text:
    No. 1,342.
    Prosper Crétien vs. E. W. Bienvenu, Testamentary Executor, Et al.
    1. A testamentary executor named in tlie will is not required to give bond, except on the demand of creditors or claimants, as provided by C. C. 1077.
    2. A bond filed by such executor in' absence of any law or order of court requiring it or of any demand to that effect by creditors or claimants, is a purely voluntary bond conferring no rights and creating no [obligations, except such as are clearly expressed by the tenor and terms thereof.
    3. Such an instrument filed without filling any of the blanks in a printed form of bond, expressing no date and no amount, naming no principal obligor and defining no principal obligation, and specifying no condition upon which tlie obligations of tlie sureties arise, imports no legal significance and if an absolute nullity.
    d. A judgment of the court rendered long after its filing, in a proceeding to which a person signing the bond was not a party, declaring the bond to bo good and valid and ordering blanks thereinto bo filled, is not binding on such party aud is, as to him, inoperative and void.
    5. His suit to have the bond declared a nullity and the judgment declared void and inoperative as to him, is not barred by the prescription of one year.
    A PEAL from tlie Twenty-First District Court, Parish of St. Martin. Mouton, J.

      T. D. Foster and W. J. Xhirke for Plaintiff and Appellee:
    1. It is sufficient that the prayer of the petition aslc that all defendants be cited. It is not necessary that they bo named in the prayer. It is sufficient if documents annexed to the petition indicate clearly who they are. 32 Ann. 561; 36 Ann. dd7.
    2. A security may ask that an administrator’s bond be declared to be of no effect; and in the same suit, in the alternative, pray that, in case the bond be held to be •valid, that new security he given, under Civil Code, Arts. 1673, 3069 and 3070. They are not inconsistent ideas.
    3. An executor’s bond, given when it is not required by the will nor by law, nor by any order of Court, and when no application has been made by creditors of tbe estate, is of no binding effect against the sureties. (Ilennen’s Digest, p. 1023-d), Ho. 6; 16 L. 173, 188; d.Ann. 373;, 7 Ann. 539; 2 L. 397.
    d. A bond of executor, whether given under a requirement of a will, of the law, or of an order of court or not, and which does not name the dato, nor the amount, nor the name of the principal, and which all signers have signed as sureties; which mentions no trust to which any principal has been appointed, nor the capacity in which any principal binds liimself, nor for what the signers bind themselves, nor the. capacity in which any principal is to receive any funds or administer a succession, nor the name of the deceased, nor for what administration they bind themselves, nor the legal conditions of such a bond, is null. (33 Aim, 421.)
    The blanks in a bond of an executor, given when not required by the will or by any law or order of court, and when no application has been presented by the creditors demanding a bond, under Civil Code, 1677, cannot be filed, and the bond is of no binding force. 12 Ann. 671; 4 Ann. 545; 15 Ann. 551; 12 Ann. 68.
    5. Any person interested as a security, may require an executor to furnish a new security every twelve months. C. C., 1673.
    6. Under Civil Code, 1673, 3069, 3070, the failure of the executor to file his annual accounts; his selling of goods and jiroperfy without authority of law, at private sale ; his payment , of debts without order of court, is sufficient ground on which to grant the security relief. The insolvency of the principal or of the sureties is also sufficient ground for that relief.
    7. A testamentary executor is not bound to give bond, unless the will requires it, or it be required by the creditors. C. 0.1677, 1678, 1679.
    8. A bond given in September. 1885, cannot be construed as having boon given in releronco to an order of court signed December 24th, 1886, and granted in suit filed only on December 9tli. 1886.

      Edward Simon for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Jno. E. O’ltourke died leaving a will in which E. W. Bienvenu was named executor. On August 26, 1884, the will was presented to the court and probated, and an order was entered appointing Bienvenu as testamentary executor, who duly qualified. The order did not require him to give bond nor did the law exact any bond except on the demand of creditors or claimants of specific property in the succession, and then only in a sum exceeding by one-fourtli the amount of said claims. C. O. 1677. No such demand had been made in the court by any creditors or claimants.

Nevertheless, on September 14th, 1885, the following document was filed in the succession:

Bond or Testamentary Executor.
State or Louisiana, Parish or St. Martin. )
Twenty-first Judicial District Court. )

Know all men by these presents: That we, Eugene W. Bienvenu, of the Parish of St. Martin, and Ed. Simon, Louis Condly, Prosper Chrétien and Numa Bienvenu, as sureties, are held and firmly hound unto A. V. Fournet, Clerk of the Twenty-first Judicial District Court, in and for the Parish of St. Martin, in the sum of..................dollars; for tlie payment thereof, well and truly to bo made, we bind ourselves, etc., this..........day of..................188..

The condition of the above obligation is such, that, whereas, the above bounden.............................has been appointed by the Court aforesaid......................

Now, therefore, if the said......................................... shall well and truly fulfill the duties incumbent on him................ ......................aforesaid, and shall account for and pay over all such sum and sums of money as shall come into his hands as........... aforesaid, then this obligation to be void; otherwise to remain in full force and effect.

(Signed) E. W. Bienvenue,

Ed. Simon,

Louis Condly,

Prosper Chretien,

Numa Bienvenu.

Signed in presence of

A. Y. Eournet, Clerk.

On this is endorsed, “ Received and Piled September 14th, 1885.”

On December 9th, 1885, certain creditors of the succession made application in a separate petition for an order, under C. C. 1677, requiring the executor to give security in favor of each of said creditors for an amount exceeding by one-fourth the amount of each separate claim.

This application was contested by the executor on the ground that he had already furnished a sufficient bond referring to the document copied above. After hearing and trial between the petitioners and the executor, the following'judgment was rendered :

“ It is ordered, adjudged and decreed that the bond of said defendant, E. W. Bienvenu, furnished by him as testamentary executor of the succession of the late Jno. P. O’Rouke, for the faithful discharge of his trust as such, and by him executed on the 14th September, 1885, leaving therein blanks to be filled up in the body, the same having been previously signed and executed by said testamentary executor and his sureties, JKd. Simon, Louis Condly, Prosper Chrétien and Numa Bienvenu, be and is hereby recognized as good and valid, and that said blanks be filled up, aoaordiiu/ io law, in the aggregate amount of the claims set forth in plaintiffs’ petition, excepting that of Mrs. Jno. P. O’Rouke, conditioned as the law directs.
“ Done, read and signed in open Court, this 24th day of December, 1886.
“[Signed] J. E. MOUTON,
“Judge.”

Prosper Chretien, one of the signers of said alleged bond, brings the present suit against the executor and the creditors in whose favor the foregoing judgment was rendered, in which he alleges the absolute nullity of said bond and the nullity of the said judgment in so far as it affects him, and avers that he is injured in his business and credit by said proceeding's, and asks for a judgment decreeing said bond and judgment to be nullities in so far as they purport to affect him. In the alternative he prays, on proper averments, for the relief authorized by Articles 1673, 3069 and 3070, by requiring the executor to furnish a new bond with solvent sureties.

Judgment was rendered rejecting the demand of nullity, but granting the alternative relief above-mentioned, from which both parties have appealed.

Disregarding plaintiff’s allegations as to the error and deception under which his signature to the instrument was obtained, as to which the evidence is conflicting, we cannot see how such a document can stand as a valid bond imposing any obligations whatever on the signers.

As wo have said, there was no order of court directing, and no law requiring the bond. Therefore, the principle which construes such instruments with reference to the order or law in pursuance of which they were made, supplying omissions and rejecting superfluities, has no application. This instrument must be treated as a purely voluntary bond, conferring no rights and creating no .obligations except sxrcli as are clearly expressed by the tenor and terms thereof.

It has, indeed, been held that “ one who gives his signature in blank is bound by the obligation subsequently written above it.” Breedlove vs. Johnson, 2 N. S. 517.

If the executor, before filing, had filled up the blanks in the bond, perhaps this principle might apply; but hero the blanks were not, and, in point of fact, have never been, filled up. The instrument stands with all its imperfections on its head,” as originally signed.

It contains no date and no amount; it names all the parties as sureties and mentions no principal obligor; it defines no principal obligation for the performance of which a principal, in any capacity, is bound, and on whose failure the sureties are to be responsible.

There is absolutely nothing defining or expressing any obligation whatever, and the instrument has no legal significance upon which any claim of obligation can rest.

Deficiencies less gross have been held to invalidate even judicial bonds. Succession of Walker, 32 Ann. 525; Rawle vs. Feltus, 33 Ann. 421; Succession of Calhoun, 35 Ann. 363.

We, therefore, consider it clear that this bond was a nullity and that plaintiff is entitled to liavo it so declared. He was not a party to the proceedings in which the judgment was rendered recognizing the validity of (he bond, and is, in no .manner, bound thereby.

As it purports to give validity to a bond to which his name is signed and to insert therein obligations which he never assumed, he is entitled to have it judicially declared that, as to him, said judgment in inoperative and void.

The judgment operates no estoppel as to him, nor is this an action of nullity to which the proscription of one year applies. It is not properly an action of nullity at all, but simply seeks a judicial declaration that the judgment is not operative as to him, who was not a party thereto.

Apart from its character as a judgment, and considered merely as an order of court in a succession proceeding, it is clearly without any warrant whatever. Where and how did plaintiff ever agree to bind himself for the particular amount of the claims of these creditors, as directed by the judge to be inserted in the bond 9

No demand for such security liad been presented by them at the date of the execution or filing of the bond; if there had been, non constat that lie would liavo signed. His obligation must result from the bond as filed and cannot be changed or added to by subsequent orders without bis consent.

In as much as both parties appeal, and as tlie judgment granting alternative relief was predicated solely on the rejection of the demand of nullity, the whole judgment must now he reversed, and a proper one rendered.

It is, therefore, ordered and decreed that the judgment appealed from he annulled, avoided and reversed; and it is now adjudged and decreed that there ho judgment in favor of plaintiff and against defendants declaring the instrument filed in the succession of O’Eonlco on September 14, 3885, and the judgment rendered in tlie suit No. 8858, on December 24, 1886, to be null, void and inoperative in so far as they effect the rights and obligations of plaintiff herein ; defendants to pay costs in the lower court and the costs of this appeal.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1,339.
    Charles A. McGowen vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    1. Railroad companies liavo tlie right to adopt reasonable regulations as to tlie method, of paying fares by passengers, and may discriminate between fares paid for tickets at stations and those paid in tlie cars.

      2. A regulation requiring passengers who hoard the cars without purchasing tickets to pay twenty-five ceets extra, is not unreasonable.
    3. A passenger who refuses to comply with such regulation may he lawfully ejected in a a proper manner and at a proper place.
    4. ^exempting from such regulation passengers who hoard the train at stations where tickets are not on sale, is just and does not invalidate the regulation as to other passengers.
    5. The fact that the company gives a draw-hack coupon for the extra fare on which the passenger may collect it hack from any agent at a station, does not affect the validity of the regulation.
    6. The regulation, being ancient and public, is presumed to he the act of the corporation, and the plaintiff has no right to question the fact or method of its adoption.
    APPEAL from the Twenty-first District Court, Paris of Iberia. Mouton, J.

      Ij. O. Hacker anil Foster <fi Mente for Plaintiff anil Appellee.

      I). Gaffery for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

There is no dispute as to the substantial facts of the case.

The suit is for damages for wrongful ejection of plaintiff from the cars of defendant on which lie was a passenger. Plaintiff, having failed to purchase a ticket at the station where he entered the car, tendered the conductor the regular rate of fare to his point of destination, which the conductor refused and'demanded twenty-five cents additional, and upon plaintiff’s refusal, he was ejected from the car. No serious complaint is made as to the manner or place of the ejection. These were civil and reasonable, unaccompanied by unnecessary violence. The question is as to the right of ejection itself.

The defendant company sets up as its justification, a regulation adopted by its management requiring passengers to procure tickets before boarding the train or, in default, to pay twenty-five cents extra, for which extra charge a drawback or duplex coupon was given, collectible from any agent at any station of the line.

This regulation had been in force for a number of years, and printed notices of it had been posted in every coach and in every office of the company.

We think it is no concern of plaintiff how the corporation acted in adopting this regulation. The corporation is shown to have published and acted on it for eight years, and it sanctions it by its pleading in this case. It must be treated as a regulation of the corporation, and the only question is as to its legality and reasonableness.

The question is by no means new. We consider it well settled that railroad companies have the right to adopt reasonable rules as to the method of paying fares by passengers, and to discriminate between fares paid in the cars and at stations, and to remove from the cars, in a proper manner and at a proper place, persons who refuse compliance with such regulations. Redfield vs. Railways, pp. 98, 112; Hutchinson on Carriers, p. 459; Thompson on Carriers, p. 341; Am. and Eng. R. R. Cases, p. 267.

Mr. Hutchinson says : “ It has been repeatedly held tha]b a regulation or by-law is not unreasonable which provides that when tickets are not procured before the commencement of the journey, which puts the company to the inconvenience of collecting from the passenger his fare during the progress of the journey, the price of this carriage shall be more than would have been charged for the ticket, and that upon refusal of the passenger to pay the higher fare, ho shall be ejected. And if adopted in good faith and with a view to facilitate the business of .the carriers, there can be certainly nothing unreasonable or unjust in such rules.” Hutchinson on Carriers, p. 459.

The reasonableness of ¿requiring passengers to procure tickets before entering the cars as saving the time and trouble of conductors in taking fares and making change, which would be almost impracticable where the travel was largo and the stoppages frequent, is certainly patent; and the enforcement of such requirements by regulations making it to the interest of .passengers to comply with them and recouping the company for the extra service imposed on the employees by neglecting them, is the only practicable method of enforcing them.

We think the regulation here involved is both uniform and reasonable. Counsel for plaintiff assails its propriety on several grounds:

1. That it requires the passenger to pay the same amount extra without regard to the amount of his regular faro. The inconvenience to the carrier resulting from the failure to buy a ticket is the same whether the distance travelled be long or short, and as this is the ground of the extra charge the uniformity seems eminently just.

2. He complains that the regulation is enforced as against passengers boarding the train at certain stations and not at others. But the only stations exempted are those at which there are no offices for the sale of tickets. What could be more just?

3. He says the extra amount is not properly an extra charge but a forced loan levied on the passenger. If the company would have the right to exact the extra fare, surely tlie passenger is not injured because it repays it to him.

4. lie says it is evident the regulation does not diminish the inconvenience occasioned to the conductor, but increases it, because, under it, not only has the conductor to make change, but he incurs the additional'trouble of furnishing the return coupon. This is true as to each particular ease, but the object and effect of the regulation is to diminish the number of cases, which it undoubtedly accomplishes.

We think plaintiff’s action has no legal foundation.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed; and it is now adjudged and decreed that there be judgment in favor of defendant and rejecting plaintiff’s demand at his cost in both courts.


author: Watkins, J.

text:
    No. 1,340.
    Clara Cochrane, Wife, vs. Pierre G. Gibert et als.
    3. When tlio title, possession and control of the claimant have all boon perfect and complej o, on thoiv face, the transaction cannot bo treated as such a pure simulation as to maintain a direct action. .¿Utter, in case the seller retains possession and control subsequent to the execution of the act of sale.
    2. An unrecorded lease has no effect with regard to third persons and creditors. It conveys no notice to them.
    3. When the thing remains in the corporeal possession of the seller, who is .supposed to act as owner to the injury of a third person, the rule, that the delivery of immovables accompanies their notarial transfer ceasos, and the sale is presumed to be simulated and fraudulent.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Coco, J.

      A. Harbin, JS. North Cuilom and Joffrion c0 Bordelon for Plaintiff and Appellant.

      T)arid Toclcl and J. G. Cappel for Defendants and Appellors.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiff is the wife of david Sciss, the judmeut debtor of the defendant, and complains that, under an execution of said judgment, the sheriff lias illegally taken, by the direction of tlio defendant, Gibert, into his possession and has advertised for sale in satisfaction thereof, a certain tract of land in the town of Mansura, and another tract of land adjacent thereto, with the buildings and appurtenances thereon, consisting of a cotton gin, steam engine, etc., which belong to her and is her separate, paraphernal property.

She avers that she purchased same with her own paraphernal funds, and it is not liable for said judgment against her husband, and she, therefore, enjoins the sale, and claims $250 special damages as counsel fees, with legal interest from judicial demand.

The defendant Gibert, for answer, denies all of plaintiff’s allegations and alleges that the whole of the property seized is the property of David Seiss, his judgment debtor, and liable to seizure and sale in satisfaction thereof.

I-Ie specially alleges that the sale of said property from David Seiss to Alonzo L. Boyer, for the sum of $2500, on January 16, 1880, and the conveyance of the same property from Alonzo L. Boyer to the plaintiff, on the 29th of December, 1886, for $2000, were simulations, and made for the sole purpose of shielding same from seizure, and of defrauding' the respondent. He further avers that at the time of said purported conveyances David Seiss was notoriously insolvent, and that fact was well known to said Boyer and the plaintiff. He also avers that they were without means to make either of said purchases, and that neither of them ever took possession of the property conveyed, but they simply confederated with his judgment debtor to defraud your respondent, and prevent the execution of his judgment against him — Seiss having continuously remained in possession.

Ho prays the dissolution of plaintiff’s injunction with cost.

During the pendency of the suit, the defendant, Gibert, departed this life, and, by proper proceedings, his legal representatives were made parties in his stead.

In an amended answer defendant made claim for special damages of $250, and an additional sum of $250 for attorneys’ fees; and also attacked as null and void the judgment of separation of property between plaintiff and her husband, on the ground that same was not duly and legally advertised, and because it was granted iñ violation of law.

Like judgment is asked against the sureties on plaintiff’s injunction bond as against the principal in solido, with legal interest.

I.

The defendant’s objections to the validity of the judgment of separation between plaintiff and her husband cannot avail, for two reasons: First, because the defendant only became a creditor of the husband since the judgment was rendered, and, therefore, he cannot contest it except for absolute nullities; second, because failure to advertise is not an absolute nullity. Brown & Larned vs. Smith, 40 Ann. 325.

This objection is without any force, as plaintiff’s was only a decree of separation, and for the purposes of this suit the plaintiff’s judgment must be given full force and effect. In this view she was capacitated to buy in her own paraphernal right, and free from the community of acquits and gains theretofore existing.

II.

The principal question for solution is the simulation vel non of the conveyances from David Seiss to A. L. Boyer in January'', 1886, and that of A. L. Boyer to the plaintiff, in December following. They are both squarely attacked, as fraudulent simulations, begotten of a conspiracy to defraud the defendant as the judgment creditor of plaintiff’s husband, a notoriously insolvent person. On this ground alone can a direct seizure of the property be defended and sustained.

It is precisely the same issue that was tendered in the case of Willis vs. Scott, 33 Ann. 1028, in which the court say, the plaintiff enjoins the seizure * * of immovable property which he claims as belonging to himself, and the seizing creditor defends by asserting that the title of the plaintiff is a fraudulent simulation, and that the property really belongs to the judgment debtor.”

In that case this court made a most careful examination into, and research of authorities on this question, and held that the true rule was that when a party held immovable property under proper conveyance, regular in form, and accompanied by possession of the property, the creditor of the vendor could not disregard such muniments of title, and make a direct seizure, but was remitted to a direct action — aliter if there had been no actual delivery of possession.

As being- of the latter class, this opinion enumerates: 1 B. 31; 5 Ann. 1; 668; 702 ; 6 Ann. 710; 7 Ann. 89; 10 Ann. 570; 15 Ann. 5, 53, 177; 19 Ann. 153; 29 Ann. 4; 2 Ann. 323, 912; 6 Ann. 716; 12 Ann. 173.

The court concludes with the just observation:

When the title, possession and control of the claimant have all been perfect and complete, on their face, it has never been held in any well considered case, that the transaction could be treated as such a pure simulation as to maintain a direct seizure.”

This is now the settled jurisprudence. Consequently it is of first importance for us to inquire whether the plaintiff and her author acquired perfect and complete possession and control of tlie property under their conveyances.

The theory of the plaintiff is twofold, in this respect, viz: 1. That A. L. Boyer leased the property to the plaintiff, immediately after his acquisition of it, and that she held the actual possession under it up to the date of his sale to her; and, second, that, as he resided in the vicinity of the property, the only tangible and actual possession lie could take was that effected through tenants and agents, as he had done.

In the record there appears a written contract of lease of this property from Boyer to the plaintiff for the year 188(1, at the price of $300, it bearing' date February 13, 1886; and on the 10th of March, 1886, the plaintiff gave to her husband a power of attorney, which conferred on him, full and complete control of her planting interests.

But the defendant’s attorney makes the point that the contract of lease was never recorded, and for that reason same is without effect as to third persons, and creditors, and operated no notice to him as seizing creditor.

It was so decided in Summers & Brannin vs. Clark, 30 Ann. 436, in which the court formulated the rule thus:

“ As the lease in this case was not recorded in the conveyance office, the question is not affected by the registry laws. ‘ All sales,, contracts and judgments affecting immovable property which shall not be so recorded, shall be utterly null and void, except between the parties thereto.’” C. C. 2266. See also C. C. 2264, which provides: “‘No notarial act concerning immovable property shall have any effect against third persons,’ unless recorded in the conveyance office. These are negatives pregnant with affirmatives to the effect that contracts ‘affecting’ or ‘concerning’ immovables (and therefore leases thereof) will have effect against third persons, if duly recorded; just as sales, mortgages, etc, effect them when recorded. * 8 But as wo have stated, the tenant, Boyd, holds under an unrecorded lease, and any payments of rent which he may have made, by anticipation to Clark, are without effect as against creditors, or subsequent purchasers of Clark.”

While it is true that the plaintiff did not hold x>ossession in 1886, under a lease from her husband, the judgment debtor of Gribort, but from Boyer as his vendee,'yet the effect of the non-registry of her lease from Boyer is of like character. '

Plaintiff offered it for the purpose of proving, not her possession — for at that time she was not owner — but the possession of Boyer, who claimed to be.

We hold that such a contract unrecorded did not serve to put the creditors of Seiss upon notice of Boyer’s possession and control of tlie property to which he had a conveyance. Such a contract could not have the effect of forcing defendant to a direct action of nullity.

On the other ground the evidence is clear to the effect that David Seiss never lost dominion or control of the property, but that same was at all times physically and really in his possession, and the plaintiff, and her vendor never had either dominion or possession.

Such being the result of this investigation, we are justified in holding that the defendant had the right to make a direct seizure of the property as that of David Seiss, his judgment debtor.

III.

The judgment debtor not having parted with possession of the property, it is necessary to determine, in the next place, on whom the burden of proof rests, whether on the plaintiff to discharge herself and her vendor from the defendant’s charge of simulation, or on the latter to satisfy the court of it by a fair preponderance of proof.

The Code provides that “in all cases when 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.” B. C. C. 2480.

Says the Code : “ That qiossession is called precarious which one enjoys by the leave of another; and during Ms pleasure.” B. C. C. 3556, No. 25.

The evidence leaves us to surmise whether the debtor, Seiss, “reserved to himself the usufruct ” of the property, or retained “ possession by a precarious title.” Nor is it absolutely necessary for us to decide that question; though wo are perfectly clear that Ms possession is of such a character as to require Mm to “produce proof that he is acting in good faith, and establish the reality of the sale.”

For it has been frequently held that “ when the thing remains in the corporeal possession of the seller, who is supposed to act as owner to the injury of a third person, the rule, that the delivery of immovables accompanies their notarial transfer, ceases; the sale is presumed simulated and fraudulent, and the creditors may attack it, so long as the corporeal possession continues.” 6 O. S. 418; 12 O. S. 254; 17 La. 353; 9 B. 272 ; 6 Ann. 280; I-Ien. Dig. p. 1341.

The propriety of such a rule of equity is obvious. In cases where insolvent persons make conveyances of real property, in the presence of' suits against them by their creditors, to persons who accept titles without taking possession, the inference is but a reasonable one that the vendor’s interest is the one that is uppermost in the transaction.

I-Iow has the plaintiff discharged the burden of proof that rested upon, her? In our opinion she has failed utterly. Notwithstanding the grave and serious charges that the defendant preferred against her and her vendor, neither has favored us with any proof of their bona fules, or of the payment of the price of sale, or of the reality of the transaction. As we did in King vs. Atkins, 33 Ann. 1064, we may ask the question here, “Why should both defendants fail to appear and testify to the verity of the sale and the payment of . the price, if they could truthfully swear to those simple facts and thereby put an end to litigation, involving, not only their means, but, to some extent, their reputations'?

“ Tiiese questions admit of no answer, acceptable to reason, except that if they had testified at all, their statements would not have sustained their defense.”

While Boyer has not been formally cited, he has been arraigned and his title assailed as fraudulent and simulated, and as a good citizen, and a gentleman of good business reputation, he was called upon to protect and defend the bona fieles of the title he had made to the plaintiff, and has not.

We must assume that it was out of Ms power to do so, and that defendants’ charges are true.

The judge eo quo correctly dissolved the plaintiff’s injunction at her cost; but we think it was error to allow the defendant damages. I-Iers is not an injunction against a judgment, but one restraining the sale of specific property as not belonging to the judgment debtor, but to the plaintiff. We must relegate defendant to an action on the plaintiff’s injunction bond for damages. Dejean vs. Hubert, 31 Ann. 729; Thompson vs. Lemelle, 32 Ann. 932; Verges vs. Gonzales, 33 Ann. 416.

It is’ therefore, ordered and decreed that the judgment appealed from be amended by dismissing, as of nonsuit, the defendants reconventional demand for damages, and as thus amended the same be affirmed, at appellee’s cost in this court.


author: McEnery, J.

text:
    No. 1,344.
    W. R. Burke, Testamentary Executor vs. J. C. Fuller.
    'When a settlement lias been made between partners during tlieir life time, and Hie executor of the deceased partner, sues for a settlement of the partnership [affairs, the settlement made during the life time of the partners, will be presumed to have included alliUiVeren-es betwoen them to the time of said settlement.

      Where repeated demands have been made on a surviving partner to settle and he fails to do so. and suit is brought for a settlement, the costs of suit will bo taxed and charged to partnership.
    APPEAL from tiro Twenty-first District Court, Parish of Iberia. Mouton, J.

      Jj. O. l-Iackev for Plaintiff and Appellant.

      Breaux cD lienaudet for Defendant and Appellee.
   The opinion of the Court was delivered by

McEnery, J.

James L. Burke and J. C. Puller formed a co-partnership to carry on the business of undertakers and dealers in furniture —Burke to furnish $1000, and Puller $2000. Burke died September 13, 1886. During his life time there were settlements between him and Iris partner, Puller, the last in June, 1886.

As the affairs of this partnership are to he learned from the acts of the irarties, it is presumed the last settlement included all the differences between them up to that time.

There must be clear proof of some omission of an item or items from tlie settlement to induce a disturbance of it. There is no such evidence in the record as would justify an interference with the settlement made between the partners during the life time of Burke.

Burke’s succession was opened and the value of the partnership effects fixed at $1745 39. The plaintiff in the present suit qualified as testamentary executor, and after repeated demands upon the surviving partner for a settlement and failing to procure one,'he instituted this suit accompanied by an injunction restraining. Puller from disposing of the partnership effects.

The record is voluminous, and the opinion of the district judge is clear and elaborate. We have noted the alleged errors pointed out by both plaintiff and defendant and have carefully considered them.

Briefly the account between the parties is as follows : Up to the date of his death Burke had received $145, and Puller “for furniture $138, and for the undertakers’ department $156. There had been paid out on the furniture department $83 68, and in the undertakers $141 39.

J. L. Burke and his executor received to July, 1888, $748, and Puller $496 70; total amount received on account of the business, $1246 20. The executor received in merchandise from the partnership $51, with which the succession of J. L. Burke must be charged. Nothing is duo Fuller for salary, as no agreement in the contract is proved for its payment, and the charge was not made during the lifetime of the deceased partner. The claim is unsupported by xiroof.

The partnershii) occirpied leased premises, and must be charged with the rent, as they have been used for the business of the partnership since the death of Burke. The amount of $50 x>aid to an expert bookkeeper, must also be allowed as a claim against the partnership, as the services inured to its benefit, and not to the exclusive benefit of the surviving partner.

J. L. Burke and Jacquot went security for the x»rrchase of a lot of furniture. There is no proof that it was not included in the settlement between the partners referred to.

The amount claimed for horse hire is not duo, but the storing of the hearses is sivpported by proof and should be allowed as was ordered by tlie judge.

The executor had frequently demanded a settlement of the partnership from the surviving partner, and failing to get one lie brought this suit. The partncrsliix) must hear costs of settlement.

Fuller has paid out since June 14, 1886, $449, which includes four months rent, and has also x*aid for insurance of partnership property $20. He has received in the business the sum $497 70. The inventoried value of the firm’s property is $1743 44. There was sold of this $537 44. The amount received by both parties is $1669 31, and the amount paid out is $1570 63.

We see no grounds for disturbing the judgment appealed from excex>t to amend it so as to charge the partnership with the amount of $50, which in the judgment is charged to Fuller. As thus amended the judgment is affirmed, tjie appellee to pay costs of appeal.


author: Poché, J.

text:
    No. 1,341.
    Edgar Marin vs. W. E. Satterfield.
    Tlie attorney in fact o£ a seizing creditor in a litigation has no right or authority in law to dispose, at private sale, and without any order of court, of the property of the seized debtor, ooming in his possession "by a release bond from judicial sequestration.
    3?or such an act lie is liable in damages, the measure of which is the value of the property thus sold. But iu the absence of malice no punitory damages will be allowed.
    Appeal from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Felix Voorhies for Plaintiff and Appellee.

      T. D. Foster for Defendant and Appellant:
    1. Assertions and opinions of witnesses, based on no circumstance or data, cannot bo considered nor accepted as pvoof of facts, nor of the existence of facts; they, thorefore, cannot form a criterion or guide as to the value of a tiling on which an estimate is placed. H. D. Hemjen’s Digest, page 559, XYI (d) 3, Ho. 8, and authorities cited. Especially is this true when it is shown that tlie witnesses woro entirely ignorant of the value of such things about which they were expressing an opinion.
    2. The opinion of two witnesses as to the value of cortain property for the purpose of showing that plaintiff has suffered damages in a certain amount is of no weight, when neither states any fact on which his opinion is based. 11E., p. 92.
    3. In an action for the recovery of actual damages, which presupposes some loss, the plain, tiff must establish the loss by preponderance of evidence, and the same must bo clear, certain and absolute. It is not sufficient to make it merely probable. Heunen’s Digest, p. 524. XIII, Hos. 1, 2, 3; 16 Ann. p. 121, Ibid 151; 21 Ann. p. 185; 15 Ann. p. 2G8; Ibid 447.
    4. When no injury or loss is shown to have been suffered by the act complained of, no damages can be awarded. It is damnum absque injuria.

    5. Only actual and direct loss can be considered in suits for the recovery of actual damages; and they can only be commensurate to tbo actual loss proven to havo boon suffered. 1 Howard, p. 35; 1 Ann. p. 375; Sedgwick, vol. 1, 7th ed., pp. 103 and 343.
    6. Ho vindictive or exemjdary damages are allowed, unless it is shown from the motive of the party and without probable cause that the intention was to injure, harass or oppress. 9th K., p. 94, bottom of page and authorities cited in brief.
    7. When the action is not sustained on the main charge, in the instant case, the value of the things and the actual damages, the matters of aggravation incidental to it, such as vindictive and exemplary damages, fall with it, even admitting the plaintiff was entitled to exemplary damages. Greenleaf, vol. 2. sec. 273.
    Attorney’s fees are not allowed in cases of this land. Sedgwick, vol. 1, 7th ed., pp. 45, 179,181; 35 Ann., p. 1018 and authorities referred to in brief.
   Tlie opinion of tlie Court was delivered by

Poché, J.

Plaintiff seeks to recover tlie value of certain movable property of Ms, illegally sold by the defendant while it was in his possession, as the agent of creditors of the defendant who had caused a judicial sequestration of the same, and he also asks punitory damages in a large amount for defendant’s illegal acts in the premises.

The following are the pertinent facts which gave rise to this litigation:

In January of 1888, tlie commercial firm of E. Nalle & Co. instituted a suit for debt against tlie planting partnership of Marin & Durand, of which plaintiff was a member, and caused the sequestration of some movable property, a portion of which was owned individually by Marin, and another portion belonging to the partnership.

In that proceeding the seizing creditors were represented by the defendant, Satterfield, under a power of attorney vesting him with all the powers necessary to the collection of the debt by judicial process.

After the expiration of the delay, during which Marin could have bonded the sequestered x>roperty, on liis failure to do so, the defendant, Satterfield, as agent of the seizing creditors, furnished a bond releasing from sequestration the individual property of Marin, and the remainder which belonged to the copartnership. lie then disposed of all that property at private sale, without an order of court, and before judgment had been rendered in favor of his principals, to whom he remitted the proceeds of the property sold by him.

The judgment of the district court was in favor of plaintiff in the sum of $531 65. Defendant appeals and ifiaintiff prays for a large increase of the amount allowed him below.

The justification offered for his acts by defendant, in his answer and in his testimony, is to the effect that he acted under legal advice, with the object of saving unavoidable costs for keeping the property during a protracted litigation; and for the further reason that the sequestered property, consisting of household furniture, of corn, of cotton in bales and cotton in seed, and of poultry, was of a perishable nature, which might have been entirely lost or materially damaged pending the litigation, and that the property had actually brought higher prices than the appraisement made at the time of the sequestration. Hence he contends that plaintiff suffered no actual damages through and by the sale thus made, as the Nalle & (Jo. suit was finally decided in their favor, and that ultimately, the proceeds of plaintiff’s property would have gone to his creditors.

But in thus contending, defendant and the counsel who thus directed him, seem to have entirely ignored the remedy which the law provides for the precise state of things which he invokes as his justification for taking the law in his own hands, and for soiling as his own,, or as belonging to his principals, property which he held under the mandate of the law, and which had not yet ceased to be the lawful property of the seized debtor.

He had no more power and authority to offer that property for sale in the manner that it was done, than he would have had to levy on it in the possession of the owner, without authority or process of law.

And to suggest to the owner now that the proceeds of his property were applied by the defendant to the part payment of the former’s debts is not a justification in law, or a lawful accounting therefor.

Hence it follows that the defendant is liable to plaintiff for the value of the latter’s property thus illegally disposed of. And wo therefore uphold the district judge in his conclusion^ on this point, and in the allowanee which he made for plaintiff’s share in the partnership property, the sinn of $131 65.

The record shows that this amount was half of the proceeds realized for that property, which was sold for its full market value.

But we find that ho erred in allowing $200 for the household furniture. It was sold for $100, and the evidence shows that it was not worth one dollar more.

I-Ie also erred in allowing $200 as punitory damages.

The evidence is overwhelming in support of the conclusion that defendant’s conduct was not wanton or malicious. It was simply the result of an erroneous idea of his powers, under the misleading advice of his counsel at the time.

Hence he should not he punished for an honest error of judgment. We hold that he cannot ho condemned to exemplary damages, and that the allowance on that score must be rejected.

It is, therefore, ordered that the judgment appealed from he amended, as follows: ' *

1. By rejecting the claim for punitory damages, for which $200 had heen allowed helow.

2. By reducing the allowance for the value of the household furniture from $200 to $100. And it is now ordered that the judgment as thus amended, and thus reduced to $231 65, he affirmed on plaintiff’s costs on appeal.


text:
    No. 1,350.
    J. Meyers & Co. vs. Claiborne Birotte — Joseph B. McClelland, Intervenor.
    Tlie [plaintiff may discontinue his suit at any stage previous to judgment, and that right on the part of an attaching or seizing creditor is not affected by the fact that a third person has intervened for the purpose of claiming the ownership of the property attached.
    The dismissal of the suit operates a release of the property claimed by the intervenor, and if he wishes to be quieted in his titlo, he must have recourse to a direct action.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Thos. II. Lewis for Plaintiffs and Appellees.

      G. W. JDultoy and L. P. Veazie for Intervenor and Appellant.
   Tlie opinion of fclie Court was delivered "by

Poché, J.

In a suit for debt plaintiffs took out an attachment against defendant’s property, whereupon intervenor claimed ownership of some of the property seized, consisting of movables and'immovables.

Before trial, plaintiffs presented a motion for the dismissal of this suit at their costs, which was opposed by intervenor, on the ground that he was entitled to a judgment on the merits of the issues tendered by him in his intervention.

Intervenor’s objections were overruled, the suit and the intervention were dismissed, with a reservation of intervenor’s right to a separate action, as he had prayed for damages against plaintiffs .for the "wrongful seizure of intervonor’s property.

The present appeal is prosecuted from that judgment by intervenor, who contends for his right under the law to have had a judgment on the demands which he urged in his intervention. The substance of the relief which he prayed for was the release of so much of the property attached as he claimed to own; to be recognized as the lawful owner thereof, and damages in the sum of $2800 against the attaching creditors.

As he failed to make the defendant a party to his intervention, he was not in a condition to obtain such a judgment recognizing his title to the property which he claimed, as would have been binding on the defendant j non-constat that the latter would not himself have claimed the ownership of the same property.

The plaintiffs had the unquestioned right, previous to judgment, to discontinue their suit on paying the costs. C. P. 491.

The dismissal of their suit operated at once the release of the property which was claimed by the intervenor, which was the very relief which the latter sought.

That disposition of the case left no issue which could be tried between himself and plaintiffs, save and except the demand for damages. But the trial of that issue essentially depended upon that of the alleged ownership of the intervenor, and it has already been seen that that issue could not be Anally determined in the absence of the defendant as a party to the trial thereof. Under the judgment complained of intervener's right of action under the issues which he liad tendered to plaintiffs were fully reserved, and it is, therefore, difficult to discern -what injury lie has suffered from the judgment which he seeks to reverse.

In the case of Burrow vs. Jacobs, 38 Ann. 370, plaintiffs claimed the ownership of an immovable in the possession of defendants, and a third party intervened for the purpose of claiming ownership of tlie same property. On an exception, and after hearing evidence thereon, the court dismissed the suit and the intervention.

On appeal, this court said: The dismissal of the suit carried with it the intervention. It cannot be pretended that, by joining the plaintiffs, the interven or became a plaintiff, or substituted herself to the plaintiffs. If she has any right to the land in question she will have to bring a proper proceeding to have the same recognized and enforced.”

As there is no possible difference between the legal effeet of a dismissal of a suit on an exception by the defendant, and a dismissal at the instance of plaintiff himself, it is undeniable tliat tbe ruling of that case describes accurately tlie position which the interven or occupies in the present case.

The doctrine there 'and here enforced finds ample sanction in previous adjudications of this court. Walmsley vs. Whitefield, 24 Ann. 258; Todd vs. Shouse, 14 Ann. 426; Merritt vs. Openheim, 9 Ann. 54; Jones vs. Lawrence, 4 Ann. 279.

In keeping with that long line of authorities we conclude and wc hold that when tlie suit or main action between plaintiff and defendant is terminated, there is no room for an intervention, tlie essence of which is tlie existence of a suit between persons other than tlie iutervenor.

Judgment affirmed.


text:
    No. 1,346.
    Louis Honoré Préjean et al. vs. Aimée Lecompte et als.
    Where neither tho principal nor tlie reconventional demand involves an amount in dispute exceeding two thousand dollars, neither is appealable to this court.
    Tlie amounts involved in both cannot be cumulated to establish jurisdiction.
    APPEAL from the Twenty-ffftb District Court, Parish of Lafayette. De JBaillon, J.
    O. O. & J. Mouton for Plaintiffs and Appellees:
    The law considers marriage purely as a civil contract. C. C. 86; Toullior & Duvorvier Droit Civil Trancáis, Yol. I, Tíos. 488 to 494, inclusive.
    The party seeking to recover should establish the marriage as conolusivoy as any other fact. Where there is no consent there is no marriage.
    Children born out of marriage can be legitimated only by an acknowledgment, and subsequent marriage, under provisions of Article 198, C. C., when the parent has legitimate descendants.
    Doth parents must concur in the acknowledgment.

      Esüllette & Du/pré for Defendants and Appellants:
    A mother may accept a donation for lior child. An act of donation if nofc good as donation may he good ns an acknowledgment .of an illegitimate child, if ifc embodies what is required for an acknowledgment.
    An illegitimate child duly acknowledged by the father is entitled to alimony. C. C. 242.
    Whatever relates to the forms of the marriage is directory' and not indispensable to its validity.
    A marriage in articulo mortis is as binding as any other.
    Where a marriage has been contracted there is the presumption of omnia rite acta.

    To set aside a marriage for inability to consont, the burden of proof lies with the one assailing it.
    Temporary derangement to invalidate a contract must be clearly proven. The situation and incapacity must be apparent.
    Sanity as well as capacity to consent is always presumed.
    To invalidate a marriage because of the insanity or temporary derangement produced by sickness of one of the parties, at the time, it must he shown that the other could not possibly have been ignorant of his state.
    Where there is good faith on the part of one of tlie parties to the marriage, it is good as to her or him and produces its civil effects.
    Good faith is always presumed. 24 Aim. 299.
    The law protects the innocent party to a contract.
   The opinion of tlie Court was delivered by

Fenner, J.

We do not see bow it would be possible for us to exercise jurisdiction over this appeal without transcending tbe mandate conferred upon us by tbe Constitution.

Tbe plaintiffe, alleging themselves to be tbe sole legitimate and forced heirs of Louis A. Prójean, deceased, bring tbe principal action to annul a donation ma.de by tlioir said ancestor to Philomene Prójean with reversion in a certain contingency to Aimée Locompte.

Various grounds of nullity are propounded. Tbe property was estimated in tbe donation at $245, but tbe petition alleges its value at $1500. The evidence fixes its value at about $800.

Of this principal demand, it is clear that we have no jurisdiction.

Tbe defendants filed a general denial and otherwise contest tbe demand of plaintiffs. They further allege that defendant, Aimée Leconrpte, is the widow and surviving spouse of tbe deceased, Louis A. Prójean, and that Philomene Préjean is bis child by said Aimée Lecompto, legitimated by the marriage of her father and'mother, and, therefore, bis forced heir.

They aver that Louis A. Prójean left a valuable estate, a large portion of which bad been disposed of by tbe plaintiffs; that Philoméne is entitled, as heir, to one-third thereof, “which should not be less than $2000and they pray in reconvention for judgment for one-third of the property of the estate in kind, or $2000 in the alternative.”

As the amount in dispute does not exceed $2000, under defendant’s own allegation, it is plain we have no jurisdiction. Even that valuation is enormously excessive under the evidence in the case and is in contradiction of the allegation in plaintiffs’ petition that the entire estate left by the deceased amounted to about $2200

There is no question of a fund to be distributed, and nothing in the pleadings or. evidence indicates an amount in dispute, under either the principal or reconventional demand, exceeding or even approaching $2000.

It is well settled that the appealable character of the principal and the reconventional demand must each be separately established, and that the amounts of both cannot be cumulated to bring the amount within our jurisdiction. Stevenson vs. Whitney, 33 Ann. 655; Smith vs. Insurance Co., id. 1071; Colomb vs. McQuaid, 36 Ann. 370.

It is, therefore, ordered that the appeal herein be dismissed at appellants’ costs.


text:
    No. 1,343.
    Mrs. Dora Lambeth, wife of T. O. Stark, vs. Louis A. Joffrion, Sheriff.
    1. In case tlie judgment debtor rules the sheriff holding fi, fa. to file in court a return of his proceedings thereunder, and ho responds thereto, and furnishes a statement of the proceeds realized, and distributed thereunder, and includes therein one of his management and administration of the plantation while under seizure, and the creditor traverses the items thereof, the proceedings are assimilitated to an account of administration eo nomine, and the creditor’s traverse may be treated as an- opposition to an account.
    2. The sheriff having under his control a valuable plantation, with growing crops thereon, is held to the same degree of responsibility and accountability as any other agent or administrator would he, and to exorcise the same care as a prudent owner would, over his own property.
    APPEAL from tlie Twelfth District Court, Parish of Avoyelles. Blackman, J.

      JE. North Onllom and JE. N. Onl'.om, Jr., for Plaintiff and Appellee:
    1. The account of administration by a sheriff of the crops, rents and revonues of a plantatation and disbursements thorofor while under seizure, when opposed by the debtor, generally and specially with averments of failure faithfully to account for revenues, and of improper charges, must he proved aliunde and especially in the case where credits have been suppressed for crops and rents, and charges made, proved to he improper. 35 Ann. 664; 3GAnn. S41; 29 Ann. 743 ; Me Key vs. Scott, Sheriff, So. Reporter, 1887, p. 584; 39 A. R. R.

      2. A sheriff cannot buy a hoiler for a plantation nnder seizure, charge the same to defendant in execution, and sell such boiler never seized and never advertised, under the same exe- ♦ cution. 22 Ann. 387; 32 Ann. 195.
    3. Tho law requiros public advertisement to precede tho judicial sale of property; tlie same rule should be observed in a judicial lease, where a sheriff ordered by a court to lease property does so without advertisement, far below its real value and under circumstances showing favoritism on his part; ho must pay the amount which tho property should Lave rented for.

      Joffrion cG Bordelon and Thorpe & Peterman for Defendant and Appellant:
    1. Execution debtor cannot proceed by opposition to tho sheriff’s roturn to recover from tho sheriff money and property alleged to have been received by him under writ of fieri facias and damages for maladministration of property while under seizure. O. P. Arts. 395, 396; 4 Ann. 280; 14 Ann. 423.
    2. A legal return by a sheriff makes proof of its contents until errors are specially set forth and proved by the party alleging them. 6 Ann. 55.
    3. The burden of proof is on the party alleging broach or failure of duty upon the part of a public oilicor. 28 Ann. 842 ; 6 Ann. 175; 1 G-reenl. on Ev. sec. 80.
    4. The neglect or failure of one party to prove what is essential to his recovery, is not cured by tho evidence of tho other party leaving tho fact doubtful. 17 Ann. 294; 3 2¡T. S. 228.
    5. Debtor in a writ of fieri facias, who, after return filed, participates without protest in tho distribution of the fund, is estopped from subsequently claiming a larger sum than that stated in the return. 14 Ann. 389.
   The opinion of the Court was delivered by

Watkins, J.

Claim is made against defendant sheriff for the sum of $8954 87 — the items of which alleged indebtedness appearing in detail in an account which is annexed to the plaintiff’s petition — under the following circumstances:

Under a final judgment rendered in a suit entitled Geo. W. Sentell & Co. vs. Mrs. Dora Lambeth, wife, the defendant was directed and required to make a seizure of the property of tho defendant in execution — the present plaintiff — and he did, thereunder, make a seizure of her Dora plantation, and, ponding sale thereof, same was in his care, and nnder his administration. It is charged that this seizure was effected on the 17th of August, 1875, at a time when the place was in process of cultivation in cotton and cane— one-sixth by tho owners, and five-sixths by tenants who worked on shares, for money, or for labor; that the defendant (plaintiff here) resided at a distance of four miles from the place, and had placed it under the management and superintendence of an overseer, who was displaced by the sheriff’s keeper. That the said sheriff continued in charge of said plantation, crops and other property, from the date of seizure until it was leased for the subsequent year, 1886, under an order of court, which was granted on the 8th of December, 1885, an injunction against a sale thereof having been,'in the meanwhile, obtained by the plaintiff.

It is for a general settlement of the sheriff’s agency and management of this property that this litigation was undertaken.

It appears that the property was ultimately sent to sale — the injunction having been finally disposed of — on the 6th of November, 1886, and sold for $16,500, on a credit of twelve months, the purchaser executing his bond therefor.

Soon afterwards the defendant in execution — plaintiff herein — obtained a rule on the defendant sheriff, to show cause on the 9th of December, 1886, why lie should not file his return of the writ of seizure and sale; and on the 11th of that month he made a return of the writ and accompanied the same with a full and elaborate statement in detail, of all of his proceedings and doings thereunder, and particularly of his cultivation and management of Dora plantation, and of the crops of cotton and sugar-cane produced thereon, and all of the items and amounts of his expenditures and receipts therefrom, including the lease thereof — the whole covering twenty-two pages of this transcript.

According to his report, the total proceeds of the crops of 1885 and 1886, including the lease price, aggregated $6324 38, the whole of which was expended, except the sum of $1402 65, paid to plaintiff’s ’attorney, and a balance of $335 14, remaining in sheriff’s hand, subject to her order.

In opposition to this return and statement of account, the plaintiff has taken the present proceeding, whereby she seeks to recover judgment for the sum stated swpra.

To the petition of plaintiff, defendant, sheriff, tendered the following exceptions, viz:

1. No cause of action.

2. Because the suit wherein his account is filed, and against which this proceeding is directed had been ended by final judgment, disposition of proceeds, and return of fi. fa., before the same was filed.

3. Because third opposition is not the proper fo,rm in which to attack same.

4. Because said proceeding- discloses a misjoinder of actions.

On the trial the judge a guo found that plaintiff’s petition contained an improper cumulation of demands, and she was ordered to elect whether she would pursue her opposition to the account of distribution of the proceeds of sale, or her action against the sheriff for damages, resulting from his alleged maladministration of plaintiff’s property while under seizure — or in default of so doing, that her proceeding-should be dismissed.

Thereupon, x>laintiff elected to pursue her opposition to the sheriff’s account, as evidenced by the account annexed to her petition, reserving her rights of action against him for an account of his management of the property seized, and for and on account of all of his acts of maladministration thereof.

Defendant objected to this election as not being sufficiently explicit, or responsive to the judge’s order, but same having been overruled, his counsel reserved a bill of exceptions.

In this state of the pleadings — as nearly as we can understand them .— for they are exceedingly prolix and elaborate — the parties went to trial, and judgment was thereon pronounced, and the defendant’s account was amended by placing to his debit, the following additional items, viz :

Thirty-seven barrels of molasses............................. $505 54

Sixteen hogsheads of sugar.................................. 708 00

Sale of cotton seed and ginning.............................. 08 23

Six molasses barrels......................................... 10 80

Balance of rent by Jones..................................... 43 00

For pioux and posts......................................... 58 75

Total...............................................$1,394 32

This account was, in all other respects, approved and homologated.

From this judgment the accountant has appealed, and in this court the complainant has filed an elaborate assignment of errors, and, in this wise, the entire case is before us for review.

It is made an important question in this case whether the plaintiff’s petition is in the nature of an opposition to an account of administration, and, therefore, in effect, an answer, or is it a direct action. The judge a quo at first entertained, and treated it as a suit, but subsequently as an opposition, and of this the sheriff’s counsel complain.

To our thinking the whole proceeding is somewhat anomalous and sui generis-, one for which wo know of no exact precedent. But the definition of it will serve no useful purpose, as mere names are not at all efficacious in controversies touching- the adjustment of matters of account; and the question of the onus of proof, is of scarcely greater importance. So we will leave it just where we find it, and treat it as, in some sort, an opposition to a sheriff’s account of administration of a plantation under seizure.

Tlie substantial facts, as above recited, are proved by the record — the differences between the x>arties being as to the details, only.

It appears that on the 14th of December, 1886, prior to the inauguration of these proceedings on the 2nd of April afterwards, plaintiff’s attorney received, and receipted for $300 of the balance in the sheriff’s hands, as stated previously, and this is made the foundation of defendant’s jilea of estoppel by conduct and of record which was, over their objection, overruled by tlie judge a quo, and, we think, correctly. The simple acceptance of this sum, on account,” to all appearances, cannot be treated as having such serious consequences, when it was evidently not contemplated, or so considered. There is nothing to induce the belief that the plaintiff, or her counsel considered this as a “ settlement ” final.

This ruling is perfectly consistent with the view we have entertained of this whole case.

The account rendered by the sheriff, in answer to the plaintiff’s rule, and that annexed to the plaintiff’s petition of opposition, present different views of the same question, because all questions of damages and charges of maladministration are eliminated. There is no question appertaining to the proceeds of sale, or thier distribution. The duty of the sheriff to account for what came into his hands from other sources, is the one sought to be enforced; and, in strictness of speaking, same does not form a part of 1ns return; or, rather, his return of such independent and extraneous matters does not conclude the plaintiff, and plaintiff’s partial receipt cannot conclude her.

As at present limited, this is merely a proceeding by an opposition to an account “for moneys had and received,” and nothing more.

The following are the items covered by plaintiff’s assignment of error, viz:

1. Price of new boiler, $501 75.

2. Difference on rent, $405 05.

3. Error in judgment, $1394 32-2301 12.

Or, in other words, she demands that the amounts should be so corrected and increased as to give her judgment for the sum of $3597 74. This sum is far less than that originally demanded; brrt it seems to show that, since the questions at issue have passed under judicial investigation, her views have become very much modified.

As thus defined and restricted, our duty is confined to an examination of tlie items of increase mentioned in. the judgment of which the sheriff complains, and the additional items demanded by opponent.

We will, for convenience, reverse the order, and dispose of the latter first.

The first question that recurs, is that in reference to the new boiler which the defendant purchased, and placed in position on the plantation, during the grinding season, and in order to prepare the crop for market. An old one had become so inefficient as to he practically useless.

He had applied to' the parties to tlie suit for relief, and they had refused it. Ho was charged with full responsibility for the management of the place and the crops thereon, as this controversy attests.

His only alternative was to purchase the boiler and charge the plantation. It is not claimed that the price he charged is excessive, nor that the old one was sufficient for the purpose of bearing off the crop. Opponent’s complaint is that it was not detached from the place, and reserved from sale, or, if sold, that it was not separately appraised and sold, so as to'liave made its proceeds available to her.

It is clear to our minds that the sheriff did the best and only thing ho could have done, in the presence of such an emergency, purchase a now boiler, and that it was clearly the duty of opponent to have more closely watched, and guarded her own interests, and to have enjoined the sale of the boiler as her own, or to have required a separate appraisement.

This demand comes, at this time, with poor grace, and her attempt to put the loss upon the sheriff is quite inequitable:

The claim made for the amount of tlie difference between the amount of the actual lease price of the plantation, during 1880, and that for which it ought to have been leased, in the opinion of her witnesses, is a frivolous claim. Talcing all the prrof in the record in regard to the cultivation of the place in 1885 and 1880, and' it is evident that the amount realized in the latter year was the fair value of it. But, if indeed, it was not, and the sheriff know it, the loss would be plainly attributable tj> the maladministration and not recoverable on this suit as it stands.

With regard to the alleged error in the judgment appealed from of $1394 32, it is not sufficiently indicated as to enable us to know how to determine its merits — it is simply a general demand for an increase of the judgment, so as to give plaintiff the told sum of $3597 74. This demand must, of course, be remitted to the final résumé of the conclusions we arrive at in summing up the case.

In the next place, we will examine the items by which the judge a guo increased the defendant’s liability, and the first one in order is that of 37 barrels of molasses valued at $505 54.

Prom tlie opponent’s brief, p. 10, we make this quotation, viz:

“On trial it was proved that 16 hogsheads sugar were made under sheriff’s management more than were accounted for by him.
“ 1. Kimbro, his own witness and former keeper, said: I think I said there were 79 made, but after refilling there were 78.’ ”
“But this does not include the molasses.”

As against this statement the sheriff’s account shows that he charges himself with fifty seven barrels, as the total amount of the yield, and of this the opponent received ten barrels, and has not accounted therefor. This account is supported by his own testimony, and that of two other witnesses, and one of them was his keeper or guardian, Mr. Kimbro, on whose statement, above quoted, opponent relies.

He says distinctly: “ The number of bales of cotton, hogsheads of sugar, and barrels of molasses, entered on the account, represent all the sugar, cotton and molasses that came into my hands for the plantation.”

This statement is circumstantially corroborated by other witnesses. If, in point of fact, this witness had made a different one, as a witness in another suit, in all fairness, to the witness and to the court, it should have been introduced in evidence, so that we might read it, and judge for ourselves.

We are clearly of the opinion that this item should be rejected and disallo wed.

The next item to which attention is attracted is that for sixteen hogsheads of sugar, valued at $708, in the judgment, and charged for -as having been unaccounted for by the sheriff.

The sheriff charges himself with a total of thirty-seven hogsheads of sugar, and he is entitled to credit for ten that were bonded by the opponent, leaving thirty-seven for which he has accounted. This statement, like the previous one in regard to the molasses, is supported by, identically, the same evidence. The evidence in support of the opponent’s theory is identically the same as that in regard to the molasses, and this item must share the same fate, and it must, therefore, be rejected, also.

The item of balance for rent by Jones, $43, must be disallowed and rejected because we find in the record this admission, viz:

“Admitted that B. II. Jones gave to Col. Stark his note for $70 for land rent of 1885, and that Col. Stark has the note in his possession.”

This item must, also, be rejected and disallowed, as Col. Stark is plaintiff’s husband.

With regard to the three other items appearing in the judgment, the evidence is too conflicting and toó much involved in doubt, to justify us in making any alteration, and we, therefore, conclude to let them remain undisturbed.

On the whole we think the account that was rendered by the sheriff is fair, full and reasonable. At all times the duties of the executive officers of a court are delicate and difficult, and require great courage and the exercise of good judgment, in their performance. When such officers make a fair showing of having discharged them faithfully and honestly, as the defendant appears to have done in this case, we find it a pleasant duty to approve their acts. But, in case they are shown to have been guilty of harsh or oppressive acts, or to have been guilty of acts of maladministration, wo shall just as promptly punish and repress them.

The judgment appealed from must be amended, in favor of the defendant sheriff, in the amounts and particulars instanced above.

It is, therefore, ordered and decreed that the judgment appealed from be so amended and corrected as to disallow the following items, viz:

Thirty-seven barrels of molasses............................ $505 54

Sixteen hogsheads of sugar................................. 708 00

Balance of Jones’ rent...................................... 43 00

$1,256 54

And that, as thus amended, the judgment bo affirmed, with cost of appeal taxed against the opponent and appellee.


text:
    No. 1,347.
    Albert Guidry, President, et al. vs. Henry L. Garland et als.
    In caso a sum is paid during tlio pending oi‘ a suit, and prior to judgment, whereby tlio amount of plaintiff’s claiip is reduced to a sum less than $2000, this court 3ias no jurisidiction ratione materia, and the appeal will bo dismissed exproprio motu.

    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Thos. H. Lewis for Plaintiffs and Appellees.

      Kenneth JBaillio and Kstileite & Dupre for Defendants and Appellants:
    1. Parties sued as sureties are entitled to the benefits of discussion unless they have bound themselves in solido, or renounced the plea of discussion. 8 M. G35, O. O. 3045.
    2. Where the court is in doubt as to the true character of the instrument sued on, whether a suretyship or a principal obligation, that interpretation. must be given to it which will favor the obligor rather than the obligee. C. 0.1957.

      3. In a doubtful case the construction put on a contract bytlio parties furnishes a correct rule of interpretation. C. C. 1956.
    4. Plaintiff cannot gainsay tho allegations of his petition, or seek to givo a different character to tho contract from that stated in his pleadings. Stato docisis.
    5. Suretyship is an accessory contract and can only exist to secure a pre-oxisting debt. C. C. 3035.
    6. If there be no debt, there can be no suretyship. Pothior, Oblig., Tomol, p. 369; Marcadó, vol. 4, p. 338, Ho. 392.
    7. A principal obligation is independent of any other.
    8. The pactum constitute pecunice by which a person binds himself to pay at a fixed time to a creditor what is due him by himself or by another, like suretyship presupposes tho pro-existence of a debt, as an indispensable condition, and error as to the existence of the debt makes it null. Totliier on Obi., vol. 1, p. 367, Ho. 6.
    9. Tho pactum constitutes pecunice as woll as suretyship cannot exist under more onerous conditions than those of the principal debt. O. C. 3037; Pothier, Obi., vol. 1, p. 374.
    10. Defendant sureties need not plead division when they are sued jointly. O. C. 3045; 8 M. 635.
    11. Solidarity is never presumed. C. C. 2093.
    12. An obligation does not become legally binding until accepted by the creditor. 2H. S. 245; 2R.1; 5 It. 91; 1 L. 190; O. O. 1800, 1805.
    13. Error as to the motivo or principal cause of a contract avoids it. C. C. 1881, 1882.
    14. A contract, without consideration, produces no effect. G. C. 1893.
    15. Sureties can avail themselves of the nullity of the principal obligation as a means of defense. C. C. 3036; 14 L. 180 ; 2 Ann. 150; 7 Ann. 750.
    16. Article 209 of the Constitution of 1879 provides for the levy by municipalities of special taxes for public improvements not only in municipalities, but belonging to municipalities. Ownership of such improvements is essential.
    17. Police juries are bound to provide, suitable courthouses for their respective parishes. P. S. 2746.
   The opinion of the Court was delivered by

Watkins, J.

This suit is brought for the enforcement of the following contract, viz:

“ Oiuslousas, May 1st, 1886.
The town of Opelousas having levied upon the property taxpayers of the town a special tax of two and a half per cent to aid in rebuilding the courthouse, which tax is expected to realize the sum of eight thous- and dollars, the undersigned hind and obligate themselves that said sum of eight thousand dollars shall be realized for said purpose, and shall be on hand'subject to the order of the police jury for said purpose upon completion of the courthouse.” •

The amount for which judgment was demanded in the plaintiffs’ petition is $2616 15, but tho judge a quo states in his reasons for judgment that it' appears from the evidence that several amounts have been paid over to the parish treasurer by the authorities of the town of Opelousas, since the institution of this suit for which credit is to be given to the defendants, upon the claim made upon them, as sued upon.” He thereupon proceeded to render judgment against tlie defendants for the sum of $1710 46.

It is from this judgment that the defendants have appealed. In this court the plaintiffs and appellees have filed no answer to the defendants’ appeal, but their counsel admit the correctness of the judgment as rendered.

From this statement it readily appears that this court is without jurisdiction rations materhe, because, at the moment of time when the judge a quo rendered judgment the amount of plaintiffs’ demand was less than $2000, and no valid decree could have been rendered by Mm for more; and the amount of plaintiffs’ demand had been thus reduced by partial payments made by the defendant, or others for him, pendente lite. Neither of the litigants has suggested, either orally or iu writing, our lack of jurisdiction, but where the want of it is so palpable we feel constrained to suggest it proprio main.

In Stubbs vs. McGuire, sheriff, 33 Ann. 1089, it was held that we had no jurisdiction in such a case, saying:

“ Plaintiff acknowledges an indebtedness of $600, and no more, on the mortgage and judgment assumed by her under the effect of the alleged agreement, between his vendors and their creditor, Miss Hempkin.
Defendant denies the existence of such an agreement, and contends that her claim amounts to $964.
It, therefore, follows that the amount in dispute is the difference between the indebtedness judicially acknowledged and admitted by plaintiff, and the amount claimed by the defendant, in other words, $364.”

Denegre vs. Moran, 35 Ann. 346, is to the same effect.

In the instant case the difference between the amount claimed and the amount for which judgment had been rendered, was actually paid prior to judgment, and no decree could have been rendered for more.

It is, therefore, ordered and decreed that this appeal be dismissed at appellants’ cost.


author: McEnery, J. Poché, J.

text:
    No. 1,348.
    Clement Young vs. Stephen Gay.
    An amended answer which does not contradict or vary the allegations in the original answer, but only elaborates them, should be allowed to be filed, although offered on the day set for trial but before the case is called.
    "Where a contract of lease is entered into and the parties in said lease also stipulate as to tlie manner of the cultivation of the place, and the lessor, by his duly authorized agent, makes no objection to the acts of the lessee, although authorized by the lease to do so, it will be too late to raise objections after the orop has been made.

      The lessor who cansos the lessor to leave, through his acts in violation of an agreement, and gathers and markets tho crop, is responsible to the losseo for his portion.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mention, J.

      Breaux cD lienoudet for Plaintiff and Appellant:
    1. An ownor who has entered into a contract to liavo his plantation cultivated, cannot break tho contract without reference to acquired rights.
    2. He cannot expel the person with whom he has contracted, and disregard tlie terms of the contract requiring that tho labor of tho one and tho money advanced by tho other shall be secured by tho crop, at the time that the one who has promised to make advances shall see proper to recall his promise.
    3. The proprietor or his agent being- present all the time, he should have placed tho plaintiff in mora, if there was a passive violation of the contract.
    4. There was not any violation of contract; but il“ there was, it was passive; it was a failure to carry out the idea of intensified cultivation, such as defendant in October of the year 1887, concluded he preferred. Civil Code, 1911 and 1938; Berard vs. JBoaqui, 30 Ann. 1126.
    5. In any event, it was not possible rightfully to fake plaintiff's interest in tlie crop, and absorb it with extravagant expenditures.
    6. The value of crops in October can easily he established. It devolved upon the defendant to make an attempt to establish its value. Tho oxpenses made after the 6th of October are extravagant and unreasonable. They consist of charges not identified with any work on the place in connection with taking off tho crop.
    7. Tho cost of making sugar is much less than charged, as ostablishhd by tho testimony of six witnesses.
    8. Tho defendant’s plea is reconvontion, and tho judgment recovered on that plea is entirely illegal.

      T. 1). Foster for Defendant and Appellee:
    ], When a ease turns on facts, tho judgment of tho judge a quo, who heard and saw the witnesses, and had tho-best opportunity of testing their verity, will he affirmed, unless it is manifestly erroneous. 39 Ann. p. 20; 31 Ann. 430.
    2. This rule applies even when the evidence is contradictory and tlie case turns on facts. 13 L. R., p. 463; 23 Ann., j>- 253; 39 Ann., y>. 610; 37 Ann., p. 655; 39 Ann., p. 929.
    3. In settling accounts between parties, courts cannot reject the itemized accounts of one of the parties and consider expert testimony for the purpose of ascertaining the quantum meruit. 36 Ann., p. 213, Silencer vs. Culloni.
    4. In actions for tho recovery of damages, plaintiff must make his case clear, positive and absolute, by preponderance of testimony, in order to recover, 18 Ann., p. 646; Louque’s Digest, p. 245, XIII (a) Xos. 2, 3, 4, 5.
   The opinion of tlie Court ivas delivered by

McEnery, J.

Tlie plaintiff leased a plantation from the defendant, and alleges that lie was forcibly ejected from the same, and brought this suit to recover the sum of §5512 50, which lie alleges is due him under the agreement entered into by him with defendant, and contained in the contract of lease.

The defendant denies the allegation of plaintiff’s petition, alleges violation of the contract of the lease by plaintiff, in consequence of which he has suffered damages to the amount of $5000, which he pleads in reconventi'on. He claims for advances made to plaintiff the sum of $1535 75, and on a balance of settlement the sums of $1322 90 and $222.

An amended answer was filed by defendant and objected to by plaintiff on the ground that it changed the issues raised in the original answer and changed the judicial admissions in the original answer, aud that it was filed too late after the case had been assigned for trial.

The amended answer in no way contradicts the allegations in the original answer, but elaborates them, and as it was not calculated to cause any. delay in the trial the judge a quo properly admitted it to be filed. This is the only exception in the record to which our attention has been called. The others are to the admission of testimony, and we are of the opinion the rulings of the district judge were correct. The testimony was clearly admissible under the allegations in the answer.

The contract of lease between plaintiff and defendant is as follows:

“Articles of agreement made and entered into this 12th day of January, 1887, between Stephen Gay, of the parish of Iberia and State of Louisiana., party of the first part, and Clement Young, of the parish of Iberia aud State aforesaid, party of the second part, as follows: The said Stephen Gay has this day rented to the said Young about 300 arpents of land, or as much as he is able to cultivate, on East Belle Grove plantation, on shares as follows: The land now in cultivation, ■west of the lower levee, and the use of the pasture on the north and south side of the wind mill, pasture for the pasturage of the mules, &c.; and all the houses on the south pasture except the house occupied by Jules Bertello, and all the cabins except three in the north pasture, also the sugarhousc for manufacturing the cane raised on Belle Grove plantation, save and except the purgery, which is reserved for the storing of said Gay’s agricultural implements, also the cabin near the sugarhousc; also the right to cut wood east of the lower levee for the sugarhouse, and use of himself and hands living on the place. This contract is for the term of one year from the 1st day of January, 1887, but may be continued from year' to year by the consent of both parties, indorsing the same on the back of this agreement and signing same.”
“ In consideration of the written agreement on the part of the said Gay, the said Clement Young agrees to take charge of said land and cultivate tlie same in a good and farm like manner in cane and corn, to live on tlie plantation and to devote liis time and service to tlie best interest of tlie place, to put and keep tlie fences, ditches and houses in good repair, keexi the animals out of the field at such times as they may injure the crops or land; and he further agrees to put not less than one bushel of cow peas in each arpent of corn that they may plant on said place, and to put such fertilizers in the stubble as they may think necessary to make a good crop. He further agrees to employ good and experienced men for engineers and sugar boilers. To use the sugar house only for the cane raised on Belle Grove, unless by consent of said Gay, and it is further understood that neither party is to keep hogs on the place running at large, if kept they are to he penned. And it is further mutually agreed that the said party of the second part agrees to return to the said Gay fifty árpente of fall plant cane, it being the same amount received from him * * * to be planted in the fall, and not' less than two cane seed, thick; also to return to the said Gay, well drained and ditched, all the stubble that may be on the place.
“ And the said Clement Young agrees to deliver to the said Gay at the refinery or warehouse, as rent, one equal fourth part of all the sugar and molasses of average quality made from the cane raised on said plantation from time to time as the same is manufactured at the refinery of S. & S. K. Gay and ready for market, and one-fourth of all other crops made on said plantation by the party of the second part.
“And it. is further understood that S. & S. It. Gay’s refinery is to manufacture the syrup into sugar for the party of the second part at one cent i>er pound, and furnish sugar and molasses barrels free of charge to the party of the second part, who is to deliver the syrup from the sugar house to the refinery, and after the same is manufactured to be shipped at such time as may be thought best, in the name of said Gay; and the said Young further agrees that the one cent a pound for manufacturing may be collected as charges by the said Gay from the boat that they may ship the sugar and molasses on belonging to said Young; also any other indebtedness by him to the said Gay may be collected from the shipment of sugar and molasses as charges from the steamers.
“ The corn and hay raised on the place is intended for feeding the mules, but should there be more corn or hay raised than the mules require, the surplus is to be divided at the termination of the rental, one-fourth to the said Gay, and three-fourths to the said Young. The said Young has this day received from the said Gay nineteen mules, seven carts, eight plows and double and single trees, also grains, etc., as per inventory and prices of mules. In case of loss by death or other causes it is to be paid said Youug to said Gay at the time the sugar is shipped or sold by the said Gay. In case of death or loss by cliarbon or glandeos, the said Gay agrees to relieve said Young from the payment of said loss. The said Young acknowledges the receipt of 169 barrels net corn in schucks, which he promises to return to said Gay at the end of the term of the lease; also six loads of pea hay that he now receives from him. Said Young further agrees that he will return the houses, fences and ditches, barnes, stables, etc., in as good condition as he now receives them from said Gay. The mules are to be well fed on corn and hay. The carts, plows and gear are to be bept under shelter as far as practical, and all to be returned to the said Gay in as good condition as when received.
* * * * * * * * * *
* * * * * * * * * *
It is further agreed that said Gay will furnish said Young for the running expenses of said plantation $200 each month, commencing on the first day of March, 1887, and ending on the first day of November, 1887, which is to be paid back to the said Gay with 8 per cent interest by the first day of January, 1888, or as soon as the sugar and molasses are sold. The above loan is on condition that from month to month the prospect for a good crop of sugar cane is fair and from causes that we could not foresee should prevent the said Gay from obtaining themoney. In that case there is no blame or cause of action against him. The money that the said Gay advances is for paying hands, purchasing com and feed for mules and purchasing peas to plant. And it is mutually agreed that said Young will consult and advise with the said Gay in the cultivation and management of the plantation, and in his absence, will consult and advise with his son, S. R. Gay, who is authorized to act for him in his absence.
“The said Gay further agrees to let the party of the second part have, in addition to the within mentioned moiiej^, $100 for current expenses about the 1st of February next, on same conditions.
“In case of the failure of the said Gay to furnish the -money that he has agreed to loan the said Young,.the crop, as far as worked, will be equally bound to the said Yonng and Gay as far as money advanced and work on the place has progressed.”

Under this contract of lease and the agreement in relation to the cultivation of the place, the plaintiff went on the place and cultivated it, raising a crop of cane and corn. It was an indifferent crop, not as good as the crops' in the neighborhood. The drainage was bad, not having been kept in good condition by the lessee, and there is conclusive

showing that the mules were not kept in the best condition, and that there was an insufficient amount of labor employed by the lessee.

The contract specially stipulates that the defendant should jointly with the plaintiff control the management of the place, and in his absence his son, S. R. Gay, was made his agent for this purpose. The agent, in the absence of his principal, the defendant, was on the place, had an opportunity of observing its management, the manner of its cultivation, the number of hands employed, and, from month to month, the prospects of a fair crop. He did not avail himself of the stipulations of the lease. He gave no advice, and apparently took no interest in the cultivation of the place. During the most critical periods of cultivation and management he remained silent, and thus approved of the acts and the management of the lessee.

It was only after the crop had been made on the place that any objection is urged to the mode of cultivation, the defective drainage and other violation of the contract by the lessee. When preparations were being made for taking off the crop of sugar the defendant refused to advance $200 per month to the lessee. The advance was to cease on the 1st of November, and on the 1st of October he refused to advance the $200 per month as stipulated in the contract. It is true that the defendant offered to pay the current expenses of the plantation on plaintiff’s orders, but this was not the contract as agreed to between the parties.

There is a conflict of testimony in the means used to eject the plaintiff. It is certain, however, that he left the place, and the reason therefor was the failure of the defendant to advance according to the stipulations in the contract. He says it was for the purpose of getting money to take off the crop. It was on this return to the place that the alleged violence is said to have been resorted to. He was the lessee of the' place, and he had the undoubted right to return to it, and to remain on it until the expiration of his lease, to protect his interest. The failure on the part of the defendant to supyly him is not justified by the terms of the contract. There were two contingencies in the contract providing for his withholding the monthly advances —the first was on the unfavorable conditions for a fair crop. This had passed, and no objection had been made on account of a want of fair crop prospects. The other was the inability of the defendant to get the money. The refusal to advance the money on the 1st of October, when the crop had been made, was arbitrary.

The contract stipulates that on the failure of the defendant to furnish the money, the crop, as far as worked, should be equally bound to the said Young- and Gray, as far as money advanced and work done on tlie pilace.

At tlie period when the advances were refused, it was, according to the testimony in the record, practicable to make an estimate of the value of the sugar crop) on the pilace.

The plaintiff owned his three-fourth interest in the cropis, less what he owed defendant for advances made, and he had the undoubted right, after paying for advances, to take it off and sell it, or sell it in the field. The defendant took possession of the entire crop and he must account to the pilaintiff for his interest.

Several witnesses value the cane as standing in the field. But as the defendant appropriated the crop, ground it and sold it, we presume he did so economically in order to increase Ms own interest. It will, there-' fore, bo more accurate to take the net proceeds of the crop as a basis for distribution.

Under the terms of the contract the pilaintiff is entitled to three-fourths of the crop) and the defendant, to one-fourth for rent.

The net proceeds of the sugar cropi was $4789 71, three-fourths of which, $8592 29, the pilaintiff is entitled as his portion, of said crop). There were remaining on the pilace 587 barrels of corn, valued at seventy-five cents pier barrel, and after deducting 169 bushels advanced to the pilaintiff and to be returned by him, the value is $318 50, tlireefourths of which belong to the pilaintiff, $235 13, amount due the pilaintiff, from his three-fourth interest in the cropis, $3905 79, to be credited with $1732 11, amount of money advanced to the defendant, leaving a balance of $2173 68, to which the pilaintiff is entitled.

It .is, therefore, ordered, adjudged and decreed that tlie judgment apipiealed from bo sot aside, avoided and reversed, and it is now ordered that there bo judgment for the pilaintiff against the defendant for said sum of $2173 68, with five pier cent interest from judicial demand, and that the reconventional demand of defendant be dismissed, defendant to piny costs of both courts.

On AnmiCA/rioN j?or Rehearing.

Poché, J.

Wo have carefully considered apipiellee’s earnest application to re-open this case, and we adhere to our previous construction of the contract which underlies the litigation, and to. the views which we had taken and expressed as to the obligation of the defendant to account to pilaintiff for his share of the crop raised by him on the leased plantation, as a result of defendant’s unjustifiable violation of the contract.

But without re-opening- the case for rehearing we feel constrained to correct an error which wo made in the adjustment of the accounts between the parties.

This error was superinduced by the statement in the district judge’s opinion that the nett proceeds of the sugar crop amounted to $4789 91. On closer examination of the record we find that lie meant that amount to he the nett proceeds after deduction of the expenses incident to the shipping and selling of the crop only, and that there were no nett proceeds after deducting the costs of cultivating and grinding the cane. Under the legal effect of t]io contract, plaintiff was entitled to three-fourths of the crop as it stood at the time that an end was put to the contract by the acts of the defendant as stated in our previous opinion, subject to his indebtedness to tiie defendant for money and supplies advanced to him by the latter.

From the preponderance of the evidence wo find that the plant cane was worth $40, and the stubble $25, an acre, as the crop then stood in the field, and that there was corn of the value of $313, liable to division under the terms of the contract.

We, therefore,- recast the account between the parties as follows :

Fifty acres of plant cane at $40 per acre.............'........$2,000 00

Seventy-five acres stubble cane at $25 per acre............... 1,875 00

Corn on hand for division, valued at......................... 313 00

Total value of crops..................................$4,188 00

One-fourth accruing to defendant............................$1,047 00

Throe-fourths representing share of plaintiff.................$3,141 00

Less amount of his indebtedness to defendant................ 1,732 00

Net balance accruing to plaintiff.......................$1,409 00

It is, therefore, ordered that our previous decree be amended so as to reduce the amount allowed to plaintiff from $2173 68 to 1409 00, and that as thus amended our said decree remain undisturbed.

Kehoaring refused.