From a judgment dismissing this rule, and from the judgment sought to be executed, A. Levi prosecutes this appeal.

He contends that the order granting a new trial, being in general terms, and ex officio, opened the case as to all the defendants and the rule, not being excepted to, should have been made absolute, to which we must give our assent. ' -

Article 547, C. P., authorizes courts, ex officio, to grant new trials in order to revise their judgments, and Article 563 directs that when a new trial is granted, the cause shall again be set down on the docket. These provisions of the law seem to have been acted on in this instance. The Judge did not restrict his order to the parties, who filed a motion, but exercising the authority given him in 'the last clause of the Article 547, and without hearing the parties to the rule contradictorily, ordered, ex officio, “ that a new trial be granted in this case and that ike same be put on the issue docket to be called and tried regularly. ” It was the action of the court, out of the regular mode of disposing of rules for new trials, and the Judge, not having limited his action by the terms of his order, must be considered as having set asidti the judgment which he had rendered, with a view to hear the whole case anew. His decree, rather than the incentive thereto, must control.

We are of opinion that the ex officio order, not being restricted in its terms to the parties who filed a motion for a new trial, must, under the circumstances, be held to have opened the case as to all the parties, and that the subsequent signing of the judgment as to one of the defendants was without effect, and consequently the execution issued improperly.

It is therefore ordered, that the judgment rendered on the 28th of March, 1867, on the rule taken by the defendants be reversed, and that said rule be made absolute, and the fieri facias issued on the judgment rendered on the 21st of January, 1867, against A. L- vi, be quashed and that this cause be remanded to be proceeded in according to law, on the new trial granted on the 23d of January, 1867. Costs of said rule and those on appeal, to be paid by plaintiffs.


author: Howe, J.

text:
    No. 6787.
    C. Flint and Jones, v. Mrs. C. A. Rawlings—Thomas Askew, Intervenor and Appellant.
    Tlie vendor’s lien on movable property only continues so long as the property is in the possession of the vendee.
    The vendor loses his lien on movable property by the sale, and delivery to a third person by the vendee.
    A sale of personal property, by the vendee without actual delivery, will not defeat thó vendor’s-lien.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      J. H. Augustin, for Askew, intervenor.

      Hace & Foster, for plaintiffs and appellees.
   Howe, J.

A rehearing having been granted in this case, we have given a careful examination to the testimony, with a view to determine whether the defendant ever sold and delivered to the intervenor the fur. niture in dispute, in such manner as to defeat the privilege claimed by the plaintiffs, her vendors.

It is well settled, that the vendor’s privilege on movables, continues as long as the vendee’s possession, but is lost by a sale and ■ actual delivery by the vendee to a third person. But this delivery must be undoubted, the change of possession actual and continued. Eetter v. Field, 1 A. 80.

The defendant in this case might have made an actual sale of the properly to the intervenor; the latter might have purchased in the utmost good faith, yet if the property remained in possession of the defendant,' the vendor’s privilege would remain unimpaired.

The Judge a quo, who had the opportunity to see and hear the witnesses, arrived at the conclusion that there was no actual delivery of the property from the defendant to the intervenor, but that the former remained really in possession; and we coincide in this opinion. It is therefore unnecessary to consider the question, whether the sale to the intervenor was simulated, or real, fraudulent or honest, for granting it to be both real and honest, it could, without the change of possession, interpose no obstacle to the enforcement of the plaintiffs’ privilege. And it is equally certain, that there being no change of possession, the plaintiffs could not be required to resort to a revocatory action. It was only necessary for them to sue, as they did, for the balance of the price, with the conservatory remedy of sequestration.

Our attention has been called to the fact, as disclosed by the evidence, that the property sequestered, was bonded by the intervenor, and destroyed by fire about three months afterwards, but we do not perceive that this should necessitate any modification of the judgment appealed from.

The bond stands in the place of the property, and in case the property be not forthcoming, the question of the liability of the’ obligor and-surety, after destruction of the sequestered property, if it arise at all, will properly arise in an action on the bond.

It is ordered, adjudged and decreed that the judgment appealed from, be affirmed, with costs in both courts.

HowEim, J., recused.


author: Howedd, J.

text:
    No. 1428.
    A. Levi v. Converse, Harding & Co.
    A fudKmenfc of the District Court that has been improperly signed and altered by the Judge, can be corrected only by appeal.
    .Execution of a judgment can only be arrested by an injunction.
    A suspensive appeal from a judgment on a rule to quash & fieri facias, will not suspend execution on the judgment.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      Race, Foster & E. T. Merrick, for plaintiff.

      W. Grant, for defendants.
   Howedd, J.

The plaintiff has appealed from a judgment dissolving an injunction, issued upon the following allegations: In the suit of Converse, Harding & Co. v. Bloom, Kahn & Co., judgment in solido, for $703 77, was rendered on January 21st, 1867, against the defendants, of whom the plaintiff here was one; on 23d of same month, a portion of the defendants filed a motion for a new trial, which, on the same day, was granted generally, and on the fifth February following, said judgment was illegally amended, added to, changed and signed; on the 19th of February, an execution wrongfully issued upon said illegal judgment against this plaintiff individually; on the 7th of March, counsel for petitioner and his co-defendants, moved to quash said fieri facias, on the ground that there was no legal judgment to sustain it, a new trial having been granted generally; on the 28th of March said rule was dismissed, and on the same day an alias fieri facias was illegally issued against petitioner on said illegal judgment, under which the sheriff wrongfully and illegally seized property of petitioner worth $10,000. And from thi.«, he educes the following reasons why the said judgment and alias fieri f c as are null, and should be enjoined,

I.There is no legal, final judgment, upon which execution could issue.

2.A new trial was granted generally, from the only judgment ever rendered, viz: that of January 21st, and since then, no trial of the cause has been had.

3.Even ifs the Court disagreed with counsel, as to the nullity of the judgment, as the rule was taken to quash a fieri facias, on the ground of the,nuljity of the,, judgment upon its face, no fieri facias could issue until the judgment upon that rule had been signed, and the delay for appeal tKe'refrqjn had elápsqd.

í4.- Petitioner has exercised his legal right, and taken a suspensive appeal from said judgment upon the rule to qnash the fieri facias.

And upon alleging irreparable injury, he prayed for and obtained an injunction, which the defendants moved to dissolve, with damages, on the grounds that the plaintiff is not in law entitled to the same, and that the proceedings are defective, irregular and insufficient in law. This m ition was overruled, and upon a general denial being filed, the judgment appealed from was rendered, with twenty per cent, damages, and §75 attorney's fees, , ./

"The first and second .grounds urged by plaintiff, are not such, on the facts alleged, as to authorize, an injunction. The petition shows that there was a judgment rendered and signed, and if improperly signed and altered, as alleged, it could be corrected only by appeal, no charge being made, that it was obtained through error, fraud or some other cause in law, for declaring its nullity.

The third and fourth grounds are likewise insufficient. A rule to quash a fieri facias, whatever may be the grounds on which it is based, does not of itself suspend the execution of the writ. An injunction,- and not a rule to show cause, is the proper remedy to arrest an execution. 2 R. 90. It follows that if the rule to show cause does not suspend an execution, a suspensive appeal from a judgment dismissing that rule can have no such effect, and that the delay for taking such appeal can have no influence upon the execution of the judgment. The plaintiffs in execution, having the right to return the original, and order an alias fieri facias, cannot be controlled in the exercise of that right by the proceedings on a rule to quash, which is dismissed.

The allegation of irreparable injury does not bring the case within the causes or grounds for an injunction, when the facts alleged are not such as to produce that effect. The ground of complaint here is the illegality of a judgment, which we have seen, could have been remedied on appeal.

Upon the whole, we must conclude that plaintiff’s allegations are insufficient in law to authorize or maintain the injunction granted, and that the rule to dissolve should have been sustained. We think the damages allowed by the Judge a quo, iu dissolving the injunction on the merits, are excessive, no special damages being proven.

Under the circumstances, we think, ten per cent, damages ample.

We must here remark, that we dispose of this case in reference solely to the state of facts existing at the trial of the rule to dissolve.

It is therefore ordered that the judgment appealed from be set aside, and that the rule taken on April 6, 1867, be made absolute, and the injunction herein dissolved, with ten per cent, damages on the amount enjoined; costs of the lower court to be paid by the plaintiff, and those, of appeal by defendants.


text:
    No. 1421.
    William Murphy v. Morritz Kaufman.
    A hired his teams to B, to transport a lot of goods from Franklin to" Newtown, in' this State, at a fixed prioe, which was paid, and the teams to be immediately returned to Franklin, On arriving at Newtown. B directed that the teams should go to Alexandria, on RedRiver. On this trip from Newtown to Alexandria, theteamsand wagons were lost, and never returned to'the owner: Mell — 'That B, having violated the contract of hire, in not returning the wagons, and teams to the owner on their arrival at Newtown, he became responsible for their, value.
    APPEAL from the Sixth District Court, of New Orleans, Duplantier, J.-

      Honor & Benedict, for plaintiff and appellee.

      Q. Schmidt, for defendant.
   Wyly, J.

In 1864, defendant made a contract of hire with plaintiff to convey his goods in the wagons of the latter from Franklin to Newtown, in this State, and to return the teams immediately after the eómplótion of the contract to the owner, at Franklin.. The consideration of this contract was one hundred dollars, which was paid in advance. After the goods were delivered at Newtown, and the wagons unloaded, and Whilst the drivers were about s'; irfcing back with the wagons, pursuant to the understanding of the parties at the time of the hire, the defendant prevailed on the drivers to convey the goods from Newton to Alexandria, which they did.' In this trip, and at Alexandria, the wagons and teams were taken or lost, or from some cause were never returned by defendant to plaintiff.

To recover the value of this property this action was instituted. On the trial, the District Judge gavo judgment against; the defendant for $2,310, and interest and costs, and he has appealed.

We tlnuk the Judge a quo .did not err in overruling defendant’s exception, that pdaintiff’s petition does not set forth where the contract was made, and whether in writing or not. Plaintiff’s petition fully discloses his cause of action. There was no valid ground for the exception.

We are satisfied from the evidence, that defendant made the contract as alleged with,plaintiff, and afterwards violated it for his own advantage or convenience, and by reason thereof plaintiff lost the property mentioned in his petition. The value of tlie property is fully proven.

We do not find in the record sufficient evidence to satisfy us, that the drivers were the agenls of plaintiff, authorized to contract with defendant. On the contrary, it seems they were only hired by plaintiff to drive his teams to Newtown and back.to Franklin; and it also seems that defendant himself,had charge of the wagons. The drivers consented to go on to'Alexandria, because they did not wish to leave the wagons, which they evidently thought defendant would take any how.

We also concur with the District Judge, that Gen. Order No. 9, issued by Gen. Canby on 28fch January, 1866, does not apply to defendant.

Even if ho were'capable of exercising military functions or enforcing a military order, we do hot think from the evidence, that he took the property in question in pursuance of the orders of the President or the commander of the forces in that expedition. >

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


author: Taliafebeo, J.

text:
    No. 1418.
    Gustave Brusle v. Pierre Sauve.—Third Opposition of the Police Jury of Jefferson.

      A parish or municipal corporation, claiming a privilege on immovable property for taxes alleged to be due, must show that all the formalities of law have been strictly observed in making the assessment. Want of proper description of the property will vitiate the assessment roll.
    APPEAL from the District Court, Parish of Jefferson, Gazabat, J.

      Á. Grima and T. J. Gooley, for plaintiff and appellant.

      B. G. Elliott, for Police Jury, appellee.
   Taliafebeo, J.

The Police Jury of the parish of Jefferson (left bank) come in by way of third opposition, claiming by preference $1,375 75, with interest and costs, out of the proceeds of a tract of land fold under a writ of fleii facias, issued at the suit of the plaintiff, having a special mortgage on the property sold. The opponents aver that their claim is for parish taxes on the property sold, for a series of years consecutively, commencing with, the year 1860, and running to 1866, inclusive, and for interests and costs arising from their non-payment.

The plaintiff and appellant resists this claim on several grounds:

1. That no legal assessment of parish taxes has been made against the tract of land sold under his mortgage, and that no such taxes are due.

2. That for the years 1860, 1861,1862,1863 and 1864, the alleged assessment was upon a large number of slaves, horses, stock of various kinds, a carriage, - etc., as well as upon the land; and if bound at all for any of these taxes, he is not bound for that portion assessed against the slaves.

3. Prescription.

That if the land sold were ever liable for the taxes claimed, the privilege granted by law upon the real property to secure their payment is extinct by the limitation of the lien to two years, from the 1st of April of the year for which the assessment was made.

4. That if the assessment be legal, it was made upon an entire tract of land containing 1600 arpents, while the part of that tract subject to plaintiff’s mortgage, and sold, contains only 461 arpents, and consequently, that if subject to lien at all for the taxes claimed, it is subject only to a proportional part of the amount assessed.

The opponents had judgment for $643 90, with first privilege upon the proceeds of the land sold.

The plaintiff appeals.

In this court, the opponents and appellees pray to have the judgment of the lower court amended by allowing them the whole amount of their claim.

We have given a careful examination to the evidence introduced in this case, and are not satisfied that it establishes with sufficient certainty, that the forms strictly required by law in the making assessments of property, have, in this case, been observed. As far as disclosed by the record, we are unable, from want of description of the property assessed, to identify it as that on which the opponents claim the privilege. Taking this view of the case, we deem it unnecessary to examine the other points stated in the defence.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed, without prejudice, the appellees paying costs.


author: Taliaferro, J.

text:
    Nos. 1391 & 1392.
    Lucien Harris v. H. G. Andrews & Co.—J. H. Oglesby & Co., Intervenors.
    Where suit has been brought by attachment, and third parties, by answers to interrogatories in gai* nishment, show that they hold property belonging to the defendant, a third party cannot by intervention defeat the attachment, on the ground that the defendant had given him an order for the moneys or property attached before the same was made.
    An attachment confers a lien in favor of the'attaching creditor from the dat§ of service of the writ.
    APPEAL from the Fifth District Court of New Orleans, Leawmont, J.

      Harr & Foute, for plaintiff and appellee.

      Sullivan, Billings & Hughes; for J. H. Oglesby & Co., intervenors, appellants.
   Taliaferro, J.

This suit was instituted on throe bills of exchange, drawn upon the defendants and by them accepted. These bills, at their respective maturities, were duly protested for non-payment. The plaintiff is the holder, under the blank endorsement, of the payee. Ho proceeded by attachment of property belonging to the defendants in tho hands of the intervenors, and of Summers & Brannins and Green Oglesby & Co., and these parties were severally made garnishees in the suit. J. H. Oglesby & Co., subsequent to their answers to the interrogatories, intervened in the suit, averring that the defendants were indebted to them in the sum of §10,819 66 for advances made, and for necessary supplies furnished them, and annexed their account and exhibit of their claim. They claim a lien upon the property of defendants in their possession, which they described to be ninety-one bales of cotton, two pieces of, bagging and thirty coils of rope, consigned to them by the defendants. Also, th^y stated that they held eighty-three bales of cotton or its proceeds transferred to them by Brannins, Summers & Co., upon the order of the defendants,

Summers & Brannins answered, in substance, that they had in hand $7,207 73, proceeds of eighty-three bales of cotton, which they had been directed to .turn over to J. H. Oglesby & Co. for account of H. G, Andrews & Co.. The other garnishees denied having anything in their possession belonging to the defendants.

The defendants, who were absentees, and represented in tho first instance by a curator ad hoc, appeared by counsel, and answered, pleading a general denial, and denying specially that tho plaintiff is a bona fide holder of the drafts sued upon.

, The usual releaso bond was given by the defendants, obligating themselves to appear and satisfy any. judgment which might bo rendered against them. J. H. Oglesby-& Co., became the sureties of defendants in this bond, and .the attachment was set -aside, and the seizure released. In a supplemental pofcition, filed shortly after theso proceedings were taken, the plaintiff prayed jndgment on the draft which became due, and was protested after the original - petition was filed. The process of attachment was again resorted to, and Oglesby & Co., Williams, Nixon & Co. and Summers & Brannins, were cited as garnishees. No attempt was made to bond this attachment, and no motion made to set it aside; but defendants answered as they did to the original petition. The answer of Summers & Brannins, already given, is responsive to the interrogatories propounded to them in the second garnishment. Subsequently Oglesby & Co. answer, that H. G. Andrews & Co. owed them a balance of'-$1,271 56, against which they held forty-two pieces of bagging and thirty-six coils of rope; and that they held Summers & Brannins’ acceptance of the order of H. G. Andrews & Co., to turn over to them balances due on proceeds of eighty-three bales of cotton, which they had demanded and-which Summers & Brannins refused to deliver. They also further answered, that they had accepted an order of H. G. Andrews & Co. to pay over all balances due them to B. G. Garrahard, and to hold subject to his order and for his account any and all property shipped to them by H. G. Andrews & Co.

It appears there was a balance, proceeds sales 'of cotton belonging to defendants, in the hands of William Nixon & Co., which, by intervention of Michael Nolan, was claimed by him. This intervention and claim of Nolan seems to have been abandoned.

Judgment was rendered in the court below on the original petition, decreeing the defendants to pay fra solido to 'tlio plaintiff sixteen thousand six hundred dollars and sixty-six cents, the amount of the first two notes sued upon, with five per cent, interest, per annum, from their respective maturities, and dismissing the interventions of Nolan and Oglesby & Co; The judgment further decreed, the payment in like manner of the note for eight thousand three hundred and thirty-three dollars and thirty-three cents, with like interest, and,costs of protest,, with privilege and preference on the funds and effects seized.-under the writ of attachment, issued on the supplemental petition in the hands of Summers & Brannins and of Williams, Nixon & Co., garnishees.

From this judgment, J. H. Oglesby & Co.', the intervenors, have appealed. They have also appealed from the judgment dismissing their appeal.

We seo no error in the judgment- It is apparent, from the answers of the intervenors in the second garnishment, that IT. G. Andrews & Co. owed them only $1,271 56, for which they held ample security in the lot of bagging and rope in their hands belonging to the defendants. The $7,202 73, in the hands of Summers & Brannins, and which were the net proceeds of cotton shipped by defendants to that house, the intervenors can set up no right to, for the attachment taken out on the supplemental petition, took those funds out of the control of the intervenors under the accepted order of H. G. Andrews & Co. upon Summers & Brannins. The rule, therefore, taken upon the, latter by the- intervenors to show cause why that money should not be paid over to them, was properly dismissed. It appears that H. G. Andrews & Co., against whom citation was prayed for in this intervention, were in fact never cited, and they never answered.

The intervention, as to them, was never put at issue.

It is therefore ordered, adjudged and decreed that the judgment appealed from by defendants and intervenors be affirmed, with costs in both courts; each party appellant paying his own costs.


author: Ludeling, O. J.

text:
    No. 1452.
    C. T. Buddecke v. Alexander and Aaron Harris.
    A party who engages the services of a broker, knowing him to be such at the time, to enableiiim to purchase exchange or other securities, and loss occurs on. account of the worthlessness of tho securities at the time of purchase, cannot hold the broker responsible for the loss in the trans* action, unless an express stipulation was made to that effeot. -0. O. 2982.
    The assumption of the debt of another must be strictly proved.
    A broker is not answerable, except in oase of fraud, for the insolvency of those to whom ho procures a sale or a loan. O. 0.2988. x ' ’
    APPEAL from the Fifth District Court of New Orleans, Beaumont, J.,

      A. & M. Voorhies, and E. Bermudez, for plaintiff and appellant..

      Eyams, Jonas and Bozier, for appellee.
   Ludeling, O. J.

This suit is instituted by the plaintiff to recover from the defendants, in solido, the sum of twenty-one thousand two hundred and-eighty-nine dollars, and eight cents, with legal interest, being the aggregate amount of three bills of exchange, drawn by the commercial' firm of Jno. H. Elliot & Co., of New Orleans, on W. P. Converse & Co., o.f-NewYork, which the plaintiff bought'from the defendants, who. were acting as exchange brokers, and-which bills were not paid.

The plaintiff alleges that the defendants are responsible to1 him’for the-amounts of these bills, because “at the time "ke'-purChased the said bills of-exchange, he received assurances from said Alexander Harris and Aarori Harris, who were acting as brokers, on that-:occasion,, that all these bills' would positively be honored; that they knew-: all" the parties to the bills; that these parties were perfectly good; that the'bills would be paid' bóyond peradventure; that they, (said brokers) were not in the habit of selling any but good paper; that paper -sold by them had invariably been paid. To which petitioner replied, that he did not know the parties, but could act upon the assurances of said brokers. ■ That in answer to.'ihis, said brolcers reiterated the statements above mentioned, and induced-your petitioner to part with his money.” - “ That by these wilful misre-■ presentations as to the solvency of the parties, who had-bound themselves by these bills of exchange, he suffered damages in the amount above stated.’’:

It is not certain whether the plaintiff seeks to recover judgment against} the defendants, on the ground that they warranted the payment of the bills of exchange, sold by them as brokets; or because" they wilfully misrepresented the facts as to the solvency of the parties to the bills of exchange, and ¿7ms. occasioned him a pecuniary loss; "

We think the two position are inconsistent; but as no objection was. made to the pleadings in the lower court, we will notice them separately.

The drawers and endorsers of the three bills of exchange, were mer-1 chants residing in the same place where C. T. Buddecke did business as an exchange banker. The evidence shows, that in less than fifty days anterior to the period when he purchased the bills, for the amounts whereof he is suing, C. T. Buddecke had bought at different times of the defendants seven other bills of exchange,» made by the same drawers and 0x6the same drawees, amounting to fifty-seven: thousand,'. 'four hundred and seventy-four dollars, and forty-seven cents; which. had been duly honored. The bills of exchange, with letters of advice attached thereto, showing that the bills were drawn against shipments of cotton, were, deliyered .to the plaintiff at the time he bought them. .

There was no concealment, and there could ¡have been no mistake, as to the Character, in which the defendants were acting when they sold the .bills -to plaintiff. The evidence, and the judicial admissions of the plaintiff, in this case, prove that C. T. Buddecke knew the defendants; were acting as exchange brokers, when they1 dealt with him. They cannot) be made responsible to plaintiff, therefore, unless they expressly bound themselves personally. O. 0.’ Art. 2982. 13 La.'20'; 9 An. 520.

,There is no proof in the record, that either of ,,the ,defendants, ever, undertook to become personally responsible to ,the plaintiff, in the event? that the bills were not paid. The assumption--of the-debt of another,.’ mhét be strictly proven. C. C. Art. 3008; 8 Mart. II;1 3 Rob. 378;1 1 An. 82.

And, from a careful examination of the evidence in this case, we are convinced that neither of the defendants was guilty of wilful misrepresentations or fraud.

“Brokers, except in case of fraud, are not answerable for the insolvency of those to whom they procure sales or loans, although they receive a reward of their agency, or speak in favor of him, who buys or borrows.” C. C. Art. 2988.

The plaintiff’s counsel insists, in his brief, that, the defendants are responsible, as they “ did not, at the date of the transaction, nor since, communicate to the plaintiff the names of their principals. ”

We cannot agree with the learned counsel as to the facts stated,, but as this point was not made in the pleadings, and was not acted upon by the District Judge, this court cannot notice it. C. P. Art. 895 ; 1 N. S. 242; 8 N. S. 339 ; 453 ; 3 Rob. 237.

Having adopted the conclusions above stated, it is unnecessary to decide the bill of exceptions taken by defendants, to the ruling of the; Judge, a quo, permitting C. T. Buddeeke to testify in this case ; or to decide, whether Aaron Harris, was a partner of Alexander Harris.

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


author: HowELn, J.

text:
    No. 1396.
    A. Schlenker, Liq. v. R. W. Taliaferro.
    I£ the interest that has accrued on a promissory note, at the date of filing the suit in the District Court, when added to the principal demand, exceeds five hundred dollars, the Supreme Court will have jurisdiction of the appeal. ,
    The burden of proof, falls upon the holder of a promissory note, to show a state of facts that will defeat the plea of prescription. , 1
    The maxim, centra non valentem agere non currit prcescriyt'o, cannot hH invoked by the holder of a promissory note to defeat the plea of prescription, where suit might have been brought beforo it was acquired (Ante page 131.)
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      Cotton & Henriques, for plaintiff and appellee..

      Hmoláns S Fish, for defendant and appellant.

      Brief for defendant and, appellant.

    This suit is brought for, the recovery of $422 78. $316 22 is in the form of a promissory note,1 dated January 1st, 1861, and due one day after date, and $116 46, in open account dated' January 1st, 1861. Record, pp. 5 and 6.
    The suit was filed September 5th, 1866. Record, page 1.
    The defendant pleads the prescription of three and five years.
    Both the note and account are prescribed on their face. Civil Gode, Article 3505.
    The District Judge, without any apparent reason, invoked and applied the maxim, “ Contra non valentem apere nulla currit prceseripiio,” and rendered judgment against the defendant for the whole amount.
    Defendant maintains, first, that the maxim above quoted has no application in our system of jurisprudence to that class of eases to which the present suit belongs, if indeed it has any rightful application at all. The Supreme Court of Louisiana have always looked upon the application of strange principles, not enacted into our system by legislative sanction, with great disfavor, and, where the law is positive and clear, the maxims of other systems have seldom been invoked, and, when so applied, only in particular cases. The laws of Louisiana derive their sanction and force entirely from legislative authority. This maxim, whenever applied, takes tho place of a positive written provision of the Civil Code, and must be considered judicial legislation, a very dangerous precedent to establish in any system of laws, and more especially so in our own, where we have a complete system of written statute law.
    In the case of Reynolds v. Boison, 11 An. p. 729, cited by the District Judge in this case, the Supreme Court held that this maxim had no application whatever in cases where the plea was made acqúirenili causa ; but say tho Court, “it has been applied to prescriptions: liberandi causa.”

    It would seem from the language of the Court, in this case, the only one relied on by the District Judge, that the Court had serious doubts about the propriety of invoking this maxim in any 'case. Certain it is that it should never be applied in any case, where the law has furnished a,clear and positive provision. The only method known to our law by-which prescription is interrupted is by citation. It has been repeatedly decided that an illegal or defective citation does not interrupt prescription. 10, 485. In the present case the law itself is suspended and a Roman maxim takes its place. ' '
    .«The facts of the case are, as shown by the testimony, that both plaintiff and defendant resided in the Parish of Catahoula, from 1861 to 1864, and then defendant moved to New Orleans, where lie has since resided. Where plaintiff was after 18G4.to 1866, the time of bringing the suit, is not clearly shown, nor is it material. Defendant resided in the city of New Orleans for more than one year before prescription obtained, where hp could have been sued. The Courts being open all the time, plaintiff could have brought suit against defendant at any time for two years previous to the time the note was prescribed — not having done so he is in no position to invoke a suspension of the law to cover up and shield him from the consequences of his own laches.
    Where a note is prescribed on its face, and it is not proved that plaintiff could not have brought his action at an earlier date, .the plea of jjrescription will prevail. 19 A. p. 17Ó. The mere existence oí the war does not, of itself, suspend prescription.
    The fact of defendant being in the Confederate service, and thus avoiding citation, does not interrupt prescription. 19 An. p. 187.
   HowELn, J.

This is a suit on a promissory note, and open account, in wliich the maxim, “ Coniránon valentem agere nulla curriiprezsariptio,” is invoked against the plea of prescription of three and five years. .

It was suggested at bar, that the sum invoked, is not within the jurisdiction of this court, but we find that the interest accrued on the note, at the date of instituting the suit, September 5th, 1866, makes the total of the note and account exceed $500.

The proof is that the parties resided, at the date of the note, January 1st, 1861, in the Parish of Catahoula, in this State, and that in January 1864, the defendant came to this city, where he has ever since resided, and was the post-master. There is no reason assigned why suit could not have been brought against him, in the courts of his domicil, before prescription on the note was acquired, January 2d, 1866, and according to the doctrine of the case of Rabel v. Pourciau, 20 A. 131, the maxim invoked cannot avail the plaintiff.

It is therefore ordered, that the judgment appealed from be reversed, and that there be judgment in favor of defendant, with costs in both courts.

'IjpAniAÉEEEO, J., recused.-


author: Howeuii, J.

text:
    No. 1510.
    W. L. Cushing v. W. J. Hickle & Co. and H. C. Thompson.
    The act of the Legislature of 1838. No.20, transferring all oases on appeal in the Supreme Court under • the Constitution of 1864 to the Supreme Court under the Constitution of 1863. does not, ipso faclo>' vest the Supreme Court of 1868 with jurisdiction over the case.
    Where the amount involved does not exceed five hundred dollars, tho appeal will be dismissed for want of jurisdiction. Art. 74, Oon. of 1808. ,
    A AL PPEAL from the Fifth District Court of New Orleans, Leaumont, J.'

      J. 8. Whitaker, for appellants.

      R. I). Blossman, for appellee.
   Howeuii, J.

A motion is made to dismiss the appeal in this case for want of jurisdiction in this court, the amount involved being less than five hundred dollars. The amount demanded is loss than $500, but' counsel contends that the act of 5th August, 1868, entitled “ an act to " provide for the removal of causes now pending in the Supreme Courtu under the Constitution of 1864, to the Supreme Court established under., tho new Constitution, transfers this case to the present court with full power and jurisdiction to hear and determine the cause.

The Legislature cannot enlarge the jurisdiction of this court, as estab'-./ lished by the Constitution creating the court. It simply transferred all the causes pending in the late Supreme Court to this, to be disposed of i according to its constitutional jurisdiction, to try those over which tho " Constitution gave it jurisdiction, and to dismiss or make other proper order as to those over which it has no jurisdiction.

Where a case comes before us, we have, in this regard, to look at the amount in dispute, to ascertain if we have jurisdiction. If it is below the constitutional limit, we cannot entertain jurisdiction, and must necessarily dismiss the appeal.

It is therefore ordered, that tho appoal herein be dismissed, with costs.


author: Howekd, J.

text:
    No. 1420.
    Jacob Barker v. Bank of Louisiana.
    A party called in warranty cannot intervene in the suit under the answorof defendant making tho cal!; if he wishes to intervone, he must do so by petition.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      W. II. Hunt, for appellant.

      II. J). Slone, A. Miaou and G. Schmidt, for appelleo.
   Howekd, J.

This is a suit against the Bank of Louisiana upon its certificate of deposit in favor, and payable to the order of, J.M. Tupery, endorsed specially to the order of the Jefferson City Railroad Company,- and in blank by Joseph Kaiser, with a character in German, affixed to his signature, shown to designate him as president.

The bank set up the general denial, and called Tupery, the depositor, in warranty, as claiming the ownership of the certificate, who answered, denying plaintiff’s right thereto, and alleging that, in a contract with' Kaiser, as president of the said railroad company, he had pledged the said certificate, but that, having fulfilled his said contract, the company could not dispose thereof, and if it lias done so, it was in fraud of his rights, as plaintiff: well knew, and he prayed to be declared the owner of said certificate.

Judgment was rendered in favor of plaintiff against the defendant, and dismissing the call in warranty, from which Tupery has taken a devolutive appeal.

It is manifest that no obligation in warranty is set forth in the pleadings, and as the warrantor’s right to the certificate of deposit in suit, rests upon an alleged performance of his contract with a party to whom he assigned it in pledge, and who is no party to this proceeding, the Judge a quo decided correctly in not granting the prayer of his answer.

In strictness of pleading the judgment, dismissing the call in warranty, is in favor of the warrantor and appellant, while his demand cannot properly be viewed as an intervention or interpleading, not being conformable to the rules regulating such action. Intervention is by petition, which must be served on the party against which it is directed, and issue thereon joined. C. P. 389, 394.

With a call in warranty properly made, the plaintiff has necessarily no special concern, and the law directs that a judgment rendered in such case, if in favor of the plaintiff against the defendant, must be also in favor of the defendant against the warrantor for the indemnity due, and is executory on the part ok the plaintiff against the defendant, and on the part. Of the defendant against the warrantor. O. P. 385, 386.

Under the pleadings and evidence, the judgment below is correct.

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


text:
    No. 1376.
    Ferdinand Gumbel v. Maurice Abrams and Joseph Simon.
    tViiere the evidence shows that two parties are engaged in a commercial business as partners, and debts have been contracted by the firm, they are bound in solido.

    Abanker and depositor occupy towards each other the relation of debtor and creditor, and the depositor of gold in the bank is only entitled to recover the amount in dollars and cents, in the circulating currency of the country.
    APPEAL from the Third District Court of New Orleans, FeSowes, J.

      T. J. Cooley, for plaintiff and appellant.

      J. H. Van Balsón, for M. Abrams, defendant.

      G. 8. Lacey, for J. Simon, defendant.
   Howe, J.

The plaintiff sued the defendants as commercial partners in the business of brokerage, exchange and banking, and claimed to recover from them in solido the sum of >$4,298 33 in gold, alleged to be due as the balance of plaintiff’s bank account on the 1st November, 1864, subject to a deduction of $1,394 12 in currency.

The Court a qua gave judgment in favor of plaintiff against Abrams, but rejected the claim as to Simon, and the plaintiff has appealed.

The bank account was opened with Maurice Abrams as banker, and the name of the defendant, Simon, never appeared in the account. But the plaintiff contends that Simon took part in the business, held himself out as partner in the concern, and was in reality a partner, and liable as such.

We have given a careful examination to the evidence in the record, and .are constrained to the conclusion that these positions of the plaintiff are correct, and that the defendant, Simon, ought to be held liable in solido, with the defendant, Abrams.

We cannot, however, assent to the demand of the plaintiff for a judgment in gold. The relation of the plaintiff and the defendants, on the 1st November, 1864, was that of creditor and debtors. The deppsit by the former was not the “real deposit,” “where the depositary receives a thing to be preserved in kind, without the power of using it, and on the condition thatke is to restore the identical object.” C. C. 2934. It was an irregular deposit, which transferred to the defendants the ownership of the money, and left them indebted to the plaintiff in the number of dollars and cents deposited. j

In the language of this Court in Matthews v. McKenzie, 10 A. 344, “the depositaries had a right to use (the moneys) in the course of their business; the relation of debtor and creditor arose between them and tho depositor; le domaine de la chose, the power of using the money passed to them; and the obligation of returning, not the same, but a like amouht, was assumed by them.”

It is true that it was gold coin that was deposited by plaintiff, but where the simple relation of creditor and debtor only is created, we cannot recognize any distinction between a debt which springs from an irregular deposit of gold, and one which springs from an irregular deposit of any other lawful money. Nor can we see why such a debt contracted, for example in 1860, should now be satisfied by a judgment in lawful money, and one contracted in 1864, should not be satisfied in the same way.This may seem a harsh doctrine in this ease, but such hardships are apt to come when anything else than gold and silver is made a legal tender.

The judgment against the defendant, Abrams, is not complained of, and will not be disturbed in this appeal.It is ordered and adjudged that the judgment in favor of the defendant, Simon, be avoided and reversed; and that the plaintiff have and recover of the said defendant, Joseph Simon, the sum of two thousand nine hundred and four dollars and twenty-one cents, with legal interest from judicial demand, and costs in both courts.


author: Howelti, J.

text:
    No. 1408.
    Mrs. M. Johnson v. Succession of B. Robbins.
    Where an amount of money has been loaned for a fixed time, and the interest, which forms the consideration for the loan, is added to the amount and placed in the body of the note, the holder is only entitled to recover the face of tho note, with five per cent, interest after maturity.
    Payments made on a promissory note must first be imputed to the interest due at the time, and afterwards to the extinction of the principal.
    A party taking collaterals in pledge for a loan has the option to return the articles pledged on payment of the loan and interest, or pay their value to the owner.
    APPEAL from the Second District Court of New Orleans, Thomas, J.

      Clarke & Bayne, and J. G. Gernon, for plaintiff and appellee.

      Hunt & Deim/re, for defendant.
   Howelti, J.

Plaintiff alleges that on 17th March, 1865, she pledged-to B. Robbins, then alive, certain jewelry worth $5,000, for the payment of a note of same date for $2,200, due at three months; that after maturity payments to the amount of $750 were made thereon; that she is anxious to pay the balance of $1,450, still due on said note, upon its presentation and the delivery of said jewelry; and she prays that tho executors of the deceased be ordered to deliver to her the jewelry or pay *xts value, subject to a deduction of $1,450, balance due on the note. A general denial was filed, and judgment rendered in favor of plaintiff for $800, reserving her right to sue for any usurious interest she may have paid; from which the executors have appealed, and the plaintiff has asked that the judgment be amended by allowing her $4,132.

It appears that she borrowed $2,000 and gave her note for $2,200, a three months, secured by the pledge of said jewelry, and during a period of fifteen months after maturity payments were made amounting to $990 on the note, which tho judge a quo, on the testimony of one of the executors then acting as the agent of the holder of the note, considered paid as interest, which, under the pleadings, he could not order to be returned. The pleadings are indefinite,' but the statement of this agent that he imputed the payments to the interest does not prove a payment of, or an agreement to pay, usurious interest on the part of the plaintiff, nor establish the imputation to be legal and binding.

Where there is interest due, the debtor cannot, without the consent of the creditor, impute to the reduction of the principal any payment he may make; and where there is no imputation made brtiueen the parties, the payment must be imputed to the debt which the debtor had at tho time most interest in discharging. C. C. 2160, 2162. Where no interest is stipulated, as in this case, the highest rate is five per cent., and any surplus of the payment made over the interest due at the time, must, in the absence of special agreement, be imputed to the principal. When the payments were made, in this matter, the amount of interest accrued was comparatively insignificant. But as plaintiff claims the benefit of $750, and. the excess, of the payments proven over this sum, will moro than extinguish any legal interest due up to the institution of this suit, we will adopt this sum as the credit to be allowed. We will not presume a usurious contract.

The evidence as to the value of the jewelry is conflicting; but under the circumstances, this Court is of opinion the highest price which the testimony reasonably sustains, should, be adopted.

Ifthevalue .be deemed high, the defendants will have the option of returning the jewelry, instead of paying such value.

There is proof that the plaintiff, at one time, obtained some $4,000 or $5,000 worth of goods on this jewelry from a prominent merchant of 'tliis city, who is supposed to understand his own interests, and who received the jew'elry as then worth $5,000 or $6,000. We therefore think, under the pleadings and evidence, judgment should have been rendered in favor of. plaintiff for the delivery of the jewelry and note, upon her tendering the sum of $1,450, acknowledged by her to be due on the note, and on default ,,of such delivery, the value of the jewelry, say $5,000, less the sum of $1,450, be paid to her in due course of the administration of the succession.

It is therefore ordered that the judgment appealed from be amended and affirmed to read as follows: It is decreed that the judgment in favor of plaintiff ordering the defendants to deliver all the jewelry and the note described in tho petition, to plaintiff upon her tendering to them the sum of $1,450, due on said note, and upon their failure to make such delivery, the value of said jewelry, say $5,000, less $1,450, due on the note, be paid to plaintiff, in due course of the administration of the succession of Bianca Robbins; costs in both courts to be paid by said succession.


author: Wvly, J.

text:
    No. 1400.
    Bank of New Orleans v. B. Toledano & Taylor—A. J. Dufilho, Third Opponent.
    A donation by the anoestor in due form, in consideration of the marriage of his daughter, is neither an alienation nor a mortgage of the property donated, and the law of 1855, prescribing the modo of registry of conveyances of immovable property, does not apply.
    A áonation by the father to his daughter, in consideration of marriage} of certain lots of ground in the city of New Orleans, will operate as notice to third parties when recorded in thebook of Donations in the mortgage office in tho manner pointed out in Art. 15-41, O. O.
    Every donation inter vivos, though made to the husband and Wife, or to either of them, is subject to the general rules prescribed for donations under that title.
    APPEAL from the Third District Court of New Orleans, Eellowes, J.

      Elmore & King, for plaintiffs and appellants.

      J. L. Tissot, for' defendants.
   Wvly, J.

On 17th December, 1858, the defendant, Taylor, inter* vened in the marriage contract between his daughter and third opponent, and, in consideration of the marriage, made a donation, as dowery, unto Ms daughter, of two lots of ground, with the improvements thereon, situ* ated in this city.

The donation was made and accepted in proper form, and the act was duly registered in the mortgage office, parish of Orleans, in a hook of Donations kept in that office.

In. 1866, plaintiff recovered judgment against the defendants, based upon an indebtedness which accrued subsequent to the donation, and levied upon the property donated.

To resist the sale of this property, A. J. Dufilho, the husband of the daughter of the donor, instituted this proceeding of third opposition and injunction.

On the trial in the court below theie was judgment in favor of third opponent perpetually enjoining plaintiff from selling the property in question, and decreeing judgment against plaintiffs for $300, special damages, as attorney’s fees, and costs.' Plaintiffs have appealed.

The question presented to us for determination is, whether the third opponent’s title to the property seized, was inscribed in the manner required by law so as to give effect 'to the donation as against third persons?

Plaintiffs contend that this donation was a transfer or conveyance of the property, and should have been registered in the conveyance offico in pursuance of act 1827, page 136; but the third opponent insists that the donation was duly inscribed in the book of Donations in the mortgage office pursuant to Art. 1541 C. O., and that an inscription in tho conveyance office was unnecessary.

The act of 1855 created the office of conveyances, and requires every act of conveyance to be inscribed in that office. If this act of donation, amounts to a conveyance it should have been recorded in the convey- •. anee office, and need not have been registered in the book of Donations • in the mortgage office. This Oourt has often held that possession under an act of sale i.s not sufficient notice to creditors and subsequent purchasers to defeat the registry laws. 14 A. 414, and the authorities there cited.

Does the title of the donee depend upon the law prescribing the forms of alienations and the mode of registry thereof? Or does it depend upon compliance with the law prescribing the forms of donations inter vivos and the mode of registry thereof? ,

Would this act of donation of the lots, properly drawn up by the notary, have been valid if recorded in the conveyance office and not in the book of Donations in the mortgage office?

We think not. Art. 1541, C. 0., says: “When the donation comprehends property that may legally be mortgaged, the act of donation, as well as the act of acceptance, whether the acceptance be made by. the same or separate act, must be registered within the time prescribed for tho registry of mortgages, in a separate book kept for that purpose by the register of mortgages, which book shall be open to the inspection of all parties requiring it.”

Art. 3351, O. C., requires the recorder of mortgages for the parish of Orleans to keep three registers, one for conventional mortgages and privileges, another for judicial mortgages, and a third “to record all donations which have to undergo that formality.”

What was the object of registering the act in the book of Donations in the mortgage office? It was evidently to give notice, to give it effect as against third parties. It was a notice in the manner pointed out by law. We think the constitution of dowery in this case was neither an alienation nor a mortgage; that the act. did not irrevokably invest the donee with ownership; that the validity of the act and its effect against third persons is based upon the articles of the Civil Code prescribing the forms of donations inter vivos and the mode of registry thereof. We think the act of 1855, prescribing the mode of registry of conveyances of immovable property, does not apply to donations 'inter vivos; that neither the act of 1827, nor the act of 1855, repeals Art.' 1541 C. O. which prescribes the form of registering donations inter vivos.

Plaintiff’s brief cites us to the language of act of 1855, page 335,' which' declares, “that no notarial act concerning immovable property shall have any effect against third persons until the same shall 'have been recorded in the office of parish recorder or the register of conveyances of the parish, where suchimmovablepropertyis situated.”' If this language is, to be construed to mean all acts effecting immovable property, then mortgages as well as donations inter vivos must be registered in the office of the conveyance; and we are to infer that this act repeals the articles of the Oivil Code prescribing the form of registering acts of mortgages and acts of donations inter vivos. Stich we do not believe to bé a proper interpretation of that act.

Plaintiffs contend that if article 1541 C. C. is nót'répealed by the statutes of registration that, that article has no application to 1 marriage contracts. We think Arts. 1727 and 2317 of Civil Code completely refute this position. Art. 1727 C. C. declares that “ Every donation inter vivos though made by marriage contract to the husband and wife, oí to either of them, is subject to the general rules prescribed for donations made under that title.” The dowery of Mrs. Dufilho was settled by her father at a time when he was able to do so; it was a donation which had to be registered according to Art. 1541 C. C.

We think the Judge a quo did not err in maintaining the injunction; but the “judgment however must be amended as regards the allowance' of counsel fees. ”

We know of no law authorizing plaintiffs in injunction to recover' from defendants in injunction the amount incurred for counsel fees. See the case of Dyke v. Dyer, reported in 14 A. 701, and the authorities there cited.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be amended by striking out the clause allowing $300, counsel fees; and that the judgment so amended be affirmed, with costs, the appellee to pay the costs of appeal.


author: Howelií, J.

text:
    No. 1280.
    W. C. Budd v. Joseph Stinson.—Mrs. M. J. Stinson, Intervenor and Opponent.
    Where the evidence shows that the defendant is an absentee, and it is not shown that there is any one in the State legally authorized to represent him, the attachment will be maintained.
    In a seizure, under a writ of fieri facias, of real estate, actual corporeal possession by the sheriff is not , necessary.
    APPEAL from the Third District Court of New Orleans, Fellowes■, J.

      W. E. Murphy, for plaintiff.

      A. T. Steele, for opponent and appellant.
   Howelií, J.

This case seems to be before us on the motion to dismiss, as to which a rehearing was granted, and on the merits.

An examination of the record satisfies us that the grounds of the motion are not sufficient to dismiss the appeal. It appears that, after objection was made to the first bond, the appellant was permitted to file a second, to which no objection was made, and it being for the amount, as the appellee says, fixed by the Judge, will maintain at least a devolutive appeal. The judgment of dismissal is, therefore, set aside.

On the merits, we can discover no legal grounds for disturbing the judgment of the lower court. '

Plaintiff having obtained a judgment, recognizing his mortgage, in a' proceeding by attachment, against the defendant as, a non-resident, and issued execution thereon, the appellant, as curatrix of the estate of her absent husband, sued to enjoin the execution and annul the judgment, for certain irregularities set forth in her petition. The plaintiff moved to dissolve the injunction, on the grounds of the insufficiency of the allegations and of the surety on the bond, and the untruthfulness of the affidavit.

The record of the attachment suit and the testimony, introduced on the trial of the rule, show the proceedings to be regular.

The property was seized under the writ of attachment in the mode •required' by the act of 18">7, (p. 185,) and its occupancy, at the time, by the military forces, did not interfere with such seizure. Actual possession by the sheriff is unnecessary in such a case.

The allegations of the appellant and her appointment as curatrix, after plaintiff’s judgment was rendered, show that the defendant was an ■absentee, and consequently, he had no residence, in this State; and it is not shown tliat there was any one in the State legally authorized to represent him.

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


author: Howe,, J.

text:
    No. 1941.
    State, ex rel., George L. Cain v. The Judge of the Sixth District Court for the Parish of Orleans.
    The presence, in a final judgment on a writ of quo warranto, of an interlocutory order of'injunction will not defeat the defendant’s right to appeal from this judgment, because the injunction has not been tried on its merits.
    In a controversy for office, where it appears that the salary of the office per annum, is more than the sum required to give the Supreme Court jurisdiction, a suspensive appeal will lie.
    The salary of an office per annum, may be shown by affidavit in the Supreme Court, al ter a motion is made to dismiss the appeal.
    The affidavit may be made also before the District Court, before the order of appeal is granted.
    The averment in the affi lavit that the interest of the defendant in the suit exceeds one thousand
    • dollars, is sufficient to give the Supreme Court jurisdiction, without mentioning the length of time he is entitled to hold the offioe.
    The first clause in section 12. ot the acts of the Legislature of 1863, No. 156, approved October 15th, “ That appeals to the Supreme Court may be taken from any of the actions provided for in the foregoing sections, the same as in other cases,” properly construed, means that when the appeal is taken within the legal delays it is suspensive, and afterwards only devolutive.
    The right to a suspensive appeal is the rule, and it stays proceedings in the cause, except in cases specially excepted. O. P. 565, 575 and 58Ú. The State, cx rel. Ingram, v. Judge of the Six 7i Judicial ' Dislri t. (Ante page 529.)
    Whore a party is entitled to a suspensive appeal from a final judgment, and yet has been condemned to pay no specific amount, the Distriob Judge must fix the amount of the appeal bond.
    APPLICATION for a Writ of Mandamus.

      X Hawkins and F. Filleul, for relator.

      W. H. Goolexj, Judge, respondent.
   Howe,, J.

The relator prays that a writ of mandamus may issue, d,i.reqted, to the Judge of tli,e Sixth District Court for the Parish of Orleans, commanding him to grant a suspensive appeal in the case of Robert E. Diamond v. George L. Cain.

The merits of this controversy for .office, are not involved in this application. , The only question is, ■ whether the defendant, relator in the proceeding at bar, is entitled, to a suspensive appeal from the judgment recited in his petition.

The judgment,reads as follows : “It is ordered, that the writ of quo warranto, issued in this case, be maintained, and it is ordered, adjudged and decreed, that Robert E. Diamond be recognized, as the legal Chief of Police of New Orleans, and that a writ of injunction issue, as prayed for in .the,petition in this case, commanding George L. Gain not to interfere with the said Robert E. Diamond, in the discharge of his duties as Chief of Police of the city of New Orleans, upon said Diamond giving bond and security conditioned as tho law requires, in tho sum of two thousand dohars ; and further, that said George L. Cain pay all costs of this proceeding.” '

The respondent, in his answer to the application for a mandamus, makes several points, which we will examine in their order.

In the first place, it is urged, that the injunction mentioned in tho judgment, “was not ordered at the time of the filing of the petition, though, on the face of the papers, the plaintiff was entitled to it. A rule nisi was issued, directing the defendant to show cause by a given day why the injunction should not issue. After .answer of defendant the injunction was ordered to issue, but to this moment it exists merely as an interlocutory order, and has never been tried upon its merits, nor upon a rule-to set it aside.” * * * “Orders of this kind cannot be appealed from,” and therefore, that as the relator asked for a suspensivo appeal from the whole judgment, (and the judgment contains this unappealable portion,) it was properly refused.

We find it difficult to reconcile this reasoning with the undenied averment that the Judge was willing to grant a devolutive appeal j'for, if the reasoning be correct, a devolutive appeal should have been equally refused. It is not, however, in our opinion, correct. .Admitting tho premises, the conclusion by no means follows. If the order for an injunction contained in the -judgment be merely an interlocutory order, whose merits have never been discussed, it has no proper place in the judgment; it might as well, and perhaps with more propriety, have been written as a separate document, and its presence, in what purports to be a final judgment, can have no effect upon the right to an appeal from such judgment.

Again, it is urged that there was no evidence before the Judge, sufficient or competent, to show that the case involved an appealablo amount. We think this view erroneous. The affidavit which was presented to the Judge by the relator avers that the matter in disputo exceeds one thousand dollars; that relators’s interest in the suit exceeds one thousand dollars, and that a salary exceeding one thousand dollars per annum is annexed to each of the offices mentioned in the pleadings.

We think it well settled that in a controversy for office, when it appears that the office is worth more per annum than the sum required to give this court jurisdiction, an appeal will lie, (Hubert v. Aubray, 6 La. 598,) and that this showing may be made by affidavit, even after the case haS been brought up to this court, and a motion made to dismiss. Knight v. Smith, 3 M. 158. State v. Willz, 11 A. 440. And wé cannot agree with the respondent, that this showing can be made only in this court, and not in the court below. In the case of the State v. Hackett, 5 An. page 92, the affidavit that “ the matter in controversy amouiits'to' one thousand dollars,” was annexed to the petition of appéál, in the dourt below, and it was held that this court had juVisdictiofi. '

Nor do we think it a'Suffibieht answer1'ás to affi’óunt, to say, .that it is not shown how long the office has been''or is to be held, and'that it; therefore, does jiot app'eat that an appealable amount is involved ; for not only is this position in apparent conflict with the views of this Court, as expressed by Mr. Chief Justice Martin, in Hubert v. Aubray, but we have the further statement in the affidavit, as in the case of the State v, Hackett, that the amount in dispute exceeds §1,000, and that relator’s interest in the suit exceeds §1,000. We consider the. last averment nufficient to sustain the appeal without reference to the time the office has been, or is to be, held.

It is urged again, that the suit in which the appeal is asked, was instituted under the provisions of “An act providing against usurpations, intrusions into, or the unlawful holding or exercising a public office or franchise in this State,” approved September 8, 1868, and also, under the act amending the above, approved October 15th, 1868 ; that the sixth section of both these acts require the immediate execution of the judgment of the court, if the judgment be that the plaintiff is entitled to the office, and not defendant who is in possession, because the language is that the plaintiff shall be entitled “to take upon himself the execution of the office that, although the twelfth section allows an appeal to this court, the language is not specific as to the character of the appeal, but merely provides that it shall be “ the same as in other cases ; ” that in construing the phrase, “ ‘the same as in other cases,’ the lespondent had before him the policy of the State, as shown in the Revised Statutes, pages 216 and 217, sections 41, 45 and 46 ; that in the matters of the claims to public offices, the litigation should end with the judgment of the court .of the first instance.”

The act of 1855, thus referred to as a guide in the interpretation of the twelfth section of the acts of 1868, provides that in cases of “contested .elections,” the decision of the District Court shall be final, (section 41,) and that the court shall have no power to grant a new trial as in other cases, and no appeal shall be allowed. (Sec. 45.) R. S. p. 217. Acts of 1855, p.. 415, 416.

The twelfth section of the amended act of 1868, reads as follows: “ That appeals to the Supreme Court may be taken from any of the actions provided for in the foregoing sections, the same as in other cases. But all such cases, shall take preference, when they come before the Supreme Court, overall other cases in the order of trial,, and shall be made returnable to the Supreme Court, either in New Orleans, or at one of its sessions in the country, on motion of either party. ”

Now, if the respondent be correct in his view that the phraso “ other cases ” in this twelfth section, may mean contested election cases, arising under the act of 1855, we must come to this conclusion, that the .Legislature has authorized an appeal in this case, and given it a preference on our docket, “ the same as in other cases,” in which no appeal is possible, and no preference desirable.

We do not feel constrained to adopt an interpretation, which would dead to such a conclusion. On the contrary, we think the phrase “the same as in other cases,” simply means that where the appeal is taken in due time, and with the furnishing of due security, it shall be suspensive, and, otherwise, (if taken in time for a devolutive appeal only)'devolutive.

Nor can we assent to the proposition contained in the answer, that the .right to a suspensive appeal is an exceptional one. ' As was said by this Court in the case oí the State v. Judge of the Sixth Judicial District Court, 20 Ann. p. 529. “A careful examination of articles 564, 565, 575 and 580, of the Code of Practice, shows that the right to a suspensive appeal is the rule, and that it stays proceedings, save in cases specially excepted.”

And in answer to the further reason of the respondent, that the suspensive appeal was refused, because “ nothing in the record exhibited what the bond should be,” we refer to the same case in which this Court said, that in its opinion “a bond for a suspensive appeal could bo readily framed payable to the appellee in such amount as the court below should determine. ” The bond should be fixed in analogy with tho provisions of article 577 of the Code of Practice. Where a party is entitled to a suspensive appeal by reason of the amount in dispute, and yet, as in this case, has not been condemned to pay any specific sum, there is no precise standard fixed by law for the amount of the bond. It should be fixed by the Judge, (Blanchin v. Fashion, 10 A. 346,) and wo can see no difficulty in fixing it with a reasonable regard for the rights of the appellee, where the contest- is over offices whose salaries are easily ascertained.

Por the reasons given, it is ordered and adjudged, that the rule to show cause be made absolute, and that a peremptory mandamus issuo herein, as prayed for, and according to law, directing the Judge of the Sixth District Court for the parish of Orleans, to grant a suspensive appeal to this court, from the judgment rendered in the case of Robert E. Diamond, v. George L. Cain, No. 147, of the docket of said court, upon the defendant furnishing his bond with security in such sum as may be fixed by the Judge ; and that the respondent pay the costs of this proceeding.


author: Ludeiüng, O. J.

text:
    No. 1327.
    Louisa Miller, Widow Guichonnet, v. Aman Rougieux, Curator, and his Wife.
    A party may demand a recognition as heir; an account of the administration; and the property in tho hands of the curator, in the same suit.
    The homologation of an account and tableau of distribution, filed by the curator, of the proceeds of the sale of an estate, will not estop the heir, who was a non-resident at the time, fiom proceeding against the curator for the remainder of the proceeds of the sale of the succession property in his hands. '
    The curator will be responsible to tho heir for the payment of a fraudulent and fictitious claim, jvith tho funds of the succession, notwithstanding the samo has been homologated by tho Judge.
    APPEAL from the Second District Court of New Orleans, Thomas, J.

      M. Blache and¿Wé Gharvet, for appellants.

      G. Schmidt, for appellee.
   On Rehearing.

Ludeiüng, O. J.

In May, 1868, this Court delivered an opinion in this case, reversing the judgment of the Court a qua, and dismissing1 the suit, on the ground that the Second District Court of New Orleans was without jurisdiction raiione material.

On the 22d June, 1868, a new hearing was granted on the question of jurisdiction. ' '

The plaintiff alleges that she was married to Claude Guichonnet on 6th July, 1863; that there was a marriage contract between them, which contained the following clause: “En considération dufutur mariage etpour se donner une preuve de l’attachement que les futurs époux se portent, ils se font, parles presentes, donationmutueile etirrevocable ausurvivant d’eux, de tous les biens dont se composera la succession du prémourant.” That C. Guichonnet died on 2d July, 1865; that the succession was opened in the Second District Court of New Orleans, and that said A. Rougieux, obtained the curatorship of said succession by falsely and fraudulently pretending to be a creditor; that said Rougieux, having thus obtained possession of the property of the succession of Claude Guichonnet, caused it to be sold, and after paying the debts of the succession, he appropriated the balance of the assets of said succession, amounting to three thousand three hundred and twenty-six dollars and fifty cents ($3,326 50) to the payment of a certain mortgage note for twelve thousand dollars, said to have been executed by the said Guichonnet before Adolphe Boudousqnie on the 31st May, 1864, in favor of Malvina Aminthe Marie Castetz, wife of Aman Rougieux, of the city of New Orleans. She further alleges that her said husband did not execute the aforesaid obligation and mortgage; that Claude Guichonnet never borrowed any money whatever from said Malvina Amenthe Rougieux, and that she never had any money to lend; that the note and mortgage, if proved to have been signed by said Guichonnet, was false, fraudulent and simulated, and made for the purpose of defrauding your petitioner of her lawful rights. She prays that her marriage contract may be filed and declared valid; that she be recognized as sole heir of the estate of Claude Guichonnet; that said Aman Reugieux, curator as aforesaid, be cited to answer the petition; that the pretended mortgage be declared fraudulent and simulated, and that said curator pay ovm' to your petitioner, not only the property mentioned in the inventory, but all such other property belonging to the succession of her late husband as he may have failed to inventory, and which he or his wife may have appropriated to their own use, etc.

The pleadings are somewhat confused, but from the foregoing allegations and prayer, we think, the suit may fairly be regarded as an action to be recognized as heir, ana to be put in possession of the estate.

The plaintiff prays distinctly that she may be recognized as heir, and that the curator may be ordered to deliver to her all the property of the succession.

She also attacks the correctness of the claim of Rougieux for twelve thousand dollars, which was placed on the tableau of distribution filed by said Rougieux, curator.

The final account of the curator has not been rendered; there is nothing in the record before us to show that any of the debts of the succession have been paid, except the judicial admissions of plaintiff in her petition, and these admissions are coupled with the charge that the three thousand three hundred and twenty-six dollars and fifty cents applied to the partial extinguishment of the simulated mortgage claim of Rougieux were appropriated by the curator to himself wrongfully and fraudulently.

“ Until an heir be recognized and admitted as such, he has no action to compel the curator to account or to deliver to him. the property of the succession.” Stein v. Bowman, Curator, 9 La. 284. 11 La. 182.

However, an lieir may sue to be recognized a3 heir for an account, and for the property in the hands of the curator in the same suit. The demands are not inconsistent, and they may be cumulated. C. P., Articles 148, 151.

This action was properly brought, therefore, in the probate court, in which the succession of Olaude Guichonnet was opened, and was in courso of administration. C. C., Art. 1181. 4 R. 9. 4 A. 223. C. P., Art. 1000.

It is proved that Claude Guichonnet, aged upwards of sixty years, had retired from business, and lived upon the rents of his property; that ho was frugal, and had but little use for money; that in May, 1865, less than two months before his death, and about one year after the date of the act of mortgage to Rougieux, C uide Guichonnet said “he had lent his money to the lady with whom he boarded; her name was Rougieux.”

In the same conversation, he expressed regret at having driven away his wife, and he said “he would try to collect the money he had loaned out that he might be able to bring her back again.”

He was illiterate, and we may fairly infer from the evidence, that he was weakmined.

On the other hand, it is proved that Malvina Amen the Rougieux is “ a kind of fortune-teller,” who, though married, lived apart from her husband in the same house with the deceased, and that “ she had no means.” The evidence also establishes the fact that Aman Rougieux, her husband, had but little means.

It is remarkable that the alleged loan of $12,000 was made by the wife, without the concurrence or authorization of the husband — the head and master of the community — and that the property mortgaged was worth less than half the sum to be secured. It is also remarkable that, notwithstanding it is proved that the deceased was very economical, in about thirteen months he had dissipated this large sum of money; and at his death, he owed five dollars for rent for one month for the room he had occupied; and all the personal effects he had consisted of “ an indifferent armoire, an old bod, and his clothes, which were of but little value, and were given to beggars. ”

The District Judge, who heard the witnesses in this case, declared tho claim of Rougieux fictitious and unjust; and after a careful examination of the evidence in the record, we are forced to the same conclusion.

The property of the succession was appraised and sold at four thousand three hundred dollars.

A tableau of distribution was filed by the curator, on the 13th September, 1865, exhibiting debts amounting in the aggregate to (®973 50) nine hundred and seventy-three dollars and fifty cents, besides the fictitious claim of Rougieux.

The tableau of distribution was advertised and homologated.

The attorney of absent heirs was not cited before the homologation of the tableau, nor did he make any appearance in the proceedings had thereon.

The plaintiff was absent from the State, and she had no knowledge of the proceedings.

The homologation of the tableau, under the circumstances, does not estop the heir from proceeding against the curator for an-account, or for the remainder of the proceeds of the sale of the succession property in Iiis hands, if he had ¿led an account. Miller et al. v. King, 10 A. 674. Ford et al. v. Newcomer et al., 14 A. 706. Acts of 1852, p. 200.

Rougieux was not a creditor. This, however, did not vitiate his ap-pointment as curator, or the acts done in conformity to law, in due course of his administration.

We agree with the Judge a quo, that the plaintiff has fully established her right, under the marriage contract, to all the property of the deceased, after paying the debts against the succession. C. C., 2316, 23Ü8, 2309 and 2311. Criswell v. Seay et al., 19 La. 529.

It is therefore ordered, adjudged and ' decreed that the judgment rendered by this Court in this case, on the 18th May, 1868, be set aside. It is further ordered, adjudged and decreed that the judgment of the District Court, so far as it declares the plaintiff to be the surviving spouse of Claude Guichonnet, deceased, and as such entitled to his entire estate under the marriage contract, and that the claim of Aman Rougieux for twelve thousand dollars is fictitious, null and void, be affirmed; and that said judgment be reversed and annulled in all other parts.

It is further ordered, adjudged and decreed that there be judgment in favor of Louisa Miller, widow Guichonnet, and against Aman Rougieux, curator of the succession of Claude Guichonnet, for the sum of three thousand three hundred and twenty-six dollars and fifty cents, being the remainder of the proceeds of the sale of the property inventoried, after the payment of the debts of the succession, with five per centum per annum interest thereon from 14th of April, 1806, till paid. It is further ordered that the right of the plaintiff be reserved to proceed against Amant Rougieux and Malvina Amenthe Rougieux for property belonging to the succession of Claude Guichonnet, and not inventoried, which may have been appropriated by them or either of them.

It is further ordered that Aman Rougieux, curator, pay the costs of the lower court, and that the plaintiff and appellee pay the costs of the appeal.

      Tho opinion rendered in this case in May, 1868, being overruled by this opinion, is not published.