text:
    Louisiana, f. w. c., v. Estate of F. Baillio et al.
    An act of sale to a Slave of his freedom, which is a simulation, cannot produce any effect.
    If the master, intending to emancipate his slave, makes a sale to the slave of his freedom, without any consideration, it is void for the want of the formalities prescribed by law for manumission.
    Where the vendor of property remains in possession up to the timo of his death, it cannot be recovered from his succession under a title by transfer from the deceased, unless the claimant establishes good faith aud the reality of the sale.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      Orsborn & Schropshire, for plaintiff and appellant. Hyman & Cazabat, for defendant. Manning, for intervenors.
   Land, J.

The plaintiff, a woman of color, sues by injunction to arrest the sale, and to establish the freedom of herself and her two minor children. The title on which she relies to establish her freedom, is a notarial act of sale by Richard Grant, her former owner, passed on the 29th day of January, 1856. This act of sale purports to have been made in considei ation of the price of thirteen hundred and fifty dollars paid in cash to the vendor by the plaintiff, at the date of the act; and was duly recorded in the parish of the domicil of both vendor and vendee.

The validity of this title set up by the plaintiff, is not only denied, but is assailed as an absolute nullity, on the grounds of fraud and simulation by the administrator of the succession of F. Baillio, who is the defendant in injunction.

The administrator avers, that the plaintiff and her children are slaves, and the property of the succession of Baillio, and as such are liable to be sold by order of court, to pay the debts of his estate. That Baillio purchased the plaintiff and her eldest child from Grant, the owner, in the year 1855, and paid the whole of the price to Grant, a part at the time- of sale, in cash, and the balance after-wards. That Baillio, who lived in concubinage with the plaintiff, returned his act of sale to Grant, and induced him to pass the act of the 29th of January, 1856, to the plaintiff and her child, conveying the title set up in her petition as the foundation of her right to freedom. That the act of sale of the 29th of January, 1856, to the plaintiff, was a simulation and fraud concocted by Baillio, and a disguised donation prohibited by law. And that the succession of Baillio is involved in debt, and is insufficient to pay the numerous claims against it.

After the issues had been thus made between the plaintiff and defendant, Mari/ C. Baillio, the sister of the deceased, and wife of James R. Lee, intervened in the suit, and claimed title to the plaintiff and her children as slaves, by virtue of a notarial act of sale from F. Baillio, passed on the 24th day of December, 1857, and dnly recorded in the proper office. The consideration of this sale purports to have been the price of two thousand dollars, for which the vendee (the intervenor) gave her promissory note payable to the order of the vendor (F. Baillio) on the first day of January, 1858.

On the case thus stated, it may be observed :

First. That, as between the plaintiff and the defendant, the evidence fully sustains the defence made by the administrator to the action. The plaintiff and her child were purchased, and the price was wholly paid to Grant, the vendor, by F. Baillio, and the act of the 29th of January, 1856, by virtue of which plaintiff claims her freedom, was, in fact and in law, a pure simulation, considered as a contract of sale, and as such, is without any legal effect as a basis of title.

If this act of sale was intended as a donation to the plaintiff of her freedom, it was void for the want of the formalities prescribed by law, and did not divest Baillio of his title. See Articles of the Civil Code from 184 to 188, as amended.

Second. It follows from the preceding views, that the contest in this case is really between the intervenor, Mary C. Baillio, and the administrator of the estate of F. Baillio, the defendant in the action.

The evidence shows, that the plaintiff and her children were not delivered to the vendee (the intervenor) under the act of sale of the 24th of December, 1857, but that they remained in the possession of the vendor (F. Baillio) until his death, and were afterwards inventoried as the property of his succession.

Where the vendor remains in possession, the law raises a presumption that the sale is simulated, and requires the parties to produce proof of their good faith and the reality of the sale. Article 2456 of the Code declares, that in all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and, with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.

In order to prove the reality of the sale of the 24th of December, 1857, the intervenor was bouud to prove the payment of the note for $2000, given for the price, and due on the 1st of January, 1858, or to prove that it was in the hands of a bona fide holder by endorsement or transfer from the payee (the vendor), or at least, to prove that the note was in the possession of her vendor at the time of his death, and was found uncanceled among his papers or assets.

The intervenor has failed to prove any of these facts necessary to establish the reality of the sale. She has proved, that since the commencement of this suit, and the filing of her intervention, she has paid a judgment against her vendor, F. Ballio, which operates a privilege on tho slaves in dispute, to-wit, the plaintiff and her children, for the sum of two thousand dollars, the amount of her note for the price, and has been subrogated to the rights of tho judgment creditors ; but this payment with subrogation was not a payment of her note alleged to have been given for the price of the slaves, nor is it any proof of the reality of the sale itself. We are, therefore, of opinion, that the intervenor has failed to rebut by proof the presumption of simulation arising from the possession of the vendor after the date of the sale, until the time of his death.

The judgment, which is in favor of the intervenor, is erroneous, and must be reversed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and it is further -ordered, adjudged and decreed, that the plaintiff and her children be declared slaves, and the property of the succession of F. Baillio, deceased; and it is further ordered and decreed, that the writs of sequestration and injunction sued out in this case be dissolved, at plaintiff’s costs ; and it is further decreed, that the demand of tho intervenor be rejected, at her costs in the lower court; and it is still further ordered and decreed, that plaintiff pay the costs of the main action in the lower court, and one-half of the costs of this appeal, and that the intervenor pay tho other half of the. costs of appeal.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    State of Louisiana v. Pleasant Millican.
    Tho Stato’s attorney, in a public prosecution, is entitled to tlio opening and the close of the argument, altliougli the prisoner offers no evidence.
    A juror cannot be heard to impeach tho verdict which he has rendered. Ho is not allowed to prove the misconduct of his fellow jurors, nor to show that they erred in the formation of their verdict, cither by disregarding or misconstruing tho charge of the Judge.
    In a criminal prosecution, no defect of form, either in tho proceedings or in the indictment, however apparent on the face of the papers, will bo a good ground for a motion in arrest of judgment.
    The offence of willfully or maliciously setting fire to, and burning a crib of corn, falls within the provisions of the 3d section of the Act approved March 18th, 1858, entitled “An Act to amend and reenact certain sections of an Act entitled ‘An Act relativo to crimes and offences/ ” approved March 14th, 1855.
    APPEAL from the District Court of the Parish of Winn, Chaplin, J.

      Hines, District Attorney, for the State. Cazabat, for defendant and appellant.
   Voorhies, J.

The prisoner was indicted for the, crime of arson, and, being found guilty by the verdict of the jury, was sentenced to the penitentiary for the term of seven years.

Several points are presented, on his behalf, with the view of procuring a reversal of the verdict of the jury, and of the judgment of the District Court.

I. On the trial in the court below, the defendant, having- offered no evidence, but resting his case upon the weakness of his adversary’s proof, claimed the right to close the argument in reply to the State Attorney. The District Judge held that the latter was entitled to the opening and to the reply.

This ruling is in unison with the common law practice, and is supported by the authority of the elementary writers on this subject. Arch. Cr. R., 170 ; 1 Chitty's Crim. Law, 512 ; Roscoe on Ev., 237 ; Starkie’s Ev. 325. The dictum in the case of the State v. Bass, that “ If the prisoner chooses to rest his defence upon the weakness of the State’s proof, and to offer none himself, it seems that it is usual for the argument to cease with the reply of his counsel to the argument of the prosecuting officer,” is incorrect, It does not discriminate between the prosecution at the instance of a private individual, and a public prosecution by the officer of the government. In the latter, the opening and the reply in the argument belong to the State Attorney.

II. On a motion for a new trial, the defendant offered one of the petit jurors as a witness, to impeach the verdict rendered in the cause ; and also to prove that the charge of the District Judge had been misunderstood by the jury. Objection being made to the competency of the witness, the same was sustained.

A juror cannot be heard to impeach the verdict which he has rendered. State v. Caldwell. 3 An. 435 ; State v. Brette, 6 An. 653. He is not allowed to prove the misconduct of his fellow-jurors, nor to show that they erred in the formation of their verdict, either by disregarding or misconstruing the charge of the Judge. In both cases, the object of introducing the testimony is to impeach the verdict; and that renders the witness incompetent. State v. White et als, 13 An. 573.

III. The motion in arrest of judgment is based upon the allegation, “ that the record does not show the finding of the Grand Jury; that the indictment was never legally filed ; and that no order for the arrest of the accused was ever made.”

Upon an inspection of the record, we find the following entry : “ The Grand Jury came into court, and presented the following bill of indictment, to-wit: State of Louisiana v. Pleasant Mulligan, — Indicted for burning a crib of corn.” Then follows the bill of indictment, with the endorsement on the back : “A true bill. — • Jesse Womach, foreman ” This document is endorsed also : Riled January 17th, 1860 — J. A. Dixon, clerk.” The court has acted upon this indictment, which was docketed as No. 92 of the Criminal Docket of the District Court of that parish.

The defendant’s couusel contends, that the record should show on its face, not that a bill of indictment was presented by the Grand Jury, but that they preferred a true bill. This informality, if informality there be in this case, cannot bo urged in arrest of judgment. No defect of form, as well in the proceedings as in the indictment, howsoever apparent on the face of the papers, will be a good ground for a motion in arrest of judgment. See the case of the State v. D. Swift et al., 14 An. 828. These remarks dispose also of the objection with regard to the arrest of the party.

IV. It is assigned as an error in the indictment, that there is no law punishing the offence of willfully or maliciously setting fire to, and burning a crib of corn. The 3d section of the Act approved March 18,1858, is in point. Sess. Acts, p. 212.

Judgment affirmed.


author: Land, J.

text:
    James H. Barbie v. Police Jury of Avoyelles.

      B. contracted with the Police Jury of the parish of Avoyelles for the establishment of a public road from a certain point in the parish to his landing on Red River, for the purpose of carrying on the receiving and forwarding business — Held: That the private.interest of B. was a sufficient consideration for the agreement on his part, and the incidental public advantage to the parish authorized the action of the Police Jury in the establishment of the road as a public highway.
    Where an act, authorized by law, gives rise to damage, it is danmum absque injuria.

    APPEAL from the District Court of the Parish of Avoyelles, Cullom, J.

      F. P. Hitchborn, for plaintiff'and appellant.

      Irion, for defendant.
   Land, J.

A public road was established by order of the defendant, the Police Jury, from a certain coulee near the town of Marksville to the plaintiff’s landing on Red River in the parish of Avoyelles, upon an understanding with the plaintiff, that the road should never be of any expense to the parish, in its construction or repairs.

The plaintiff, at the time, intended to engage'in. the receiving and forwarding business, at his landing, and for the purpose of increasing his business, constructed at his own expense on the line of the public road, levees and bridges across the swamp situated between his premises and the high land.

The Police Jury, afterwards, caused a bridge to be erected over a stream called the Bayou Rouge, which enabled and induced certain inhabitants of the parish, (who had not done so previously) to travel over the road made by plaintiff.

Eor the use thus made of the road, in consequence of the erection of the bridge over the Bayou Rouge, this suit was instituted to recover damages from the parish, on the grounds that the establishment of the road did not divest plaintiff’s title to the land over which it was made; nor his right and title to the road itself.

It is alleged in defendant’s answer that, “The said Barbin pledged himself to the Police Jury, that he would bear all the expenses of making and keeping the said road in repair, and that it should never cost the parish anything.” And the plaintiff admits in his argument or brief, that “the Police Jury accepted the same as a public road with the distinct understanding, as alleged in their answer, that said road should never be any expense to the parish.”

This understanding was a contract between plaintiff and defendant and cannot be revoked unless by mutual consent of the parties, or for causes acknowledged by law. And it waived all right on the part of the plaintiff, to compensation either for his laud, or for his labor in the construction or repair of the levees and bridges on the line of the road.

The private interest of plaintiff was a sufficient consideration for the agreement on his part, and the incidental public advantage authorized the action of the Police Jury in the establishment of the road as a public highway.

The only act of the Police. Jury, complained of, is the construction of the bridge over the Bayou Rouge; but this act was authorized by law, and did not therefore give any cause of action to plaintiff' for damage sustained in consequence thereof. The damage, if any, was damnum absque injuria. Bennett v. City of New Orleans, 14 An. p. 120.

It is, therefore, ordered, adjudged and decreed, that the judgment be_affirmed with costs.


author: Duffel, J.

text:
    Wm. B. Hyman v. L. Bailey et als.
    A vendor who is not; hound in warranty is a competent witness to testify in a case where the title of property sold by him is involved.
    Where a power of attorney authorizes an agent to sell, but is silent as to the right of acquiring property, a purchase by tho agent exceeds his delegated powers, and may he repudiated by the principal.
    APPEAL from tho District Court of the Parish of Rapides, Cullom, J.

      W. B., T.C.& E. T. Lewis and J. E. Elgee, for plaintiff. Ryan <& Or shorn, for defendant and appellant.
   Duffel, J.

This cause was, by this court, remanded to the lower court, for further proceedings. See 13 An. 450. And the judgment on the second trial having decreed the title of the property to be in the plaintiff, the defendants appealed.

The refusal of the District Judge to allow the call in warranty of Waters and Hughes, was proper, under one of the causes sustaining a similar ruling, when the case was first before us, to-wit: that Waters, in his sale, expressly limited his warranty to his own acts, and those claiming under him; Hughes, the vendor of Waters, stands in the same light, having likewise sold without warranty. And, as Waters is not bound in warranty in the present form of action, he is not incompetent to testify, on the score of interest.

The District Judge did not err in refusing to charge the jury that, “If they were satisfied, from the evideuce, that the sale from the plaintiff, Bailey, to Hughes, was accompanied with delivery and hona fide possession by the said buyer, Hughes, the validity of said transfer, though made in fraud of his creditors, could not be tested by the seizure of Bailey's creditors, but that they must resort to the revocatory action, or action of simulation.” Such a charge was calculated to mislead the jury; for the real question submitted to the jury was the reality of the title of M. Maillon, the vendee of Waters.

The conclusion to which we have arrived, on the merits, does not require us to pass on the other bill of exception.

We will now proceed to examine the case on its merits.

The plaintiff can only succeed in this action by proving simulation; as otherwise the apparent title is in the estate of M. Maillon, f. w. c.

The property in controversy was sold by Littleton Bailey to J. J. Hughes on the 3d December, 1840, who sold on the 26th June, 1847, to W. Waters, Jr.i who, on the 14th of May, 1853, sold to Merrich Maillon, through her special attorney in fact, Littleton Bailey ; this last sale was for $5000, represented in two notes of $2500 each, made by the agent, and payable at one and two years. The power of attorney to L. Bailey was executed on the 5th of March, 1851, and it authorizes the agent to sell all her property, real and personal, lands and slaves, but is silent as to the right of acquiring property and signing notes. We have already stated, that Hughes and Waters made a simple conveyance of their right, title and interest.

The parties in all the above recited conveyances, dispensed with the certificate of mortgages required by law; and it appears from the certificate of mortgages which is in the record, that mortgages forming- in the aggregate a large amount, have, at various dates from 1840 inclusive, been recorded against L. Bailey.

We also see L. Bailey pledging, by public act bearing date the 29th of March’ 1855, to a commercial house in New Orleans, his future crops of cotton and corn, revenues and rents, to secure to them $1,273 24 then due by him for advances made to Mm for the purpose of carrying on and maintaining his property or plantation of Rock Island (the very land in controversy) Rigolet Bon Dieu, in the parish of Rapides, &c.,” as also to secure the payment of all sums which may be hereafter advanced to him.

The witness, J. N. Lewis, the father-in-law of L. Bailey, “ was the first occupant of the land, went on it in the spring of 1846, it was a perfect wilderness.” He considered that he was living on the land of Hughes, remained there until the 1st of January, 1853; never paid rent to Hughes and Waters; the crops of the two last years were 50 to 60 bales. “ The ci-ops made while witness was there were divided, witness taking half; the crops were shipped to DeGruy & Co. under the mark B. L. signifying Bailey & Lewis, the crops sold by the merchants and proceeds applied one-half to witness, and the other half to whomever entitled to it.”

The testimony of Waters, when taken together, is such as to convince us that he never considered himself as the.owner of the land, but simply as holding the same for L. Bailey.

This witness, in answer to the 3d interrogatory, says: “As well as I recollect, L. Bailey asked me a short time before the transfer of the land was made to me, if I could accept of the transfer under the conditions which it was afterwards conveyed to me; to which I think my reply wa's, that I had no particular objection, having been on the property before the transfer was made to me. I think Bailey and myself were on the property the fall before it was conveyed to me; our business there was to look at several mill seats, one or two of which Bailey pointed out as being on the land in question. Bailey and myself had several conversations at various times after the transfer of the land to me, the substance of which will be given in answer to the different interrogatories propounded after this, as well as I can recollect them.”

The witness having been asked, interrogatory 4, “ If there was not an express, ■was there not a tacit understanding between you and Bailey, that you were to hold the land for him, but of course to be saved harmless upon the notes you gave ?”

(We will here remark, that Waters had given, as a consideration of the price of the land, his two notes forming in the aggregate $4,800.)

He answered as follows :

“ There was a mere verbal understanding- between Bailey and myself to that effect, at the time the land was conveyed to me. The title to the land was then pending between Hickman and Bailey; and some six or eight months after the land had been transferred to me, from some remarks that P. L. Hickman made to me, I applied to L. Bailey, supposing he either held my notes, or knew where they were. To which he informed me that he had them. I then informed him that I was somewhat fearful about the title to the land, and that I wished some guarantee against the payment of my notes, in case the title to the land should be lost; to which Bailey informed me he had my notes in his possession, and that he would give me any guarantee that I required, he, Bailey, appearing to be perfectly satisfied about the title to said land. Accordingly, there was written on the back of each of my notes, to convey the meaning,, that in case the title to the land should prove worthless, then my notes were to be void, otherwise to remain in force against me.”

Answer to the fifth interrogatory : I did not purchase the property with the view that it would result to my benefit; but owing to the condition under which I accepted of the conveyance, the land was all that I had to secure me against the payment of my notes.”

This witness also states, that he was only twice on the land, once before and once after the sale to him; that he took up his notes by giving in exchange those of his vendee; the exchange was made with Bailey; does not recollect of ever having been called on to pay his notes; L. Bailey proposed the transfer to M. Maillon, to which he consented on condition that he or she would return to him his notes; does not recollect having had any conversation with M. Maillon about the matter; Bailey attended to the whole matter from beginning to end.

Prom the above exposition of the facts, it cannot be well doubted that the title of Waters was the title of Bailey, in fact, that Waters held the land for Littleton Bailey; and it now remains to be seen if the sale from Waters to Maillon was a bona fide, or a simulated transaction.

The evidence is conclusive, that M. Maillon was the concubine of L. Bailey ; that they lived together up to the date of the marriage of Bailey, in June, 1852, (Jf. Maillon died in November, 1853). It is true that Maillon moved on the land after the conveyance from Waters, and took her slaves with her; yet we see Bailey visiting the place as he was wont to do before. The father oí Mrs. Bailey says that on the day of her marriage, Bailey, as agent of Maillon, executed in her favor “ a deed of some Mnd.” The fact is, apart from the loose declarations made by Maillon to two of the witnesses examined in the case, we have no evidence of an acceptance by Merrick Maillon of the sale made without authority to her agent; and had the transaction been a fair and bona fide one, the heirs could successfully, even now, repudiate the sale and refuse to pay the notes furnished by the agent, on the ground that he had exceeded his delegated powers. C. C. Arts. 2966, 2990.

Viewing the case in all its parts, we conclude that Maillon never acquired a title to the land, and that it was legally seized and sold as the property of Little-ton Bailey.

Jndgment affirmed.


author: Buchanan, J. Buchanan, J.

text:
    H. T. Mabry v. J. L. Tally.
    The Act of 1839, amending Article 275 of the Code of Practice, which establishes the cases in which a sequestration may be ordered, forms part and parcel of that Article, and the legal effect of the amendment is the same as if the Article were reenacted, with the words of the amendatory Act inserted in its text.
    The decision in the case of Wells v. St. Dizier re-affirmed, to the effect that, an affidavit for a sequestration embracing several of the alternatives of Article 275 of the Code of Practice, as amended, is sufficient in law.
    The addition, in such an affidavit, of another of the legal alternatives contained in the Article, will not vary the principle.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.

      T. C. Manning, for plaintiff and appellant.

      Hyman <& Cazabat, for defendant.
   Buchanan, J.

This is an appeal from an interlocutory judgment of dismissal of a writ of sequestration, upon grounds which are identical with those in the case of Wells v. St. Dizier, 9 An. 119.

Upon the authority of that caso, the affidavit for sequestration in the present one must be held sufficient in law. It will be remarked, that although there was a division of opinion among the Judges in Wells v. St. Dizier, upon a question of admissibility of evidence, there was none in relation to the sufficiency of the affidavit for sequestration.

Judgment reversed ; writ of sequestration reinstated, and cause remanded for further proceedings; defendant and appellee to pay costs of appeal.

Same Case — Os a Re-iieaking.

Buchanan, J.

Defendant’s petition for re-hearing admits that the decision herein rendered would be correct, were the affidavit for sequestration here the same as that in the case of Wells v. St. Dizier, 9 An. 119, upon the authority of which the present case was decided.

But he distinguishes between the two cases, because the affidavit in the present case contains an alternative not presented by that in Wells v. St. Bizier, to-wit: that defendant will send the property claimed out of the jurisdiction of the court, pending the suit.

The difference then consists, in the present affidavit being more comprehensive than that in Wells v. St. Dizier. That affidavit embraced the three alternatives of the Act of 20th March, 1839, amending Article 275 of the Code of Practice. The present affidavit embraces those three alternatives, and, in addition, one of those which are expressed in the original Article 275 of the Code, as a good basis for sequestration.

Now, the Act of 20th March, 1839, says, that Article 275 should be so amended that, in addition to the cases therein mentioned, a sequestration may be ordered in three other cases specified. The argument of counsel is, that the affidavit now made is neither an affidavit under Article 275, nor yet an affidavit under the Act of 20th March, 1839,

In our judgment, the Act of 1839 is part and parcel, of the Article 275 ; and the legal effect of the amendment is the same as if the Article were reenacted, with the words of the amendatory Act inserted in its text.

The sufficiency of an affidavit for a sequestration, embracing several of the alternatives of Article 275, as amended, was settled affirmatively in the case of Wells v. St. Dizier. That decision seems to have overruled the case of Ranaldson v. Hamilton, 5 An. 204. The addition, in this affidavit, of another of the legal alternatives in the Article contained, does not vary the principle, nor make this case different from Wells v. St. Dizier. This affidavit contains all that was contained in that one, and something more. ■

Ve are aware that there are other decisions, besides that of Ranaldson v. Hamilton, which are inconsistent with the decision in Wells v. St. Dizier; but we prefer to abide by the doctrine of the last named case, as being, in our opinion, more in conformity to the letter of the Code of Practice.

Re-hearing refused.


text:
    Taylor, Hadden & Co. v. Silas F. Pearce.
    Iii au hypothecary action to enforce a judicial mortgage, the certificate of the Recorder, that the judgment has been recorded in Ins office, has the same effect as evidence, when drawn up on a duly certified copy of the judgment, as it would have on a separate and distinct paper.
    The Recorder’s certificate is onlj*- prima facie evidence of the facts stated in it, and if untrue, may be contradicted by proof.
    The right of action given by Art. 69 of the Code of Practice to the mortgage creditor against the third possessor of the mortgaged property, depends, first, on the giving of notice to the third possessor, of the “ amicable demand,” and secondly, on the non-payment of the hypothecary debt by the third possessor, for the space of ten days, to be computed from the date of the service of the notice. Those two conditions must he accomplished, before a right of action can be completely vested in a mortgage creditor against the third possessor ; and, consequently, any action instituted against the third possessor prior to the expiration of the ten days delay, is premature, and subject to legal exceptions.
    The law has not mado it the duty of Sheriffs to serve notices of amicable'demand in hypothecary actions, and however convenient the practice may bo, he acts in such cases as a private individual, and must be called as a witness to prove his acts, and cannot certify to them in his official capacity for the purposes of evidence.
    APPEAL from tlio District Court of the Parish of Rapides, CuMom, J.

      Canfield, for plaintiff.

      Ihjman <& Cuzabat, for defendant and appellant.
   Land, J.

This is an hypothecary action to enforce a judicial mortgage on a certain plantation and slaves in the possession of the defendant as third possessor of the mortgaged property.

The defendant is the appellant, and insists on the reversal of the judgment against him, on several points of law raised by his bills of exceptions in the lower court. Ho contends that the Judge a quo erred in permitting the plaintiffs to offer in evidence a copy of the judgment in their favor, certified by the Deputy Clerk of the District Court, with tlte certificate of the Recorder thereon, to the effect, that said judgment had been registered or recorded at a certain date, and in a certain book, in his ojjice.

This objection was not well taken. The Recorder had authority to certify the fact, that the judgment in favor of the plaintiffs had been recorded in his office; and his certificate of the fact, on a duly certified copy of the judgment by the District Clerk or his Deputy, had the same effect, as evidence, that it would have had on a separate and distinct paper. The Recorder’s certificate was only^rana facie evidence of the fact stated in it, and if untrue, the defendant had the opportunity and the privilege of contradicting it by proof. The Judge did not err in receiving the the certificate in evidence. Hanna v. His Creditors, 12 M. 32; Lafarge v. Morgan, 11 M. 462; Cannon v. Labarre, 13 La. 401; Sewell v. Hennen, 8 R. 216.

The defendant contends in the second place, that the ten days notice of the amicable demand mentioned in Art. 69 of the Code of Practice, should have preceded the commencement of suit, or the filing of the petition in the hypothecary action. This Article is in these words : If thirty days after the amicable demand, made from the debtor or his heirs, of the payment of an hypothecary debt, it has not been fully discharged, the creditor may bring his action against the third possessor of the property hypothecated to him, to have it seized and sold ; if that possessor have not, within the ten days, after having been notified of such a demand, paid the amount of the hypothecary debt, including the interest and costs.

The phraseology of this Article is not susceptible of two different constructions. The right of action which it gives to the mortgage' creditor against the third possessor of the mortgaged property, is .made to depend, first, on the giving of notice to the third possessor of tho “amicable demand," and secondly on the nonpayment of the hypothecary debt by the third possessor for the space or term of ten days to bo computed from the dale of the service of tho notice. These two conditions must be accomplished before' a right of action can be completely vested in a mortgage creditor against the third possessor of the hypothecated property, and consequently any action instituted agaiust the third possessor prior to the expiration of the ten days delay, would be premature, and subject to legal exceptions.

Although this point of law, is with tho defendant, yet tho evidence satisfied the District Judge,^.and .also satisfies us, that notice of the amicable demand, was given to the defendant, for more than ten days prior to tho institution of this action. The letter of the defendant is certainly an acknowledgement of the reoeipt of the notice written and sent to hiñí, by the plaintiff’s attorney. Both of these letters are in the record ; and the date and contents of the defendant’s reply can leave no reasonable doubt on the mind, of the fact that the notice had been received by him more than ten days before this suit was commenced.

It appears that notice of the amicable demand was also served in this case, by the Sheriff on the defendant; and the question has been elaborately argued by counsel, whether the Sheriff's return is sufficient and legal evidence of tho fact of service. The law has not made it the duty of Sheriffs, to serve notices of amicable demand in hypothecary actions, and however convenient the practice may be, he acts in such cases as a private individual, and must be called as a witness to prove his acts, and cannot certify to them in his official capacity, for the purposes of evidence.

For the reason stated, it is ordered, adjudged and decreed, that the judgment of the lower court be affirmed with costs.


author: Vooriiies, J.

text:
    State of Louisiana v. G. M. Branner et al.
    The Sixth District Court of the Parish of Orleans has no.jurisdiction in criminal matters, and is without authority to talco a bond from a prisoner, upon an application for a writ of habeas corpus, oven with the consent of the parties. Its jurisdiction is entirely civil, the whole criminal jurisdiction in tho Parish of Orleans being vested in tho First District Court,
    The State is not entitled to judgment on a bond, taken by tho Sixth District Court of Xew Orleans, in in a criminal proceeding.
    APPEAL from the District Court of tho Parish of Natchitoches, Chaplin, J.

      Chaplin, for plaintiff and appellant.

      Campbell, for defendants.
   Vooriiies, J.

The State is appellant from a judgment quashing a bail-bond subscribed by the defendants as principal and sureties.

G. M. Branner, was indicted for the commission of several offences in the Parish of Natchitoches. Being under arrest, he was admitted to bail on condition that he should furnish bond in the amount stated in tho decree, of the court. This, however, he failed to do; but he made his escape, and was afterwards arrested in the city of New Orleans.

An application was made, on his behalf, for a writ of habeas corpus, before the Sixth District Court of the Parish of Orleans.

Trial was had on this motion, and the Judge ordered the prisoner to be discharged from custody on giving bond in the sum of five thousand dollars, and on condition that he should appear before the District Court of the Parish of Natchitoches to answer to the charges there preferred against him.

This bond was duly furnished; and the question now presented is as to the validity of this instrument.

The Sixth District Court of the Parish of Orleans had no jurisdiction in the premises, ratione materia; and was without authority to take the bond, even with the consent of the parties. Its jurisdiction is entirely civil, the whole criminal jurisdiction, in that district, being vested in the First District Court. Acts 1855, p. 315, $$ 6, 11; State, ex rel. Cook, v. Keeper of Parish Prison, ante p. 347.

The District Judge properly refused to give judgment on the Dond furnished by the defendants in favor of the State.

It is, therefore, ordered and decreed, that the judgment of the District Court bo affirmed.


author: Buchanan, J.

text:
    William F. Smith v. Lambeth’s Executor et al.
    The commission .allowed .an executor does not constitute such an interest as disqualifies him from testifying on behalf of the estate which he represents.
    Parol evidence is admissible to establish simulation in a title to slaves.
    A party claiming title to property under a Sheriff's sale is permitted to introduce in evidence the record of the suit in which the fi. fa. issued, and in which the Sheriff’s sale to such party took placo 5 and the fact, that the Sheriff’s sale was not followed by registry, is not sufficient reason to exclude the record.
    Where a party brought suit to recover slaves, claimed to have been purchased by the defendant at Sheriff's sale, from the same vendor under whom plaintiff claimed title, and plaintiff offered to prove the verbal statements-of the defendant, showing that ho (the defendant) had purchased these slaves for the contingent benefit of the seized debtor’s wife and children, or of the debtor himself — Held : That, as the introduction of such testimony would be an attempt to establish title to slaves by parol, and would also be foreign to the issue in the cause, it is, therefore, inadmissible.
    Whore notiee of title has been directly brought homo to a party, it supplies the placo of registry of that title ; and although this knowledge has not been directly brought homo to such party, it may he inferred from the circumstances of the case.
    APPEAL from the District Court of the Parish of Avoyelles, Cullum, J.

      Hyman & Caeabat and Barlow <& Waddill, for plaintiff and appellant.

      Cannon <& Irion and Manning, for defendant.
   Buchanan, J.

The plaintiff claims eight slaves in the possession of defendants, as his property, by virtue of a sale from Paul G. McNeely to him, of date the 2d day of October, 1858.

The answer of defendant, Pitts, acknowledges that he is in possession of the slaves claimed, as testamentary executor of Wm. M. Lambeth, deceased; and pleads that said slaves belong to the succession of said Lambeth, by virtue of a purchase made by said Lambeth at Sheriff’s sale, in execution of various judgments against Paul G. McNeely, on the 4th day of August, 1849.

The plaintiff relies upon the want of registry of this Sheriff’s sale. It appears that Lambeth paid the price of adjudication, and took a deed from the Sheriff, but that he neglected to have said deed recorded.

It is argued for defendants, that the plaintiff had knowledge of the previous forced alienation of McNeely’s property in the said slaves at the time he, plaintiff, purchased; and that such knowledge dispenses with registry of Lambeth’s title, so far as plaintiff is concerned.

It is further pleaded by defendant, in an amended answer, that plaintiff’s title is a simulation, and solely intended to give him an apparent right to institute this action:

On the trial of these issues, the plaintiff and appellant took the following bills of exceptions to rulings of the court:

1. The testamentary executor was put upon the stand as a witness, and his competency was objected to, on the ground of interest. It has been repeatedly ruled, that the commission allowed an executor does not constitute such an interest as disqualifies him from testifying on behalf óf the estate which he represents.

2. It was further objected to this witness, and to two other witnesses for defendants, that parol evidence was inadmissible to vary or contradict a written instrument.

There is nothing in this objection. The witnesses Tanner and Robert testified as to the simulation of plaintiff’s title.

3. Plaintiff objected to the introduction of the records of the suits against McNeely, in which the ft. fas. issued, and in which the sale by the Sheriff to Lambeth took place.

The ground, óf this objection seems to be, that the Sheriff’s sale was not followed by registry. That is no reason for excluding the records. They iyere good proof as far as they went.

4. Plaintiff offered to prove verbal statements by Lambeth, showing that he, Lambeth, had purchased these slaves for the contingent benefit of McNeely’s wife and children, or of McNeely himself. This testimony seems to have been properly excluded on two grounds : 1st, that it was an attempt to establish a title to slaves by parol; and 2d, because it was foreign to the issue in this cause.

Upon the evidence, we agree with the District Judge that plaintiff has failed to establish a title to the slaves claimed by him. 'Notice of Lambeth’s title has not been directly brought home to plaintiff; which, under the decision in Swan v. Moore, 14 An., would have supplied the place of registry of .that title. But there is strong reason to infer knowledge of ,the Sheriff’s sale on the part of plaintiff, from the circumstances attending the sale from McNeely to plaintiff, as disclosed in the record. It is made apparent, that that sale was a simulation; that it was understood between the parties, that Neely was to have the slaves, when recovered in this action; and that the plaintiff, as compensation for his trouble, was to have the hire of the slaves which might be recovered of Lambeth’s estate. It is difficult to suppose a reason for the anxiety of the parties to this arrangement, to put the apparent title of the slaves out of McNeely and in plaintiff, unless it was intended to take advantage of the want of registry of the Sheriff’s deed to Lambeth, which necessarily would imply a knowledge of that deed in the parties to the arrangement. At all events, it is certain that McNeely knew of the Sheriff’s sale in question; and, under the peculiar circumstances just alluded to, McNeely’s knowledge may be viewed as the knowledge of plaintiff'. Millaudon v. Sylvestre, 8 La. 262.

Lambeth is proved to have given and signed a paper in the nature of a counter-letter, which possibly may be advantageous to the wife and children of McNeely, in connection with these slaves. But this plaintiff has no quality to represent those parties, who are not before us.

Judgment affirmed, with costs.


text:
    State of Louisiana v. William Simon.
    Evidence of the voluntary confession, made by a prisoner to the officer having him in. liis legal custody, is admissible.
    All confessions made by a prisoner, except when they have been obtained by duress or through ^ inducements or promises, aro legitimate evidence, whether made to private individuals or to persons in authority. Such is the common law rule, and even our statutes provide that the voluntary declaration of the accused before the committing magistrate, is evidence.
    APPEAL from the District Oourt of the Parish of Natchitoches, Chaplin, J.

      C. Chaplin, for the State.
    P. A. Morse, for defendant and appellant.
   Voorhies, J.

The prisoner being sentenced by the court to imprisonment for life in the State Prison, for the the crime of murder, took an appeal.

The only ground of complaint which he urges, as invalidating the verdict of the jury, is the reception in evidence of his declarations or confession to the witness James Collins.

The bill of exception states that James Collins “and three others had the prisoner in charge to bring him to the Parish Jail as aforesaid; that witness was detailed as special officer to conduct him to jail, and that witness and one of the other persons so conducting him, were armed; and that witness’s arms were exposed ; to the introduction of which said testimony the prisoner, by his counsel, objected as being inadmissible evidence, which said objection was overruled by the court for the following reason, viz: That no threats or menaces were made by the witness to the prisoner,' — no inducement offered to him to make this statement, — that he was not in duress but in the legal custody of the witness, — and that the answers of the prisoner to the questions of the witness were entirely voluntary on his part.”

The question of law presented for adjudication, under the above bill of exceptions, is as to the admissibility in evidence of the voluntary confession made by a prisoner to the officer having him in his legal custody. There can be no doubt upon this point: the statement should go to the jury. All confessions made by the prisoner, except when they have been obtained by duress or through inducements or promises, are legitimate evidence, whether made to private individuals, or to persons in authority. Such is the common law rule. Even our statutes provide that the voluntary declaration of the accused before the committing magistrate, is evidence. Archibold Cr. Pl. 128 ; Greenleaf’s Evid., g 222 ; State v. George, 15 An. 146.

Judgment affirmed.


author: Voorhies, J. Merrick, O. J.

text:
    Margaret C. Decuir, Wife, &c., v. Ovide Lejeune et al.

    Where, by the marriage contract, the present and future property of the wife is constituted dotal, property belonging to successions devolving upon the wife as heir, after the marriage, will be regarded as the dotal property of the wife.
    Where the husband purchased tho dotal property of the wife under an administrator’s sale, made for the ostensible purpose of paying debts of the succession to which the wife was heir, but with the real intention of divesting tho property of its dotal character, so as to remove the obstacle of dealing in regard to it with third persons — Held: That it was a simulation, and that the adjudication to the husband was an absolute nullity.
    Where a party denies under oath, that a plea Hied in his name by an attorney was filed with his, authority, and the allegation is borne out by tho proof, tho act of the attorney is not binding. ^

    An obligation which is absolutely null is not susceptible of confirmation or ratification ; a new obliga-j tion to be substituted for it is necessary ; and where the obligation is susceptible of confirmation or ratification, it is requisite that the acts relied on as being in confirmation or execution of the defective obligation, should have had in view and have been intended to supply the defects in tho obligation which would render it null.
    With regard to confirmatory acts containing an express ratification, and the voluntary execution importing a tacit ratification, the rules are tho same so far as tho substance is concerned; there is difference only respecting the burden of proof.
    The wifo who is divorced from her husband, and takes no stops to accept the community within tho legal delays, is presumed to have renounced it.
    APPEAL from the District Court of the Parish of Pointe Haralson, J.

      R. N. C. Roselius and Ed. Phillips, for plaintiffs and appellants.

      T. J. & W. H. Cooley and H. M. Spofford, for defendants.

       This case was omitted from the New Orleans cases and is reported in connection with the decision at Alexandria as to the execution of the judgment.

   Voorhies, J.

The plaintiff, Marguerite C. Decuir, the divorced wife of Ovide Lejeune, sues the latter for a share in the community of acquets and gains, and for the restitution of her dotal estate.

The parties were married in May, 1842. By the marriage contract, the present and future property of the wife was constituted dotal.

Madeleine Lacour, the plaintiff’s mother, died in the year 1847, and her father, Jean B. Decuir, died two years afterward. Their successions comprised a large sugar plantation, with seventy-five slaves.

The spouses took possession of the respective estates without form of law : the whole property in question, consequently, assumed the dotal character.

The debts due did not exceed the sum of fourteen thousand dollars, — an amount comparatively small, if previous crops are'taken ás a criterion.

Ovide Lejeune was anxious to -pay these debts. In a petition drawn up by C. Poydras, Esq., then a practising attorney, the plaintiff, with the authorization and assistance of her husband, applied for the sale of a tract of land unconnected with the main plantation, for the purpose of relieving the dotal estate of this encumbrance. No action, however, was taken upon this petition, which pursued the course poinied out by law in such cases. The views of Ovide Lejeune were different, or had undergone a change. For the purpose of divesting the property of its dotal character, which was an obstacle in dealing with third persons, he had recourse to another plan. — -Mortuary proceedings were had in the succession of J. B. Decuir, deceased; no mention being made of the estate of Madeleine Lacour, deceased; an inventory was made of all the property, an administrator appointed, and a cash sale made oí the whole property in block, slaves, movables and immovables, the whole being- adjudicated to Ovide Lejeune. A tableau of classification and distribution filed by the administrator was duly homologated, and subsequently a formal discharge given by the spouses to the administrator.

But, as shown by the evidence in the record, this whole administration was a simulation, resorted to for the purpose of divesting this property of its dotal feature. Ovide Lejeune had caused J. D. Lacour to be appointed administrator of the estate of J. B. Decuir, deceased. Lacour acted as such in appearance; but he did not receive one dollar of the price of adjudication of the plantation, amounting to $75,000 ; he paid no debts; he did not receive, nor did he claim the payment of the sum of $1,880 charged on the tableau as his commission, although deducted in striking out the balance of the paraphernal rights of the plaintiff.

The whole administration was a fiction, the object of these mortuary proceedings being- to divest the property of the dotal character. Was this object accomplished ? The property of dotal immovables, says the Godo, can never be transferred to the husband, even by express agreement.” C. C. 2335, 2337. The adjudication to Ovide Lejeune was an absolute nullity, and gave him merely a nominal title; the property remained the dotal property of his wife, M. C. Decuir,, as if no mortuary proceedings had ever taken placo. C. C. 2336, 2340.

Two or three years elapsed. The spouses, although living under the same roof, had ceased to cohabit as man and wife. Lejeune kept a colored concubine in the neighborhood of his residence, publicly and notoriously. In the meantime, he was prosecuted for having- feloniously shot one Solomon Beach; and, on that occasion, as in the present suit, he labored to prove an improper intimacy between Beach and Marguerite C. Decuir. We are at a loss to understand why the scandal of the past is now evoked, since the only question presented for adjudication is one of property.

Lejeune sued his wife for a divorce, on the alleged ground of adultery. The papers were served upon the former, the latter being at the time absent from the house where they resided. A judgment by default was entered upon this informal citation, and the suit subsequently dismisssed. After the lapse of three years, Lejeune again sued his wile, but then only for a separation from bed and board, on the ground of abandonment.

An answer was filed for Marguerite C. Decuir by the attorney who had instituted the suit in behalf of the plaintiff. It admitted that she had withdrawn herself from the common dwelling, but averred that she did so because her husband there kept his concubine. In reconvention, she claimed several slaves as her dotal property, and a blank sum as her paraphernal rights in the estate of her father, J. B. Decuir, deceased. She further renounced the community of acquets and gains. Lejeune’s answer to the reconventional demand recognized her claim for paraphernal funds, and specified the amount or balance, which, ultimately, was taken as a basis of the judgment. This judgment was rendered in her favor ; it decreed the divorce, and awarded to her her dotal and her paraphernal rights as claimed and admitted in the pleadings. Immediately followed notarial acts in execution of this judgment.

The defendant, Lejeune, contends that, conceding- the nullity of his original title, the plaintiff, Decuir, has precluded herself by these voluntary acts of confirmation and ratification. The latter joins issue upon this point, and alleges that she was prevailed upon by fraud and collusion to act as she did, and that she labored all the while under grave errors of law and fact.

It is not amiss to enquire into the consequences of a judgment which would preclude the plaintiff’s demand in rovendication of her dotal property.

When Ovicle Lejeune and Marguerite C. Decuir started in life, nearly the whole property belonged to her; indeed, his separate-property was in comparison a trifle. After the lapse of a few years, the marriage is dissolved ; and, upon a liquidation of the right of the spouses, the whole estate is absorbed by the husband, who, in exchange, executes his individual notes in favor of the wife for a sum averaging less than a third of the value of her property, — -and these notes payable in several instalments, and secured by an unrecorded mortgage!

Such a result is a spoliation, unless the plaintiff has knowingly and willingly made a sacrifice of her rights; and, before fastening this loss upon her, it is but natural that the court should require cogent evidence as to a voluntary execution on her part, within the intendment of the Oivil Code.

The only ground upon which the plaintiff can be cast in her demand for the restitution of her dower, is that of confirmation or ratification, express or implied, on her part, since the dissolution of the marriage. It is evident, that no acts of the wife previous to that event, can have that effect: indeed, these are obnoxious to the same objections which invalidate the original obligation. Besides, the power of the spouses to contract with 'each o'ther is limited to certain matters having no affinity with the present case. 0. 0. 2421.

With regard to the answer filed in the divorce suit, it is proper to state that, in the present action, she denies, under oath, having authorized the insertion of a reconveutional demand relative to her dotal and paraphernal rights. This allegation is borne out by the record. Her counsel, on that occasion, conceived that he was authorized to act as he did in that respect, bat was mistaken in the conclusions which he drew from her conversation upon this subject. At all events, he should not have appeared at all on her behalf, having instituted the suit as counsel for the plaintiff. The consent of the latter had to be obtained for the purpose of enabling the counsel thus to change his position. The counsel who thereupon succeeded him to represent Lejeune were given to understand that there was no real diffculty in the litigation, but that it was in the nature of an amicable suit to settle the rights of the spouses. ■

Apart from these considerations, the pleadings and judgment in the divorce suit of Ovide Lejeune v. M. C. Decuir, and the notarial acts in execution of this judgment, do not in law amount to an express or tacit ratification of the former’s title to the latter’s dotal property.

Under the provisions of Art 2252 of the Oivil Code, which are identical with Art. 1338 of the Napoleon Code, there are several requisites to a binding confirmation or ratification.

1. There must be1 an obligation susceptible of ratification.

2. In the act of confirmation, the substance of the invalid obligation must be given.

3. Mention must be made of the motive of the action of nullity or rescission, and of the intention of supplying the defect, on which that action may be founded.

4. There must be a confirmation, ratification, or voluntary execution in due form.

On the subject of obligations susceptible of ratification, Marcadé says : “ Ratiher ou confirmer une obligation, c’est effacer le vice clont elle élait atteinte, en renongant a invoquen la cause d’annulation que 1’on pouvait faire valoir contre elle. Toute ratification est done impossible pour une obligation proprement nulle : sans doute, on peut créer une obligation nouvelle et efficace pour la substituer a celle qui n’avait qu’une existence apparente, mais on ne peut pas valider celle-ci; car le néant ne peut pas plus étre confirmé qu’il ne peut étre détruit: quod nullum est confirman nequit." Vol. 5, p. 344. For instance, a simulated sale cannot be the object of ratification : there is nothing to ratify. The act of confirmation or ratification is obnoxious to the same objection as the apparent obligation; and if there be subsequently the exchange of a price for the property, it is not an act of confirmation or ratification, but, properly speaking, the substitution of an original obligation. “ Mais on ne peut confirmer les engagements dont la loi ne reconnait pas l’existence, ceux qui n’ont point de cause, ou qui n’en ont qu’une fausse ou illicite.” Boileux & Poncelet Com., Art. 1338, C. N.

When the obligation may be confirmed or ratified, it is requisite that the acts, which are pointed out as being in confirmation or execution of the defective obligation, have in view and be intended to supply the very defect which strikes it with nullity. Upon this point, our law is in unison with the French jurisprudence, as interpreted by the courts and by learned commentators. Journal du Palais, décrets du 21 mars, 1812, — du 5 décembre, 1826, — et du 15 novembre, 1831; Cour de Cassation, 25 mars 1806 ; Oour de Turin, 4 mars, 1806, 26 mai, 1801.

With regard to the confirmatory acts, containing an express ratification, and the voluntary execution, importing a tacit ratification, the rules are the same, so far as the substance is concerned; but there is a material difference respecting the burden of proof. In the latter, the debtor or obligor is bound to administer proof that he was not aware of the defect in question ; whilst, in the former, the confirmative act must show this of itself. C. C. 2252 ; Marcade, vol. 5, p. 344.

Now to the facts, upon which bears the law, as above elucidated.

The title of Ovide Lejeune to the plaintiff’s dotal property, is, to say the least, an adjudication void for simulation, and, therefore, unsusceptible of ratification or confirmation. Admitting, however, that it might have been ratified, the acts pointed out do not amount to a valid ratification of the illegal alienation of the plaintiff’s dotal property. Far from being intended to cover the vice or defect of illegal translation of dotal property to the husband, the pleadings and judgment in the divorce suit, as well as the notarial acts in execution, positively ignore the existence of this vice or defect, The answer in reconvention speaks of paraphernal rights, — the notarial acts follow the judgment in this respect, — in the whole of the proceedings, not a word is uttered with reference to Lejeune’s want of a valid title, and still less of the defects invalidating his pretended title, — and, finally, the evidence shows that it was but shortly before the institution of the present action, the plaintiff became aware of the simulated title of her husband to her dotal property. The proceedings, judgment and authentic acts upon which the defendant relies, far from establishing the fact of ratification, prove that the parties did not contemplate to repair the defects invalidating the defendant’s apparent title of ownership. Indeed, up to the present time, the defendant strenuously contends that his title is valid ab mitio!

The objection, that the plaintiff has not offered to reinstate the defendant in the position he occupied before the settlement made by the notarial acts, is not a serious one, under the views above expressed. She has tendered back all the notes in her possession, and has failed to tender back but a comparatively small amount. But he is in the possession of her plantation, and, when the revenues of her property will be accounted for, he will have an opportunity to obtain redress, if he has been injured in this respect.

With regard to the claim for a share in the community, the plaintiff has no cause of action. Being a divorced wife, she is, by her inaction during' the legal delays, presumed to have renounced. C. C. 2382, 2104; Marcade, vol. 5, p. 597; 12 An. 76, Audrich v. Lamothe.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; that the plaintiff,. Marguerite C. Decuir, do have judgment against the defendant, Ovide Lejeune for the dotal property derived from the successions of J. B. Decuir, deceased, and Magdeleine Lacour, deceased ; and that this case be remanded for farther proceedings, in accordance with the views expressed in the foregoing opinion.

It is further ordered and decreed, that the appellee pay the costs of appeal.

Merrick, O. J.

My impression of the effect of the judgment in the divorce case, and of the two notarial acts passed subsequently thereto, and receipt of the notes, and collection of a part thereof, is different from the conclusions of my colleagues, but I do not wish to enter a formal dissent.


text:
    The State, on the relation of M. C. Levy and Husband v. A. Bondy, Clerk of the District Court of Pointe Coupee, for a Mandamus.
    WhQre the proper mode of executing a judgment is by a writ of possession, there is no necessity for mentioning in the decree, that such a writ shall issue.
    The difficulty of executing a judgmont, bocanso of uncertainty in the decree, is no concern of the Clerk 5 his duty is to issue the writ in the manner pointed out by law.
    In executing a writ of possession, the Sheriff is bound to consult the petition and the reasons for judgment, if necessary to explain what is uncertain in the decree ; aud he will be responsible in damages to the plaintiff, if he neglect or refuse to execute the judgment, if practicable with those explanations.
    ON an application for a mandamus to the Clerk of tho District Court of the
    Parish of Pointe Coupee.

      Phillips and Mann & Augustin, for relator-A. Bondy, in pro. per., defendant.
   Buchanan, J.

The relator asks for the interposition of the authority of this court, to compel the Clerk of the District Court to issue a writ of possession, in execution of the decree of this court.

The answer of the Clerk is, in substance, that the issuance of such a writ is no part of the decree; and moreover, that the writ is impracticable, for want of a description, in the decree, of the property recovered by plaintiff of defendant.

I. By the decree, the plaintiff, Marguerite C. Decuir, had judgment against defendant, Ovide Lejeune, for the dotal property derived from the successions of J. B. Decuir, deceased, and Madeline Lacour, deceased. The proper mode of executing this judgment was by writ of possession. C. P. 630, 631. There was no more necessity of mentioning in the decree, that a writ of possession should issue, than there would be to decree a fieri facias in a judgment for a sum of money. C. P. 628.

II. The difficulty of executing the judgment by reason of uncertainty in the decree, even supposing such difficulty to exist, was no concern of the Clerk. His duty was, to issue the writ in the manner pointed out by the Articles of the Code of Practice above quoted, 630 and 631.

In executing the writ of possession, the Sheriff will be bound to consult the petition and the reasons for judgment, if necessary to explain what is uncertain in the decree, and will be responsible in damages to plaintiff; if he neglect or refuse to execute the judgment, if practicable with those explanations. Williams v. Kelso, 1 La. 106 ; Melancon v. Duhamel, 3 N. S. 7.

It appears to us that the Clerk has, in this case, raised an issue with which he had no concern; and our decision of which would not bo binding upon parties really interested.

Let a peremptory mandamus issue, as prayed for, at the costs of the defendant in this proceeding, Alcide Bondy.


author: Land, J.'

text:
    H. Kendall Carter & Co. v. John N. Lewis et al.
    Facts slated ia an affidavit for a writ of sequestration are, by legal presumption, taken prima facie as true, on the oath of the affiant, until the contrary is shown by sufficient proof.
    In a suit between parties with reference to tho title to land and slaves, where the agent of the plaintiff sequestorod the property upon his own affidavit, and the defendant moved to dissolve the writ of sequestration, upon the ground that tho agent was without authority to take that proceeding — Held: That an authorization from the plaintiff to his agent to get possession of the property, although tho defendant should object to giving it up, cannot be presumed to mean that the agent should take possession by force and violence, but on the contrary, by process of law, and is sufficient, therefore, to authorize the agent to make tho affidavit and executo the bond in order to obtain the writ of sequestration.
    New grounds for the dissolution of a writ of sequestration cannot be made, on appeal, in the Supremo Court, especially when there has been no formal written assignment of errors.
    APPEAL from the District Court of the Parish of Eapides, Cullom, J.

      W. B., J. C. & E. T. Lewis and Orsborn, for plaintiff and appellant.

      Hyman S Cazabat, for defendant.
   Land, J.'

The plaintiffs instituted this suit for the recovery of a plantation, and a certain number of slaves, together with the fruits and revenues of the same. They subsequently filed a supplemental petition, and for the causes therein set forth, prayed for the issue of a writ of sequestration. The writ was granted, and the plantation, slaves and then growing crops of cotton and corn, were sequestered by the Sheriff.

The defendants filed a motion to dissolve the writ of sequestration, on the following grounds :

1. That the grounds of apprehension are not specified, or mentioned in the affidavit, and even in the petition, as required by law.

2. That the allegations and facts sworn to are untrue, and have no existence.

3. That there is no evidence that the affiant, Wm. G. Yarborough, is and was, at the time he made the affidavit, the agent of petitioners, and was without authority to proceed.

I. The grounds of apprehension stated in the supplemental petition for the writ of sequestration, arc, first, in respect to the slaves, that the plaintiffs “ have reason to fear, and do fear, that the said John N. and John H. Lewis will send said slaves out of the jurisdiction of the court during the pendency of said suit,” and, in reference to the land, that “ the said John N. & John H. Lewis will make use of their possession to convert the fruits, corn and cotton produced by said plantatioh and slaves, during the present year, 1859, to their own use.”

The causes set forth in the affidavit for the sequestration are substantially, if not identically, in the same language with those used in the petition, and must be taken to be set forth with sufficient certainty, because they are stated in the words of Art. 275 of the Code of Practice, prescribing the causes for which the writ of sequestration may be obtained iu.suits of this character.

II. The defendants offered no evidence to disprove the facts stated in the affidavit, and they are, by legal presumption, prima facie true, on the oath of the affiant, until the contrary is shown by sufficient proof.

III. The third ground is, that Win. G. Yarbrough, who made the affidavit, was not the agent of the plaintiffs at the time, and was without authority to act in their name and on their behalf in suing out the writ of sequestration. The evidence is clear, that he was at that time the agent of the plaintiffs; but the question is, whether his powers were sufficiently special to authorize him to make the affidavit, and thereby to bind the plaintiffs for the legal consequences of his act in suing out the process of sequestration. The evidence of his powers, as attorney in fact, is a letter written by the plaintiffs to him on the subject of the property now in controversy. This letter, after referring to a matter of compromise or agreement between the plaintiffs and defendants, in relation to the property in dispute, proceeds to give the following instructions to Yarbrough, the agent: “ You will give your whole attention to this matter until dosed after commencing, and see Mr. Lewis moved off, and place Mr. N. Griffin in possession of the place to work the land : Noiu, should Mr. Lewis object to giving up possession of all the negroes, then you will take possession of all the negroes, and give no chance for dodging at all. Go fully prepared to carry this thing through.”

The plaintiffs, in their letter of instructions to their agent, evidently contemplated a non-compliance on the part of the defendants, with the terms of the compromise or agreement referred to, and not only authorized their agent, in that event, to proceed in their name and on their behalf, but directed him how to proceed, that is to say, to take possession of all the slaves.

We cannot presume that the plaintiffs intended that their attorney in fact should take possession of the slaves by force and violence, but on the contrary, by process of law ; that is to say, to take such steps as would secure to the plaintiffs the possession of the slaves at the end of the litigation with the defendants, which they at the time anticipated, on the happening of the event of non-compliance mentioned in their letter. These instructions delegated to the attorney powers sufficiently specific to make the affidavit, and to execute bond in order to obtain the conservatory process of sequestration sued out in this case, and the defendants have, consequently, all the security for indemnity provided by law, in case it should be determined that the writ was wrongfully obtained; and, on this ground, have no cause of complaint.

The defendants’ counsel have argued other grounds for dissolving the writ, than those sjjocially made in the motion filed in the lower court; but new points cannot be made on appeal, in this court, especially when there has boon no formal written assignment of errors.

For the reasons stated, it is ordered,- adjudged and decreed, that the judgment of the lower court be reversed ; and it is now ordered, adjudged and decreed, that the writ of sequestration sued out in this case be reinstated, and that this ease be remanded for further proceedings according to law, and that defendants p&y the costs of this appeal.


text:
    James Stevens v. Marcus Walker.
    Public places within the limits of a corporation cannot bo appropriated to private use, and individual corporators, as well as the officers of the corporation, have the right to prevent such appropriation, and to sue for the demolition and removal of buildings erected on them by individuals.
    Where a party, with the sanction of the Mayor and Common Council of the Town of Franklin, erected a wharf and warehouse upou the banks of the Bayou Teche, in front of a public square — Held; That such improvements were authorized by the Act of 1857, entitled “An Act authorizing front proprietors on tho Bayou Teche to erect wharves and warehouses upon the forty feet from the bayou, which are dedicated to public use.”
    This Act of 1857 is not unconstitutional. It does not confer unlimited power upon the municipal authorities to transfer the public property, to the exclusive use and control of individuals. The erection of the wharves and warehouses therein authorized must be subservient to commerce; otherwise the privilege is abused, and the courts will grant the public the adequate remody.
    APPEAL from the District Court of the Parish of Pt. Mary, Simon, J.

      J. W. Walker, for plaintiff.

      J. O. Olivier, for defendant and appellant.
   Voorhies, J.

The plaintiff contends, that the wharf and warehouse put up by the defendant on the banks of the Bayou Teche, in the town of Franklin, are nuisances, the abatement of which any citizen has the right to demand. The legal proposition here assumed is undoubtedly correct; for, said the court in the case of Herbert v. Benson, “ it has been so píten and so uniformly held by the former Supreme Court, that public places within the limits of a corporation cannot be appropriated to private use, and that individual corporators, as well as the officers of the corporation, have the right to prevent such appropriation, and to sue for the demolition and removal of buildings erected on them by individuals, that the question can no longer be considered, an open one.” 2 An. 770.

But tlie question in the case under consideration is, whether the banks of the river have been appropriated to private use, to the detriment of the public.

The statute of 1857 entitled “An Act authorizing front proprietors on the Bayou Teche to erect wharves and warehouses upon the forty feet from the bayou, which are dedicated to public use,” provides : “ That within the limits of incorporated towns, the Mayor and a majority of the Town Council of said town may authorize the construction of wharves, warehouses and other building's in front of all public squares that may be bounded by the bayou ; and all wharves, warehouses, or other buildings, which may have been erected with the consent of the Mayor and a majority of the members of the Town Council of any incorporate town, may remain where built, upon such terms as may have been agreed upon between the lessees and Mayor and Town Council.” Session Acts, p. 132 sec. 3.

The defendant’s wharf and warehouse are situated upon the banks of the Bayou Teche, and, in the rear, lie adjacent to a public square. So that this Act covers these improvements, the same having received the sanction of the Mayor and of the Common Council of the town of Franklin.

The constitutionality of this statute is assailed on the ground that the vested rights of the public are divested without an adequate compensation previously paid. If the effect of this legislation was to defeat the rights of the public by a transfer of the public property to the exclusive use and control of private individuals, the position assumed by the plaintiff would not be without force. But the statute is susceptible of a different construction, and does not, in our opinion, confer such unlimited powers upon the municipal authorities. The erection of these wharves and buildings, instead of being detrimental, must necessarily be subservient to commerce; otherwise the privilege is abused, and the courts will grant the public the adequate remedy.

The evidence on record establishes conclusively, that the works of the defendant, far from being a nuisance, are highly convenient and advantageous to commerce and navigation; that great facilities are extended to steamboats, vessels and other crafts, free from expense or contribution ; that consignees of goods and merchandise in the town of Franklin, and of planters generally, are benefited alike by the warehouse, as well as by the wharf, without additional charges; that the same facilities and benefit are extended to shippers; and that passengers and travellers reap alike advantages. On the other hand, it is not pretended that any one has been injured or incommoded in the least, unless it be the speculative loss which some merchants in the neighborhood fancy they experience, from the fact that the defendant’s business is made more prosperous on account of the position he occupies. But surely this is not a tost by which to determine whether these works are or not a public nuisance. Nor do we, under the circumstances of this case, attach much importance to the fact, that the defendant keeps a dry-goods store in his warehouse, when it is shown that nothing would be made by putting an end to this branch of his industry.

We are at a loss to understand how w.orks so useful to the whole community, and which prove detrimental or inconvenient to no one in particular, can be assailed as a nuisance.

There is no foundation for the plaintiff’s demand.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff’s demand be rejected with costs in both courts.


text:
    Mary G. Smith, Administratrix, v. F. E. Conrad, Widow, et al.
    The true consideration of a contract may always be questioned by one who was not a party to it, and who has an interest in showiug that the consideration expressed was not the true one ; and if such third party offers one who was a party to the Act, to make such proof, the objection that this witness was a party, goes to his credibility, and not to the competency of bis evidence.
    A fund deposited by the principal debtor with one of two co-sureties, as collateral security, should onuro to the honofit, proportionally, of the other co-surety.
    In a suit to recovor money paid in error, the plaintiff is entitled to five per cent, interest from judicial domand.
    APPEAL from the District Court of the Parish of St. Mary, Simon, /.
    J. A. McClarty and /. W. Walicer, for plaintiff.

      C. M. Conrad and T. 11-Lewis, for defendants and appellants.
   Buchanan, J.

this is an action to recover back money paid in error. Smith and Harding, both deceased, and whose estates are represented respectively by plaintiff and defendant, were co-sureties on the bond given by B. R. Gantt, as Receiver of Public Moneys, to the United States.

Gantt proved to be-a defaulter, and judgment was entered up against him and his sureties, Smith and Harding, in solido, for the sum of $21,605 27, in the United States Court in New Orleans, in March, 1846. Harding afterwards paid this judgment, less a sum which was released by Act of Congress; and, after payment made, called upon the estate of his deceased co-surety, Smith, for contribution. He received from plaintiff, administratrix of Smith, on the 1st of March, 1856, seven thousand dollars in full of Smith’s proportion (one-half) of the amount paid by him (Harding) to the Government. '

The receipt of Harding to the administratrix reads as follows :

Having sold a portion of the lands transferred to me by Benjamin R. Gantt for more than they cost me, and wishing that difference in the price to enure to the benefit of B. R. Gantt, I have consented to receive from the estate of James Smith, deceased, joint security with me on his bond as Receiver of Public Moneys, the sum of seveD thousand dollars in lieu and stead of ten thousand one hundred and sixty-eight dollars and forty-one cents, amount paid by me for said Smith, joint security ; and acknowledge the same as received this day from Mary G. Smith, administratrix, in full satisfaction of all claims or demands against the estate of said James Smith, deceased.”

The petition of plaintiff alleges, that at the time Harding called upon her for contribution, and received the amount above stated, he (Harding) was in possession of moneys paid him on account by Gantt, the principal in the bond, and lands conveyed to him by said Gantt, in the aggregate far exceeding the amount which was due the United States, and paid by Harding as one of Gantt’s sureties ; that, consequently, the payment of $1000 was made by plaintiff in error, and she is entitled to restitution at the hands of Harding’s widow and heirs, the defendants.

Plaintiff had judgment, and defendants appeal. The appellee joins in the appeal, asking that the judgment be amended, by allowing interest at the rate of eight per cent, from the 1st of March, 1856, instead of five per cent, from judicial demand.

The only question that the case presents is a bill of exceptions taken by defendants to the admission of the evidence of Benjamin R. Gantt and Elbert Gantt, taken under commission. These depositions were offered to prove that the true consideration of a certain mortgage granted by B. R. Gantt to Harding, and of a certain sale by Elbert Gantt to the same, was the security of Harding against his liability as B. R. Gantt’s surety on his bond of Receiver of Public Moneys, and not the consideration expressed on the face of those instruments, namely : money lent for the mortgage, and price paid in cash for the sale.

The admissibility of these depositions was objected to, 1st, because the witnesses could not be allowed to impeach or contradict the authentic acts, to which they were respectively parties ; 2d, because B. R. Gantt was interested ; 3d, because fraud or simulation had not been pleaded by plaintiff at the time the commissions issued to examine these witnesses.

I. The true consideration of a contract may always be questioned by one who was not a party to it, and who has an interest in showing that the consideration expressed was not the true one; and if such third party offer one who was a party to the act to make such proof, the objection goes to the credibility of the witness, and not to his competency.

II. Benjamin R. Gantt is not interested in the event of this suit.

III. The original petition in the cause expressly charged the consideration of the mortgage of B. R. Gantt, and of the sale of E. Gantt, to have been, as enquired of in the interrogatories propounded to those witnesses; although the am.end.ed petition, charging simulation in those instruments, was not indeed filed until long after the commission issued. But the evidence sought was responsive to the averments of the original pleas of plaintiff.

On the proof made, the plaintiff is entitled to relief. There is no doubt in our minds, that, the lands conveyed by Elbert Gantt were intended by the parties to have been sold by Harding, as trustee, for Benjamin Gantt, subject to the extinguishment of Harding’s liability as Gantt’s surety. Not only is this directly proved by the two Gantts, but it is strongly corroborated by the very terms of Harding’s receipt to plaintiff; which deducts upwards of three thousand dollars from Smith’s proportion of liability as profits on proceeds of sales already made, of the lands conveyed to him by Benjamin R. Gantt, and which, says the receipt, I wish to enure to the benefit of B. R. Gantt.

Another circumstance worthy of note is the price (about two dollars per acre,) nominally paid for these lands by Harding, which is proved to have been about one-fifth of their market value, or less, at that time, 1847. The value of those lands is proved to have increased greatly between the date of the receipt of Harding and the institution of this suit; aud large sales are proved to have been made.

The fund deposited by the principal debtor with one of two sureties, as collateral security, should enure to the benefit, proportionally, of the other co-surety.

As the defendant has refused to render an account of the avails of this trust fund, although called upon to do so, we think the proof justifies the conclusion that enough may have been realized out of the 2616 acres of land conveyed by Elbert Gantt, to cover the entire disbursements made.by Harding in the premises. The rate and the term of interest have been correctly stated by the District Judge.

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


text:
    Felicia Dugas, Wife, et als. v. Alphonse J. Gilbeau.
    A married woman who is a minor, when duly assisted and authorized by her husband, as also any minor, who is duly represented by his tutor, is competent to stand in judgment in an action against the admimistrator of a succession, to set aside as absolutely null and void, the adjudication of property to himself while acting in the doable capacity of auctioneer and administrator.
    Curators, administrators, &c., are expressly prohibited from purchasing, directly or indirectly, property administered by them.
    The only exception to the prohibition is the one in favor of the surviving partner in community, or ordinary partnership, or an heir or legatee of the deceased.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J

      Simon & Gary, for plaintiffs.

      Deblanc & Fusilier, for defendant and appellant.
   Duffel, J.

The present action is instituted for the purpose of setting aside, as absolutely null and void, the adjudication of certain landed property, slaves and movables, made to himself by the defendant, who acted in the double capacity of auctioneer and administrator.

It is objected by the defendant that the plaintiffs cannot stand in judgment for the revendication and partition of the property in controversy, because they are both minors; and as to the merits, the defendant contends that, his wife being an heir, it was competent for him to become a purchaser, as head of the community, in as much as she herself could buy at such a sale, for account of the community.

The District Judge decreed the nullity of the adjudication, and ordered the rc-sale, according to law, of the same property j the defendant appealed.

The main object of this suit is for the revendication of the property held by the defendant under the adjudication complained of, and, as a sequence, the re-sale of the same, under the original proceedings provoked by the defendant himself.

The wife being duly assisted and authorized by her husband, and the other minor duly represented by his tutor, the action was properly instituted. O. P. Arts. 106,10”, 108.- The Article 1235 of the Civil Code is an exception to the general rule and has no application to the case at bar.

Curators, administrators, &c., are expressly prohibited from purchasing, directly or indirectly, property administered by them, under pain of nullity. C. C. 1139, 1042, 1784; Balwin's Ex’r. v. Carleton, 15 L. 397; Neda v. Fontenot, 2 An. 782 ; Michoud v. Girod Curtis, 16 p. 193. The only exception to this prohibition is the one in favor of the l!surviving partner in community, or ordinary partnership, or an heir or legatee of the deceased.” Acts of 1855, p. 79, § 8. And as the defendant is not within the exception, he was incapacitated. The opinion which we entertain on this point, dispenses us from expressing any opinion as to the incapacity of an auctioneer, in any case, to become a purchaser.

Judgment affirmed.


author: Dueeel, J.

text:
    Joseph Sullice v Hilaire Gradenigo.
    The curator of an estate, as third representative of the creditors, has the right to attack a sale of property made by the deceased, as being simulated, where the succession would bo insolvent if such property is abstracted from the mass.
    The revocatory action may be instituted by a syndic, or administrator, without regard to tlio date or origin of the claims of the creditors.
    Where the vendor remains in possession under a clauso in the contract of sale, tho vendee, in order to recover the property, must rebut tho presumption of simulation, by establishing the reality of the transaction.
    APPEAL from the District Court of the Parish of St. Martin, Simon, J.

      Deblanc <& Fusilier, for plaintiff and appellant. Simon & Gary, for defendant.
   Dueeel, J.

The plaintiff seeks to recover from the succession of Joseph Francois Machet, certain landed property and movable effects, inventoried as belonging-to the deceased, but which the plaintiff claims as his own, under a contract of sale, bearing date 4lh May, 1858. This sale was made by Machet to the plaintiff, for the sum of $1200, in deduction whereof tho vendee gave in payment two notes of the vendor, dated 27th December, 1856, and secured by mortgage on the laud in question ; the mortgage was executed on the 27th December, 1856. The two notes amounted, with the addition of the interest due thereon, to $82114, and for the balance of the price the vendee assumed the payment of a debt due by the vendor to Balthazard Berard. By a clause of the contract the vendor reserved to himself the right of redemption, up to the 1st of January, 1860 ; and by another clause it was stipulated that the vendor would, as the employee and workman of the vendee, continue in the possession of the property, for the purpose of continuing the same line of business, to-wit, that of tanner, for account of the vendee, for stipulated wages.

The defence is, that tho above sale was a simulated and fraudulant transaction, made in fraud of creditors.

The District Judge annulled the sale, decreed to the plaintiff the hides and leather inventoried as the property of the deceased, and reserved to the plaintiff the right' to urge against the succession any claim for money which he may have.

The plaintiff appealed, and the appellee, in his answer, asks the reversal of that part of the judgment which is in favor of the appellant.

The evidence shows that, by deducting the property claimed, the succession would be insolvent, and this being the case, the curator, as the representative of the creditors of the deceased, has the undoubted right to set up the plea of simulation, Judson’s Administrator v. Connolly et al., 5 An. 400.

We will also assume that, under the authority of the case of James Davis v. Isaac Stern, 15 An. 177, a syndic, or administrator of an insolvent succession, may likewise institute the revocatory action, without regard to the date or origin of the claims of tho creditors.

The vendor having retained, under a clause of the contract of sale, possession of the property conveyed, the vendee must, in order to recover, establish the reality of the transaction to rebut the presumption of simulation. C. C. 2456, Michel Goutier v. Pierre Frederick Thomas, 4 Rob. 435.

The notes and mortgage executed on the 27th of December, 1856, by Machet, present nothing suspicious, as it is not pretended or shown that he had at the time other debts, and his indebtedness to Balthazard Berard is equally established; hence, the plaintiff has made proof of a good and valid consideration. The evidence is ample to the effect that the plaintiff supplied Machet with hides to carry on the trade, and that the claim of Berard was paid Out of the proceeds of the hides, &c. As to the reality of the sale, as understood by the parties themselves, their acts, conduct, and declarations, even their correspondence, are, on the whole, such as to leave on our minds the impression of a real contract.

If we take, in the absence of any other proof, the inventory, as the basis of the assets of Machet, it will be seen that at the date 'of the sale to the plaintiff, 4th May, 1858, he had sufficient means to pay all his debts.

Amount of the appraisement.................................. $2,937 00

Due plaintiff and Berard........................... $1,200 00

Josephine Sadon............................... 232 00

Michel Cicerón................................ 200 00

Colin Jubert.............................■..... 63 15

Joseph Berihot, on bonds and account, running from 1st March, 1857, to 1st November, 1859, $473 35, say for 14 months........................... 206 64

$1,901 79 $1,901 79

Excess....................................... $1,035 21

From the above view of the case, we conclude that the curator has failed to prove simulation or fraud.

It -is, therefore, ordered, that the judgment of the District Judge be reversed, and it is further ordered, adjudged and decreed, that the plaintiff do recover from the succession of Joseph Frangois Machet, the possession, as owner, of the tract of land, together with all the buildings and improvements thereon, as also the tan-yard, fixtures, dependencies, hides and leather, as the whole is more fully and amply described in the public inventory made on the 2'9th of September, 1859, and on file in this case.

It is further ordered, that the costs of both courts be paid by the succession.


author: Merrick, C. J.

text:
    William Irwin v. Scribner et al.
    Those who commit torts, or assist or encourage others in so doing, are bound in solido for the damages occasioned by the trespass.
    The release of one of several debtors in solido in. an obligation arising from a trespass, operates the extinguishment of the debt as to the remaining co-debtors, unless the creditor has expressly renewed his right against the other debtors in solido.

    from the District Court of the Parish of St. Landry, Martel, J.

      B. F. Linton, for plaintiff and appellant.

      Swayze & Moore, for defendant.
   Merrick, C. J.

This action is brought against five defendants, to recover five thousand dollars damages for a trespass upon the person of the plaintiff, and injury to a slave.

Sometime after the case was at issue, the following agreement was entered into between the plaintiff and two of the defendants, by their attorneys, viz :

Irwin v. Scribner et al. — No. 5951. In this case it is agreed that John Webb and Theodore II. Scribner are to pay each eighty dollars, their share of the costs accrued up to this date, and they are to pay this sum, whether there be judgment for or against defendant. And the plaintiff pledges himself, and hereby promises to exact no more than the aforesaid sum from said Webb and Scribner, under any circumstances; and should there be judgment against defendant for damages, plaintiff hereby remits all damages and additional costs which may be recovered against the said Webb and Scribner.”
“ It is not the intention of the parties to this agreement, to prejudice or favor the trial against the other defendants, but merely to fix the amount required of said Webb and Scribner, as all the defendants are supposed to be liable in solido.”

The money was paid by these two defendants, and an entry was made on the minutes of the court, dismissing the suit as to them.

The case having come on for trial, as to the other defendants, before a jury, after the testimony had been adduced, the defendants’ counsel moved the court to dismiss the suit, on the ground that the cause of action had been extinguished by the agreement. The case appears to have been contested in the lower court, as it has in this, on the question, what effect should be given to the agreement, without reference to the manner in which it has been presented.

The Act of 1844, p. 14, amended the English text of Article 2304 of the Civil Code, so as to make it correspond with the French text. Since that period, those who commit torts, or assist or encourage others in so doing, are bound in solido to make reparation to the person injured.

The discharge of one debtor in solido, in an obligation arising ex contractu, in general discharges all the co-obligors, for the reason that there is but one debt, although due by several; and hence, there can be but one satisfaction of the same. In this class of obligations, the Code has made an exception in the single case where the creditor, releasing one of his debtors, has expressly reserved his right against the other debtors in solido, and then he is obliged to credit the other co-debtors with the amount so remitted. C. C. 2199, 2157.

Under the civil law, the obligation of co-trespassers was in solido, and they were not allowed the benefit of division, nor any recourse against their coobligors. Whether this difference between solidary obligations arising ex contractu and ex delicto exists under our law, it is not necessary now to inquire; for, conceding that the Article 2199 C. C. is applicable to this case, there has not been that express reservation of the right of the plaintiff against the other debtors in solido required by the Article.

The contract fixes the amount required by Webb and Scribner. The other debtors in solido could not have been bound for more, otherwise they were not bound in solido. And the proof shows, that the debt has been paid by two of the obligors. See 2 An. 136.

Judgment affirmed.