author: Martín, J.

text:
      PEMBERTON vs. GRASS & AL.

    A judgment not against defendants jointly and severally, is a several judgment.
    Appeal from the court of the third district, the judge of the eighth presiding.
    By a written instrument, dated in 1815, L. V. Folkiel acknowledged to have received of the plaintiff, district paymaster, one thousand dollars, for which he was accountable. Folkiel died in 1816, leaving Rosalie, his wife, sole heir and legatee of his succession. She died in 1817, and the defendants, as nearest of kin, inherited her estate. This action was brought to recover the sum acknowledged to have been received of the plaintiff by Folkiel.
    The answer alleged that, subsequent to the date of the acknowledgment, a settlement took place between the parties, when a balance of eighteen hundred dollars was found to be due jjy the piaintifF to Folkiel, which the defendants claimed in reconvention. Nicholson, a witness for the defendants, deposed that in May or June, 1816, Folkiel handed to him an account against the plaintiff for 81800, which witness presented to the piaintifF for payment, who [observed that he would call on deponent for the purpose of effecting a settlement — that he never did call on deponent, but retained in his possession the account which witness presented to him. It was admitted on the trial that the estate of Rosalie Grass, widow of Folkiel, left sufficient property to pay the debt in question, which came into the possession of the defendants.
    There was judgment for the plaintiff, and the defendants appealed

      Duncan, for the appellants,
    made the following points;
    1st. — The plaintiff had no right to sue,' being insolvent, at the time the action was instituted.
    2d. — The judgment should havebeen against the defendants, severally, and not as is decreed, jointly.

   Martín, J.

delivered the opinion of the court. The defendants are sued as the heirs of Rosalie Folkiel, heir of Louis Folkiel, on an acknowledgment of the latter that he was accountable to the plaintiff for the sum of one thousand dollars. They pleaded the general issue, and that since the date of the acknowledgment, a settlement of accounts took place between the plaintiff and L. Folkiel, by which a balance of one thousand eight hundred dollars was found due by the plaintiff to the latter. The defendants claimed the said sum by reconvention.

The plaintiff had judgment for one thousand dollars, with legal interest since the inception of the suit. The defendants appealed.

Their counsel has assigned as error on the face of the record,

1- That the plaintiff made a cession of his goods, and therefore cannot sue.

2. There is no evidence of the defendant’s acceptance of Rosalie FolkiePs succession, nor of her of Louis Folkiel’s.

3. Louis Folkiel bound himself to account to the plaintiff not in his, the plaintiff’s, capacity, but as paymaster of the United States.

A judgment aga'mst defen; dants not jointly and severally, is ¿-«al judg-

4. The judgment ought to have been against the defendants severally, and not jointly.

I.The first assignment is not grounded on any thing alleged, or proven on the record.

II. The defendants are sued as immediate heirs of L. Folkiel. Their plea does not deny their capacity of being sued as such,and they themselves, by reconvention, claim from the plaintiff a sum which can no otherwise be due to them, but as heirs ofL. Folkiel.

III. It is true the plaintiffhas the addition of paymaster of the United States given to him in L. Folkiel’s acknowledgment, on which the suit is brought; but this appears to us a mere description of his person, and Folkiel does not appear to have sustained any official character which might induce a proof of presumption that the acknowledgment was an official one.

IV. The judgment is not against, the defendants jointly and severally, it is therefore v a several judgment.

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


source: Caselaw Access Project

author: Martin J.

license: Public Domain

text:
      LARALDE & AL. vs. DERBIGNY.

    A judgment against a curator is evidence against his surety.
    Before the code of 1808, on a partition, coheirs had no legal mortgage on the property allotted to them.
    Appeal from the court of the first district.
    The'petitioners stated, that in the year 1820, B. Lafon, by last will and testament, bequeathed to them a legacy of twenty-one thousand dollars. That Jean Pomerat and Jean Gravier, were appointed his executors, who, in that capacity disposed of the testator’s property, amounting to a considerable sum. That in 1823, the said Pomerat was appointed their curator ad bona. That Gravier, became his surety, and to free his estate from the effects of a gene-ralmortgage, did specially mortgage a lot on the Batture, of which the defendant is in possession. This bond and mortgage was subscribed and recorded on the 26th May, 1823. It appeared from the testimony, that this lot formed part of the estate of Bertrand Gravier, which descended to Jean Gravier and his brother, and was sold at sheriff’s sale, as the property of Jean Gravier, to satisfy a judgment which his coheirs had obtained against him. This judgment was recorded subsequent to the special mortgage in favor of petitioners, and at the sale, the defendant became the purchaser. The petitioners having received no part of their legacy, Gravier, being insolvent, and Pomerat, dead, provoked the appointment of a curator, ad hoc to his absent heirs, against whom they instituted suit, and recovered the sum of four thousand five hundred and fifty-four dollars, which for want of property of Pomerat, they sought to enforce by the sale of the lot specially mortgaged to them by Gravier, his surety. The answer of the defendant set up the following grounds of defence.
    . 1. That the mortgage given by Gravier as surety, of Pomerat, in his capacity of curator ad bona never had any effect, inasmuch as Pome-rat never received in said capacity, any money belonging to the minors.
    2. That the mortgage of the petitioners could not have been given to the prejudice of the coheirs of Jean Gravier, whose property. was tacitly mortgaged in their favor, for the payment of their shares of the estate of the late _ . ^ ...... , .Bertrand Gravier, adjudicated in toto, to the said Jean Gravier.
    3. That the mortgage of the petitioners, supposing it to be valid, to the prejudice of the legal mortgage of the said coheirs of Jean Gra-vier, did not take effect until after the recording of the judicial mortgage, resulting from judgments obtained against Jean Gravier, by his coheirs, in execution of which, the property held by defendants was sold.
    In support of these grounds, the defendant introduced in evidence, the record of the suit of Jacques Gravier, and others, coheirs, against Jean Gravier, and the sheriff’s sale to the defendants, of the lot claimed in plaintiff’s petition.
    There was judgment for the defendant, and the plaintiffs appealed.

      Moreau Lislet, and Soule, for the appellants',
    urged the following points.
    1. There was error in the judgment below, when the judge said that John Pomerat, as curator, ad bona, and Jean Gravier, his surety, were only answerable for the money John Pom-erat, in said capacity, did actually receive.
    2. The guardian of a minor, and his surety, are not only answerable for the money the said tutor actually receives for his pupil, but also, for that he neglects, or omits to receive; because the tutor is bound to administer as a good father of a family, and is responsible for all the damages he might have either prevented or repaired by a wise administration — Old Civil Code, art. 52 — p. 68. Pandectes Francaises, vol. 4 — p. 583, on the 454, 455, and 456 articles of the Code of Napoleon. Digest Law, 15 — B. 26, tit. 7, Ulots translation, vol. 3— p. 511. Rodriguez translation of the Digest, vol. 9 — p. 63. Ferrary’s Bibliothica, vol. 9 — 1 p. 104, No. 109. Thoulier, Civil Law, vol. 2 — p. 375. Law 9th, tit. 16, of the 6th par-tida.

      Seghers, on the same side, argued,
    1. That the curator’s administration was not limited to the tangible part of his wards estate, but that it comprehended a bounden duty on his part, vigilantly to collect the debts due to his wards, and to sue without delay, such of their debtors as fail to pay. That the slightest neglect in suing them, makes him responsible for their eventual insolvency.
    2. That the curator is liable, not only for what he manages, and what he badly manages, but also, for what he fails to manage, or administer — 8th Martin’s Reports, 449 and 450. Do-mat, vol. 1, L. 2. tit. 1 sec. 3, no. 1 and 23. Anden Denisart, vol. 3. 2d. partie, p. 297, art. 59 and 61. Ferriere, diet, de prat, vol. 2. p. 731. Verbo Tuteur — Toullier, vol. 2, tit. 10, ch. 2, sec. 8, parag. 2, no. 1203.
   Martin J.

delivered the opinion of the court.

This is an hypothecary action, by which the plaintiffs sue for the sale of a lot, in the possession of the defendant, mortgaged by Gravier, the person under whom the defendant claims, as surety of Pomerat, the plaintiffs curator, against whom the defendants have obtained judgment.

The defence is two fold, i. e.

1. Pomerat, before he was curator of the plaintiffs, was executor of Lafon, who had left them a legacy of twenty-one thousand dollars, and had already wasted all his testator’s estate, when he assumed the curatorship, so that he never had any thing in his hands, as curator.

2. The defendant purchased the lot at a sale, in execution of a judgment obtained against Jean Gravier, by Jaques Gravier, and others, as coheirs with Jean Gravier, of Bertrand Gravier, had thereon a mortgage anterior to that which is now sought to be in-forced.

There was judgment for the defendant, and the plaintiffs appealed.

Jean Gravier, and J. Pomerat, who had been appointed executors of Lafon, took out letters testamentary, the former in October, 1820, and the latter in February, 1821.

In March, 1822, P. Lafon, the instituted heir, brought suit against the executors, for an account and payment, and in May following, Pomerat was appointed curator, ad bo«a, of the plaintiffs, and gave his bond accordingly, with Jean Gravier, his co-executor and his surety, who obtained a decree of the court of probates, by which, in order to avoid a general mortgage on all his property, he gave a special one on the lot, since purchased by the defendant

The constituted heir recovered judgment against the executors for upwards of twenty-nine thousand dollars, in April, 1824, and July, 1825, and on executions issued thereon, the sheriff returned no property of Pomerat’s could be found, and the property of Gravier that could be found, was insufficient.

A judgment against a curator is evidence against his surety;

Fomerat having died in the meanwhile, the plaintiffs had a curator appointed to his absent heirs, against whom they directed a suit, in which they recovered a sum of four thousand five hundred and fifty-four dollars» and interest, which, for want of property of Pomerat’s, they now seek to enforce by the sale of the lots specially mortgaged by his surety.

It appears to us the district court erred.— The judgment obtained by the plaintiffs» against the heirs of their eurator, is evidence that he received moneys to its amount. The record shows Lafon’s estate was perfectly solvent, the whole of it came, or must have come to the hands of his executors, and Pom-erat, as one of them, was liable in solido with his co-executor, for whatever came to the hands of either—Civ. C. 248 a 177. Nothing shows the absolute insolvency of both Pom-erat and Gravier. On the appointment of the former as curator; they were both liable to the plaintiffs, and’there is positive evidence on the record that Gravier possessed property; particularly the lot which the defendant afterwards purchased.

2. The second point was not acted on by the district court, but it is equally untenable. It is alleged the premises were part of the estate of Bertrand Gravier, which descended to Jean Gravier and his brothers, and was allotted to Jean, in the partition of the estate.— No partition is produced.

Before the code of 1808, on a petition, co-heirs had no legal mortgage on property allotted to one of them.

Gravier’s succession was opened in 1797, . which took place before the adoption of the _ Code of 1808, and must be regulated by the , laws then m vogue, The Parti. 6, 15, 9, required the jndge, on a partition against coheirs, ex officio to require them to give securely for the indemnification of such as might be evicted of their parts. This is negative evidence, that no mortgage existed; for otherwise., it would afford such a security, that no other should be required.

Further, there is no evidence of an eviction of any coheir, nor of any money to be returned by Jean Gravier, or others, to induce the tacit or legal mortgage given by the former. Code, 457, art. 23.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that on default of the defendant to pay the plaintiffs the amount of their judgment, the premises be seized and sold to satisfy the same, with in-teresté and costs — the appellee paying costs in this court.


author: Porter J.

text:
      DEARMOND vs. CURTIS.

    Where plaintiff claims slaves sold to her late hus"band by defendant, a bond in which the deceased had bound himself to pay two thousand dollars, or convey the slaves to another person than the defendant, and to whom the bond is not assigned, the court properly refused to permit him to give it in evidence.
    Appeal from the court of the third district, the judge of the fourth presiding.
    The petition stated that the husband of the plaintiff, during his lifetime, to wit, on the 4th of April, 1823, purchased from the defendant the following named slaves: Phebe, Hannah, and Will, which he retained in peaceable possession until his death, and that the plaintiff was then wrongfully dispossessed of them by the defendant.
    The answer contained a general denial, and an allegation that the husband of plaintiff, on the 15th of May, 1823, executed a bond by which he bound himself to pay to Eunice Curtis,(wife of the defendant) two thousand dollars, or to make to her complete and perfect titles to the slaves now sued for.
    The answer concluded with a prayer that the slaves may be decreed to be the property of defendant’s wife, and that she be made party to the suit.

      She was made a party, and afterwards, on motion of the defendant, judgment of nonsuit was rendered asrainst her.
    The plaintiff introduced in evidence the act of sale from the defendant to her husband Dear-mond.
    The defendant offered in evidence the bond which Dearmond had'executed to his wife, conditioned to pay her two thousand dollars, or convey her the slaves. To the introduction of this bond the plaintiff objected, which objection was sustained' by the court. The defendant took his bill of exceptions, and after final judgment, appealed.
    Turner, for the defendant and appellant,
    urged the following points for a reversal of the judgment.
    1. The cause was incorrectly tried between the plaintiff and defendant. The intervening party should have been heard.
    2. The court erred in rejecting the bond offered in evidence by defendant.
    3. The motion for a new trial was improperly overruled.
   Porter J.

delivered the opinion of the court. The petitioner, in her own right, and as tutrix to her minor children, claims possession of certain slaves, which she alleges the defendant has wrongfully taken from her. She also claims title to the property in virtue of a sale made to her deceased husband by the defendant.

The answer contains a general denial, and an allegation that Bearmond, in his life time, had executed a bond by which he bound himself to pay the defendant’s wife two thousand dollars, or convey to her the slaves now sued for. The answer concludes with a prayer, that the property might be decreed to be that of the wife, and that, if necessary, she should be made a party to the suit.

She was made a party, and put in her claim to the slaves. On motion of the defendant, however, judgment of nonsuit was rendered against her, and as she has not appealed,' the correctness or legality of that proceeding cannot be examined here.

The cause has been twice submitted to a jury in the inferior court, and each time there was a verdictfor the plaintiffs. The only matter for our consideration is the question presented by a bill of exceptions.

where a plaintiff claims slaves sold to her late husband, a bond in which thede-ceased had bound himself to pay two thousand fhe siavesuTan-the6r ^defendant" bond^is^not1 as! properíythref¡Led to permit it to be given in evidence

After the claim on the part of the wife of defendant had been dismissed, ands on the last trial, the defendant offered in evidence the deceased had made to pay two thousand dollars, or convey the slaves . . . . , to the person therein named, 1 his evidence , . . „ , . - , , the plaintiff objected to, and the court sus- . . tamed their objection.

We think the court did not err, There is no.thing which connects the wife’s right to the money mentioned in that bond, with the husband’s claim to the slaves. There is no . u , , 1 • assignment oi it to him. And it there were, and had the proof been received, it is not seen how it could affect the question of title. It rather strengthens the claim of the petitioners by showing a title in them.

On the merits, we do not find any thing on record, which would authorize us to interfere with the verdicts of two juries.

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


author: Porter, J.

text:
      ROWE vs. HALL.

    It does not follow as a consequence, from a party falling to comply with an engagement, that he owes a deht. He is responsible in damages for the non* execution of his engagements, and these damages are only due after he has been put in delay.
    Appeal from the court of the third district, the judge of the eighth presiding.
    The petition set forth that the plaintiff sold to the defendant a slave, in consideration that the latter would take up and deliver to plaintiff his note of hand in favor of one Hughy, for six hundred dollars. It was proved upon the trial that the defendant failed to take up the note. The written agreement introduced in evidence, wasa mortgage from thedefendant to the plaintiff for a slave, which was to be discharged upon the delivery to the plaintiff of Hughy’s note, or the slave was to be delivered to the plaintiff as his property. There was judgment of non-suit, and the plaintiff appealed.
   Porter, J.

delivered the opinion of the court. This case commenced by attachment. The petition alleges a contract to have been entered into between the plaintiff and defendant, andby the failure of the latter to comply with if, he owed the sum of six hundred dollars, for which judgment is prayed against , ■ , & him, with interest, damages and costs.

It does not follow as a consequence from a party failing to comply with his engagement, that he owes a debt. He is responsible in damages for the non-execution of his engagements, and these damages are only due after he has been put in delay.

rp^e judge was of opinion the plaintiff had not made out his case, and non-suited him. He appealed.

We are of the same opinion with,the judge below. The contract introduced in evidence shows the defendant mortgaged to the plaintiff a negro boy named Stephen, on the condition, however, that it should be null and void on the delivery of a note of the petitioner for six hundred dollars, and that if the note was not delivered, the boy should become the property of the plaintiff. This agreement the defendant has failed to comply with.

But it does not follow as a consequence of his failure that he owes six hundred dollars to the plaintiff He is responsible for the damages resulting from the non-execution of his engagement; and these damages are only due after he has been put in delay. See case of Erwin vs. Fenwick, 6 Martin n. s. 231. L. Code 1927.

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


text:
      PALMER AL. vs. PALMER & AL.

    Courts of probates are courts of limited jurisdiction, and can only reach cases provided for by statute,
    Appeal from the court of the third district, the judge of the district presiding.
    Upon a final partition of the estate of Archibald Palmer, deceased, the plaintiffs, who were forced coheirs with the defendants, received as their portion of the estate a certain moiety of a tract of land. They alleged in their petition, that their ancestor had no title to the land, that it belonged to another individual with whom they were unwilling to contend; and this suit was brought in the court of probates to recover an indemnity. The defendants excepted to the jurisdiction of the court on the ground that, if after a final partition there be any failure of title to any part of the property divided, a suit on the mutual warranty of the coheirs must be brought in the district court; which plea was sustained, and judgment rendered in their favor. The district court confirmed the judgment, and the plaintiff appealed.

      Harmlson Sf Haile, for the appellants.; Bradford, for the appellees.

      bateTare0cowtá riíction^and^cañ provided0'forTy «tatute.
   Martin J.

delivered the opinion of the , ~ , court. This suit originated mthe eourt ot probates, and was instituted to recover from t[je defendants, coheirs with the plaintiffs of Archibald Palmer, an indemnity on the ground that in the partition which had been made among these parties of the estate of their common ancestor, land had been allotted to the plaintiffs, part of which had since been discovered not to have belonged to the estate, but to a third party, with whom the plaintiffs were unwilling to contend.

The judgment of the court of probates was brought by appeal to the district court; where the defendants’ plea to thejurisdiction of the court of probates was sustained, and judgment was given in their favor.

From the judgment of the district court, the plaintiffs have taken the present appeal.

We are of opinion the district court did not err. Courts of probates are courts of limited jurisdiction, which can only reach cases to which the statutes extended it. The pre- . , , sent case is not one of these.

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


author: Mathews, J.

text:
      CROFT vs. McKNEELY & AL.

    Until a failure or inshlvency, the right to seize the undivided interest in partnership property of one of the partners cannot he doubted.
    Appeal from the court of the third district, the judge of the eighth presiding.
    In 1827, the firm of Allyn & Babcock obtained a judgment against J;he plaintiff for two hundred twenty dollars and fifty-seven cents ; and in 1828, Andrew Skillman obtained a judgment against Babcock in his indvidual capacity. Execution issued against Babcock, and the sheriff seized\nd sold his undivided interest in the judgment which the firm of Allyn 8c Babcock had obtained against the plaintiff. At the sale, the plaintiff became the purchaser. Allyn Sc Babcock having issued execution for the full amount of their judgment against the plaintiff, and the latter believing it was extinguished in part by his purchase of Babcock’s interest, obtained an injunction, which was made perpetual, upon the trial of the cause in the court below. Allyn appealed.
   Mathews, J.

delivered the opinion of the court. This is a case in which the plaintiff prayed for and obtained an injunction to stay proceedings in an execution levied on his property by the sheriff of East Feliciana, at the instance of Allyn &- Babcock, who had previously obtained a judgrrient against him. The injunction was made perpetual by a decree of the court below, after a hearing of the cause on its merits, from which Allyn, one of the partners of Allyn & Babcock, appealed.

The principal facts of the case, as sho wn by the record, appear to be the following: Allyn & Babcock obtained a judgment against the present plaintiff, Afterwards, Andrew Skill-man got a judgment, joint and several, against Babcock and several other persons, on which he caused an execution to be issued; and, amongst other property of the defendant, Bab-cock, was seized and sold his interest in the judgment which Allyn &, Babcock had previously obtained against Croft. At the sheriff’s sale, Croft became the purchaser of Bab-cock’s right, title and interest in the judnment which had been obtained against him, as above stated, by Allyn & Babcock.

This purchase, he alleges, conveyed to him one half of the amount of said judgment, and to that extent extinguishes the claim against him by the firm of Allyn S? Babcock, by confession.

orfesoivency!the SwaAS ship property'if ners,°cannotai>e doubted'

The only legal question in the cause is, whether the undivided interest of Babcock in the judgment was lawfully seized under Skil-man’s execution. This question, we think, must be decided affirmatively Until a failure, or insolvency, the right to seize the undivided portion or interest in partnership property of one of the partners, cannot be doubted ; and in the present case there is no evidence of bankruptcy.

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


author: Mathews J.

text:
      CROIZET vs. THE POLICE JURY OF POINT COUPEE.

    •When the police jury adjudicate the work to be done on levees, and undertake to pay therefor, payment cannot he withheld on the ground that the owner of the land must first be resorted to.
    The owner may be bound in justice and equity, to refund to the parish, but he cannot he made a party to the action, where the police jury is sued for the price, by the party to whom the contract was- adjudicated.
    ' Appeal from the court of the fourth district, the judge of the second presiding..

      The defendants, acting under the police regulations of the parish, contracted with the plaintiff to make a certain portion of new levee on the lands of one Delamere, for which work, as stipulated in the contract, he was to receive the sum of five hundred dollars.
    The work was completed in the manner, and within the period fixed by the contract, and to the satisfaction of the inspector of the district.
    Payment being demanded, and refused, the plaintiff brought suit to recover the amount.
    The defendants in their answer, excepted to the plaintiff’s right of action on the ground, that the police jury could not be held liable for the price of the work done on the lands of Delamere, until the owner had been pursued, and the land seized and sold. The answer contained a denial -that the defendants had entered into such a contract as that -declared on by the plaintiff, and concluded with a prayer, that l5e-Iamere be cited, and that judgment be rendered against :him in fitvor of the police jury, for such sum as might be decreed against ...them. The court overruled the exception and refused to make Delamere a party. There was judgment for the plaintiff, and the defendants appealed.

      Watts, for appellee.

      The defendants are bound, as a corporation, , , „ ,. . . , , ‘ by the contract of adjudication, and thejudgment should be affirmed with costs and damages for a friviious appeal.

      Moreau and Soule, contra.
    The only point contended for, by the appellants, is a point of fact, which rests entirely on the provisions contained in the police regulations of the parish of Point Coupee, and in our opinion, they clearly show, that the undertakers of the public works to be made for the repairs of the roads and levees of the planters, who failed to do the same, and which are adjudged to them by the j udge of said parish, have their remedy for payment only against the said planters, by causing their plantations to be seized and sold, and not against the police jury, except, perhaps, if the proceeds of the said sale, should prove insufficient to satisfy the said claim.
    And indeed, the only law of the legislature, exclusive of the police regulations of the parish of Point Coupee, which was in force at the time of the adjudication made to the plaintiff, that is, on the 27th of February, 1829, was an act approved on the 6th of April, 1807, entitled “An act relative to roads, levees, and the police of Cclttle.” p. 650. Moreau’s Digest, English part, vol. 1.
    Now it is obvious, by the provisions of said act (sec. 4) that the parish judge, was thereby authorized to cause the repairs, which a planter failed to make on his roads and levees, when lawfully required to do so, to be made at his expense, and not at the expense of the parish, either by the job, or by the inhabitants of the said parish, and the proof that the said expenses were not to be supported or advanced out of the funds of the parish, pursuant to the said law, is, that by the same section of that act, it is made the duty of the judge to compel the inhabitants refusing to pay all the expenses, even by a seizure and sale of his property, if the case require it.
    It is true, that by the police regulations of several parishes, among which is the parish of Orleans, it has been ordained that the price of such undertakings, shall be advanced and paid to the undertaker out of the funds of the parish, saving its action against the planter, who has failed to repair his roads and levees, as in the case of the Police Jury of New Orleans vs. McDonough — Martin’s Reports, vol. 7,

      But.- there are also, several other parishes, who have not made such a provision by their police regulations, and in which they grant to the undertaker of said repairs, his remedy only against the planter who has failed to repair his roads and levees, agreeably to the power which is given to them by the 5th section of an act, approved March 25th, 1813, where the police juries of the several parishes of this state, are empowered to make all such regulations as they may deem expedient, as relates to the proportion and direction, and the making and repairing of the roads, bridges, causeways, dikes, levees and other highways.
    And it cannot be said that an act which was passed by the legislature on the 7th February, 1829-, entitled “An act relative to roads and levees,” and which may contain provisions different from those of the act of the 6th April, 1807, with respect to the payment of the works made, for the repairs of roads and levees, may be applied in any manner to. the decision of this cause, since that act could not have been deemed promulgated but thirty days after the date of its approbation, which took place only several days after the date of the contract entered into between the parties. Moreau’s Digest, vol. 2, p. 282.

      We must therefore, only resort to the police regulations of the parishof PointCoupee, which were in force at the time of the adjudication to the plaintiff, in order to determine whether or not, he had any action against the parish, to be paid for his works out of the funds thereof. Now, by the 10th section of the police regulations of the said parish, we say such right of action is refused 'to the undertaker, and that he is only entitled to require from the parish judge an immediate order of seizure and sale of the plantation, the levee of which he has made, or repaired, by using the name of the police jury to bring such action.
    In effect, it is ordained by the 10th section of the said police regulations, that “after the expiration of a certain delay therein fixed, to be granted to the land holders, to make and repair their roads and levees, if they fail to do it, the parish judge shall adjudge the undertaking of said works to the lowest bidder, after having previously given the necessary advertisements during ten days, and said adjudication at the expense of the landholder — and that therefore, the said landholder shall be immediately sued in behalf of the police jury of said parish, for the payment of the expenses which said landholders shall have thus occasioned, and , , „ , . „ pursuant to the laws of this state.”
   Mathews J.

delivered the opinion of the 1 court. This suit was brought to recover ° Fiona the defendants five hundred dollars, which the plaintiff alleges they owe to him, under a contract by which he undertook to make a certain portion ofievee on the land of Gustave Delamere, situated in the parish of Point Coupee, the work being adjudicated to him, as the lowest bidder, under the police regulations of the parish. He avers performance on his part agreeably to all the requisitions of the adjudication.

The answer contains an exception to the plaintiff’s right of action against the police jury, until he shall have first pursued the owner of the land, and caused it to be sold, in satisfaction of the price of labor in constructing the levee. Also, a denial that defendants ever entered into any contract, as alleged by the plaintiff; and that he has never required payment in a proper manner, &c.

The district court overruled the exception to the action, and gave judgment for the plaintiff, for the amount of his claim, irom which the defendant appealed.

lice^jury ídjudi-be^oneon"levees and undertake to payment cannot be withheld on the ground that the owner ol the ^“orS”34&stbe

The owner may be bound in justice and equity to refund to the parish, but he party to the action when the police jury issued the4 party6 to tract*was'adjudi-

The evidence of the case appearing on the record, shows clearly, that the making of the levee in question, was adjudicated by parish judge, acting under police regu-Nations,- and in behalf of the parish, to the pjaintiíí¡ as an undertaker at the lowest prjce> Under this contract he certainly r * fja(j a rig|jj; (0 i00fc ^o the funds of the par- ° a ish direc0y for payment, after the completion of his work, and was not under any obligation to resort to the owner of the land, as there is no privity of contract between r those individuals.

The owner may in justice and equity be • , bound to refund to the parish; but that is a matter which does not concern, or in any manner affect the claim of the plaintiff, un-_ , ,. , - ,.,i der his direct and express agreement with the defendants. They, however, prayed in their answer that the owner might be made a party to this suit, and cited in due form, and that judgment should be rendered against him in favor of the police jury, for any sums which might be decreed against them. This part of the answer was objected to by the counsel for the p laintiff, and was set aside by the court below. And we think very properly.

The plaintiff, in the present suit, ought not to have been subjected to the delay and confusion which might have resulted from this mixture of actions required by the defendants. He has nothing in common with them in relation to their claims against the proprietor of the land, whose levee they caused to be made. The performance of the work by the undertaker is not denied.

It is therefore ordered, &e. that the judgment of the district court be affirmed ,whh costs.


text:
      BLAIR’S HEIRS vs. WADE’S

    If heirshipbe denied, proof of it cannot be dispensed with.
    Appeal from the third district, the judge of the fourth presiding.
    This suit was originally brought by Blair, against Wade, and at the April term of 1825, judgment was rendered in favor of plaintiff for the amount claimed. The defendant applied for, and obtained a new trial. The death of the defendant was suggested, November term fol- . , , . lowing, and leave granted to make his representatives parties to the suit. At April term, 1826, death of the plaintiff was suggested and his heirs made parties. The defendants pleaded de novo, admitting in their answer the death of Blair, but denying expressly the heirship of plaintiffs. No proof was offered of heirship. There was judgment for plaintiffs and the defendants appealed.

      Watts, for the appellants.
    The heirship of the plaintiffs was expressly put in issue. No proof of it was adduced, and plaintiffs ought to have been nonsuited, or judgment given for defendants.
   Mathews, J.

delivered the opinion of the court. This suit was originally instituted by the ancestor of the plaintiffs against the ancestor of the defendants. The death of the latter was suggested and permission granted to make his representatives defendants. After this it seems that the plaintiff died, and on motion to that effect, the suit was revived in the name of his heirs — and in this mode it was proceeded in, to final judgment in favor of the plaintiffs, from which the defendants appealed.

If heirship bo denied, proof of it cannot be dis-penned with.

After the revival of the action, the defendants pleaded de novo; and, in their answer, denied, in express terms, the capacity and quality of the plaintiffs named as heirs. On the trial of the cause, no evidence was offered to prove their heirship. In this court, their counsel relies on the order of the court below, by which they were permitted to prosecute the suit, in the capacity assumed, as a dispensation of any further proof of it. This ground of defence, on the appeal, we believe to be untenable. An order, similar to that now in question, is generally made ex parte, on the mere suggestion of the party interested to obtain it, unsupported by any evidence. The answer r ‘ J J explicitly required proof of heirship on the . 1 J * 1 part of the appellees, and as they failed to make it, the judgment of the district court must be reversed.

It is therefore ordered, &c. that the judgment of the court below be avoided, reversed and annulled. And proceeding here to give such judgment as in our opinion ought there to have been given. It is further ordered, &e. that judgment as in case of non-suit be entered against the plaintiffs and ap-pejjeeg wJ^]j costs ¡n both courts.


text:
      WOODRUFF vs. BRADFORD & AL.

    Where a party is ordered to produce papers, until he does so, or shows that it was not in his power to comply with the order, the cause ought not to be tried.
    Appeal from the court of the third district, thejudge of the fourth presiding.
   The facts of this case are fully stated in the opinion of the court.

Porter J.

delivered the opinion of the court. This case originated in an application to enjoin an order of seizure and sale, which the defendants had obtained against property of the plaintiff, for a debt due to them. One of the grounds on which the injunction was asked, is a deficiency in the quantity of land purchased by the plaintiff, which land was in part the consideration of the debt, on which the seizure had been obtained.

On the 7th of December, the defendants filed exceptions, in which they stated, that the facts alleged in the petition did not authorize an injunction. These exceptions were argued on the 19th of the same month, and on the 21st overruled. Immediately after, viz, on the same day, the plaintiff moved to have a survey made of the land, which the court granted, but the survey not being made, on the 24th, the judge ordered the case for trial on its merits.

is o"de»d topro-dace papera, un-tu he does so, or shows that it is not in his power theC°order, "the tobe tried!11 "ot

It appears to us the court was too precipitate. The answer of two of the defendants was not put in until the 23d the daybefore the cause was tried. So that the trial not only took place at the first term the cause was at issue, but on the second day. The court had ordered the defendants to bring in their original . . . ... grant, and survey, and until they did so, or ... ... , showed it was not m their power to comply with the order, the cause should not have been tried. The case under all its circumstances, appears to us to require the application of the 468th article of the Code of Practice.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that the case be remanded for a new trial, the appel-lees paying the costs of this appeal.


text:
      SHARP vs. STEPHENS

    It is not sufficient ground to reject a document offered in evidence, that it is composed of several frag* merits of paper, put up together.
    A letter of the plaintiff, acknowledged that the contract sued on was simulated, is admissible evidence although it contains no evidence by which the paper alluded to in the letter, may be identified with that produced.
    Appeal from the court of the fourth district, the judge of the second presiding'.
    By an authentic act dated in August, 1822, the defendant and her then husband, Harris, acknowledged themselves indebted to the plaintiff in the sum of iwelve thousand dollars, which was secured by mortgage upon a tract of land and certain slaves. After the death of Harris, his widow intermarried with Stephens, the defendant.
    The petition prayed judgment for twelve, thousand dollars, and that the mortgaged property be seized and sold.
    The answer set forth that the act of mortgage was false, and simulated, and entered into without any consideration.
    In support of this plea, the defendant introduced the following certificate, signed by the plaintiff, and dated Sept. 1823.
    “This will certify that the mortgage which I hold against Samuel Harris and Mariane Harris his wife, for the sum of twelve thousand dollars, recorded in the office of the parish, judge of Iberville, and also, in the office of the parish judge of East Baton Rogue, is intended to keep his property in possession, and to prevent any seizure on said property, I moreover confess that the said Harris and his wife, do not owe me the sum mentioned in the mortgage. Therefore, this acknowledgement will put an end to the effect of the mortgage in my favor, in case of any accident.”
    The defendant also, gave in evidence, a letter of the plaintiff requesting the defendant to cancel or deliver up the certificate of 1823, as since its date he had become security for defendant for three thousand dollars.
    To the introduction of both these documents the plaintiff objected. To the first.on the ground, that it appeared on the face of it, to be composed of several fragments pasted together, and that there was no evidence of its delivery. To the second, on the ground that there was no evidence to identify the paper referred to in said letter, with the certificate of 1823, or if there was, that it destroyed its validity. The court overruled both these objections. There was judgment for the defendant, and the plaintiff appealed.

      JVicholls> for the plaintiff.

      Gurley and Morgan, for the defendant.
   Martin J.

delivered the opinion of the _ court. The plaintiff claims the sum of twelve thousand dollars, on an authentic act of the defendant and Harris, her then husband, by which they mortaged several slaves.

The defendant pleaded the simulation of the act, evidenced by a counter letter.

There was judgmentfor the defendants and the plaintiff appealed.

His counsel has drawn our attention to two bills of exceptions, the first taken to the opinion of the judge, who admitted the counter letter in evidence, notwithstanding the plaintiffs objection, on the ground that the paper appeared on its face to be composed of several fragments, put up together, which showed that it had been canceled, if it was ever delivered, of which there was no evidence.

The second bill of exceptions was taken to the opinion of the judge, who admitted in evidence a letter of the plaintiff to the defendant’s husband, acknowledging the contract sued on to be simulated. The plaintiff’s counsel urged that there was no evidence by which the paper alluded to in the letter was identified with that produced as a counter letter.

It is not sufficient ground to reject a document offered in evidence, that it is composed of several fragments of paper put up together A letter of the plaintiff acknowledging that the contract sued on was simulated, is admissible evidence, although it contain no evidence by which the paper alluded to in the letter may be identified with that produced.

We think the district judge did not err. Both papers offered evidence from which the simu-laron might be inferred; if they were not conclusive evidence of it, they established that the contract was simulated, at the time it was entered into: after they were read they were liable to all the objections that were made to their introduction.

We have examined the case on its merits, and given to these objections the weight they are entitled to.

The first paper is shown to be genuine, this, therefore, establishes the simulation of the contract, at the time it was made, unless we conclude that a contract, which was once to be a simulated one, became, by the consent of the parties, a real one, and take the state in which the paper is presented, as evidence of their consent.

But the authentic act bears date of the 16th of August, and the counter letter of the 19th of September, 1823, and the second paper, which is a letter of the plaintiff,which speaks of a simulated contract, bears date of the 24th of June, 1824,

We cannot therefore think the district judge erred, when having both these papers before him, he concluded that the contract sued on was a simulated one, at the time of its execution, and remained so, from its date to that of the counter letter, and when, in the following year, the plaintiff, alluding, in a letter to the defendant’s husband to a simulated mort-age, he referred to that sued on.

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


text:
      Wm. KENNER & AL. vs. THEIR CREDITORS.

    If on a comparison of the day of acceptance, the day designated for payment, and the tenor of the bill, it appears the days of grace were included with those of sight, between the day of acceptance arid that designated for payment, that day is the peremptory one 0f payment, and protest on it is legal.
    If the acceptance he not dated, parol evidence is admissible to show on what day it was made.
    If, on comparison of the day of acceptance. the day designated for payment, and the tenor of the bill, it appears the days of grace were included with those between the day of acceptance and that designated for payment, that day is the peremptory one of payment, and protest on it is legal. If the acceptance be not dated, parol evidence is admissible to show on what day it was made

      Aeteal from the court of the parish and City of New Orleans.
    The case is similar to that in which the president, Sfc. of the bank of the United gta^eg> were appellants — -8 Martin, n. s. 36, and which was decided in May term, 1829, of this court. The principles on which its decision depend were then settled, after much discussion, and we believe them to be estab-7 lished on a just and sound interpretation of' the laws applicable to these cases.
    There is one slight difference in the present ° r .case, from that referred to, arising on the contract of deposit made between William Me-Muado Duncan & Sons, who were acceptors of the bills of exchange and their creditors.
    In the case of the bank of the United States it appeared that its officers had received a dividend of the deposit, amounting to seven shillings in the pound on their claims. The same amount in relation to the claims of Hicks & Sons, seems to remain in the hands of the de-positees, for the benefit, and subject to the order of the former, according to certain conditions to be by them performed in relation to the depositors. Thiscircumstanceof difference, does not, in our opinion, materially change the essential merits of the two cases.
    It is therefore ordered, &c. that the judgment of the parish court be avoided, reversed and annulled. And it is further ordered &c. that the appellants be restored on the tableau as creditors of the insolvents, for the amounf; 0f their respective claims, deducting therefrom at the rate of seven shillings in each pound sterling, being the amount deposited for their use and benefit in the hands of Cropper, Benson So Co. and William and James Brown, So Co. of Liverpool. The appellees to pay costs of the appeal, the appellants those before..


author: Marttat, J.

text:
      TOWNSLEY & PRIEUR vs. SPRINGER.

    Notice by mail to the indorser, must be put in the post office, the next mail day after the protest, otherwise the endorser is discharged.
    Appeal from the court of the first district.
    The defendant was sued as the endorser of a note,'and the defence set up was, want of notice.
    It appeared from the testimony, that the defendant, at the time of protest, was clerk, on board the steamboat Washington, a regular trader between New Orleans and Louisville, Kentucky, at which last place she then was. The note was protested on Wednesday the 10th of _ , . j une, and the notice to defendant was put in the post office on Sunday the 14th. It was in evidence that the mail from New Orleans to Louisville, at that period, left New Orleans, on the Sunday, Tuesday and Friday of each week.
    There was judgment for the plaintiffs and the defendant appealed.
    Hoffman, for the appellant.
    The note was protested on the 10th — the mail left New Orleans on the 12th, and notice of protest was sent by the mail of the 14th. To defer it till then, was a fatal neglect, unless due diligence to give earlier notice be- proved.
    Evidence was introduced by the plaintiffs to make it probable they were ignorant of defendants residence, but he must show diligence to discover it — Chitty, 27.5 — 3. John, eases, 89. Beverige, V. Burges, 3. Campbell, 262. Chitty, 518.
    Due diligence must be used the day following the protest--7 M. n. s. 585 — 1 M. n. s. 323 — notice must he given the day after protest — 11 Mart. 452. Reasonableness of notice is a question of law and fact — 10 Mar. 89 — 7 Mar. 86. The plaintiffs were the holders, the notary their agent — 12 Wheaton, 559 — 1st.' Mason, 176 — 2 Peters, 102 — 1 Peters, 583— 13, Johnson’s reports, 432 — 6 Massa.-Reports, 386 — and Collins vs. Butler, Strange, 1087.
    Maybin, contra.
    The note was'protested on. Wednesday the 10th of June, the mail for the western states left on Friday, the 12th, and on Sunday the 14th, the next mail day, notice was given to the defendant at Louisville, Kentucky.
    The defence is, that notice should have gone on Friday the 12th.
    The testimony shows that, after the endorsement of the note by defendant, he left the state. That he was a clerk on board a steam boat navigating the Mississippi or the western rivers. He had no known domicil.
    If he lived at Louisville, and the plaintiffs knew it, there might be some ground for the defence, but he was a transient person, and had been a clerk on board steam boats for several years. Under these circumstances, the plaintiffs sent their notice, as soon as they had any knowledge of where he might probably be found. Chitty, edition of 1826, 213 and authorities cited — 12 East. 433 — 5 English Com. Law Reports, 471 — 15 Idem, 242 — 8 Idem, 66 — Baldwin vs. Richardson, 2 Caine’s Rep. 127 — 1 Johnson, 294.

      Notice by mail to the indorser, most be put in the post office the next mail day after the protest, otherwise, the indorser is discharged.
    Rules for the testing of diligence must be reasonable* — 1 Peters, 583.
    But the defendant was entitled to no notice; he had left the state after his endorsement in New Orleans, and left no known agent in New Orleans, or the state; in this case the law dispenses with regular notice — 2 Peters, 102— Williams vs. bank of the United States—6 Massa. Reports at the close of the opinion.
   Marttat, J.

delivered the opinion of the court. The defendant, sued as endorser of a a promissory note, is appellant of a judgment in favor of the plaintiffs and contends the latter lost his recourse by neglecting to give timely notice of the non-payment of the note. It was protested on Wednesday the 10th of June, 1829, and the notice was not lodged in the post office till the Sunday, 14th of the same month; and it is shown the mail at that period, left New Orleans for Louisville, the defendant’s residence, every Tuesday, Friday, and Sunday, so that the next mail day, which the plaintiff was bound to improve was Friday the 12th. It appears he had notice of the protest on the 10th or 11th. We are of opinion the district judge erred in considering the delay as not fatal.

It is therefore, ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the defendant, with costs in both courts. I


author: Martin, J.

text:
      ROSA vs. THE MAYOR & AL.

      . The exclusive privilege granted by the city council, to sell oysters at designated places on the levee, does not prohibit their being sold, at other places within the city.
    Appeal from the court of the first district.
    The plaintiff purchased from the defendants at public auction, the exclusive privilege of vending oysters at certain stations on the levee, designated by the city authorities, The petitioner stated that, previous to his purchase, the corporation had prohibited the public sale of oysters, at other places than those adjudicated to him; in consequence of which, he had been induced to give for the privilege the sum of five thousand eight hundred dollars. That since his purchase, oysters had been publicly vended in different parts of the city, to his great injury, and in violation of his privilege, which fact was fully proved by the evidence adduced apon the trial,

      To the present action, which was brought to recover the price he paid for his privilege, the defendants plead the general issue. There was judgment for the plaintiff in the court below, and the defendants appealed.

      Eustis, for the plaintiff and appellee,
    urged the following points:
    1. That the sale from the corporation of New-Orleans was a privilege; that the word itself implied exclusiveness ; that that which every body had a right to enjoy could not be a privilege; that the interference of others in the same business, in public places, with plaintiff, rendered his.privilege utterly useless and of no value; that the sale necessarily implied warranty, and consequently the defendants were bound to indemnify the plaintiff for any loss he might suffer by any disturbance of his privilege, which the government of the city, by their ordinances, bound themselves to prevent.
    That the city ordinances were proved to have been violated by the public sale of oysters in public places, other than those specified in the ordinances.
    That the government was notified of these violations of plaintiff’s privileges, and called upon to defend him in the right they had sold.

      The damages being clearly proved under the warranty, the plaintiff is entitled to recover, and the verdict must stand.
    2. If there was no privilege sold, then there was error as to the subject matter of the contract, and the price paid must be returned. — • C. C. art. 1835, 1836, 1837, 1875, 1876 as to the fact of error under this view of the case, the evidence is conclusive. No one would give the sum of five thousand eight hundred dollars for a mere right which was valueless, unless through the most palpable error.
    Under every possible view of the case, he thought the verdict ought to be confirmed, and urged as a strong reason in its favor, that it was rendered by corporators of New-Orleans, who were judges in their own cause, but who could not resist the conviction of the justice of the plaintiff’s claim.
   Martin, J.

delivered the opinion of the court. The petition states the plaintiff purchased from the defendants, for five thousand eight hundred dollars, the privilege of selling oysters in the city of New-Orleans, in certain places on the levee, theretofore designated for that purpose, and which were then un-r r . . derstood to be the only ones in the city where oysters were permitted to be sold. That the places thus designated were seventeen ; but since the plaintiff’s purchase, oysters have been sold in sundry other places, in violation of his privilege, and his complaints on that head to the proper officers have been disregarded, and the sale of oysters at these new places winked at and tolerated, whereby the privilege has become of no value ; and he has besides lost several large sums, expended in an attempt to render it available. He prayed that the defendants be decreed to repay him the sum of three thousand eight hundred sixty-six dollars and sixty-six cents he had paid to them, and surrender four notes he had given them to secure the balance of the price of the privilege, one thousand nine hundred thirty-three dollars and thirty-three cents.

The general issue was pleaded. There was a verdict for the plaintiff, the four last notes to be returned, amounting to one thousand nine hundred thirty-three dollars and thirty-three cents.

The privilege granted by the city council, to sell oysters at de-signaled places on the levee,does not prohibit them being sold at other places within the city.

The district court gave judgment in favor of the plaintiff for five thousand eight hundred dollars, reserving the defendant’s right reduce it for one thousand nine hundred thirty-three dollars and thirty three cents, by surrendering the plaintiff’s notes to that amount.

The defendants prayed a new trial, on the ground the judgment being contrary to law, the evidence and verdict; and, on its being refused, appealed.

We have considered the case on the merits; the counsel of neither of the parties having urged the technical question arising on the manner in which the judgment was entered.

It has appeared to us that the plaintiff purchased nothing but the exclusive privilege of . selling oysters in the different places desig- ~ nated for that purpose on the levee. Nothing was said as to the sale of oysters elsewhere; an¿ we cannot think he has any right to com- * a plain, when he was allowed the full enjoyment of the privileges he purchased,

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the defendants, with costs in both courts.


text:
      BUQUET vs. WATKINS.

    A demand for conpensation, in consequence of slander, is not contrary to, and does not exclude a demand for damages for false imprisonment.
    The law makes the justice of the peace the judge of what constitutes a contempt of his authority, and the correctness of his decision cannot he examined collaterally in a civil suit.
    A judge is not answerable civiliter for an error in judgment, so long as he acts within his jurisdiction.
    Appeal from the court of the second district, the judge of the third presiding.
    The petition stated that the defendant had charged the plaintiff and his wife with having stolen from him certain smoothing irons, in consequence of which slander, he had sustained damage to the amount of one thousand dollars; and further, that the defendant, assisted by one Claiborne Watkins, had wantonly and unjustifiably imprisoned the plaintiff, in the st0cks, for which last injury he claimed as damages the further sum of two thousand dollars.
    The defendant excepted to the petition on the ground that the plaintiff had cumulated two separate and distinct causes of action against him, to wit, an action of damages for slander, and also an action of damages for false imprisonment.
    This exception was overruled day the court, and the defendant, in his answer to the merits, denied that he had accused the plaintiff of being a thief; but admitted that, while sitting and acting as a justice of the peace, he had, by virtue of his authority as such, granted a commitment for the space of two hours for a contempt of court,which was executed by the constable’s confining the plaintiff in the stocks, there being no sufficient jail in the parish.
    At t,he trial, the plaintiff offered evidence to prove that his conduct before the defendant, on the day of his imprisonment, was decorous, and that he was guilty of no contempt. This evidence was objected to by the defendant, on the ground that magistrates were by law the exclusive judges of what constitutes a contempt of their authority, lhe court overruled the exception, and permitted the evidence to go to the jury. They found a verdict for the plaintiff, and assessed his damages at one thousand dollars. The defendant appealed.
    Nicholls, for the appellant.

      Porter, for the appellee,
    contended 1st, that there was no error in the finding of the jury.
    2. There is no error in the judgment of the court, the same being supported by the verdict, and the evidence which was submitted to the jury.
    3. The plaintiff is entitled to damages, the appeal being taken for delay.
   Porter, J.

delivered the opinion of the court. Two causes of action are united in the petition in this case, one an allegation that the plaintiff sustained injury by the defendant, falsely and maliciously stating that the plaintiff and his wife had stolen smoothing irons.

The other, falsely imprisoning him in the stocks, although the petitioner had been guilty of no crime or misdemeanor to warrant such 'an outrage on his person. By reason ofboth these injuries, damages are alleged to be sustained to the amount of three thousand dollars.

a demand for compensation in consequence of slander, is not eontrary to, and does not exclude a demand for damages sustained by false imprisonment.

The defendant excepted to the petition, on the ground that causes of action incompatible with each other, were joined in it. The court overruled the exception, and did not err in doing so. The Code of Practice, art. 151, contemplates the combining in the same action, different matters, unless they be contrary to, or exclusive of each other. We see nothing in the claims set up in the petition which could produce such effect. A demand for compensation in consequence of slander, is not contrary to, and does not exclude a demand for damages sustained by false im-_ ^ prisonment.

The defendant pleaded, first, a denial that he had ever accused the plaintiff of being a thief.

Second, That while acting and sitting as a justice of the peace, the plaintiff was guilty of contemptuous conduct towards him; and that, in consequence thereof, the defendant, in virtue of his authority as justice of the peace, did grant a commitment, by which the constable was directed to imprison the plain-tiiFfor the space of two hours in the jail, or stocks, there being no jail in the parish.

whether there ZT whLh "The^iavf “fa íorSítnera ofhl* decision cannot be examined colsauh™llyinacivii

The jury found a verdict for the plaintiff, and assessed his damages at one thousand dollars. The defendant moved for a new trial, which was refused, and he appealed.

Our attention has been principally drawn in this court, to the legality of the order by which the justice committed the plaintiff to the stocks for a contempt of his authority Admitting it, however, to be such an act, as deprives the officer of the defence which arises out of his judicial character, so long as he is acting within the jurisdiction confided to him, we are still compelled to examine a bill of exceptions which is found on record.

The plaintiff offered evidence to prove that his conduct was decorous before the justice, and that he was guilty of no contempt. To this testimony the defendant objected, but without success. The court admitted it, and lie took a bill of exceptions.

In going into this inquiry, we think the judge erred. By the 1154 article of the Code of Practice, a justice of the peace may punish for a contempt of his authority by an imprisonment not exceeding twenty-four hours. Now whether there was a contempt or not, is a . , , . . question of which the law makes the justice of the peace the judge, as much so, as whether or not a plaintiff proves the debt in which the justice condemns the defendant, and the correctness of his decision cannot be examined collaterally in a civil suit.

, , . , A judge is not answerable civil-tier for an error in judgment, so long as he acts diction b'S ^1"™'

There is another ground, on which the ° ' evidence was improperly admitted. A judge 1 r J jo js not answerable civiliier, for an error in judgment, so l°n§ as he acts within his jurisdiction. And that he had jurisdiction in relation to contempts is not denied. See 5 Johnson, 282. 9 ibid, 394. 2 Bay Reports. 1 Day's cases in error, 315. 1 Lord Raymond’s Reports, 454. 10 Coke, 68. 2 n. s. 649.

Reserving, therefore, the question, whether the defendant, by ordering the plaintiff into the stocks, in a parish where there was no jail to confine him, so acted out of his jurisdiction as to make him responsible in damages to the plaintiff, we are of opinion that the inquiry into the existence of the contempt, was erroneously gone into, and as we do not know what effect it may have had on the minds of the jury when they appear to have given lieavy damages, we think the case should be ‘ - remanded.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, thatthe cause be remanded for a new trial, the appellee paying the costs of the appeal.


author: Porter J. Porter, J.

text:
      DONALDSON vs. WINTER.

    The senténce of a court of probate, ordering the execution of a will, is prima facie evidence of its having been duly proved.
    Whether in regard to sheriff’s deeds as the law supposes the original to be delivered up by the recording officer, a copy be evidence until the original 'be accounted for? Quere.

    . A sheriff’s deed, without a judgment, confers -no title.
    If the records of a court of justice be lost, secondary evidence may be received, and if written copies do not exist of them,;their contents may be proved byparol testimony.
    It is a sound principle of construction never to consider laws as applying to cases, which arise previous'to their passage, unless the legislature declared such to he their intention.
    Appeal from the court of the second district, the judgethereof presiding.
    This was a petitory action, in which both parties set up title to the land in controversy.— The plaintiff claimed as universal heir under the will of her deceased husband, Donaldson, who, it appeared, bought the lots in question, in 1806. The defendant, by virtue of a sheriff’s sale which purported that the disputed premises were sold in 1816, as the property of-Donaldson, at “the suit of the undertaker of roads and levees,” to one Walker Gilbert, under whom the defendant claimed.
    In thé sale to Gilbert, the sheriff recites that he sells by virtue of an order to him directed, and the parish judge testified that hehad the property advertised and sold according to law; but it appeared on the trial, that no judgment had been obtained against Donaldson, nor was there any proof that such a suit had ever existed.
    Several bills of exceptions were taken on the trial, and are very fully considered in the opinion of the court. .
    The judge below decreed that the plaintiff recover the land, but gave judgment against her for the value of the improvements made by defendant. The plaintiff appealed.

      McCaleb, for the appellant,
    made the following points:
    1. The objection taken by the defendant to the plaintiff’s right to sue, cannot be maintained; for the will of her deceased husband makes her universal heir, and this will was a nuncupative will under private signature duly made and proved. Old Code, p. 228, art. 96, p. 242, art. 153, 155, 157.
    2. Having a right to sue, the next inquiry will be, what title does the plaintiff exhibit to the land or lots in controversy. Her titles are conclusive — see two acts of sale to Wm. Donaldson, dated in 1806.
    3. The plaintiff having shown a good title to the lots must recover, unless the defendant can prove that she has become legally divested of that title. Her title (says the defendant) has been divested by a deed of conveyance made by the sheriff of the parish of Ascension, to Walker Gilbert. To this sale the plaintiff replies that it was illegal and null, on the following grounds, viz.
    1. Because the defendant has not shown by legal proof, that such sale was made in strict conformity to the provisions of the law. If under the regulations of the Police Jury, the pri- or formalities to be observed in adjudicating lands or lots, are found in the following sections and laws. 2 M. D. p. 586, sec. 1 — 3 M. Do 302, sec. 22 — n. s. 455- — 3 M, D. 290, sec. 7, acts of I816””2 M.D. 602, sec 23,24, 29, 37, 38,39.

      These prior formalities must be pursued be*fore plaintiff’s land could be sold, and she has a right to demand that defendant show by proof, that they were pursued. 4 Cranch, 403 — 4 Wheaton, 77 — 5 Wheaton, 116 — 4 Martin, 54 — 6 Wheaton, 119 — 9 Martin, 489 — 8 Wheaton, 681 — 10 Martin-, 308 — 11 Martin-, 706 — 4 n. s. 456.
    The proof offered was illegal arid insufficient, and was properly excepted to, no loss of records was established, and parol testimony ought not to have been received.
    The sale to Gilbert was not good proof, being the copy as recorded on* the book of reeord of sheriffs’ sales of the parish of Ascension. The original bill of sale should have been produced. ■2 M. D. 337 — 1 M. n. s. 189 — 5 n. s. 500 — 4 n. s. 471 — n. C. C. article, 2255, 2256, 2258, 2415.

      Watts, for appellee,,
    1. The plaintiff did not make out in proof the title set up by her to the lands claimed, and ought to have been nonsuited or judgment given for defendant.
    2. On the evidence produfed the defendant ought, to have been adjudged* owner of the land.

      3. But if the court should not SO decree, . . then he says that there is not any error m said judgment as against plaintiff appellant, and prays that the judgment appealed from be affirmed with costs.
   Porter J.

delivered the opinion of the court. The plaintiff, as universal heir of the late Wm. Donaldson, claims from the defendant, a number of lots in the town of Don-aldsonville, which she alleges to be her property.

The defendant admits he is in possession of the land mentioned in the petition, but denies that the plaintiff has any right under the will of Donaldson.

He also sets up title under a purchase from Walker. Gilbert, who bought at a sale made by the sheriff of the parish of Ascension, under an execution or order of seizure bearing date the day of 1816, issued by the judge of said parish, for a duty legally assessed on said lands of six hundred and eighty dollars for the making a levee in front thereof on the Bayou Fourche.

And he pleads the prescription of three, five, and ten years. And prays that if he be evicted, the plaintiff shall be decreed to pay him two thousand five hundred dollars, the value of improvements put by him on the premises.

Several bills of exceptions were taken on the trial.

The first was to the introduction of Donaldson’s will in evidence. It was objected to on the following grounds:—

1. That it should have been signed by five witnesses, not including Livingston.

2. That it was not proved according to law nor ordered to be executed.

The will concludes in these words: ‘‘ which has been dictated by me to Edward Livingston, one of the witnesses thereof, written by him in my presence, and declared as my last will and testament, in the presence of the other witnesses, who have signed the same this 28th of August 1813, signed “William Donaldson. Acknowledged and delivered by the said testator to be his last will and testament in our presence,” signed, “George W. Dewees, Richard Relf, Benjamin Morgan, Edward Livingston, Waters Clark.”

By the provisions of the Old Code in force at the time this will was opened it is declared to suffice for the validity of a nuncupative act under private signature, that the testator, m , „ „ , the presence of five witnesses, “presents the paper on which he has written his testament, or caused it to be written out of their presence, declaring to them that that paper contained his last will.”

It is contended the will offered here is of no effect, because it does not appear that it was presented to all the witnesses at the same time, nor signed in presence of them, nor that the witnesses signed in presence of each other.

The proof on which the testament was admitted to probate consisted of the oath of three of the witnesses, who declared that it “was made at the instance and under the direction of the late Wm. Donaldson, deceased, at New Orleans, the 27th instant, is the same that the late William Donaldson caused to be written in his presence, by Mr. Edward Livingston, on the 28th August, anno domini, 1813, and also, that they recognized their signatures as well as that of the testator, given in their presence, at the foot of the said last will, and, which the said William Donaldson told them was such, his last will and testament, for the purpose therein mentioned.

The sentence of a court of probate, ordering the execution of a will, is prima facie evidence of its having been duly proved.

Whether in re-'deeds,t0 ns^the wiginaHo^e-da-livered up by the recording officer, a copy be evidence until the original be ao-counted for i— (¿Here.

The proof is literally that required by the 157th article of the Code for the admission of the will to probate. The whole proceedings by the court which ordered the execution of it appearsto be regular, and in conformity with law. The sentence therefore is prima facie at least binding on all persons. Whether it is not conclusive, may be doubted, but it is unnecessary to examine that question, for no proof was adduced on the trial to contradict the evidence on which the probate was granted.

There are four bills of exceptions taken by the plaintiff. The points of law presented by them, appear to us correctly decided by the judge in the first instance. There is only one of them which requires particular examination.

The bill of exceptions states that the defendant having introduced in evidence the deed of sale of the sheriff of the parish of Ascension, to Walker Gilbert, recorded in the book of records of sheriffs’ sales of the parish of Ascension, the plaintiff objected to its admission, &c. &c.

If the instrument offered was a copy, there was error in admitting it. The law in regard to sheriffs’ deeds supposes the original to be delivered up by the recording officer,and until it is accounted for, the copy is inferior evidence. But we cannot gather from the exception taken in this case, whether it was the original which had been recorded, or a copy from the record which was offered by the defendant. As it was the duty of the plaintiff to bring up the facts in such a manner as to enable us to decide whether there was error or not, she cannot have the cause remanded, or the decision of the court below overruled.

A sheriff's deed without a judgement confers no right.

if the records tice beTostfsec-“dy“ye received; pf^diTn^t exist cLten.tsmayhbe t^tímonyf paro1

The court below thought that the sheriff’s deed, -without a judgment did not support the defendant’s right to the land, and in that opinion we concur.

We are not to be understood in giving our assent to the conclusion of the judge below, to do so on one of the grounds on which its correctness has been assailed here. If the records of a court of justice be lost, we see no reason why, after their existence and loss are established, that the next best evidence which the nature of the case is susceptible of should not be received, and if written copies do not exist of them, the contents may be established by parol testimony. But for obvious reasons, this proof should be received with great caution; and in the case . . . before us it is far from satisfactory. The keepers of the records in which the proceed-jngS shoui<j have been preserved, testify not only to the non-existence of any such suit among them, but they also declare that none such is found on the docket or minutes which have been kept of the legal proceedings in the parish. The sheriff recites in the conveyance that he sold by virtue of an order to him directed, without saying from what'court or judge that order emanated. None of the witnesses prove that a judgment or decree was regularly entered up. The parish judge comes nearer it than any other, and he goes no further than to swear “that he had the works advertised and sold at public sale according to law — that all the formalities required by law .were complied with.”

In decreeing the defendant to restore possession of the premises to the plaintiff, the court directs that, previous thereto, the latter should pay to the former six hundred and eighty dollars, the amount made out of the sale and applied to the payment of the testator’s debts, together with the sum of two thousand dollars, the value of the improvements made by the defendant on the land.

It is a sound of construction never to consider laws as applying to cases which arise previous to their passage, unless the legislature have declared such to be their intention.,

The first part of this direction was clearly correct and requires no observations from the court. The justice and legality of the other has been impugned principally on the ground that allowance was not made in favor of the plaintiff for the fruits made from the soil since the institution of the suit; at which time it is asserted he ceased to be in good faith. This position we think incorrect. The defendant entered into possession of the premises long before the passage of the law which made good faith cease with the institution of the suit. It is a sound rule of construction never to consider laws as applying to cases which arise previous to their passage, unless the legislature have in express terms declared such to be their intention. If that declaration had been made in this instance, a serious question would have arisen as to their power to do so. They have no right, perhaps, to add to the obligations or responsibilityVhich fiowed from the contract at the time the defendant made it, or abridge any of the rights which it conferred. At the time the defendant made the purchase and entered into possession, he did so bona '(¡,de, and as a conse-J quence of his good faith he had a right to Biake the fruits his own, until his bad faith was established' by the law as it then stood. If he had a right then to contest a demand for the property with the privilege of making the fruits his own, it would seem that a subsequent law cannot change his responsibility, and say that he shall not exercise that right unless he loses the fruits. This case cannot be satisfactorily distinguished from that of Brown vs. Thompson, 6 M. n. s. 426.

Taking the defendant’s obligation to restore the ^fruits by the provisions of the Old Code, we think the sale from White to him made him a possessor in good faith, and we believe he continued so until the decision of the case in the district court.

We think the judgment below meets the • equity and justice of the case, and is supported by the evidence in relation to the value of the improvements.

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

On a rehearing,

Porter, J.

delivered the opinion of the court.

This case was argued and decided at last May term, but doubts having arisen in the mind or the court, as to the correctness of its decision in relation to a claim for fruits, since the inception of the suit, a re-hearing was directed.

The other points made in the cause, need not be examined. They appear to have been correctly decided.

The purchase was made under the first Civil Code, and must be governed by it. The 30f/« article of that work 480, declares, that the bona fide possessor must restore the fruits which he reaps after the demand. In the case of Daguin vs. Corin, we lately decided, that this expression of the legislative will was too clear and unequivocal, to afford room for interpretation. 8 Martin, n. s.

A point, however, not made in that case, has been raised in this. The 3416 article of the La. Code, it is said, gives the right to the possessor in good faith, to retain the property until he is paid for his improvements; and until he is paid for them, he is not in default.

Perhaps there might be some force in this position, if the defendant, so soon as suit was commenced against him, had offered to surrender the property on being paid for his improvements. But where he resists the demand of the owner, puts his title at issue, and contests it, the plaintiff has not the means or obtaining possession on tendering the value Gf the improvements. At the time the provision in our former code was enacted, in relation to fruits, that principle which, by the S416 article of tke La. Code, now makes a part of our positive legislation, existed in our jurisprudence. With a knowledge of its existence, the law maker established no distinction between the possessor who had placed improvements on the property, and him who had not, and we cannot distinguish where the legislator has not.

The amount of the fruits is the next inquiry. The defendant was not required to render an account of those he had reaped or gathered. No evidence is given on the part of the plaintiff of the crops made. We must therefore recur to the estimation given by the witnesses of the value of the rent. One swears it is worth five hundred dollars a year, but the weight due to his testimony is greatly impaired by an acknowledgment drawn from him, that he rents five times the quantity adjoining, for two hundred and fifty dollars annually. And admitting his lease, which is for twenty years, tobe worth, as he states, two thousand dollars, it would still make the rent not quite one dollar and fifty cents an arpent. Another witness swears the land sued for, is worth from one dollar fifty to two dollars an arpent yearly. We will take the latter sum which makes the amount of one hundred dollars a year to be paid by the defendant since the institution of the suit.

The sale at which the defendant purchased, was made to pay for a levee which the police jury had ordered on the premises. The court below, by its judgment, decreed, that the plaintiff must pay this sum before she recovered possession. The correctness of the decision is impugned on the ground, that the petitioner is also obliged to restore the value of the improvements, and that the levee is included in the estimation made of them. With the judge below, we think the evidence shows the improvements to be worth two thousand dollars, independent of the levee, and that no error was committed in directing the plaintiff to return money which had been applied to the benefit of the succession, under which the plaintiff claims.

The improvements, and the money paid by defendant, amount to two thousand six From this, hundred and eighty dollars, ° must be deducted two years and eleven months rent — two hundred and ninety-two dollars and sixty-six cents — The balance is two thousand three hundred and eighty-eight dollars and thirty-three hundredths of a dollar.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged, and decreed, that the plaintiff do recover possession of the premises set forth in the petition, and it is further ordered, that no writ issue to put the plaintiff in possession until she pay the defendant the sum of two thousand three hundred and eighty-eight dollars and thirty three hundredths of a dollar; it is further ordered, that unless the sum decreed to Gabriel Winter, for improvements is paid to him within two months from the date of this decree, said Gabriel Winter is authorized to take out execution against the plaintiff C. D. Donaldson for the same; and- it is further decreed, that the defendant pay costs in both courts.


text:
      POYDRAS vs. POYDRAS & AL.

    The rule that in doubtful cases, the presumption is, that a testator intended to dispose of his property in conformity with the dispositions of the law, is applicable only when the dispositions of the testator are so confused and uncertain, that no effect can be given to them, and which would of necessity leave the distribution of his property to the operation of the law.
    Appeal from the court of probates of the parish of Point Coupee.
    The plaintiff, a legitimate daughter of a deceased nephew of the late Julien Poydras, claimed to be recognized as an universal legatee under the will of her deceased grand uncle, by which his nephews and nieces were called to the inheritance of his succession.
    The late Julien Poydras had two nephews and eleven nieces, the children of his three brothers and one sister.
    One of the nephews, the father of Leocadie, died previous to the date of the will of Ju-lien Poydras,, leaving no other issue but his daughter Leocadie.
    The testator in his last will declares that he has neither ascendants nor descendants. Tha* he leaves only nephews and nieces, the children or offspring of his three brothers and of his sister.
    To these nephews and nieces he bequeathed the whole of his estate, after deducting the peculiar legacies described in the will.
    The plaintiff contended that her daughter, Leocadie, the grand niece of the testator, ought to-be comprised among his universal legatees, on an equal footing with his eleven nieces and his surviving nephew.
    This claim was resisted by the twelve above legatees, and the court below gave judgment in their favor. The plaintiff appealed.

      Seghers, for the appellant,
    relied upon the following authorities:
    1. La connaissance de la volonté du testateur ne doit pas etre tirée des conjectures extrinse-ques; on doit la prendre du testament et des dispositions qu'il renferme. Furgole, traite des test. vol. 2, ch. 7, sec. 6, p. 353.
    “We must not decide from one single passage of a will, but by combining what precedes and follows, and from the whole tenor “and contents, and after the instrument has “been thoroughly examined, sifted and weigh“ed in all its parts. Et non ex uno ver su testa-ítmenti jus did oportere, sed ex antecedentibus

      “et consequentibus perpetuoque tenore et per- ♦ / “petua continentia ejus, scriptura omnibus ex “partibus considérala, pcrpentata, perpensa, Cujas vol. 1, cons. 51 ,fol, 704, La .B.

    2. Under the name of children are comprehended not only the children of the first degree, but the grand children, great grand children,. and all other descendants in the direct line. See Louisiana Code, art. 3522, no. 14. Libero-rum appellatione nepotes et pronepotes, cosque qui ex his descendant continentur, L. 220 ff. de verb, signijication. Merlin, rep. de Jurisp. verbo enfant, tom. 4, p. 621.
    The same rule applies, whether the testator calls his own children or whether it is a collateral, an uncle for instance, who speaks of the children of his brothers and sisters, or other relatives. Furgole, tom. 2, p. 431. Merlin Rep. de Jurisp. vol. 4, p. 622, verbo enfant and Merlin again quest, de droit vol, 2, Verbo en-fant, § 1. where he reports a decree of the parliament of Dijon of the 9th December, which is exactly in point “Les dernieres volontés soht “susceptibles (Pune interpretation large et on “doit principalement s’aitacher a decouvrir “quelle a ete la volonte du testateur. In testa-“mentis,pleniusvoluntates testatoruminterpre-“tantur L 12 ff. de reg. jur. In ambiguis ora-

      “tionibus máxime, sententia spectanda est ejus qui easprotuliss et L. 96 ff. de JR. T. Pothier traite des Don. test. chap. 7, sec. 1.
    When the case is doubtful, it is always to be supposed that the testator intended to comply with the provisions of the law and to refer to it. In dubio, testator videtur se conformare cum legis dispositione et ad earn se referre. Gomez ad leg, Tauri.p. 79, no. 9.

   Mathews, J.

delivered the opinion of the court.

The plaintiff in this case intervened in a suit, which was pending before the court below, between'the defendants and the testamentary executors of the late Julien Poy-dras.

She claims that her daughter and pupil shall be admitted as one of the universal legatees of her grand uncle, who died, leaving a will or testament, by which his nephews and nieces are called to the inheritance of the greater portion of his succession, to take by equal shares.

The court of probates gave judgment against her pretensions, from which thepre-sent appeal was taken.

The decision of the cause depends mainly . , on the interpretation or construction which ought to he given to the context of the testament, and the degree of consanguinity in which the claimant stands to her deceased relation, the testator.

The clauses of the testament from which the intention of the deceased must be deduced are the preamble, and that by which the testator disposes of the generality of his property.

They are expressed in the terms following:—

After stating the place of his birth and his parentage, and that he was never married, the testator declares 11 Je me trouvc rd avoir ni ascendants ni descendants. Je rdai que des ne- veux et nieces, enfans de mes trots freres, Fran-(i gois,Godfroi et Claude Poydras, et de ma sceur {i ainée, qui se sont maries et du manage des- quels sont issus et existans mes susdits neneux et niecesP qui sont tons résidens en France á Vex- ception de mon neveu Benjamin Poydras, ha- “ hitant proprietaire de la Paroisse de la Pomte Coupée dans cet Flat de la LouisianeP

Immediately after this preamble, are found several specific legacies, and then the general bequest of all the residue of all his estate, which is thus expressed:

tl r^'ous ^cs ^egs susdits que je mens d^tablir, prealablement payés et aquittés,je legue a mes a neveux et nieces existants et venus des maria- ges de mes trois freres et de masaeur susdtts & “ décédés, la generalité des biens de toute nature queje de laisserai au jour de mon décés en quel- que lieu qu’ils soient trouvés ou sitúes, les eta- blissant mes legataires universels, par portions 4‘ égales entre mes dits neveux 8f nieces

The evidence of the case shows that at the time of the decease of the testator, there were living or in existence, one nephew and eleven nieces, related to him in the first degree, children of his three brothers and one sister, also the present plaintiff, a niece in the second degree, who claims a part of the succession as representative of her father, whowas nephew to thedeceased JulienPoy-dras, and who died before the testator, and before the opening of his succession.

In support of the pretensions of the appellant, her counsel has attempted to introduce several general principles and rules, in relation to the interpretation of testaments, as established by the Roman, French and Spanish laws: — 1. The intention of the testator must be pursued, rather than the literal meaning of the words used in the bill — Voluntatempotius quam verba. 2.Tes-taments should receive a full and favorable construction — -Plenius et benigne. 3. Their whole contents should be carefully examined, in connexion with the preamble. 4. In doubtful cases, the interpretation of the dispositions should conform,.to the probable intention of the testator. Finally, that when doubts exist, the presumption is, that the testator intended to make his will, in conformity to the dispositions of law relative to inheritances, Spc. Quia in dubiis, testator videtur se confor-mam cum legis disposiiione et ad earn se referre.

The rule that in doubtful cases the presumption is, that a testator intended to dispose of his property in conformity with the dispositions of the law in cases of intestacy, is applicable only where the dispositions of the testator are so confused and uncertain, that no effect can be giv-i which would, of necessity, leave the distribution of his property to the operation of

These rules of interpretation, appear to be proper, and are sanctioned by the authorities cited in support of them. But it would be difficult to find an application for the last, unless in a case, w.fiere the dispositions of a testament are srr extremely confuse and uncertain, that no effect could be given to them; which would of necessity leave the distribution of the testator’s succession to the operation of law.

In order to produce a favorable effect, from ,. . „ , . . . , the application of these principles to the cause of his client, the counsel has attempted, with great research, force and ingenuity, to establish, that the will now under consideration, is at ]eagt doubtful, in relation to the persons in-1 tended by the testator to be his general Iega- •> o o tees. ani] that, in construing the words by which they are designated, according to their most extensive meaning, the appellant is entitled to take an equal portion of the generality of the property left at his decease by the testator, with his nephews and nieces in the first degree. To support these propositions, authorities are adduced from the Roman and French laws, by which it appears, that the words “liberi,” in the Latin, and lien-fans,” in the French language, comprehend grand children, down to the latest generation, as well as the immediate or proximate descendants of their parents; and would be embraced in a legacy made to his children by a testator. And as a corollary to tt/s proposition, the conclusion is induced, that a clause in a will, by which nephews and nieces, the children of certain brothers and sisters, are constituted universal legatees, will extend to grand nephews and nieces, per stirpes. This may be . . all true, according to a just interpretation or those laws, in cases where no words of restriction have been used by a testator, in the dispositions of his will. But these laws are without force or effect in this country, except so far as these declarations conform to the principles of. natural right, as recognized by the reasoning power of men. The transmission of property from the owner, causa mor-tis, whether by testament or according to provisions of law, when in a direct or collateral line, to his relations, is the creature of municipal regulations, produced by the legislative power of each state or political community, according to the will of its legislators. In the present case, we have been favored with but few quotations, from the laws of Spain, or our own legislative enactments, on the part of the appellant, and these relate principally, to the distribution of successions db intestatis. We are, however, called on to give an interpretation to a testament, and must endeavor, from its expressions, to ascertain the intentions of the testator. The parts of the instrument, which have reference to the present contest, must be construed in connexion; and meaning and effect are to be given to all the words therein contained', according to their legal acceptation.

In the 7th Partida, tit. 33, and Law 5, concerning the signification of words, the following rule is laid down, in relation to the interpretation of wills: — “Las palabras del u fazedor del testamento, deben ser inlen- didas manaente, assi como illas suenan, e non se debe él jugador partir del entende 41 miente dellas; fueras ende, quando pare- ciere ciertamente, que la voluntad del tes- tador fuera otra, que non suenan las pala- bros que están escritas''1

According to this rule, in ascertaining the intention of a testator, judges are not permitted to depart from the plain and literal meaning of the words used by him,

Menochius, in his Commeniarius de Pre-sumtionibus, conjecturis signis et indiciis, quae circa ultimas dispositiones,el volentates morientium versantur, in Boole 4, Presumption 94, No. 15, declares his opinion, that when, in the state or place (in civitate et loco} where the testator disposes of his property, there exists a law or statute, that words of a testament shall be understood, according to their plain and literal meaning, ad literam et utjacent et sonant — -Hoc etiam casu appel-latione filiorum non continentur nepotes. This opinion is in conformity with a response found in his Book of Counsels or Responses, ad Consilium 215, Nos. 15 &> 16, given in relation.to the very law of the Partidas, above cited. If this rule of interpretation, be applicable to the dispute between tho parties to the present suit, (and that it is, no doubt can be entertained,) the question arising on the testament of the late Julien Poydras, must be decided in favor of the pretensions of the ap-pellees, even admitting that no words of restriction were to be found in the instrument, limiting the bequest to his nephews and nieces in the first degree; for the same principles should prevail, in this respect, in cases concerning the interest of collaterals, as in those which concern that of descendants, so far as by law they are placed on the same footing. But, in our opinion, the will does contain words, by which the intention of the testator, was evidently to confine the general legacy, to be divided in equal portions amongst his nephews and nieces of the first degree.

In the preamble of his will, he describes the situation of his relations, who all resided France, with the exception of his nephew, Benj. Poydras, according to the knowledge which he had of them. He says, they were nephews and nieces, children of his brothers and one sister, borne to them in marriage. These nephews and nieces, existing and produced by the marriages of his brothers and sister, ( Venant des marriages, dpc.) he constitutes universal legatees of the residue of his estate, See.

Now, it appears to us, without doubt, that the whole context of these two clauses of the will, (which constitute the only part of the instrument applicable to the present contest,) limits the legacy to the children of his brothers and sister, who might be in existence at the time of the decease of the testator. The degree of relationship of the persons, to whom the testator intended to extend his beneficence, is fixed and certain, and beyond that degree it cannot be extended, even according to the most liberal interpretation,'authorized by the Roman and French laws, relating to testamentary dispositions.

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