text:
    No. 2085.
    Helen Dewey v. T. J. Bird, Sheriff et al.
    All parties to the record interested in maintaining the judgment appealed from, must bo made parties to the appeal, otherwise the appeal will be dismissed.
    from the Fifth Judicial District Court, Parish of East Baton . Eouge, Posey, J.

      Kniolcerboelcer c6 Poor, for appellant. Bunn & Herron and Burgess, Chaney ds Ihiqua, for appellee.
   Taliaferro, J.

A motion is made to dismiss the appeal in this case, on the ground that the bond is not for an amount sufficient to authorize a suspensivo appeal, and that no appeal bond is given in favor of Stewart, one ol the defendants.

The defendant Stewart, made a party and cited by the plaintiff in the court below, is not included in the appeal bond.

That all parties to the record interested in maintaining the judgment appealed from, must be made parties to the appeal, has been long settled, and needs no reference to authorities.

It is therefore ordered that this appeal bo dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 1478.
    Mrs. P. R. Walker v. Mrs. D. S. Graham.
    Consent to the extension of the time for the maturity between the makor and holdor of a promissory note will hold the endorser conditionally liable, and notice of demand on the maker need not be given the ondorser until the expiration of the new date caused by the extension.
    from tho Sixth District Court of New Orleans, Buplaniier, J.

      Randolph, Singleton & Hardie, for plaintiff and appellee. Charles S. Bice for defendant and appcEant.
   Howell, J.

The defendant, universal heir and legatee of her deceased husband, D. S. Graham, has appealed from a judgment against her on a note for $2100, made payable on the first April, 1862, on which the following endorsements appear:

“New Orleans, March 1.'

“I hereby agree, and the payment of this note is extended for twelve months from the first day of April next

“ PATSY E. WALKER.”

“ I hereby waive demand, protest and notice of protest, and consent to the above extension of twelve months.

“D. S. GKAHAM.

“March 1, 1862.”

“Received on account of the within note one hundred dollars, at Mobile, Ala., this thirteenth day of February, 1864.

“ PATSY E. WALKER.”

It is contended by the appellant that the waiver of D. S. Graham, the endorser, related to the maturity of the note as fixed on its face, and not to the extended maturity.

This, in our opinion, is a forced interpretation of the agreement, and is not sustained by the sections of Story on Notes referred to. Sections 271, 272, 279, 295, 358, 301, 366.

As the extension, wit!)out the consent of the endois'r, would have released him, a presentment and notice at the original date of maturity would have had no legal effect, and tho parties are not presumed to have done a vain thing. The endorser consented to the prolongation and waived the demand, protest and notice at the nfew date of maturity.

We do not agree with defendant’s counsel that to make'tho agreement for an extension between the maker and holder valid, the endorser was required first to waive presentment and notice at the old date. A simple consent to the extension would have held him conditionally bound, with the obligation on tho part of tho holder to pursue the steps at the new date of maturity necessary to bind an endorser. It was this obligation, of which the holder was relieved by the waiver made.

, The appellant is entitled to reduction of the judgment for the credit on the note, with costs of appeal. C. P. art. 903. The plaintiff asked for the judgment as rendered, and introduced the note in evidence with the credit on it. It vfas her duty, as much as that of defendant, to have the correction made below. To hold otherwise would justify plaintiffs in demanding and recovering more than their own evidence sustains. This case differs from that of Baudoin v. Tete, 10 A. 69, quoted by plaintiffs to relieve them from costs.

It is therefore ordered that the judgment appealed from bo reversed, and that plaintiff, Mrs. Patsy R. Walker, recover of tho defendant, Mrs. D. S. Graham, widow of D. S. Graham, deceased, the sum of two thousand dollars, with eight per cent, interest oil two thousand one hundred dollars, from April 1, 1862, until February 13, ..1364, and like interest from said last date on two thousand dollars until paid, and costs of the lower court. Costs of appeal to be paid by plaintiff and appellee.


text:
    No. 2027.
    F. A. Cousin & Brother v. S. Johnson.
    Wl*en moro than throe judicial days have elapsed after the time fixed by the District Judge for filing the transcript and no cause is shown for the delay, tho appeal will, be dismissed on motion of the appellee.
    from Fifth District Court, parish of Orleans. Beaumont, J.

      JE. Bermudez, for plaintiffs and appellees, G. Schmidt, for defendant and appellant.
   Howell, J.

A motion is made to dismiss this appeal on the ground that the transcript was filed in this court for more than three judicial days after the return day fixed .by the District Judge. The appeal was obtained on the eighth December, 1868, and made returnable on tho second Monday (eleventh day,) of January, 1869. The transcript was filed on tho twenty-ninth January, 1869, and no application for an extension of tho time for bringing up the appeal was made and no cause shown for the delay. Under these circumstances the motion, must prevail. 18 A. 651; 10 A. 75; 4 A. 350.

Appeal dismissed.


author: TaliaeeRko, J.

text:
    No. 1464.
    J. McWilliams v. Bryan & Irvine.
    A contract or partnership between two parties, the one residing within the Federal lines of military occupation and the other within the linos of the insurrectionary forces, during the late war, for the purpose of carrying on a commercial business in the purchase and sale of cotton between the contending parties, was in conflict with the act of Congress of July 13, 1861, prohibiting all commercial intercourse between the contending parties. The rights and obligations growing out of such business relations being in contravention of a prohibit- , ory law cannot be judicially enforced.
    from Fifth District Court of New Orleans. Beaumont, J.
    <?. Tj. Bright and Barroiu & Pope, for plaintiff and appellant, J. P. Dillingham, and J. M. Bonner, for defendants and appellees.
   TaliaeeRko, J.

The plaintiff alleges that the defendants, as commercial partners, are indebted to him in the sum of eighty-six thousand five hundred and forty-seven dollars and thirty-five cents with five per cent, interest thereon from the twenty-third of October, 1865. He predicates this indebtedness upon an alleged contract entered into on the tenth of February, 1864, by which the defendants sold to him 869 bales of cotton, every hale to weigh 400 pounds, for which he was to pay twenty-five cents per pound. He avers that he did pay in cash at the time twenty cents per pound, making the sum of sixty-nine thousand five hundred and twenty dollars, that defendants delivered the amount of thirty-two thousand five hundred and seventy-two dollars and sixty-five cents worth of cotton, expenses deducted; that 496 hales have not been delivered, and from the failure of the defendants to deliver them plaintiff has been damaged twenty-five cents per pound on the cotton which they have so failed to deliver, this being the difference between the price stipulated to he given and that which it would have brought on the twenty-third of October, 1865.

The defendant, Irvine, was alone cited. He answered by specially denying that a partnership existed between himself and Bryan, as alleged by plaintiff, and by charging that at the time of entering into this alleged contract (tenth February, 1864), the contracting parties resided on opposite sides of the lines between the territory at that time occupied by the Federal and insurrectionary forces during the late war; that the trade carried on by them was forbidden by law, and consequently that no engagements that may bave been entered into at the time and under the circumstances relating to the transactions now by. this suit brought into view can have any legal or binding effect. There was judgment in the court below dismissing the action of the plaintiff, and'he prosecutes, this appeal.

An attentive perusal of the voluminous record presented in this case satisfies us that the question of partnership so elaborately discussed by counsel will not require at our hands any special scrutiny. Neither will the hills of exception taken in regard to the admission of evidence, of which we find two in the record, need to be examined for the purpose of deciding upon them. Wo therefore pretermit any inquiries on these subjects, and shall confine ourselves to the issue involving the .legality of the transactions lying at tho foundation of the controversy between the parties.

At the date of these transactions war existed in the country. Portions of the State were in the military occupancy of the national forces, and portions held in the same manner by tho insurrectionary power. This was during the year 1864, in the early part of which the cotton arrangements between these litigants took i>lacc. Under the act of Congress of thirteenth July, 1861, all commercial intercourse between the inhabitants of a territory in insurrection and those of a territory not in insurrection, except under the license of the President and according to regulations prescribed by the Secretary of the Treasury, was entirely prohibited. See Statutes at large, vol. 12, p. 257.

On the eleventh of September, 1863, the Secretary of the Treasury promulgated a series of trade regulations, authorized by tho act of Congress we have referred to, and among these regulations it is provided that “commercialintercourse with localities beyond the lines of military occupation by the United States forces is strictly prohibited, and no permit will be granted for tho transportation of any property to any place under the control of insurgents .against the United States.” In pursuance of the get of Congress of thirteenth of July, 1861, authorizing it,, the President of tho United States on the sixteenth of August of that year issued' a proclamation declaring certain States, among which was the State of Louisiana, to be in a state of insurrection. Several localities were exempted from its operation. Among them were such parts of the States mentioned, “ as may be from time to time occupied and controlled by forces of the United States engaged in.the dispersion of the insurgents.” See Statutes atlargé, vol. 12, .page 1262, appendix.

In what localities at the time of these cotton contracts did the parties to them reside ? The petition in its outset avers that “ the commercial firm of Bryan & Irvine sold to plaintiff on the tenth day of February, 1864, .by written contract 169 bales of cotton,” etc. Pilcher, one of the witnesses, says: “ McWilliams resided at Plaquemines in February, 1864,” and that “Plaquemines was at that time within the Federal lines.” General Sheldon, an officer of the United States army, says: “I went to Plaquemine twenty-first November, 1863, and remained continuously every day until twenty-sixth or twenty-seventh of March, 1864. . Plaquemine was occupied by the Federal forces, and was wholly within'the picket lines of my command. From the time I went there Plaquemines was continuously occupied by the Federal forces until the surrender. McWilliams resided at Plaquemine and kept a store there; told me soon after I went there he had taken the oath of allegiance.” McWilliams, it is elsewhere in the record shown,, took the oath of allegiance to the United States in November, 1862. It appears that David N. Barrow was the agent in the greater part of these transactions of the plaintiff. Hamilton, a witness, says: “ In February, 1864, Irvine lived in Woodville, Mississippi; I lived there then myself.” Scott, a witness, testifies that “ Irvme resided during the war within the military lines of the Confederates.” Shields, another witness, states that Barrow bought of Irvine between th$ first' and tenth of February, 1864, a lot of cotton. At that time Irvine lived in Confederate lines and Barrow in Federal lines.” This purchase of cottton spoken of by Shields, there cannot be a remaining doubt, is the one alleged by plaintiff to have-been entered into on the tenth of February, 1864. The effort of plaintiff to show that only a fort erected by the Federal forces at Pla-quemine was within the Federal lines is weak and abortive. We think the evidence establishes fully and conclusively that McWilliams, the plaintiff, at tho time of the contract declared upon was residing in Plaquemine; that his residence there was a fixed residence from the fact of his having taken tho oath of allegiance to the United States, and having a store and selling merchandise there, which he no doubt did by permission of the Federal-authorities. It is equally established beyond doubt that Bryan & Irvine, at the time of their negotiations in cotton with McMasters & Barrow, were permanent residents within the so-called Confederate lines. It is clear then that the contract sought to be enforced by this action was entered into in contravention of a prohibitory law, and cannot therefore have legal effect. This court has repeatedly declared that it will entertain no action of this sort founded in derogation of peremptory law.

It is therefore ordered, adjudged and decreed that the judgment of the District Court bo affirmed with costs in both courts.


author: Taliaferko, J.

text:
    No. 2159.
    City of New Orleans v. Merchants Mutual Insurance Company.
    The .appoal will be dismissed If tbo- transcript is not filed in tlie Supreme Court within three judicial days after tho time allowed tho appellant to bring up the record.
    from the Seventh District Court, parish of Orleans, Gollens, J.

      F. Micldnard, for plaintiff and appellant, A. & If. Voorldes, for defendant and appellee.
   Taliaferko, J.

The motion to dismiss this appeal must prevail. The transcript of proceedings in the lower court was not filed in this court within three judicial days after the time allowed for the appellant to file the record. .

It is therefore ordered that this appeal be dismissed at costs of tho appellant.


author: Howe, J.

text:
    No. 1469.
    William Thiel v. C. M. Conrad.
    Where a promissory note is made payable at a particular place, as a bank, in an action against the maker it is not nocossary to allege or prove that demand of payment was made at that place to enable'the holder to recover. 5 An. 61.
    The maker of the note may, however, when sued, set* up in defense that he had deposited the funds in the bank to meet the note at maturity, and show the damages he has sustained by the failure of the holder to demand payment at the place designated.
    from tlie Third District Court of New Orleans, Fellowes, J.

      John F. Holland, for plaintiff and appellant, O. M. Conrad & Son, for defendant and appellee.
   Howe, J.

The plaintiff enjoined the execution of a writ of seizure and sale issued in executory proceedings for the collection of certain promissory notes secured by mortgage and vendor’s privilege. His petition alleges two grounds for the injunction.

First. — That at the maturity of the notes he tendered payment, and that therefore the interest demanded from maturity could not be lawfully claimed. ’

Second. — That the payee of the notes, defendant in injunction, was engaged in the service of the “so-called Confederate States,” as a member of Congress.; that payment of the notes to him at their maturity and duripg the war was forbidden by law and general military orders, and that therefore the interest demanded after maturity could not be lawfully claimed.

The answer was a general denial, with prayer for damages against both plaintiff and his surety. There was judgment in favor of defendant, dissolving the injunction, with damages against the plaintiff alone, and the plaintiff alone has appealed.

As to’ the first ground of injunction the court a qua did not err. There was no sufficient evidence of a tender to suspend the accruing of •interest. Two of the notes fell due May 1, 1862, and were by their terms payable at the Union Bank. If we give the fullest effect to the testimony on behalf of plaintiff we find that when these two notes fell due he went with one witness and offered to pay the notes with a check of another person on the Citizens’ Bank, but was told that the notes were not there, and the note teller declined to take the check. There was no tender in lawful money, nor was there any consignment of the amount due: C. C. 2163, 2164; C. P. 404 to 418; 6 La. 19; 4 R. 146; 2 An. 441, 496; 14 An. 327.

As to the other two notes, falling due in 1863, there was no attempt to show that any tender was made.

Upon the second ground.of injunction the court did not err. There was no evidence adduced' to establish the allegations in .regard to the defendant, and we. are not aware of any rule of law which authorizes ua to take judicial notice of the actions of private individuals. It is therefore unnecessary to consider what effect the proof of this averment would have.

It is urged by plaintiff that the notes were payable at the Union Bank; that no demand was made there until long after maturity, and that for this reason the interest of eight per cent, stipulated after maturity cannot be recovered. If we admit that this point can be raised under the pleadings in this case, we reply that in the first place there is evidence to show that the agent of defendant presented the notes at the Union Bank-for payment as they fell duo; and in the second place^ if the testimony of the agent be considered as not establishing this fact, the theory of the plaintiff is incorrect inlaw. We consider it as well settled in this State since the case of Ripka v. Pope, 5 An. p. 61, that where a promissory note is made papable at a particular place, as a bank, in an action against the maker it is not necessary to allege or prove that a demand of payment was made at that place to enable the plaintiff to recover; and that to found a defense upon a want of such demand the defendant (or in this case the plaintiff in injunction) must show some resulting injury. If the maker show that ho had funds at the appointed place at the appointed time, he might bo exonerated from interest thereafter. If he show that ho has sustained actual loss in consequence of nou-presentment, as if the note be payable at a bank, and ho deposit funds there to meet it, and they are lost by the failure of the bank, such loss might be pleaded in defense. But in this case there is no evidence of this sort. Story on Promissory Notes 3228; Parsons on Bills, vol. 1, p. 309 and notes; McCollop v. Flaket, 12 An. 551; Catalonge v. Alva, 13 An. 99; Stokes v. Forman, 12 An. 671.

Upon the trial in the court below the plaintiff offered the record-of the executory proceedings to show that the notes and act of mortgáge were not stamped and that two of the notes had been restricted by a special endorsement, and that the order of seizure and sale was therefore irregular, and the defendant objected. The court admitted the record in evidence with, the reservation “that if in an examination of the pleadings said record was not relevant to the issues presented it would not be allowed to weigh with the court in making up its judgment,” and the defendant excepted. The court in its judgment attached no weight to the evidence, and we think properly, inasmuch as the plaintiff in his petition for an injunction made no such averments as he thus sought to establish.

The defendant has asked-for an amendment of the judgment so as to condemn the surety on the injunction bond- in solido with the plaintiff, but the surety is not before us.

For the reasons given it is ordered and adjudged that the judgment appealed from be affirmed with -costs.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 1461.
    Jeanne Bister et al. v. Anton Menge.
    The power of the husband to dispose of the community property is limited to that of alienation by sale or otherwise where an equivalent in value is impliedly recoived for the property disposed of.
    The husband is prohibited from mating any conveyance inter vivos of tho immovables of the community by a gratuitous tille.
    At the dissolution of the community tho wife is entitled to one-half of the immovables disposed of by the husband, by onerous titles in iraud of hor rights, and she may enforce them directly against the parties in possession.
    ■Where a party in possession of immovable property by a gratuitous title is sought to be evicted, he cannot invoke the plea of prescription nor call the donor in warranty.
    A lease by the husband of immovables belonging to the community for a term of years, in the form of a donation inter vives, will fall if the donor dies before tho expiration of the time.
    from the Second Judicial District Court, parish of Plaque-mines. Gazabat, J.

      Collens <& Wooldridge and James Foulhouse, for plaintiffs and appellants. O. lioselius and Sambola Fueros, for defendant and appellee, F. 3. McGaleb, for warrantor.
   Taliaferro, J.

Jeanne Bister, the widow of Joseph Laussade, and Eliza Laussade, her grand daughter, as plaintiffs, prosecute this action to recover from the widow and heirs of Anton Mengo two arpents and a half of land, constituting a small portion of a tract containing lour hundred and forty arpents lying on the Mississippi river in- the parish of Plaquemines, and belonging to tho community that existed between the widow Bister and her husband Joseph Laussade. By the partition of this land between the widow and the only heir of Lau spade the part of the tract including the two and a half arpents fell to Mrs. Bister, who donated it to Eliza Laussade the coplaintiff in tho case and the party principally interested in this suit.

In February, 1851, Joseph Laussade executed before a notary and witnesses an act called a lease, by which ho granted' to Anton Menge the use of the two and a half arpents for the period of twenty years. The only conditions stipulated were as expressed in. the act "that all trees.and shrubbery that might he planted hereafter in and upon the said tract of land above described shall he the property of said Laus-sade, the said Menge having the right to gather the fruits of said trees, and in the event of the said Mengo his wife and children leaving the above premises before the expiration of .the said twenty years, he, she or they shall have -the right only to take away from the said land said buildings and other improvements, as he, she or they might have constructed and built on said land above described. The said Menge shall have no right to sublease or underlet the property above described; and on him, his wife and children leaving'the same, the said property shall he surrendered together with the trees, shrubberies and fruit trees thereon .planted to the said Laussade, Ms heirs and assigns, with the exception of the buildings thereon.”

Laussade died in 1854. The land wás partitioned in January, 1866 and in August following this suit was instituted. It is contended on tlio part of tlio plaintiffs tliat tlio act in question was a mere donation of tlie usufruct of the premises described. That the land being community property the husband could legally make no disposition of .it gratuitously; that tlie act ceased to have any effeot after his decease ; that the wife was no party to tlio act, never having signed it, and, as averred, ignorant even of its existence. It is also urged that this act if capable at all of any legal effect, is utterly null and without effect against the wife as well as against third parties generally, as it was never recorded.

Outlie defense it is argued-that the act is valid, as even by the admissions of plaintiffs, it was not done in fraud of the wife’s rights. That the failure to record cannot avail the plaintiffs, as the wife is not a third party to tlie acts of the husband. The defendants called the heir of Laussadc in warranty and pleaded in bar of the action the prescriptions of one and ten years. The verdict of the jury before whom tlie case was tried, maintains iho defendants in possession to the end of the term specified in the act, without the right to remove the buildings and improvements made by them upon the premises. The plaintiffs appealed and the defendants ask this court to amend the judgment of the lower court by allowing them to remove the buildings and improvements according to the contract.

The act under consideration wo regard as a donation inter vivos; and affecting as it does community property, tlio principal inquiry involved in the case is, has the act anjr legal effect ?

Article 2373 of the Civil Code obviously limits the power of the husband to' dispose of tlio real estate of the community to acts of alienation by sale or otherwise, where an equivalent in value is, impliedly received for the community property disposed of.

The second paragraph. of that article strictly prohibits him from making any conveyance inter vivos of the immovables of the community by gratuitous title. The fourth paragraph construed in con-nexion with the second, can only be taken to contemplate a recourse of the wife against the heirs of the husband in cases where he has alienated the immovables of the community by onerous title in fraud of her rights. The ease of the disposal of the immovables of the community by gratuitous title is provided for in the second paragraph by absolute prohibition. The prohibition is unconditional and wholly independent of the interest of the husband in making tlie donation. Where he disposes of the immovables of the community by onerous title, the wife’s right to pursue the heirs depends upon the question v liother the alienation ivas made in fraud of her rights or not. In the case of his disposal of immovables by gratuitous title no such test applies. The law in this case accords to the wife no recourse against the heirs of the husband. At the dissolution of the community arises the recourse of the wife against the heirs of the husband for one-half tlie value of the immovables of the community disposed of by him under onerous title in fraud of her rights, and to recover directly from the parties in possession her share of the immovables disposed of by the husband by gratuitous title.

The case of the heirs of Reine Trahan v. Michael Trahan et. al., 8 An. 455, relied upon by the defendants, we think not applicable to the present case. There, the wife joined the husband in the act of emancipation of a slave “in consideration of his long and faithful services.” The brief remarks of the court in that case touching the right of the husband to alienate community property ought perhaps rather to be regarded as obiter dieta than as intended to establish a fixed rule on .the subject.

The defendants being without title and in possession by the gratuitous act of Laussado, their call in warranty and pleas of prescription cannot avail them.

It is sufficiently clear from the evidence that the donation had its origin in the kind feelings of the donor towards Menge, who it is shown was in other respects the recipient of favors and benefits coming gratuitously from the same source. It equally appears that the widow and heir of his benefactor, after his decease in 1854, continued to extend to Mengo and his family for ten or twelve years a very commendable degree of liberality and forbearance. The orange trees planted by Menge in 1851, had come to maturity and yielded him a handsome revenue for at least five or six years before the institution of this suit. One witness states that Menge’s crop of oranges for the year 3865, brought $600, and for the year previous $1,800. The large sum claimed by defendants as damages in case of eviction wo apprehend is neither founded in law or equity. The plaintiffs pray judgment for the value of the fruits of the property from the time of the institution of the suit. The evidence adduced does not enable us to fix satisfactorily the amount if any that should be accorded.

It is therefore ordered adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed that the plaintiffs recover from defendants the possession of the land and premises' sued for, viz: Two árpente and a half of land described in the petition, the same now and heretofore occupied by defendants under the act purporting to be a lease from Laussado to Menge executed in 1851 ■, that defendants deliver possession of the same to plaintiffs with the appurtenances thereunto belonging, reserving to the defendants the right to remove from the premises the buildings and structures of every kind which they have placed upon the said land. There is likewise reserved to the plaintiffs the right to prosecute their claim for the fruits as set forth in their petition.

It is further ordered that all costs of these proceedings be borne by defendants.

Rehearing refused.


author: Wylt, J.

text:
    No. 1473.
    Alexander Cardaillac v. Bernard Duthu.
    The verdict of the jury unsupported by tl^o evidonce in the record will be set aside on appeal, and the judgment rendered theroon will be annulled and the suit dismissed.
    from Sixth District Court of New Orleans. Duplanikr, J.

      JS. & G. Morel, for plaintiff and appellee, Julian Michel & Jules Lambert, for defendant and appellant.
   Wylt, J.

Plaintiff sued the defendant for a sum of money, which he alleges is a balance due him on account of a partnership between him and the defendant during the year 1863, which partnership has never been settled. He sued for a settlement of that partnership, claiming that the defendant has all the books and assets thereof and refuses to settle with him. He also sued out a writ of arrest against the defendant, alleging that he was about to remove from the State without leaving sufficient property to satisfy his demand. The answer is a general denial,; a special denial that the plaintiff placed in defendant’s hands any sum of money to be invested, and special denial that there ever was in his hands any books, papers or assets, as alleged by plaintiff, and a reconventional demand for damages on account of his illegal and wrongful arrest.

There was judgment for plaintiff for $2080 70, and the defendant has appealed. The case was tried by a jury and the judgment rendered in accordance therewith*

There was evidence of the partnership, but not a particle of proof to sustain the verdict that the defendant owed plaintiff the sum of $2080 70 or any other sum.

One of plaintiff’s witnesses, Henry Pedaré, knew of the transaction of a small lot of cotton, the proceeds of which he divided between the plaintiff and defendant.

Another witness for plaintiff, Alexis Dumestre, knew of the partnership, and that cotton was the principal commodity in which they transacted business; he was employed by them to collect the cotton; having sold two lots of it, he paid to plaintiff and defendant each his share. Another of plaintiff’s witnesses, Erangois Corre, also knew ot the transactions between plaintiff and defendant in reference to cotton. He states that a committee was appointed, of which he was one, to settle the accounts between plaintiff and defendant, in reference to transactions in hides and cotton. He says: “It was agreed that Mr. Duthu would pay Mr. Oardaillac a certain sum of money, the amount of which I do not remember, but believe to be between fifteen and seventeen hundred dollars. One of the members of the committee on that occasion bound himself as surety of Mr. Duthu to Mr. Oardaillac, this surety stating that he would the following day pay to Mr. Cardail-lac the amount, and I believe the amount was the following day paid to Mr. Oardaillac.”

The testimony of the other witnesses is vague and indefinite, and there is no positive evidence to sustain the judgment for the sum recovered. We think tlie plaintiff has failed to make out his case, and the judgment appealed from is erroneous.

It is therefore ordered that the judgment of the court below be avoided, annulled and reversed, and it is now ordered that there be judgment as of non-suit against the plaintiff, and that he pay the costs of both courts.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2076.
    Louis Favrot v. Martin Mettler et als.
    Tlie lessee cannot make repairs on tho premises leased at the expense of the lessor without first putting him in default.
    from the Fifth District Court, parish of East Baton Rouge. Posey, J.

      Favrot &• Lamion, for plaintiff and appellant, Fuqua & Callahan, for defendants and appellees.
   Ludeling, C. J.

The plaintiff leased to the defendant Ms house, situated in Baton Rouge, for the period of three years, at an annual rent of one thousand and eighty dollars, payable in equal installments, on the first day of eaeh month.

Tho contract is in writing. It simply stipulates that Favrot lets the premises for the price and term above stated, and that the lessee binds himself to pay the price and to take good care of the property.

The defendants made’repairs on the premises, and when the plaintiff demanded payment of the rent at the beginning Of the fourth month of the lease the defendants presented accofints paid by them for repairs, which they had caused to be made on the premises, some of which were rejected by the plaintiff, and defendants refused to pay the rent. Thereupon the plaintiff instituted this suit to recover of defendants one hundred and sixty-seven dollars for rent due, and one thousand dollars damages caused by the failure" of defendants to comply with the terms of the lease.

The items rejected by the plaintiff in defendants’ account pleaded in •reconvention to plaintiff’s demand, are $46 for painting and $150 for plastering.

The first question to be decided is, can the lessee make repairs on the premises leased, and charge the lessor for them, without having r,equestcd him to make the repairs'?

Article 2664 of the Civil Code says : “ If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to do it. If he refuse or neglect to malee them the lessee may himself cause them to be made, and deduct the price from the rent due on, proving that the repairs were indispensable, and that the price which he.has paid was just and reasonable.”

“ The owner of houses would soon be ruined, if it were permitted to every tenant to make such repairs as his fancy or caprice might dictate', without notifying the owner of the property of the intention.” 8 R. 171; 5 An. 713: 5 An. 628.

Tlie question is well settled tliat tlie lessee cannot make repairs at tlie lessor’s expense without first putting the landlord in default.

There is no proof that the lessee ever called on the lessor to make the repairs, the price of which is claimed of him. Hence the lessor is not bound for the price of the repairs.

It appears, however, from the statements and admissions of the plaintiff that he gave defendants credit for the price of the repairs,-for which he thought he was' responsible, and he sued for the balance of the rent due. In his brief the plaintiff further consents that the item for thirty dollars for glazing should be deducted from the rents.

We do not think there is any ground for allowing the damage claimed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and revefsod, and that there be judgment in favor of the plaintiff against the defendants in solido for the sum of one hundred and thirty-five dollars, with the lessor’s privilege upon the furniture, fixtures and other property provisionally seized in this case on the leased premises, aiid that the same be sold to satisfy this judgment. It is further ordered that the defendants pay the costs of both courts.


text:
    No. 1434.
    John W. Barry v. Wm. S. Pike.
    A mandatary who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the-latter for anything done beyond it.
    A mandatary is responsible to those with whom he contracts .only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.
    Where the evidence in the record leaves tlie question of fact in doubt as to whether the agent is personally responsible on a note which he has given, the case will be remanded for the purpose of receiving iurther testimony on the point.
    from tlie Sixth District Court of New Orleans. JDi iplantier, J.

      Cooley <£- Phillips, for plaintiff and appellee. Says & Sew, for defendant and appellant.
   Howe, J.

This suit was instituted upon the following note:

“ §3357 07. Baton Bouge, March 27, 1862.

“ Six months after date we promise to pay to the order of W. D. Phillips, Esq., and at tlie branch of the Louisiana State Bank, Baton Kouge, thirty three hundred and fifty-seven dollars and seven cents, in full for ninety hales cotton purchased this day.

“ S. M. HAKT & CO.”

The note was endorsed by its payee, and transferred to plaintiff long after maturity, and the case is therefore to be decided as if the suit had been brought by the payee.

The answer admits that the defendant was a member of the firm of S. M. Hart. & Co., which in the year 1861, on the failure of the Legislature of Louisiana to malee provision for carrying on the State Penitentiary at Baton Kouge, was appointed by Governor Mooro agents of the State to conduct said Penitentiary, and to perform such acts and make such purchases as were necessary to keep' the convicts therein employed, and thus save the State the expense of their maintenance. That as such some cotton was purchased of W. D. Phillips, of Baton Eouge, and the note herein sued on given as an evidence of a claim against the State of Louisiana.

That Phillips, a resident of Baton Rouge, was well acquainted with all the facts; that in selling said cotton he knew that S. M. Hart and respondent were acting as agents of the State of Louisiana in purchasing the game, and that credit was given to the State and not to S. M. Hart & Co., and that S. M. Hart & Co. in no way held themselves out as principals, hut in all respects conducted themselves as agents, and that if the note in question is not signed 4 as agents ’ by S. M. Hart & Co., it was due to a clerical error, and with no intention of executing any other obligation than one against the State of Louisiana.”

There was judgment for plaintiff, and defendant has appealed.

It appears in evidence that at the same time the note was executed the paype, Phillips, signed the following bill and receipt:

“ S. M. ffart & Co., Agents Louisiana Penitentiary:

To W. D. Phillips :

“ For ninety bales cotton, 39,495 IBs., at 8| cents.$3,357 07

Commissions 2% per cent... 83 93

$3,441 00

“Repeive’d, Baton Rouge, March 27, 1862, of S. M. Hart & Co., agents Louisiana Penitentiary, their note at six months for the sum of thirty-three hundred and fifty-seven and seven one-hundredth dollars, bping for amount of above bills. , ,., W. D. PHILLIPS.”

The commissions in this bill were inserted by way of memorandum, in keeping the account between the State and S. M. Hart & Co., purchasing agents, as by the terms of their employment they wore to receive two and a half per cent, for buying, and are not included in the amount of the note.

The defendant has introduced evidence to show that the firm of S. M. Hart & Co. was established solely for the purpose of acting as agents for the State in managing the business and mechanical departments of the Penitentiary, and had no other existence or purpose; that the fact was well known in Baton Rouge; that Phillips was an intimate business and social acquaintance of defendant; that the cotton in question was purchased for account and use of the State, and so charged on the books of the agents, and was manufactured into cotton goods for account of the . State.

As stated by counsel on both sides, the main question in the case is, to whom was the credit giyen in this transaction ? Upon the strength of the bill and receipt signed by Phillips at the time, and other evidence in the record, the defendant strenuously, contradicts that the credit was given to the State, and that the holding of S. M. Hart & Co. to a personal liability on the note did not enter into the contemplation of the parties at the time the note was made.

In tlie case of Selaroderie v. Hart, 20 An. p. 126, it was lield that wliere the defendants, as agents for the Penitentiary, contracted with plaintiffs for a lot of lumber to bo used in moving the machinery, and the bill for the price of the lumber was made out against them as agents, they could not be held personally liable, the plaintiffs having admitted their agency, and dealt with them in their representative capacity.

Wo do not perceive that this case differs from that, except in the fact that the note ivas given; and it cannot be doubted that the origin and consideration of that note may be inquired into in the hands of the plaintiff, who took it some three or four years after it fed due. We think the law has been well settled in this State since the case of Krumbaar v. Ludeling, 3 Martin 644. That of the defendant, maker of a note, shows that ho ivas a. more agent throughout the whole transaction, and that within the knowledge of the idaintiff or of the payee in a case like this, the note is not binding on him, “because in the language of the court in that case he is not a party to the contract', and as far as it relates to him it is without consideration ; and the attempt to enforce it is a violation of that evident justice and good faith which ought to direct and govern in all contracts.” 10 L. 390 ; 11 L. 13 ; 3 "E. 381.

It is, however, contended by plaintiff that S. M. Hart & Co. exceeded their authority in making the note, and they must therefore be personally bound by that note on the general principles of the law of agency in this regard. But we apprehend that the reason of the rule that an agent who exceeds his authority is personally bound, is that he misleads the party -with whom he contracts, and is therefore held on the ground of misrepresentation. The reason of this rule being absent, the rule ceases. It is provided, therefore, by the Civil Code (2981-2) that “ the mandatary who has communicated his authority to á person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it, unless he has entered into a personal guarantee;” and that “the mandatary is responsible to those with whom he contracts only when he has bound himself personally, or when ho has exceeded his authority without having exhibited his powers.” And, therefore, in the case of Trastour v. Fallon, 12 An. p. 28, this Court said in discussing a similar question, that “ to hold the defendant’s liable the plaintiff must show that lie contracted with them personally, or that they misled him by assuming to act for others without sufficient authority.”

If S. M. Hart & Co. exceeded their authority in making the note in suit, and yet the limitations of that authority were known to the payee, the plaintiff could not, on that ground simply, recover; and on the other hand, if the note by which the plaintiff claims that S. M. Hart & Co. bound themselves personally, was given as claimed in the answer, the plaintiff in the authority of Krumbaar v. Ludeling and the subsequent decisions, could not, on that ground alone, recover.

The question still recurs, to whom wars the credit given ? Upon the record as it comes to us, we do not feel justified either in affirming the judgment, or in rendering a judgment in favor of defendant. It seems to he one of those cases which justice requires to he remanded, in order that the main question as a quostión of fact may he settled by further testimony. C. P. 906.

It is therefore ordered and adjudged that tho judgment appealed from he avoided and reversed, and that the cause he remanded for a new trial, the appellee to pay the costs of the appeal.


author: IIowe, J.

text:
    No. 1453.
    Lorin Chapman v. the New Orleans, Jackson and Great Northern Railroad Company.
    ■Whore a railroad company engaged in tho carrying trade as common carriors for hire receives and receipts for property to be transported to another point on the line of the road, the burden of excusing its non-delivery at tho point designated falls on the company.
    A judgment of the District Court not regular in form will be annulled on appeal, and suoh judgment as should have boon rendered by the judge a quo will be pronounced by the Supremo Court.
    from the Fourth District Court ofjiew Orleans. Theard, J.

      Mart & Foute, for plaintiff and appellee, L. E. Simonds, for defendants and appellants.
   IIowe, J.

The plaintiff sues to recover the value,'at Jackson, Mississippi, of a shipment of sugar and molasses delivered to the defendants at Hammond Station, on the twenty-fifth April, 1863, to he transported by the latter to Jackson. The shipment of the goods is admitted and the non-delivery at the place of destination. It also appears that tlie freight money was paid by plaintiff to defendants, at Tangipahoa, a few miles beyond the point of shipment. The defense is that “ at or near Tangipahoa Station the progress of said merchandise was arrested by “Grierson’s raid,” and the same for security from devastation by Federal troops was stopped at said station, and by the impossibility of proceeding farther on the road in consequence of military orders as well as by destruction of the road. That while said merchandise was then and there at Tangipahoa the same was destroyed by a military force acting under orders of Colonel D.umontiel, of the Confederate army, and lost by a ‘vis major,’ by circumstances beyond the power of defendants to prevent and without any fault on their part.”

There was judgment for plaintiff for the sum of $1274 33 in gold or its equivalent in United States treasury, notes with interest thereon from April 25, 1863, and defendants have appealed.

The reception of the property by defendants as carriers.for hire imposed on them the burden of excusing its non-delivery, and the question whether the record establishes any legal excuse is mainly one of fact. The goods had apparently arrived as far as Tangipahoa on the twenty-fifth, of April, 1863. From that place to the point of destination they might have been carried in a few hours, tho distance being about one hundred ruñes. They were there unloaded from the cats, placed on a platform, and about the sixteenth of May following destroyed, as a witness informs us, by “Confederate soldiers, citizeus and negroes, who knocked in the heads of the sugar hogsheads and helped themselves and carried Off as much as they could.” Tho witness continues:

“ Colonel Dumontiel loft the same day, before the destruction, with a few soldiers, being chiefly if not entirely his staff. The Federal cavalry came into Tangipahoa in less than an hour after the destruction of the sugar, and they burned the depot and platform, and what sugar and molasses had not been taken off before they came was burned with the depot.”

This cavalry appears to have been not Grierson’s but a force that came up from New Orleans.

F. Dumontiel testifies that during April and up to the sixteenth of May, 1863, he was in command of the post of Tangipahoa, and saw sugar and molasses lying out at tho depot there. He states tlmt'the road was cut by Grierson’s force between Tangipahoa and Jackson about the latter part of April, and certainly prior to the first of May. He does not fix the date, nor does he confirm tho plea that the goods wore destroyed by his orders. lie states that before the road was cut by Grierson ho had orders not to permit private freight to be transported on the Jackson Railroad, and notified the railroad officers, or employes, at Tangipahoa of such military orders, but of these orders and that notification he does not.fix the date.

We have been referred by defendants to a “pictorial history of the war” to show that the Jackson Railroad was cut by Grierson’s force on the twenty-eighth of April, 1863. If we admit that the date can be fixed by such method, we fail to discover in this or in the other facts of the case that the defendants have established any sufficient excuse for the non-delivery of plaintiff’s property. There is no proof whatever that the property was destroyed by orders of Colonel Dumontiel, and it is not necessary therefore to determine what effect such orders would have had in law, if given and obeyed. There is no proof when military orders werfe given to forbid the transportation of private freight over the Jackson road, and it is unnecessary therefore to consider what effect they would have had in law if they had been connected with the date when the goods arrived at Tangipahoa. Admitting that the road was cut by Grierson’s raid on the twenty-eighth of' April, 1863, we find that three days were avaüable to the defendants to convey the property from Tangipahoa to Jackson, a journey of a few hours. The goods arrived at Tangipahoa on the twenty-fifth April, and the freight, money was there paid by plaintiff to defendants; and the record does not disclose any reason sufficient in law to justify the unloading at that station of the plaintiff’s property and tlie exposure of it to tlie destruction wliicli came some three weeks afterward.

The judgment would be in all respects 'affirmed if regular in form, and for the proper amount of interest. As it is admitted by plaintiff’s counsel that the rights of his client would be satisfied by a judgment in lawful money for tlie sum fixed by the court as the value of the property, and as interest is duo, not from the-, time of shipment but from judicial demand (5 Rob. 192), it is ordered aud adjudged that the judgment appealed from be avoided and annulled, and that the plaintiff have judgment against defendants for the sum of twelve hundred and seventy-four dollars and thirty-three cents, with five per centum per annum interest from February 1, 1866, with costs of the lower court, and that the plaintiff pay the costs of the appeal.

Rehearing refused.


author: Wyly, J.

text:
    No. 1987.
    Marie Josephine Lapice, Wife of Jules DeLongpre Fitzgerald, v. P. M. B. Lapice et al.
    P. M. B. Lapice and others executed thoir promissory note for $50,000 in favor of Marie Josephine Lapice for borrowed money. Marie Josephine Lapice afterwards mado a marriage contract with Jules DcLougpre, in which among other stipulations this note for $50,000 was specially set apart to her as her dowery, an accurate description thereof being given ; they were subsequently married and the noto passed into the hands of the husband. Held — That the stipulation of $50,000 in the marriage contract was merely descriptivo of the note, and not an estimation, and the note or its value did not fall into the community under article 2334; of the C. 0., and the husband became chargeable with no particular sum on receiving it.
    The wife, properly authorized by hor husband or the judge, may aue for in her own name aud recover the amount oí a note settled upon her by the marriage contract as dowery. O. P. 107. The appearance of the husband to authorize the suit concludes him from any demand he might have against the makers of the note.
    The Judge of the District Court gave as reasons for judgmont, “after hearing the evidence and argument of counsel and considering the law aud the testimony adduced, and the reasons orally assigned, it is ordered, etc." Held to bo a sufficient compliance With article 80 of the Constitution.
    A PPÉAL from tlie Fourth District Court, parish of St. James. Beauvais, J.

      L. Gasiera and Garleton Built, for plaintiff and appellee, Belloios & 'Mills, Legendre & Boché and B. JR. Beckwith for defendants and appellants.
   Wyly, J.

On the first of May, 1866, the defendants executed and delivered to the plaintiff their promissory note for $50,000, due first of January, 1858, for borrowed money. In order to secure the payment thereof they executed a mortgage on their plantation in- the parish of St. James.

The plaintiff, the payee of the note, subsequently married Jules de Longpré Fitzgerald, and by a marriage contract she constituted to herself in dowery this note together with other property. She finally instituted this suit, with the authorization of her husband, for the recovery of the amount due on the note and to foreclose the mortgage*

Tlie answer is a general denial and tlie prescription of five and ten years. Tlie defendants subsequently filed a peremptory exception to plaintiff’s right of action on the ground tliat by the marriage contract between plaintiff and her husband, ‘‘the note sued on and therein recognized as dotal property, was to be placed after the marriage iu the control and under the administration of the husband, and plaintiff therefore cannot stand in court as plaintiff” to maintain this action. '

There was judgment in the lower court in favor of plaintiff and the defendants have appealed.

The defendants contend that on the celebration of the marriage the note sued on fell into the community by virtue of an estimation thereof in the marriage contract under article 2334 of the Civil Code, which declares that, “If the dowery, or part of it, should consist in movable effects, valued by the marriage contract without declaring that the estimated value of the same does not constitute a sale, the husband becomes the proprietor of such movable effects, and owes nothing but the estimated value of the same.”

We have carefully examined the marriage contract and cannot perceive any estimation or valuation therein of tlie note sued on.

The third article of the marriage contract declares that the future wife constitutes to herself in dowery, first, the sum of fifty thousand dollars, the amount of a note subscribed May 1, 1856, by Messrs. P. M. B. Lapice, J. Prank Lapice, Ambrose G-. Lapice and Emile D. La-pice, her brothers, payable to her own order, January 1, 1858, and secured by mortgage on the plantation of said Messrs. Lapice, situated in this parish; the second, third and fourth clauses in said’article refer to other property constituted as dowery without any valuation mentioned.

The fourth article of the marriage contract declares, that immediately after the expected marriage, the note of fifty thousand dollars, and the sum of six thousand five hundred dollars, which the future wife has just constituted to herself in dowery, will be delivered to the future husband who will give acquittance therefor, and will take charge of the same in order to account therefor according to law.

The expression, the sum of fifty thousand dollars, mentioned in the third article of the marriage contract, is immediately qualified by adding the amount of a certain note which is fully described as the note sued on. This remark cannot be construed to imply a valuation or estimation of the note, especially if taken in connection with the fourth article which says immediately after the marriage the note of fifty thousand dollars, and the sum of six thousand five hundred dollars ■ which the future wife has just constituted to herself, in dowery, etc. We can perceive no valuation of the note and do not think the husband became chargeable with any specific sum on receiving it. We regard the note as the dotal property of the wife and under article 2349 of" the Civil Code the husband will not be answerable for failure to collect it when the same is not owing to his fault or neglect.

The next question to consider is, can the wife sue for the recovery of the note, her dotal property, with the authorization of her husband ?

Article 2330 of the Civil Code provides that, “the husband alone has the administration of the dowery, and his wife cannot deprive him of it; he may act alone in a court of justice for the preservation or recovery of the dowery against such as either use or detain the same, but this does not prevent the wife from remaining the proprietor of the effects which she brought as her dowery.” Article 107 of the Code of Practice declares that, “husbands have under thoir control the personal and possessory actions to which their wives are entitled, though they be themselves minors; therefore they can proceed judicially and in their own name in whatever relates to the preservation of the dotal property, which their wives have brought to them by marriage as well as to the recovery of debts duo them, these being under their administration. But actions relating to the ownership of the dotal or paraphernal property of the wife, or of some real right belonging to her, must be brought by the wife duly authorized by her husband, or by the judge if he fails to do it.”'

In a contract between the husband and the wife for the administration of the dotal property, the rights of the husband would prevail. He had- the right to sue in his own name on the note herein, declared upon, under the articles of the Civil Code and Code of Practice just quoted.

He may act alone in a court of justice for the recovery of the dowery against such as detain the same. C. C. 2330.

The law does not dechire he must act alone. It says he may act alone.

This right is personal to the husband and is ■ based upon the supposition-that the dotal property is under his administration, 9 A. 12.

Because the law lias provided that the husband may proceed Jn his own name to recover debts due his wife, does that prohibit him from permitting or authorizing his wife to sue therefor, as in this case, in-her own name1? We think not. The law has not rendered the wife absolutely incapable of suing, with her husband’s authorization for her dotal property. On the contrary it expressly declares that actions relative to the ownership of dotal or paraphernal property or of some real right must be brought in the wife’s name. C. P. 107.

The defendants however, contend that under the general rule a married woman cannot sue or be sued, and that where she brings an action she must show by proper averments that she is within the exception to the rule. They rely upon the case of Mrs. Jane Cowand, wife of Akin v. Mrs. Josephine Pulley, widow of Cowand. 9 A. 12.

'That case is not analagous to the one we are now considering. In that case the wife sued without the authorization of her husband on a note which accrued during the existence of the community made in her favor by her husband and his partner, the husband of the defendant. The defendant in that case excepted on the ground that plaintiff was a married woman and had averred no facts in her petition which in law authorize her to stand in judgment without the aid of her husband.

The note was ¡prima facie a community asset, and the husband as head and master thereof refused to authorize his wife to sue. The exception was properly sustained.

Without the authorization of her husband the plaintiff in this suit could not properly appear as plaintiff.

The defendants have no interest in contesting the right of plaintiff to sue on the note unless they have some defense against the husband which they wish to set up, or unless the satisfaction of the suit instituted by plaintiff would not release them from any demands of the husband on account of the note.

They have not alleged they have a defense as against the husband, and we conclude they have none. The appearing of the husband to authorize the suit concludes him from any demands he might have against them on account of the note.

In the case of Peyroux et al. v. Davis, 17 L. 480, this court said, “the defendant must aver that lie has a good defense against the real owner, otherwise, whether the plaintiff is the owner or not, is a fact which cannot avail him.”

In the case of Shaw et al. v. Thompson, 3 N. S. 392, this court said, “the suit appears to have been brought by the persons having the legal interest in the instrument sued on. Whether they were the owners or not, was a matter with which the defendant had nothing to do, as the judgment here formed res judicata against any other who might hereafter have claimed an interest in it.”

We conclude therefore that the peremptory exception to plaintiff’s right to prosecute this suit is not well taken.

We have carefully-considered the evidence adduced by the plaintiff to prove the interruption of prescription and consider the interruption fully established. The books of the defendants in which the credits on the note of $50,000 were regularly entered for a series of years, the extension of the payment and the credits indorsed on the note by the agent of the defendants, the payment of the $4000 by check on the Citizens’ Bank on the thirteenth of April, 1864, the production of the cheek itself, corresponding with the books of defendants, all corroborate the evidence of the plaintiff and clearly establish the inter-1 ruption of prescription. The interruption of prescription is1 fully established without the testimony of Baijoe.

The.defendants raise in their brief other points which we deem it unnecessary to answer. They are not such as to require serious consideration.

We will, however, observe in reply to the objection, that the judgment appealed from does not conform to the eightieth article of the Constitution, which requires judges to adduce the reasons on which their judgment is founded, that we find the following declaration in the judgment: After hearing the evidence and argument of counsel, and

considering the law and the testimony adduced and the reasons orally assigned, it-is ordered,” etc. We deem this a sufficient compliance with the constitutional provision. 12 A. 410.

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

Rehearing refused.


text:
    No. 2074.
    Charles Wieck v. H. V. Babin, ex sheriff, and others.
    A seizure and sale of property under a writ of Ji. fa. was made on twelve months' credit, for which a twelve months' hond was given with approved security. At the maturity of the bond afi. fa. was issued thereon against the principal and surety and property seized and again sold on twelve months' credit, for which a second twelve months’ bond was given with approved security. At the maturity of this second bond execution again issued against the principal and surety. Hold — That the second bond was taken without any warrant or authority of law and could not therefore be enforced in the summary manner provided by law for the execution of twelve months' bonds. That execution on the second bond would be stayed by injunction.
    from tlie Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      T. P. Greves and Puqua <& Oallihan for plaintiff and appellant. A. 8. Serrón and Prnrot & Lamon for defendants and appellees.
   Howe, J.

In 1861 the sheriff of the parish of East Baton Rouge, as tax collector, seized and sold certain property of U. W. Roberts for the purpose of making therefrom the amount of a State license. Laws of 1855, p. 514, §55.

The sale was made on twelve months’ credit, and the purchaser gave, as sureties, on a twelve months’ bond, P. A. Kugler and Pliny D. Hardy.

On this twelve months’ bond fi. fa. issued, and in May, 1866, certain real estate, the property of P. A. Kugler, one of the sureties, was seized and offered for sale for cash, but not bringing its appraised value, as required by the then existing law (Acts of 1866, p< 90), was offered on twelve months’ credit. It was thus sold on the fourth August, 1866, and P. A. Kugler, the surety and owner, bid it in and gave a twelve months’ bond, with plaintiff in this suit as surety.

In August, 1867, after the maturity of the last bond, a writ of fi. fa. was issued on it, and the sheriff seized property of the plaintiff, who thereupon sued out the injunction now before us. There was judgment for defendants, dissolving the injunction, and plaintiff has appealed.

We find no authority in law for the second sale on credit and-the taking of the second bond.

If we concede on behalf of the defendants that the first bond was Valid, it should have been executed by a sale for cash. C. P. 720, and act of seventli April, 1826, amending tlie same. The second section of the act of March 2, 1860, in force in August, 1866, if it apply, does not appear to have changed this rule further than to have required that, upon such sale, the property should bo appraised, and realize in cash its appraized value.

Without expressing then, any opinion upon the validity of the second bond as an obligation to been forced via ordinaria, we think it clear that it cannot be collected in the summary manner in which the defendants endeavored to proceed. Such summary process requiring üo order of a judge, and in this respect swifter even than executory proceedings upon a mortgage, ought to be considered as strieti juris, and permitted only where it is clear that the bond, which the obligors acknowledge to have the force of a final judgment, is one given in pursuance of law in proceedings authorized by law.

We have been referred by defendants to several cases in which it has been held by this court that the surety on a twelve months’ bond cannot, while his principal retains the property, be heard to allege any irregularities in the sale. 2 La. 360; 9B. 185; 12 R. 206; 7 An. 542. This rule is well settled, and might be invoked against an attempt to enjoin the first bond. But we apprehend that it cannot be applied to the second bond, now before us, given in proceedings not authorized by law.

For the reasons given, it is ordered and adjudged that the judgment appealed from be avoided and reversed. It is further ordered that the plaintiff have judgment against defendants perpetuating the injunction issued herein on. the twenty-fourth August, 1.867, with costs in both courts.


author: Taliafekiio, J.

text:
    No. 1482.
    James A. Douglass v. S. C. Manning.
    A settlement of business transactions between parties by one giving his note for the balance due, will be conclusive where the proof in the record shows that no orror occurred in the settlement.
    from the Sixth District Court, of Now Orleans. JDwplantier, J.

      JTorner c6 Benedict, for plaintiff and appellee. McCay & Luzen-bunj, for defendant and appellant.
   Taliafekiio, J.

The plaintiff sues on a promissory note for $700-The defendant in his answer pleads a general denial. Afterwards in a supplemental answer ho set up a reconventional demand founded upon claims against the plaintiff for a quantity of hallast and a large lot Of implements used by stevedores in their business, which hallast and tools he alleged he left in charge of the plaintiff in the early part of 1861, when, it seems, the defendant left the city and took up his residence at Areola and other places near the Jackson railroad. He avers that upon his return to the city in 1865, the plaintiff refused and failed to deliver to him certain tools, which he enumerates in detail, and that plaintiff had sold eleven hundred and fifty tons of the ballast entrusted to him without accounting to him for the proceeds, which lie fixes at the sum of six thousand nine hundred dollars. He alleges that the note sued upon was given through error and without consideration. He prayed a trial by jury and judgment in reconvention for $7626, and interest, &c. Upon affidavit made the court ordered a trial by jury, to which plaintiff objected, and the objection being overruled, a bill of exceptions was reserved.

The verdict of the jury was in favor of the plaintiff for the amount of the note, rejecting all claims on the reconventional demand.

The court thereupon rendered judgment in conformity with the prayer of petition and the defendant has appealed.

The plaintiff asks of us an amendment of the judgment allowing interest from twenty-fifth of September, 1865.

We do not find it necessary in the decision of this case to examine the bill of exceptions.

It seems that the defendant followed, previous to the late war, the occupation of a stevedore in New Orleans, and that the plaintiff was for a considerable length of time his chief clerk. About the beginning of the war the defendant left the city and remained away until the restoration of peace. He left in charge of the plaintiff implements of various kinds used in his line of business and a quantity of ballast. The plaintiff sold a part of this ballast, in lots, to different purchasers; a part was stolen, and a part taken by the military authorities. He appropriated a portion of the proceeds by the instructions of the defendant to the discharge of one of his debts amounting to $340 70, and doubtless accounted for the remainder in the settlement that took place between the parties, when the balance due the plaintiff, after the adjustment of all claims between them, was fixed at $700 and for which .the defendant executed the note sued upon. A careful examination of the evidence convinces us that the verdict of the jury is fully sustained thereby.

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


text:
    No. 1468
    J. G. Rosenfield v. The Adams Express Company.
    An application by defendant to remove a causéis analogous to a plea to tlie jurisdiction, and when ordered by the court the party against whom 'it is taken -may appeal, but ’ When the order of removal is refused, no irreparable injury follows, and it is unappealable. It will, however, be examined on the appeal taken by defendant from a final judgment on the merits, and if found erroneous, will be corrected.
    The Adams' Express Company, domiciliated in the State of New York, and all of its corporator^ citizens of other States than Louisiana, has a right, when sued in one of the courts of this State, by a citizen ot tlie State, to remove the cause to the next Circuit Couit of the United States. Judiciary Act of 1780, Section 12.
    All proceedings Idem in a cause by a State court after erroneously denying an application to remove to the Circuit Court of the United States, are coram noú judies and void.
    Where the authority of an attorney at law to appear in a cause is not questioned it will be presumed, and his acts will be binding on the party for whom he appears.
    from the Third District Court, of New Orleans. Pello mes, J.

      C. Poselius and Alfred Philips, for plaintiff and appellee. Sullivan, Billings & Hughes, for defendants and appellants.
   Howe, J.

The plaintiff brought this suit against the defendants, as express forwarders, and caused them to be cited through Alfred Lockwood. The defendants, appearing by their attorneys at law, filed a petition for the removal of the cause for . trial into the next Circuit Court of the United States to be held in the Eastern District of Louisiana, offering surety in such amount as the court might require, and took a rule to show cause why the case should not be thus removed. Tlie petition was verified by Asa S. Blake, who states in his affidavit that he is superintendent of the Adams Express Company. It appears from the record that upon the trial of the rule tlie plaintiff.objeeted to the transfer on the ground that the application was not in proper form, in this, that the authority of Blake, as superintendent of the company, does not extend to the power of representing tlie defendants in actions brought against them.” Upon the ground that no such authority had been delegated to Blake, the District Judge denied the application. The defendants, reserving their rights upon this point, proceeded to answer upon tlie merits, and upon the trial a judgment was rendered against them, from which they have appealed.

The question which w'e meet at tlie threshold of the case is whether tlie District Court erred in refusing the application for removal. It is urged by plaintiff that as no appeal was taken from tlie judgment on the rule, tlie question cannot now bo considered. Tlie current of decision however, runs in a contrary direction. An application to remove is analogous to a plea to tlie jurisdiction, and when a removal is ordered the plaintiff would bo without remedy against such an order, unless by appeal. It is otherwise when the court retains jurisdiction ; the order is then an interlocutory decree, causing no irreparable injury and unappealable, but which maybe examined on an appeal by defendant from the final judgment, and may then, if erroneous, be corrected. Higgins v. McMicken, 6 N. S. 712; 2 M. 176 ; 5 La. 378 ; 9 A. 241.

Proceeding then to examine the action of the District Court in this matter, we are constrained to the conclusion that it was erroneous. The defendants, averring themselves to he a corporation created by and under the laws of the State of New York, and that all its corporators are citizens of other States than Louisiana, had a right when sued in one of our courts by a citizen of this State, to remove the cause into the next Circuit Court of the United States, under the twelfth section of the Judiciary Act of 1789. 1 U. S. Statutes 79.

This right is established under the constitutional provisions respecting the judicial power of the United States, and the proceedings of a State court after erroneously denying it, are coram non judice and nugatory. Gordon v. Lengest, 16 Peters 97; Kanonse v. Martin, 15 Howard 198.

■ The law prescribes only the presentation of a petition by defendant on his first appearance, setting forth to the satisfaction of the court the necessary facts, and the offering' of surety for the filing of copies of process- in the next Circuit Court. It. is the usual and approved practice to have this petition verified by an affidavit; but we are not aware of any rule which would make the affidavit of Blake in this case unauthorized or unavailing. The plaintiff did not, attempt to show that the petition was in any respect untrue; indeed, it seems to be settled that such an attempt cannot be permitted. 7 La. 394; 14 La. 515; 6 Rob. 33. The court does not seem to have questioned the truth of the petition and no objection was made to the bond. The decision of the court appears to have been based upon the authority of Fuselier v. Robin, 4 An.'61, but that was a case where one attempted to obtain judgment against an absentee by citing an agent who had no special authority to receive citation, and it was correctly decided that the judgment must fall for want of a foundation. But in this case there is no question of sufficient citation. The plaintiff’s petition does not aver agency in any one; a copy, with citation, was served on Lockwood', the only evidence of whose agency is found in the statement by the sheriff in his return that he knew, him to be such lawful agent “ by interrogating him.” The defendants then appeared by their attorneys at, law, members of our bar, whose authority is not questioned and will be presumed. 8 N. S. 234; 16 La. 368. Upon that for the first time appearing they make a showing which would seem to have entitled them to the removal of the cause to the Federal court.

For the reasons given it is ordered and adjudged that the judgment appealed from be avoided and reversed, and the case remanded to the District Court, with directions to accept sufficient surety for the removal of the cause to the next Circuit Court of the United States for the District of Louisiana, and thereafter to proceed no further in the case.. It is further ordered that the appellee pay the costs of the appeal.


text:
    No. 1479.
    Michael Duncan v. George Arnold Holt & Co.
    failure to except to the jurisdiction will not render valid a judgment hy a court without jurisdiction ratione tnaterice.

    A party, in wbose'favor a judgment has been rendered by a court having no jurisdiction, need not be made a party to the appeal.
    Where a lot of cotton is sold by weight, delivery does not take place until the cotton is weighed. The sale is incomplete until actual 'delivery has taken place. The fact that tho vendor sub-aequently sold and delivered the cotton to another party is incompatible with delivery to tho first vendee.
    from tbe Second District Court of New Orleans. Thomas, J.

      Randolph, Singleton & llardie, for plaintiff and appellant. Campbell, Spofford <& Campbell, for defendants and appellees.
   Wyly, J.

Plaintiff sued the succession of George Arnold Holt and T. J. O’Regan, the surviving partner of the commercial firm of George Arnold Holt & Co., in solido, for the amount claimed by him in the Second District Court of New Orleans.

Both defendants appeared and pleaded to the merits, and-there was judgment in their favor.

Plaintiff appealed.

Appellees move to dismiss this appeal because T. J. O’Regan, one of the defendants, has not been cited nor in any manner made party to the appeal.

Appellant contends that it was unnecessary to make O’Regan a party to the appeal because the judgment against him is a mere nullity, the Second District Court of New Orleans not having any jurisdiction as to him.

It is well settled that all parties interested in maintaining the judgment must be made parties to the appeal or it will be dismissed. 12 R. 203; 11 A. 409j 12 A. 775.

Is T. J. O’Regan interested in maintaining the judgment of a court that had no jurisdiction of the case ratione materias ?

We think not. His failure to except to the jurisdiction of the Probate Court did not render valid the judgment as to him, which that court had not jurisdiction to decree.

The judgment as to O’Regan was a mere nullity, the Second District Court of New Orleans having only probate jurisdiction.

The motion to dismiss is therefore overruled.

On the Merits.

Plaintiff alleges that he sold to the defendants on third February, 1866, one hundred and forty-five bales of cotton weighing fifty-three thousand and twenty-two pounds, at forty-eight cents per pound, that on the fifth February, 1866, the defendant’s broker caused said cotton to be turned out, sampled; classed, marked and transferred upon the books of the cotton press into the name of said defendants; and the said cotton was about being weighed by the weigher acting for the plaintiff when the weigher acting for the defendants forbid the weighing of said cottonthe next day the brokers of the defendants notified tlie plaintiff that the purchasers refused to receive the cotton; some correspondence ensued between the vendor and vendees, and the latter refused to accept the delivery and pay for the cotton because, as they aver, it was found to be damaged and in unmerchantable order.

Plaintiff avers that lie subsequently placed the cotton again upon the market and caused it to be sold as soon as it could be done without injury by a prudent and skillful broker, who obtained therefor forty-tour cents per pound, the highest market price, cotton having declined several cents per pound in the meantime.

He now sues the defendants to recover the difference in price between the amount received by him for the cotton at the last sale and the amount agreed upon in the negotiation with defendants.

The defendants denied generally the allegations of plaintiff, and averred they were not liable for the difference in the price of the cotton as claimed; that they-never received the delivery of the cotton they had negotiated to buy; that they had a good reason to refuse to accept the delivery of said cotton “ on account of the wet, pulpy, and unmer-chantable condition of the bales at the moment plaintiff sought to impose said cotton on them, which they then, for the first time, discovered.”

There was judgment in favor of the defendants, and plaintiff has appealed.

The plaintiff in his brief insists that the cotton was by the purchaser’s classer classed, marked, received and transferred on the black book of the cotton press from the plaintiff to the purchasers; and that this constituted a sale.” The evidence satisfies us that the sale to the defendants was never perfected by the W'eighing and delivery of the cotton. It 'would be strange for the cotton to bo transferred and delivered to the defendants and yet plaintiff bo able to retain possession of the cotton and sell it to other parties jvhich he did in a few days after the alleged sale.

The letters of plaintiff and the defendants, their correspondence in reference i’o the sale, made part of plaintiff’s petition, show that the sale had not been consummated by delivery of the cotton. In plaintiff’s letter of sixth of February, I860, he says to the defendants: “if you persist in your refusal already made to receive said cotton and pay for the same I shall sell the same for your account and shall hold you responsible for whatever damages I may sustain in consequence of said refusal.”

Upon the samples, and without seeing it, the defendants negotiated to buy the cotton at forty-eight cents per pound. It was never weighed and legally delivered to them. Article 2433 of the Civil Code declares that: When goods, produce or other objects, are not sold in lump, but by weight, by- tale, or measure, the sale is not perfect, inasmuch as the the things sold are at the risk of the seller, until they be weighed, counted or measured; but the buyer may require either the delivery of them or damages, if any be for the same, in case of non-execution of the contract.”

Haying sold the cotton by samples to the defendants, it was the duty of the plaintiff to tender to them the delivery of the' bales corresponding with the samples in quality, and in good merchantable condition. Without doing so he could not complain if the defendants refused to accept the delivery and to comply with the terms of the contract. , ,

The evidence in the record is somewhat conflicting, but it fully establishes tiie fact that the bales were in bad order and in an unmer-chantable condition. Tiie witness Borfin, a licensed cotton weigher of tiie city of New Orleans for the last fourteen years, employed by the defendants to examine .the cotton and see whether it was free from country damage, fiilse packing and to attend to the weighing, declares that on á particular examination of the lot, say eighty or ninety bales, “ I found a considerable number of damaged and unmerchantable bales. The nature of said damage being a layer or wrapper, enveloping nearly tiie whole bale, and under, the bagging of dry rotten cotton, highly discolored from long previous exposure to wet, the same influence which had destroyed the staple. The bagging and rope on these bales were rotten so as to be easily .sundered by the hand.” The same witness again testifies, “ I made .two examinations; on the first. I refused to take it and So reported. I then returned in company with Mr. Duncan, the vendor, and made a second and more particular examination. I was about three-quarters of an hoiir or an hour examining it on the first occasion. The second required much longer time. I also gave it a third examination iii company with Mr. Henry Miller, an experienced cotton clacsei, and John H. Smith, also a fclasser and receiver of cotton.”

The witness Smith says: “I was called asa third party, and I examined the cotton in question; thirty-six bales in the press room of Passman’s press found damageil.and gone to pulp on the outside ; nineteen bales on the opposite corner of the yard were damaged, but I would have taken them on a proper allowance. I then called on the yard clerk to show me the balance of the cotton. * * * He informed Hie it was no use; it was pretty much all the same. I reported accordingly to Mr. George Arnold Holt, and of course the cotton was rejected as unmerchantable. I have been an. expert in cotton the last-twenty years. Taking the lot as a lot it was- not in a.merchantable condition.” The witness Campbell who received and weighed the cotton for O. B. Graham & Co., who afterwards purchased it, says: “I examined it thoroughly, looking at every bale and having my men to- tear off the bagging. The condition was very bad. It- was all in bad condition except a few bales."

Prom the 'evidence W6 conclude that the cotton was not throughout equal to the samples and in .good merchantable bales. The tender of delivery of such.bales, damaged and pulpy in the outer layer, and in bad order, was not such a tender as would subject the defendants to damages oil failing to accept &ie delivery ¿lid to comply with the terms of the sale.

The plaintiff failed to put the cotton in good order, when objected tó, and to tender the same for delivery to the defendants as merchantable bales, in every respect corresponding with the samples.

This was a pre-requisite before the seller could demand of the buyers to receive it and pay the price, or in default thereof become liable to him for damages.

We concur in the opinion of the court below who heard the delivery of the evidence by the witnesses, that the plaintiff has failed to make out such a cáse as entitles him to a judgment.

It is therefore ordered that the judgment against the plaintiff and in favor of the defendant, the succession of George Arnold Holt, be affirmed with costs.

Rehearing refused.


text:
    No. 1459.
    John B. Roth v. Mrs. M. A. Hebert.
    Prescription may be pleaded in the Supreme Court and when no application is made to have the case remanded to show an interruption, the plea will be maintained, if the documents declared upon are prescribed on their face.
    from the Second District Court, parish of Plaquemines. Cazabat, J.

      Sambola é JDucros, for plaintiff and appellee. JS. M. McCaleb for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment against her on three promissory notes, made by her on twenty-second January, 1859, due all in the month of March 1860, to' the order of and endorsed by Mrs. Valery Hebert, and to the suit on which she pleaded the general denial. In this court she has filed the plea of prescription of five years.

Suit was instituted on the fifteenth October, 1866, and citation was served on fifteenth November following. No interruption of prescription appears, although the witnesses were interrogated as to a demand and promise of payment. Their answers show that the- defendant has refused to pay the notes or acknowledge her obligation to do so. We consider that on the face of the notes and the record prescription has accrued, and as no application has been made to. have the cause remanded to show an interruption, we must sustain the plea.

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


text:
    No. 2035
    E. Adams, Tutrix, v. M. Dermody, et als.
    Where citation oí appeal is not prayed for by the appellant, and none Ib. issued to the appellee, the appeal will be dismissed.
    from the Second District Court, parish of Jefferson. Pcwdee, J.

      Cotton & Levy, for plaintiff and appellant. A. Cazabat and Mc-G-loin & Kleiwpeter, for defendants and appellees.
   Howell, J.

This is an appeal from a judgment dissolving an injunction, sued out against the United States marshal and others, to enjoin a sale under a process from the United States Circuit Court in this city. A motion is made to dismiss the appeal (which was granted on a peti-tition), on the ground that the movers and no one in interest have been cited as appellees, nor has any citation been asked for in the petition of appeal.

The motion is well taken. It may be considered as now settled in this court that whén citation of appeal is not prayed for by the appellant, and none is issued, the provisions established by the act of 1839, and re-enacted in I860, in favor of the appellant, are not applied to maintain the appeal, but the fault is attributable to the appellant, and the appeal dismissed. See the cases reported in 17 An. 74; 18 An. 626, 700, and authorities therein cited.

Appeal dismissed.

Rehearing refused.


author: Taliaeeruo, J.

text:
    No. 2142
    Abat et al. v. L. G. Atkinson ; P. B. Bunley et al. v. the same, and Gottenger, use of, &c. v. the same.
    The paraphernal propcity of the wife cannot b© seized for a debt due the community, growing out of improvements made upon her hereditary lands, until her indebtedness to the community is judicially established.
    from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.

      Gross <6 Hardee, for plaintiffs and appellants. Muse <& Pipián for defendants and appellees.
   Taliaeeruo, J.

In October, 1865, Adelia Atkinson, wife of the defendant, obtained against him a decree of separation of property, a dissolution of the community of acquets and gains, which she renounced, and a judgment for $5000. with legal interest from judicial demand. About the same time, the plaintiffs alleging themselves to be judgment creditors of the defendant, severally issued executions under which they seized defendants’ interest in the following property: A certain tract of land upon which defendants, L. G. Atkinson, and his wife now reside, containing seven hundred and ten acres, and being the same land received by Adelia Boone, wife of said Atkinson, as a legacy from her father, John Boone, said land situated in the parishes of East Feli-ciana and East Baton Rouge; that interest consisting of the dwelling house, out houses, gin and all other buildings, and the increased value of clearing up, ditching and putting under fence two hundred and fifty acres of said land.” They then caused a rule be to served upon Adelia Atkinson to show cause why the said land and improvements should not be sold .together and the proceeds divided on a regular and double estimation in conformity with law. .The wife, duly authorized, appeared and filed a motion to dismiss the rule, alleging several grounds of illegality .in .the plaintiffs’- proceedings against her. This motion was afterwards withdrawn and an answer filed. The answer contains a general denial and the averment that there is no foundation for the claim plaintiffs set np in right of her husband, and if there were, she would he entitled to compensate it by the judgment she obtained against her husband. She denies any right in plaintiffs to proceed against her property upon the claim set up by them, before at least obtaining a judgment of a competent tribunal ascertaining and fixing her liability, if any, for improvements made upon her hereditary lands.

There was judgment rendered in favor of the wife, dismissing plaintiffs’ suit, and they have appealed. To sustain the proceedings taken by them in this case the plaintiffs’ invoke the authority of the case of Dominguez v. Lee et al., 17 L. R. p. 295. We do not think the ruling in that case is favorable to the position they assume. In that case a judgment creditor of the husband seized a town lot, the paraphernal property of the wife, upon which there was a building when she acquired the lot as separate property. Subsequently and during marriage, other buildings of greater value, were erected'Upon the lot. The main question in the case was, whether the improvements made on the wife’s lot, with funds proceeding from a loan obtained by mortgaging her property, belong to the owner of the soil who put in jeopardy the loss of the lot itself, for the advantage of its amelioration, or to the community. Not being shown that the funds with which the improvements were made were the separate funds of the wife, the court determined that they belonged to the community, and rendered them liable for the husband’s debt. But the injunction taken out by the wife to prevent the sale of her property, was perpetuated as to the lot, which was forbidden to be sold; “the double estimate” spoken of, relating only to the buildings, one of which was the separate property of the wife, and the others, under the decision of the court, belonged to the community. In the case now under consideration the plaintiffs’ claim that the wife having renounced the community, all the improvements and ameliorations made upon the tract of land, the paraphernal property of the wife, belong to the husband and are liable to seizure for his debts; and that the improvements cannot, without waste, be sold separately from the lands. As to the correctness of these views in general, we are not required to express any opinion ; but we should hesitate to sanction the seizure of the wife’s separate property before her liability for a debt, if there be one due to the community, is, by judicial action, clearly established. This the plaintiffs have failed to have done. The testimony introduced on the trial determines nothing bearing directly upon the important point in the controversy, the enhanced value of the hereditary land of the wife by means of the improvements made upon it during the marriage. The testimony is rambling and indefinite. Two witnesses speak as to the present value of the property, the land with all its improvements as they now exist. One of them fixes the value at five dollars per acre and the other at seven dollars per acre. One witness says unimproved lands in' the neighborhood, at present, are worth not more than two dollars and a half per aero — another witness was unable to sell unimproved lands in the neighborhood at two cLollars per acre.

We find no error in the disposition made of the case by the lower court.

It is therefore ordered, adjudged and decreed that-the-judgment of the District Court be affirmed with costs. 2 An. p. 43; 6 An. p. 634 ; 6 Rob. 513; 8 Rob. p. 188.

Mr. Justice Howell took no part in this decision.