source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Baptiste Beaulieu, f. m. c., v. J. Ternoir, f. m. c., et al.
    A residuary donation inter vivos, made to certain persons therein named, is null, because it contains a “fi&ei commissumbut this nullity does not affect the title of the original donee, which remains good to the property donated. The entire donation is null only in cases of substitution.
    The French text of the G. C. 1507, evidently expresses the intention of the Legislature. The English text, taken literally, is without meaning.
    Marriage, like other facts, may be prove,d by any species of evidence not prohibited by law, and which does not pre-suppose a higher species of evidence within the power of the party.
    APPEAL from .the Fifth District Court of New Orleans, Buchanan, J. The questions involved in this case arose out of the following act of donation: “ Par devant Philippe Pédescianx, notaire public, pour la ville et paroisse de la Nouvelle Orleans, et en présence des témoins ci-aprés nomnjés, fut présent Baptiste Beaulieu homme d.e couleur et libre, demeurant en cette vijle, lequel vpnlant donner des preuves de son anjitié á Eulalie Bucloslange (mulatresse libre,) filie naturelle de Philippe Bucloslange, lui apar les presentes fait donation entre vifs et irrévocabie, ce qui a été accepté par la dite Eulalie Bucloslange, á ce présente et assistée de son pére naturel ci-dessus denominé, aussi comparant, d’un demi terrain situé au faubourg de la Course, rue des religieuses, ayant trente pieds de face sur cent vingt pieds de profondejir, faisant partie du terrain dénommé par le no. huit, et attenant au terrain numero sept dans l’ilet no. dix, lui appartenant au donateur, pour l’avoir acheté du sieur Philippe Bucloslange par acte passé devant le noíaire soussigné le qninze Avril dernier.
    *‘Pour par la donataire jouir, faire et disposer comroe de chose lui appartenant en toute propriété des maintenant et á. toujours.
    “ A cet effet le donateur met et subroge la donataire dans tous les droits de propriété qu’il á et peut avoir sur le demi terrain ci-dessus, voulant qu’elle en soit saisie et revétue.

      “ Cette donation est faite sous la condition expresse sans laquelle ces présentes n’auraient pas eu lieu, que si la donataire venait á décéder sans laisser de postérité on sans avoir disposé d’aucune maniere du dit demi terrain, qu’alors Agathe Ducloslange, Mélite Ducloslange, Matliilde Ducloslange, et Leonide Ducloslange, femmes de couleur et libre, deviendront sans qu’il soit nécessaire de remplir aucune formalité, propriétaires du dit demi terrain, et de tout ce qui sera eonstruit dessus.
    “ Fait et passé á la Nouvelle Orleans, le quinze Juillet mil huit ceut dix-neuf, en présence des sieurs Michel Fourcisi et Vincent Bilote, témoins qui ont signé avec les comparans, et le notaire, a l’exception du donateur, qui ne sachant signer a fait sa marque ordinaire. Apres lecture la donataire a déclaré ne savoir signer.
    “ (Signé,) Baptiste Beaulieu, ¡xj sa marque. Eulalie Ducloslange, sa marque. Philippe Ducloslange. Fourcisy V. Bilote. Phi. Pedesclaux, Notaire Public.
    “ Pour copie conforme a l’original resté en mon étude pour recours.
    “[L. S.] (Signé,) Louis T. Caire, Notaire Public.”

      M. Grivot and C. Roselius, for plaintiff,
    contended : Jean Baptiste Beaulieu instituted this suit to recover from defendant a lot of ground in the Second Municipality, which he had donated in 1819 to Eulalie Ducloslange, with the condition, that should Eulalie die without posterity, or without having disposed of the property, then the donation was made in favor of her sisters. Eulalie died in 1845, without issue, or having disposed of the lot. Her sisters claimed title to the property, under the donation, but w.ere opposed by Boss, who alleged a pretended sale to him, by Eulalie, a few .days previous to her death. Suit was brought against him; the judge decided in their favor; from which judgment he appealed to this court. The decision of this court was, that the clause in the donation under which they claim, being a substitution, or jidei commissure,, prohibited by article 1507 of Civil Code, rendered the donation null, whereupon Beaulieu brought this suit. Beaulieu, the original plaintiff, died in 1848, his son and heir, Sainlville, was, on his motion, made a party to this suit. Defendants took their rule, calling upon him to prove his legitimacy and heirship. By consent, the rule was tried with the merits.
    The judge before whom the cause was tried, gave judgment against him, on the ground that he had not proved his legitimacy. The question is, whether the marriage of Beaulieu and Qharlottine has been sufficiently proved. By the testimony of Joseph Porcé, a cousin, Isidore Honoré, an uncle, and other witnesses, it is shown, that J. B. Beaulieu, in 1820 or 1821, introduced to his friends and relatives, Charlottine as his wife, treated her as such, they were considered as man and wife by all who knew them; that Saintville is the issue of that cohabitation. That they lived as man and wife, up to the time of his death, in 1848. A witness, Moore, for the defendants, corroborates this testimony. None of the witnesses ever doubted they were man and wife.
    This evidence was objected to by defendants, on the ground that in Louisiana, marriage is contracted by written contract, and by written license, and formed better proof of the facts in question. The court overruled the objection, and a bill of exception was taken. This testimony was properly admitted. It is difficult, after the lapse of twenty-eight or thirty years, to procure better proof 'than the cohabitation. There is no law requiring the registry of marriages; Marriage being but a civil contract, the forms required by law are merely for the protection of those who are charged with the celebration of marriages. Cohabitation as man and wife for nearly thirty years supposes the existence of a previous marriage. Such a cohabitation cannot be treated lightly, and children born during that cohabitation, cannot be considered as bastards. No one is presumed to have violated the laws of his country. See Holmes v. Holmes, 6 L. R. 470. 18 L. R. 550. In France, where the records are required to be strictly kept, and the marriages to be registered ; the child claiming as heir, and legitimate child is not required to produce the marriage contract, if both parents are dead, for it is not presumed that he knows the date when, the place where, or the person by whom the ceremony was performed. The only proof required is, the fact of cohabitation as man and wife; their reputation as such; that he was born of that cohabitation, and treated as the legitimate issue. See Duranton verbo Marriage, p. 207, no. 253, vol. 2.
    The judge erred in deciding against the rights of Saintville. In his judgment, he says, it is matter of notoriety that the colored population are tenacious in having the marriage performed facie ecclesiae. The judge pays that class a high compliment, in believing that they entertain a higher regard for the religious solemnity of the marriage than the white population. If it be so, the presumption preponderates in favor of the parties here, for, if they are tenacious, the supposition is, that they did comply with the necessary formality. Whether the marriage was solemnized here cannot be shown. Saintville had no right to doubt the truth of his father and mother’s statements ; and he has established all he was bound to do, to prove his legitimacy, and his right to claim as heir. The defendants offered the testimony of one U. Valentin, taken under a commission, which was objected to, because he was the brother of J. B. Beaulieu, and had a clear and distinct interest in defeating Saintville'’s rights. If Saint-ville failed, he was the ljeir to his brother’s estate. The district judge maintained the objection, and defendant’s excepted thereto.
    On the merits of the cause, the decree of this court in the suit of Mathilde Dueloslange v. Ross, offered together with the whole record of the case, forms the law of this cause. This court declared that the donation contained a substitution, or fidei commissum, and the article 1507 Civil Code, positively declares, that if the act of donation contains such a clause, the donation is null, even in regard to the donee, instituted heir or legatee. If null, the property reverts to the donor or his heirs. Ross cannot then set up title from Eulalie ; she did not nor could not dispose of the property. She never had title. Beaulieu was and is still the owner.
    But if it be considered that she had the colour of a title, she never parted with that title. The pretended act of sale was obtained by Ross and Ternoir through fraud, at a time when she was sick and feeble on her death-bed ; the transactions took place in a dark room; threats were used by Ternoir; Ross aided and assisted; no money was paid for the price of said property. All these facts were proved on trial of Dueloslange v. Ross. Interrogatories propounded to Ross were not answered by him, and were taken as confessed. These interrogatories were full, and he had then the chance of exculpating himself from the charge ; he failed to do so. The whole of this record was offered and received in evidence without objection on the part of defendants. In that case, the district judge decided there was fraud; on the appeal, strenuous efforts were made by Ross to reverse the judgment on that point: this court did not consider the argument thereon, and it certainly cannot now be questioned by Ross, that there was no fraud.
    The testimony of Valentin was also offered to prove what had passed at the time Beaulieu purchased this property from Philip Dueloslange, in April, 1819, to show that the donation was a sale to Eulalie, and that Beaulieu had received value; to this it was objected that nothing could be proved by oral testimony, to contradict the notarial act. The court sustained the objection, and defendant excepted. The court did not err, and its decision is correct; it is the positive law, and no such evidence could be adduced. As to the prescription, that cannot be maintained. Eulalie had no title; consequently, she was not in possession ; or, at any rate, it would have been necessary for her to have been in possession for more than thirty years.

      Benjamin and Micou, for defendant,
    contended : 1. As to the legitimacy of the present plaintiff. Like all other plaintiffs he was bound to make out a clear case; and, so far from having done so, the evidence is against the existence of a marriage. There is not a single witness who swears that he had ever heard of the fact of marriage: though several of them speak of the parties living as man and wife, &e. 2. The alleged nullity of the donation to Eulalie Dueloslange. The limitation over to the sisters of Eulalie has already been decreed-to be null. The question that remains is whether the nullity extends to the donation to Eulalie herself. This question did not arise in the first case, and was not decided. 3d Ann. 432.
    It is a settled rule in the construction of wills, that the nullity of one clause will not involve that of another, unless the construction involving such nullity cannot be avoided. Farrar v. McCulcheon, 4 N. S. 49. Maihurin v. Livaudais, 5 N. S. 306. McClusky v. Webb, 4 R. R. 204. Cole v. Cole, 7 N. S. 417. 5 Toullier, 44.

      If the law is satisfied by declaring the residuary clause null, the direct donation will be preserved. That part only will be declared null which contravenes the prohibition of the code. Duplessis v. Kennedy, 6 L. R. 247.
    The first part of article 1507 prohibits jidei commissa, as well as substitutions, and in this goes beyond the corresponding article 896 of the Code Napoleon. But the second clause is identical with the second clause of the article 896. The first clause prohibits alike jidei commissa and substitutions The second extends the nullity to the donee, not in all cases of jidei commissum or substitution, but to all cases when the donee is charged or enjoined to preserve the thing for another or return it to another. The language in the French text is borrowed verbatim from the Code Napoleon, “est chargé de conserver et de rendre á un tiers.” It seems to follow that although a jidei commissum good in France wpuld be void here, yet the donation itself is only null here when it would be null in France. The jidei commissum would not be enforced, yet if the full property be given to the first donee his title remains perfect, and the nullity reaches only the eventual disposition The nullity of the first donation is declared only when the donee is charged to preserve and to restore. The test of the validity of this donation to Eulalie is whether any such burthen was imposed upon her. This is answered by the donation itself, which gives her the full property, to do with and dispose of it as she please. 5 Toullier, 21, 38. McClusky v. Webb, 4 R. R. 204. Caldwell v. Hennen, 5 R. R. 24. Bernard v. Soulé, 18 L. R. 26. Liautaud v. Baptiste, 3 R. R. 446.
    3. Eulalie Ducloslange did dispose of the property in her life time. She sold it to Boss. This, so far from contravening the intention of the donor, is in precise conformity with his wishes. He gives her full power to dispose of the property. The jidei commissum is only a contingent right to arise in case she should not have disposed of it. It cannot be said that any thing is added or changed in the disposition of the donor, when effect is given to a disposition which he expressly and formally authorizes. No policy of the law is contravened, for Eulalie was free to sell, to mortgage and to give from the day of the donation.
    It was asserted on the argument, that the sale to Boss was a mere fraud and simulation. This is positively denied. It has never been either decreed or proved ; nor is the evidence in Ducloslange v. Boss before the court at present. But suppose it a simulation, in what did the simulation consist ? The plaintiff aver that it was a disguised donation to the husband of Eulalie. If it were admitted to be true, this would not help the cause of the plaintiff. She was free to make a direct donation to her husband, and being free to give it to him directly, an indirect conveyance would be equally valid and binding.
    A jidei commissum, pure and simple, is nothing but a naked trust without an interest. The trustee is the mere agent of the beneficiary, and this agency is no more unlawful than the thousands of common agencies which occur in the ordinary intercourse of life. It follows that all jidei commissa do not come within the meaning of the laws. All such are not prohibited in Louisiana. Mathurin v. Livaudais, 5 N. S. 302. Hope v. LaBaule, 4 L. R. 212. Malone v. Barker, 2 R. R. 369. Caldwell v. Hennen, 5 R. R. 20.
    If they do not tie up the property from commerce, or necessarily alter the course of descents, it is impossible to see how they conflict with the policy of the law.
    4. There is no merit whatever or equity in the claim of the present plaintiff. From the evidence in the record, it is apparent that he never was the owner of the property. It really belonged to the father of Eulalie, and Beaulieu was himself but a nominal holder. This is apparent from the testimony of the brother of Beaulieu, and on this point at least he is entitled to full credit; for it goes to establish the fact that neither Beaulieu nor his heirs ever had any real or just right in the property, and his testimony is corroborated by the written receipt showing the transaction between Beaulieu and Ducloslange.

    5. It is impossible to permit Beaulieu to attack the title of McBurney, a possessor in good faith. Using the permission that the act gave her, Eulalie conveyed the property to Boss for a valuable consideration; and Boss, for a like valuable consideration, transferred it to McBurney. Is it possible now for the original donor to come back upon the title which he himself has conferred, and disturb possessors in good faith and for a valuable consideration? In a late decision, Bastable’s Heirs v. Stacy and Curry, ante p. 411, the court held, that although the plaintiff’s title was good, yet it was lost by their lying by and permitting other rights to be acquired by mortgage and sheriff’s sale. But in that case, the origin of the mortgagor’s title was from a stranger to the plaintiff. This is still a stronger case for the defence. The origin of McBurney’s title is in the very party who now attacks it. If he choose to await the sale first to Ross and then to McBurney, without interfering, it is too late for him afterwards to retract his donation. He has not only permitted other rights to be acquired, but he has assisted in leading others to the investment of their money upon an apparent title conferred by him. He is the last person who should be permitted to attack a title to which he has given currency.
    6. This is nothing but an action to rescind a donation; it is barred in five years. C. C. 3507. The title is just, and the possession in good faith; it is, therefore, the basis of the prescription of ten years. If the nullity of the act be absolute, then it is not the basis of prescription; if relative only, it will serve for prescription. Vazeille Pres. 540. 2 TropJong, 905. In this case, there is no one who could attack the title except the donor and his heirs. It is a good title until attacked, and would, therefore, seem not to involve an absolute nullity.
   The judgment of the court was pronounced by

Rost, J.

In the case of Ducloslange et al. v. Philip .Ross, we held, a residuary donation “inter vivos” made to certain persons therein named to be null, as containing a “ fidei commissum” prohibited by law. 3d Ann. 432.

Baptiste Beaulieu, the donor in that case, availing himself of this decision, has instituted the present action to recover the property donated from the defendant, who is in possession of it.

During the pendency of this suit, and after issue joined, one Saintville Beau-lieu, alleging himself to be the only legitimate son and heir of the plaintiff, suggested his death to the court, and in his “ ex parte” application was authorized to prosecute the suit.

The defendant, expressly denying that Saintville was the legitimate son and heir of the plaintiff, took a rule upon him to show cause why he should not exhibit and file in court his authority, or prove by competent testimony the facts suggested by him.. By consent, this rule was tried with the merits, and the court being of opinion that the legitimate filiation was not satisfactorily established, and that the plaintiff had not complied with the formalities required to entitle him to recover the property as a natural child duly acknowledged, dismissed the petition. The plaintiff has appealed.

It was held by our predecessors, that marriage, like other contracts, may be proved by any species of evidence not prohibited by law, which does not presuppose a higher species of evidence within the power of the party. Holmes v. Holmes, 6 L. R. 470.

Adhering to this rule, we are not prepared to concede that the evidence adduced by the plaintiff in this case pre-supposes a higher species of evidence within his power, and we incline to the opinion that it makes out a prima facie case of legitimate filiation; we will therefore examine the cause on its merits.

In the case of Ducloslange we stated, that although every substitution is a fidei commissum, eveiy fidei commissum is not a substitution. This distinction finds its application in the present case.

Substitutions embrace every disposition by which the donee, the instituted heir, or the legatee, is charged to preserve the thing given and return it to a third person.

Article 1507 of the code which defines substitutions, was transcribed without change from the Code of 1808, and the French text evidently expresses the intention of the Legislature. The English text, taken literally, is without meaning.

It is an essential requisite of a substitution that the thing given be tied up in the hands of the first recipient during his natural life; in such a case the disposition is null, even with regard to the donee, the instituted heir or the legatee. Did the donation in this case have that effect? It transferred the property to the first donee, with full power to use it and dispose of it at pleasure, on condition that if she died without posterity and without having disposed of it, other persons named in the act Would, without any formality, become the owners of it.

It is clear, that Eulalie Ducloslange was not charged to preserve the property during her natural life, and that it was not tied up in her hands ; she, on the contrary, had full power to alienate it, and the condition attached to the donation was a mere fidei commissum, to be executed only in case she did not avail herself of the faculty given to her. That fidei commissum being in violation of a prohibitory law, is null, as We held in the former case; but that nullity does not carry with it the nullity of the donation to Eulalie Ducloslange. The entire disposition is.null in cases of substitution only. Duplessis v. Kennedy, 6 L. R. 247. The defendant having prayed for no change in the judgment.

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


author: Eustis, C. J.

text:
    C. Roselius v. Widow Delachaise.
    Under ordinary circumstances,- the' appearance of a member of the bar as the attorney of record to a suit in the' place where the party resides, would be evidence of his having been employed by the pal-ty in the cause ; but this presumption may be repelled by evidence.
    However valuable the services of an attorney may have been to a party in a suit, in which he represented others having a similar interest, he cannot recover a fee from a party who has not employed him.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      G. Schmidt, for plaintiff.

      Bullard and Frost, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff sues the defendant to recover the sum of $2750, alleged to be due him for professional services rendered her in the suit of Arnauld et al. v. Mme. Delachaise in the Court of the Third District, and in this court on the appeal.

The amount claimed by the plaintiff does not appear to be disputed, it being conceded that if the defendant is bound at all to pay the plaintiff his fee, it ought to be a liberal one.

The defence is, that she never employed the plaintiff in her case, but that he was employed by others interested in having the title established which was in controversy in that suit, inasmuch as they held lots under it.

The plaintiff recovered judgment for the amount sued for, and the defendant has taken this appeal.

The suit of Arnauld et al. v. Mme. Delachaise, reported in 4th Ann. 109, was instituted for the purpose of defeating the title under which the defendent and a number of other proprietors held a parcel of land in the parish of J efferson, which they had divided among themselves; the largest portion of which was held by the defendant. Judge Bullard was her counsel in the court of the first instance and tried the cause there. The cause was decided in favor of the plaintiffs, and on the motion for a new trial the plaintiff in this suit joined the counsel for Mme. Delachaise in the application. On the appeal, both gentlemen argued the cause in this court; and the judgment of the district court was reversed, and the case decided in favor of Mme. Delachaise.

It appears that the plaintiff applied for the appeal, and filed the transcript of the record and became security for costs, and presented to the court an elaborate printed argument. Mme. Delachaise employed additional counsel in this court, Mr. Le Gardeur,who submitted a well prepared argument in support of the title under which she claimed.

It does not appear that the plaintiff had any direct communication with the defendant in relation to the suit, and the fact of her having employed him as her counsel is left on the presumptions arising from evidence which is circumstantial.

Under ordinary circumstances, the appearance of a member of the bar as the attorney of record in the place where the party resides would be evidence, as between the attorney and client, of his having been employed in a case in which the attorney had conducted the suit. But under the present circumstance this presumption is repelled by the fact of the defendant’s having had her own lawyers to manage her cause, and that the plaintiff’s professional services were secured by other parties in interest, who appear to have made common cause in the defence of their common title at issue in her suit.

On a careful examination of the testimony, we have come to the conclusion that the plaintiff was misled in supposing that he was employed by the defendant, and that the parties who engaged his services did so on their own account, and had no authority to bind the defendant. However valuable the services of "the plaintiff may have been, which do not appear to be underrated by the defendant herself, yet as she did not employ him or authorize any one else to employ him in her suit, the present action cannot be sustained.

It is therefore decreed, that the judgment of the district court be reversed, and that judgment be rendered for the- defendant, with costs in both courts.


author: Slidell, J.

text:
    P. A. Dupin v. Mutual Insurance Company.
    Where a bouse is destroyed by a riotous assemblage, and there is a clause in the policy excepting a loss of that character, the insurance company is not liable for the loss. It is, in such a case, immaterial that the rioters assembled originally for a lawful purpose, but afterwards were guilty of a riot.
    It is not necessary, in order to exempt an insurance company from liability for loss hy a riot, that the guilt of the rioters should have been first established by a criminal prosecution.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Eyma and Labarre, for plaintiff.

      Briggs, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The action is upon a policy of insurance. The defence is, that the building insured was set fire to and destroyed by rioters, and that the case comes within the following clause in the policy: “Provided always, and it is hereby declared, that this corporation shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or by an earthquake or hurricane;” We concur with the district judge in the opinion, that the defence was sustained by the evidence. It is ti’ue, that the persons who set fire to the house, had originally assembled without any such design, but for an innocent purpose. But it seems, says a writer of high authority, to be clear, that if, in an assembly of persons met together on"any lawful occasion, a sudden proposal should be started of going together in a body to pull down a house or enclosure, or to do any other act of violence, to the disturbance of the public peace, and such motion be agreed to, and executed accordingly, the persons concerned cannot but be rioters; because their associating themselves 'together for such a new purpose, is in no way extenuated by their having met at first.upon.another. Russell on Crimes, vol. 1, p. 268, citing 1 Hawkins, P. C., c. 65, s. 3.

It is said, that the precise number of persons engaged in setting fire to the house is not proved; and under the authorities it may be conceded, that to constitute a riot, there must be a tumultuous disturbance of the peace by three persons or more. See Russell, vol. 1, p. 266. We consider it, however, clear, from the evidence, that the number of persons so engaged was more than three; and that, for the purposes at least of the enquiry in a civil action, the fact of a riot was established. The riot seems to have been preceded by an affray; but, in our opinion, was not the less on that account, in legal contemplation, a riot. It is said, that if there was a riot, the defendants were obliged to establish the fact by the judgment of a competent court in a criminal proceeding, wherein the rioters were tried and convicted. The plaintiff has not cited, nor are we aware of any authority in support of this position.

The judgment of the district court is therefore affirmed, with costs.


text:
    Succession of N. N. Destrehan.
    Where a sale from a natural tutor to a minor child in payment of the -amount due to the minor is annulled, the minor is entitled to interest on the sum from the time it became due, unless it is shown by the adverse party that the fruits received from the property before the sale was annulled were equivalent to interest.
    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      Benjaminand Bonford, for appellants.

      Grailhe, for executor and appellee.
   The judgment of court (Rost, J. recusing himself .on account of relationship,) was pronounced by

Slidell, J.

In August, 1845, Afrs. Louisa (Harvey received from her father, on the eve of her marriage, as a dation en paiement for an amount due by him as her natural tutor, certain squares of ground in a contemplated town. In 1849, she .obtained .a de.cr.ee against his succession, adjudging the nullity of the conveyance. The ground of this action of nullity was, that she was at the time a minor; that she was entitled to an account of tutorship; and that the settlement and contract made With her tutor before the rendition of that account \yere null and void. The property was consequently restored to the mass of the succession.

The sale having been annulled, Mrs. Harvey contends, that the debt due by her father never having been paid, bears interest from 9th August, 1845. The executor resists this pretension, and relies on the legal inferences which it is said are deducible from the 2531st article of the code. It declares that the buyer owes interest on the price of the sale until the payment of the capital, if the thing sold produces fruits or any other income.

It is not proved that the lands sold did produce fruits while in the possession of Mrs. Harvey. So far as any inference may be drawn from the facts disclosed by the evidence, it would be in favor of Mrs. Harvey. For the property, of which that given in payment formed part, was intended by the deceased to be converted from a rural to an urban destination.

Considering the relations between the parties at the time of the sale, the causes for which it was dissolved, and the condition of Mrs. Harvey, we are of opinion, that upon the rescission of the contract, she was not to be considered as having received, in .fruits, during her possession, an equivalent for the interest of the amount due by her father, in payment of which the sale was made; but that, on the contrary, the burthen was upon the executor to show that she received an amount of fruits equivalent to such interest, or at least, that with ordinary care, such frpits plight have been produced. “We say “at least,” without, however, intending to hold positively that it would have sufficed in the present case to prove such capacity to produce equivalent fruits.

This view of her rights and of the burthen of proof is, we think, fairly deducible from the articles of the codq cited by the appellant, and the general policy of our laws touching minors and other incapable persons. See Civil Code, 2226. See also 1872, 2570. In commenting on the article 1312 of the Napoleon Code, which corresponds with arfi.c}.e 2226 of our own. Duranton observes: Ainsi c’est l’adversaire á prouver que ce qpi a. été payé a tourné au profit de l’incapable; par exemple que la somme á servi á payer une dette légitime, á leur propre subsistence, á l’entretien et á la reparation de leurs biens, etc. Duran-ton, vol. 12, § 562.

After a careful consideration of the claim of Mrs. McCutcheon for interest on the amount of her nraternal inheritance down to the death of her father, we are of opinion that it is .satisfactorily answered by the district judge, to whose reasoning we refer-. Nor upder the evidence do we feel authorized to disturb his decree respecting the amount paid tq Mr. Grailhe. The executor’s account having allowed the interest from the 17th February, 1849, the interest now allowed is to be calculated from 9th August, 1845, up to that date.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be so amended ns to allow to Mrs. XjQuisa, Harvey, in addition to the interest credited to her, a further sum of thirteen hundred and eighty dollars, being interest at the rate of five per cent per annum on eight thousand dollars from the 9th August, 1845, to the 17th February, 1849. It is further ordered, that the judgment so amended be affirmed; the costs in both courts to be borne by the succession.


author: Preston, J.

text:
    Robert Loughery v. M. Crooks.
    Where the defendant, after being arrested for debt, has given bail and absconds from the State before the service of the petition and citation, the plaintiff may proceed with the suit by having a curator ad hoc appointed, upon whom service of petition and citation can be made.
    APPEAL from the Second District Court of New Orleans. Lea, J.

      J. Dunlap, for plaintiff,
    contended : The only ground taken for defence in the district court and in this court, is the exception for want of citation, and to the capacity of the curator ad hoc to defend the suit. The case of Zacharie v. Blandin, 4 L. R. 83, is cited, as in point. The opinion of the district judge, placing cases of attachment and arrest on the same footing, is a sensible and just construction of the law.
    In Blandin’s case, it is true, citation was served (without petition) before he absconded. But it has been often decided, that citation is bad, unless accompanied by petition. For the citation requires defendant to comply with the demand contained in accompanying petition. So that there is really no distinction between this case and that of Blandin. But the court had such jurisdiction by the arrest, as to bring the case under the articles of the codes providing for curators ad hoc to persons against whom suits are instituted. A suit may be well said to be instituted when defendant is in court under a writ of arrest, which writ notifies him that the plaintiff demands of him a specified debt. It amounts to a judicial demand ; to citation itself. A writ of arrest specifies the debt claimed; citation does not. This appeal is evidently for the benefit of Pardo, the bail, with whom defendant had deposited funds to pay the plaintiff’s claim.

      Grandmont, on the same side.

      T. L. Bayne, for the defendant,
    contended: The party sought to be made defendant in this cause is arrested as a debtor. He gives bond as the law directs, conditioned that if he should depart the State without leave, his securily shall pay to the sheriff the amount for which definitive judgment shall be rendered in the cause. Upon furnishing this bond he is released. No service of petition or citation is made upon him. The plaintiff provoked the appointment of a curator ad hoc, and has the petition and citation served upon him. The curator excepts to the jurisdiction, on the ground that the debtor is not legally before the court.
    There are but two modes of obtaining jurisdiction; by process in personam, and in rem. In a personal action, the person is reached only by a service of petition and citation personally or at the domicil. In this case no such service has been made.
    In an action in rem, jurisdiction vests through the property seized. The debtor is reached through his property, and the power of the court is complete.. Can the bond filed in this suit be assimilated to property. Is it such a representative of the property of the debtor as to give the court jurisdiction in rem ? The bond, on its face, professes to represent nothing until judgment is obtained. Definitive judgment against the debtor is made a condition precedent. No objection arises on the part of the security until such judgment has been rendered. Of what value then is this bond as a basis of jurisdiction or of judgment? a bond which represents neither the person nor the property of the debtor. The court have decided, in the case of Shultz v. Bis Creditors, 8 L. R. 172, that a debtor arrested and released on bond, is neither in the custody of the court, or of his bail. Under such circumstances, a legal service of petition and citation cannot be made upon an appointee.of the court, or upon the bail. Wall v. Wilson, 2 L. R. 170.
    Even if this bond can be in any manner assimilated to an attachment bond, the record shows no such service of petition and citation as would form a basis for judgment. Article 254 C. P. points out the formalities that stand in the place of citation; and these form the basis upon which all subsequent proceedings rest. The omission of them is fatal. C. P.206. 3 L. R. 18. 12 R. R. 461.
    In some of the earlier cases, especially in the case of George v. Fitzgerald, 12 L. R. 606, the court intimated that a curator might be appointed for a person of another State, who had neither agent, residence, nor property in Louisiana; and that service of petition and citation upon such curator would bring the party into court. This alarming doctrine we understand the present court to have distinctly overruled; and after reviewing the whole question, the law on this point has been clearly enunciated in Dupuy v. Hunt, 2d Ann. 564. The court there restricts the power of appointing curators ad hoc to cases in which the absentee leaves his property without an administrator or agent, or in which it is attached at the suit of a creditor, or in which an absentee becomes a necessary party to a suit between other parties lawfully before the court! This doctrine is reiterated in Peterson v. McRae, 3d Ann. 101. Jacobs et als■ v. Sartorius. And in the latter case the court repeats the principle that pervades all the decisions, that the service of the writ of arrest does not dispense with the necessity of service of petition and citation.
   The judgment of the court was pronounced by

Preston, J.

On the affidavit of the plaintiff, that the defendant was about to depart permanently from the State, he was arrested and gave bond and security not to depart from the State of Louisiana, as required by law. A petition was filed, and a copy with citation issued according to law, but could not be served because the defendant had left the State.

A curator ad hoe was appointed to him to defend the suit, upon whom the petition and citation was served. He excepted, that the defendant was not before the court by the service of the petition and citation, as required by law. The court overruled the exception; judgment was rendered against the defendant, and the curator ad hoc has appealed, and assigns the ground taken in the exception for error.

The fourth section of an act approved the 25th of March, 1828, provides that, in cáses where arrests are demandable upon the plaintiff filing the proper-affidavit in the court, it shall be the duty of the clerk to issue forthwith the process required without any petition being then presented ; but the usual petition shall be filed on the day succeeding that on which the said process shall have issued. And the sheriff shall immediately proceed to execute the process.

The plaintiff complied with this law, and the sheriff executed the process. The defendant was arrested and gave bond not to depart from the State, but did immediately depart. Could he defeat the remedial effect of the law by this breach of his bond? We think not. Under this law the suit was commenced, and he was made a party by his arrest. Having absented himself, it was proper, under articles 191 and 195 of the Code of Practice, to appoint a curator ad hoc to defend him in the suit, and to have the petition and citation served upon the curator. The ease does not differ substantially from that of Zacharie against Blandin, 4 L. R. 155. For the defendant in that case having absented himself before service of the petition, it was held that the service of the petition and citation on a curator ad hoc was sufficient.

It cannot be denied, that the late Supreme Court of the State decided, in the ease of Wall v. Wilson, 2 L. R. 171, and in the case of Slocomb et als. v. Bowie et als., 13 L. R. 10, that the defendant might defeat the suit by departing from the State, in violation of his bond, before the service of the petition and citation upon him. They considered the personal service of citation and petition on the defendant indispensable to further proceedings, because citation is the basis of the suit, and a judgment is void which is not preceded by its service. This reasoning is unsatisfactory. The legislative authority which established the principle invoked, has, by the act of 1828, made the arrest of the debtor the commencement of the suit and basis of the proceedings; and the articles of the Code of Practice we have.quoted, provide a reasonable mode of citation.and service of the petition if the defendant absents himself.

If it were otherwise, the legal exercise of the remedy given by the act of 1828 would be the very means of defeating its efficacy, and the defendant would be enabled to defeat the very object of the act by entering into an obligation not to do so. We cannot so construe a remedial statute, which should be effectual when the plaintiff complies with its requisitions, or countenance the evasion of a law by violating a solemn obligation not to evade it.

The judgment of the district court is affirmed, with costs.


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    C. J. Weingerter v. George W. White.
    Deputy clerks of the district courts are not authorized to grant orders of arrest for debt.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Budd, for defendant, ex parte.

   The opinion of a majority of the court was pronounced by

Rost, J.

This is a rule taken upon a surety on a bail bond, to show cause why he should not be condemned to pay the amount of the judgment obtained against the defendant, on the ground that the execution under that judgment has been returned “no property found,” and that the bail bondhas been forfeited by the defendant. The rule was discharged by the district court, and the plaintiff appealed.

It appears that the order of arrest was granted by the deputy clerk. This is a judicial act which deputy clerks are not authorized to perform. J. B. Gerald, Minor, v. Theo. B. Gerald, Tutor, 5th Ann. 242. But besides this, the plaintiff has failed to prove that, the defendant left the State within three months from the date of the bond, and without that proof he has no claim against the surety. Philips v. Hawkins, 4 R. R. 219.

The judgment is therefore affirmed, with costs.

Slidell, J. dissenting as to the question of the validity of the order of arrest.


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    Martin O. Hopkins v. Horace R. Buck et al.
    The parchase of property by the father in the name of his children, is valid as to all who were not creditors at the time of the purchase.
    APPEAL from the Third District Court of New Orleans. Kennedy, J.

      Hornor, for plaintiff.

      Stockton and Steele, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 11th of November, 1848, Horace R. Buck brought suit in the Third District Court against Oliver C. Henry for $1065 56 with interest. The same day Henry confessed judgment. Three slaves, named Hester, Clarissa and William, were seized under an execution issued, and were about to be sold in three days after the rendition of the judgment. M. O. Hopkins, as guardian of two minor daughters of Henry, enjoined the sale, alleging that the slaves belonged to them

The judgment against Henry was rendered on a judgment obtained by Buck against him in the State of Mississippi, in April, 1848. The suit in that State was commenced in September, 1846, on a note dated at Port Gibson the 17th of August, 1835, for $540, drawn by A. C. Henry and Martin O. Hopkins, in favor of and endorsed by John Grissam. Execution on the judgment was levied in May, 1848, on two of the slaves, William and Clara, in the possession of M. O. Hopkins, to whom they were soon restored, and nothing was made on the execution.

Besides this record, Bucle offered in support of his seizure a bill of sale from William A. Buck to Oliver C. Henry of the three slaves, purporting to be dated the 17th of August, 1835, but it is proved by the apparent vendor that it was really executed in 1848. On this document we do not think the remark of the district judge too severe, that it “is a fraudulent fabrication of evidence, the unavoidable effect of which is, to involve the defendant’s whole case in suspicion.”

Parties capable of offering a fictitious bill of sale, antedated thirteen years, in support of their claims, may well be suspected of having colluded as to a judgment in the State of Mississippi, rendered on a promissory note upon which suit was not brought until ten years after its maturity. Besides, the fact that the note at the commencement of the suit was barred by the statute of limitations, there are other suspicious circumstances. There was an endorser; it does not appear to have been protested. There was a joint drawer: the very Hopkins who has obtained this injunction; it was not prosecuted against him. It was a note for only $540, given as the balance of the price of three slaves, all living to this day. It is incredible almost, that it should have remained unpaid, or any part even of the interest, and that no steps should have been taken for its collection for ten years.

But even if we suppose the note unpaid, it was extinct as to third persons by the statute of limitations. The children of Henry are third persons as to him, when their interests are adverse, and as to their separate property. As to them, therefore, Buck ceased to be a creditor of thoir father Henry, six years after the maturity of his note, that is, iu_1842.

Now, by Buck’s own testimony it appears, that he sold the slaves and made a bill of sale, at the request of Henry, to his daughters, in 1835. There is much corroborating testimony. The vendor, Buck, and Henry both informed the witness I-Iopkins that the slaves were the property of Mary and Minerva Henry; that the conveyance had been made to them by Buck, and that the vendor had received satisfaction in a negro and negotiable paper. The negroes have always been reputed, in the family of Henry and the neighborhood, as the slaves of those children. Henry and wife having separated, he gave up the slaves as part of the property of his family. They'were not brought from the State of Mississippi by force, but to prevent Henry from decoying them off, as he attempted to do with regard to several negroes belonging to the children by the will of their grand-father.

Bohan, once a deputy sheriff in Mississippi, believes two of the slaves belonged to Henry’s children; because, having levied upon them, they were replevied by Hopkins, guardian of the children; and moreover he heard Buck say that he had made a bill of sale of them to Henry’s children.

The return of the sheriff on the execution in the State of Mississippi, is conclusive aá to the legality of Hopkin’s possession for the children in this State. He returns, that “The negro slaves levied on in this case was this day restored to the possession of M. O. Hopkins, from whom they were taken, because bond of indemnity was not given as was required by a notice given on the 17th day of May, 1848. June 5th, 1848. R. M. Moore, Sheriff.” This document, offered in evidence by Buck, shows that the possession of Hopkins was not, as he alleges, obtained by crime and preserved by concealment. Indeed the testimony of Borland and other witnesses relied upon by the defendant, shows nothing against Hopkins but the exercise of that determination and firmness usually practiced by men on a claim of right.

As to the possession of Henry, while the slaves actually remained with him, it is legally to be considered the possession of his two daughters, of whom he was the natural guardian; because by his own act and request the title was conveyed to them; and possession follows the title.

In the case of Hyde et als. v. Hervy, the Supreme Court held that the purchase by a father, of property in the name of his children, should be valid as to all who were not his creditors at the time of the purchase. Our courts have always adhered to this principle. Holmes v. Patterson, 5 M. R. 693.

Our code, our decisions, morality and good policy require us to discountenance and disregard simulations and fictions in the transactions of men where we can do so without injury to third persons.

The judgment of the district court is affirmed, with costs.


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    The State v. J. B. Chandler.
    In a trial for murder, evidence that the deceased was a quarrelsome man, of violent temper and dangerous when excited, is inadmissible.
    The act of 25th of’March, 1813, against carrying concealed weapons is not unconstitutional.
    In criminal cases, the judge, in his charge to the jury, should omit any strong expression of his opinions as to the guilt or innocence of the accused. He may, however, divest the case of all irrelevant matter found in the pleadings or arguments, and sum up the evidence for the prosecution and defence.
    If there he an actual physical attack of such a nature as to afford reasonable ground to believe that the design is to destroy life or to commit a felony upon the person assailed, the killing of the assailant in such case will be justifiable homicide.
    Where a prisoner tried for murder has been convicted of manslaughter only, and upon appeal to the Supreme Court, the judgment was reversed and the case remanded, he can only be tried for manslaughter ou the second trial.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the State.

      R. Hunt, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The defendant was indicted for the murder of Patrick C. Daley, on the 7th of October, 1848 ; was tried and convicted of manslaughter and has appealed to this court.

It appears, by his first bill of exceptions, that he offered to prove that the deceased Daley was a quarrelsome man, of violent temper, and dangerous when excited. The court rejected the evidence, stating that it would not justify Chandler in killing Daley. The Weight of authority is against the admissibility of such evidence, and the exception has been abandoned in this court. See 1 Whart. Crim. Law, 172. 1 Phillips Evid. 499. 1 Russell on Crimes, 700. State v. Tilley, 3 Iredell, 424.

The counsel of the accused requested the court to charge the jury, “ that to carry weapons, either concealed or openly, is not a crime in the State of Louisiana ; that the Constitution which guarantees to the citizen the right to bear arms cannot be restricted by the action of the Legislature.”

The act of the 25th of March, 1813, makes it a misdemeanor to be “ found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full open view.” This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed uponunsuspecting persons. It interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.

The counsel of the accused obtained a bill of exceptions to the charge of the court, in which they deny the right of the judge to pass in review the facts, and to speak of the conflicting testimony when corroborated or contradicted, and especially to express to the jury his opinion that the prisoner is guilty.

In the charge to the jury, as subsequently reduced to writing by the judge, he certainly expresses himself strongly on the facts in saying: “ I have rarely known a case in which the crime of murder was more clearly brought home to the prisoner, and I cannot think you can entertain any reasonable doubt of his guilt.” Such strong expressions as to the guilt of the accused, coming with the weight of authority from the judge, in whom the juries habitually repose great confidence, are calculated to bias the minds of the jurymen, and may impair the right of the accused, guaranteed by the Constitution, to a trial of the issues of fact by an impartial jury. It would certainly comport more with our views of criminal trials for the judge in his charge to the jury to limit himself to a full explanation of the law of the case; to divest it of all in-elevant matter to be found in the pleadings, evidence, or arguments of counsel in almost every case ; to clearly sum up the evidence for the prosecution and the defence, and to omit any strong expressions as to the guilt of the accused. We think we may recommend this course without infringing the undoubted right of the. judge to express his opinion to the jury as to the weight of the evidence, and to comment thereon as much as he deems necessary for the course of justice. Whart. Crim. Law, 638. As the jury rendered a verdict for manslaughter only, we do not deem it necessary to comment further upon this part of the case.

The counsel of the accused requested the court to charge the juiy, that “when, from the nature of the attack, there is reasonable ground to believe there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be justifiable homicide, although it should afterwards appear that no felony was intended.” The court refused to charge the jury as requested, and declared that the charge so requested was not law.

This was the charge given to the jury by Chief Justice Parker in the celebrated trial of Selfridge. It is strictly the law of self-defence, laid down by Russell, McNally and other elementary writers, and decided in many cases. East in his Pleas of the Crown, lays down the principle in these words: “A man may repel force by force in defence of his person, habitation or property, against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, arson and the like, upon either. In these cases he is not obliged to retreat but may pursue his adversary until he has secured himself from all danger, and, if he kill him in so doing, it is called justifiable self-defence.” He qualifies the principle substantially, as Chief Justice Parker did, that there must be actual danger at the time from the violence and a reasonable belief that a felony is intended.

If there be an actual physical attack of such a nature as to afford reasonable ground to believe that the design is to destroy life or to commit a felony upon the person assaulted, the killing of the assailant in such case will be justifiable homicide in self-defence. We are of opinion, therefore, that the charge asked in this case, and as given by Chief Justice Parker in the case of Selfridge, is the law of self-defence.

There has not been so much doubt as to the correctness of the principle as to its applicability to the state of facts established in Self ridge’s case; and therefore, the great effort of judges in trials for homicide should be clearly to point out to juries the state offfacts to which the principle is applicable, and that state of facts to which it is inapplicable; and in a case to which the principle is clearly inapplicable to decline giving it in charge to the jury at all, and for that reason alone.

To express our views in relation to the present case: if Daley actually attacked Chandler, and was beating his head against a brick wall so as to put his life really in danger, and Chandler then killed his assailant from absolute necessity to preserve his own life, the charge asked for was not only the law of self-defence, but was applicable to the case, and should have been given to the juiy by the court.

But if Daley was unarmed and sick, and only in consequence of a quarrel with Chandler’s wife the preceding evening, the latter was so enraged that he rushed upon and gave him four stabs with a Bowie knife, until then concealed in his bosom- — Daley being a perfectly passive'victim — the charge asked was entirely inapplicable, and should have been refused by the judge on account of its irrelevancy to the case.

We have no means of knowing what was the true state of the facts proved in the case, so as to judge whether the charge asked was necessary and relevant to the case, or only an abstract legal opinion. If the testimony given in the defence afforded a reasonable ground for asking the charge, the court erred in not giving it. If the state of facts proved was such as to render the charge entirely inapplicable to the case, the court should have refused it on that ground alone. 1 Cranch, 309, 318.

Even if the charge asked was an abstract principle of law, not applicable to the facts of the case, the court having erroneously stated to the jury that the principle was not law, they may have been misled by the error, and the better opinion is that the verdict should be avoided. Etting v. The Bank of the United States, 11 Wheaton, 59.

The judgment of the district court is reversed, and the case remanded for further proceedings, with directions to put the prisoner upon his trial for manslaughter alone, he having been substantially acquitted of murder, and with directions to the court in its charge to the jury to conform to the principles contained in our opinion.


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    J. Szymanski v. J. and R. Urquhart.
    Where the defect in an article sold is apparent upon inspection, it affords no ground for an action in warranty. O. C. 2497.
    The principle that no one ought to enrich himself at the expense of another, is not applicable to a case of the purchase of a defective article where the parties acted in good faith, the price'was not half the value of a good article, and there was no warranty.
    APPEAL from the District Court of Plaquemines, Rousseau, J.
    Foulhouze, for plaintiff.
    Griffon, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This action is brought by the plaintiff to recover from the defendants the sum of six hundred and twenty-five dollars : five hundred dollars being the price of a sugar-mill, purchased by the plaintiff from the defendants, and one hundred and twenty-five dollars being for the cost of transportation from the defendant’s'plantation in the parish of Plaquemines, to that of the plaintiff in Terre Aux Boeufs. He had judgment in the court below, and the defendants have appealed.

The plaintiff charges, that the defendants represented the mill to be good, save a few repairs of little importance to be made before using it; that when the mill was transported to his plantation, it was found that the rollers were cracked in such a manner as to render them absolutely useless, and that they could in no way or manner be repaired ; that the cracks existed before the sale, and that the defendants knew of their existence, and that the rollers were absolutely useless. The district judge was of opinion, that it clearly appeared from the evidence, that both parties acted throughout the transaction with perfect good faith; but, thinking that the fact was established that the mill was utterly worthless, held the defendants to be bound to return the price, on the principle that no one ought to enrich himself by causing a loss to another. There were some pieces of the machinery broken, which were reported as such to the plaintiff; and inasmuch as no charge in relation to them is made in the petition, they are to be left entirely out of view in considering the case, which turns exclusively on the defects in the rollers, of which the plaintiff complains in his petition.

The plaintiff sent his overseer to examine the rollers, and found them as he states, good, and so reported to the plaintiff. The plaintiff directed him to ask the defendants whether they would warrant the rollers. The overseer wrote a letter to the defendants, in which he stated, that he had notified them some weeks since that the plaintiff had taken the rollers, but he forgot to mention that he took them on the condition, that they would guarantee to him that the rollers had not been burned, or rather that they were in good condition. It appears that the defendant’s sugar-house had been burned down, and that the mill was in it, and that the inquiry referred to the extent of the injury the mill had sustained by the fire.

One of the defendants answered the letter to this effect: “ Having been absent, I have not been able to answer your letter sooner. You ask me if the rollers have not been damaged by the fire, and if I will guarantee them. It would be well if you could send your engineer to examine them. As for me, I believe they are perfectly good, saving some small repairs, but I give them almost for nothing, in consequence of a misunderstanding with my brother. The price was $1000, but I promised them for $500, and I will keep my promise. Let me know if you take them, as I intend to dispose of them immediately.” On the receipt of this letter, the overseer told the plaintiff that Mr. Urquhart could not guarantee the rollers, but that he, Mr. Urquhart, considered them good, and the plaintiff might fiend ap engineer to examine them. It appears that the plaintiff was satisfied with the opinion of Mr. Urquhart, as to the quality or condition of the rollers, and did not send an engineer to examine them, but closed the bargain, on the receipt of the letter. The price agreed upon was paid. On the visit of the plaintiff’s overseer to tjie defendant’s plantation, for the purpose of examining Ihe rollers, Mr. Urquhart stated to him that his sugar-mill had been burned down, and that the rollers had passed by the fire; he advised the overseer to send an engineer to examine the rollers, to be sure that they were good, stating that for himself he was no engineer, but thought the rollers were good. This conversation was reported to the plaintiff. We find nothing in the evidence which impugns the verity of Mr. UrquharVs declarations, and the case must be decided independent of them.

It is proved, that the defects in the rollers, of which the plaintiff complains, were apparent on simple inspection, and afford no ground for the present action. Code, 2497. Pothier Contrat de Vente, § 208. Millaudon v. Price, 3d Ann. 4. The price paid is an index to the conclusion that the plaintiff was buying old machinery. The rollers alone, if new, would have been worth twelve hundred dollars, and the whole was bought for $500. The application of the principle, that no one ought to be enriched by causing a loss to another person, to cases of this kind, is quite inadmissible. The transaction being perfectly fair, the plaintiff has no claim for' relief against the supposed result of a bad bargain. We say supposed result, for the mill-rollers, in their present condition, have not been tried, and might last for years, according to the evidence before us. The mill, as purchased, would be worth, delivered at the foundry, from $250 to $300. On a careful consideration of the case we think the district court erred in giving judgment for the plaintiff.

The judgment of the district court is therefore reversed, and judgment rendered for the defendants, with costs in both courts.


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    Madame J. L. Rabassa v. Widow Castein et al.
    Property transferred by the husband to his wife to replace property of hers which he had sold, may be conveyed by an ordinary contract of sale.
    APPEAL from the Second District Court of New Orleans. Lea, J.

      Roselius, for plaintiff.

      Murphy, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The defendant, who is a judgment creditor of the plaintiff’s husband, caused to be seized under execution, certain property apparently in his possession.

The plaintiff enjoined this proceeding, on the groumj that the property seized was her own, and had been transferred to her by her husband, for the purpose of replacing her dotal and paraphernal property and money alienated or disposed of by him during marriage, as authorized by art. 2421 C. C.

The district court perpetuated the injunction, and the defendant appealed. The district judge was of opinion, that the plaintiff had established her claim to the amount of nearly $6000, and the evidence in the record justifies that conclusion. It is all for paraphernal property, except an item of $450 received by the husband for rents of paraphernal estate which belongs to the community; deducting this sum from the amount proved, the balance will exceed $5500.

It is shown that Rabassa and his wife settled jointly on each of her two daughters the sum of $1000 at the time of their marriage; but it is not shown that these sums have been paid; if they have been, one-half of their amount being deducted from the claim of the plaintiff, leaves her the creditor of her husband for upwards of $4500.

It is urged, and it may be conceded that it is proved, that the property given in payment to the plaintiff was worth nearly double that amount; but at the time of the transfer that property was subject to a mortgage in favor of the heirs of Pigneguy, orignally given for a debt of 18000, exclusive of interest. A part of this debt had been paid, and for the unpaid part a judgment was obtained, under which a large portion of the property mortgaged was surrendered in execution to the sheriff by the husband and wife, and sold in satisfaction of the judgment. According to the testimony, the property remaining after the sale is not sufficient to pay the amount proved to be due to the plaintiff. We are unable to see any interest which the defendant can now have in attempting to set aside the transfer made to her. If it was shown that the property remaining in her possession was more than a fair equivalent for her claims, we might feel authorized to order a re-sale of it, on requiring from the defendant bond and security that it would bring a sum sufficient to pay her and defray all expenses attending the proceeding. But, under the evidence, such an order would be vain and fruitless.

It has been alleged, in behalf of the appellant, that Rabassa first sold the property in controversy to his son-in-law, and that in that sale the plaintiff intervened and renounced her mortgage; that after the renunciation the judicial mortgage of the defendant attached on the property, and has now the precedence of the plaintiff’s claim.

It would be so if the defendant claimed under the sale made by Rabassa. But, as she claims adversely to it, the argument proves too much; for if the sale was real, and the property passed in the hands of the purchaser free from the wife’s mortgage, Rabassa had no longer any right or interest in it. The judicial mortgage could not affect it, nor could it be seized under the defendant’s execution.

The defendant proceeds on the assumption, that the sale by Rabassa was simulated; and the fact is conceded on all hands. The sale being unreal, the renunciation of the plaintiff, which it contained, could produce no legal effect.

The giving in payment was in proper form; no law requires that the property should be sold at public auction, orthat the sale should be made under the supervision of the judge. Art 2421 clearly contemplates an ordinary contract of sale.

The judgment is therefore affirmed, with costs.


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    Esther Kline v. James P. Freret.
    Where the vendee sues to annul a sale, on account of fraud, and to recover back the price, when sued by the vendor upon one of the notes given in payment of the price, he may set up in his defence the pendency of the first suit, which bars the second.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      A. N. Ogden, for plaintiff.

      L. Peirce, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff has brought suit in the Fourth District Court on promissory notes, given in 1844, for the price of land. In 1845, a suit was brought by the defendant, in the First District Court, to annul the sale, and to recover back the price on allegations of fraud. An answer was filed, the suit was transferred to the Fifth District Court, by the act of 1846, and is there still pending and untried.

The defendant pleads the pendency of this suit in his defence, which plea the court sustained, and non-suited the plaintiff, who has appealed. He urges that the declinatory exception of a suit pending for the same cause of action, is not made in this suit. The defendant describes the suit in the Fifth District Court, and says, “ the pendency of this suit he pleads to the present action.” He might have set out his exception more fully and formally, but it appears to us sufficient as made.

The validity of the notes sued upon in this suit is pending in the first suit. For, if the sale is annulled, the notes given as the consideration, are thereby cancelled as to the vendor. Indeed, the plaintiff in the first suit, prays in his petition, that the consideration of the sale be returned to him. The Fifth District Court might decree the return of these notes, and the Fourth District Court that they should be paid. Our jurisprudence admits of no such conflict of jurisdiction.

The defendant may decline the jurisdiction of the court, before which an action is brought against him, when his exception arises from the fact of another suit being pending between the same parties, for the same object, and growing out of the same cause of action, before another court of concurrent jurisdiction. The suit must be dismissed, and the plaintiff decreed to pay the costs. Article 334 C. P. See also article 94, and the case of Bourgenon v. Destrehan, 5 L. R. 116.

The judgment of the district court is affirmed with costs.


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    L. M. C. de Gaalon v. Louise Matherne, Wife of Girod.
    Where the consideration of a note given by a married woman is not shown by the evidence to have been employed for her separate use, in something which the husband was not bound to furnish, she ought not to be held liable for the note.
    Conceding that the consideration of a negotiable note cannot be inquired into when it is in the hands of an innocent endorsee, yet when the objection arises from the incapacity of the party to enter into the obligation, as that she was a married woman, the endorsement does not give any additional effect to the obligation.
    The fact, that a note shows on its face that it was given by a married woman, is sufficient notice to any one to put him on inquiry as to whether it inured to her separate use, before he discounted it.
    APPEAL from the Fifth District Court of New Orleans. Buchanan. J.

      Duvigneau, for plaintiff.

      Dufour, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a suit upon a note of $1000, secured by mortgage given by the defendant, who is a married woman.

The defendant resists the claim, on the ground that the proceeds of the note were received by her husband; that they did not inure to her benefit; and that the note is tainted with usury: $600 having only been received for it.

There was judgment for the plaintiff for $600, and both parties appealed.

It is proved, that the defendant had borrowed, originally from Fournier, $300, which her husband received, and for which she had given her note for $390. This note came into the possession of Pigneguy, and the defendant being unable to pay it at maturity, gave him the note and mortgage sued upon ; in eonsideration of which her husband received her note in fiivor of Fournier, and the sum of $300.

It is not shown in what manner the plaintiff acquired the note in controversy. No attempt has been made to prove that any portion of the consideration of this note inured to the benefit of the defendant. The evidence, as far as it goes, negatives that fact.

Under the authority of the cases of Brundegee v. Kerr and Wife, 7 N. S. 64; Firemen's Insurance Company v. Julia Cross, 4 R. R. 508; Pascal v. Sauvinet, 1st Ann. 428 ; there being no fact in evidence from which it is possible to infer, that the money was employed for the separate use of the wife, in something which the husband was not obliged to furnish her with, it seems she ought not to be bound.

The plaintiff insists, that though this note might not have been good in the hands of the original holder, yet in those of a subsequent holder for a valuable consideration the wife cannot resist the payment. This question came before the Supreme Court in the case of Sprigg v. Bossier and Wife, 5 N. S. 56, and was decided in favor of the wife. Conceding that the consideration of a negotiable note transferred before maturity, cannot be gone into in an action by the endorsee, the court in that case correctly held, that when the objection to the contract arose from the incapacity of a party to enter into it, that which had not a binding effect when it was made cannot acquire it by endorsement. The note showed upon its face that the maker was a married woman; this was sufficient to put the plaintiff upon inquiry before he discounted it, and it was incumbent upon him to ascertain that the separate estate of the wife could be charged with it.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts; and that the mortgage mentioned in the petition be cancelled and erased from the record.


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    O. and A. Wetmore v. John Daffin et al.
    Where no authority is shown by an agent for making the oath and signing the bond for the issuing of an attachment, than that he was employed as an attorney at law in another State to bring suit to collect the debt, the attachment will be dismissed.
    APPEAL from the Fourth District Court of New Orleans, Strauibridge, L

      C. W. Hornor, for plaintiff.

      Hunt and Gaither, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This suit commenced by attachment. A rule was taken by the defendant to show cause why the attachment should not be set aside, on the ground that Hugh A. Corley had no authority to make the affidavit upon which the writ was issued, and that the attorney had no power to sign the bond. No further evidence having been offered at the trial, the case rests solely upon the affidavit which is in these Words. “ Hugh A. Corley, being duly sworn, deposes and says, that he is a duly licensed attorney at law in the State of Florida, and as such duly employed with his partner, Mr. James T. Archer, to collect a debt due by John Daffin and James T. Daffin, who did reside in Florida, to the commercial firm of O. S¡- A. Wetmore, domiciled in the city of New York, amounting to the sum of twelve hundred and ninety-one dollai’s and fifty cents, and for which sum O. SfA. Wetmore have duly obtained judgment in the District Court of the United States for the Northern District of Florida. Affiant swears that in the aforesaid sum the said John Baffin and James T. Baffin are jointly and severally to O. 8f A. Wetmore indebted, and that the said James T. Baffin has left the State of Florida, where he had his domicil, and is now temporarily within the jurisdiction of this honorable court, but he has no domicil in this State.” The bond is signed “ O. A. Wetmore, by their attorney at law Hugh A. Corley.”

It is said in argument, that an attorney at law has, by virtue of the mere employment to collect a debt, power to take out an attachment for his client, and to that end, to make the affidavit and execute for his client the bonds required by law, to wit, a bond to pay the defendant all such damages as he may recover in case it should be decided that the attachment was wrongfully obtained. It is unnecessary to say whether we would consider an attorney at law authorized to practice in our courts, as clothed by mere virtue of his employment to collect a debt, with authority to bind his client to that extent. For, in the present case, Corley was not licenced to practice in our courts, and upon the face of the affidavit it does not appear that the client engaged or contemplated his services out of Florida where he was a lisenced practitioner. A party might well employ an attorney at law to act for him in the courts of a State where he was a licensed practitioner without expecting or desiring that he should represent or bind him in another State, with whose laws or jurisprudence he could not be presumed to be familiar.

The judgment of the district court, which dissolved the attachment, is therefore affirmed, with costs.


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    C. B. Lecarpentier v. F. J. Lecarpentier.
    In all judicial partitions, tlie fact that the property cannot he divided in hind, must he made to appear by a report of experts. But a sale made under a consent decree has not the effect of a judicial partition, and does not affect the rights of mortgage creditors.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Le Gardeur, for plaintiff,
    contended: Marguerite Lecarpentier, Charles B. Lecarpentier, and Franpis J. Lecarpentier, were co-proprietors of a lot of ground, with the buildings thereon, situate in this city. M. and C. B. Lecarpentier being unwilling to remain any longer in division, but finding that the share of F. J. Lecarpentier was subject to the legal mortgage against him, as tutor of his minor son, applied to the Fourth District Court, for a judicial partition by licitation. F. J. Lecarpentier was aware that “ ex natura rei” the properly could not possibly be divided in kind, and knowing that under the provisions of article 1215, of the Louisiana Code, he could not compel his co-proprietors to hold the property in common with him, gave his assent, not “ ex volúntale,” but “ ex necessitate,” to the prayer in the petition. A judgment was thereupon rendered by the court, under which the property was sold at public sale, and after the legal advertisements, to the defendant in the rule, Mrs. Samory, for ten thousand dollars. Some difficulty then arose in consequence of the legal mortgage which F. J. Lecarpentier's share was subject to ; and, in order to facilitate the passing of the act, it was agreed that the whole price should remain in the hands of the notary, to be delivered by him to the vendors, upon the written order and consent of the vendee. This order was soon after furnished to Mar

      guerite and C. B. Lecarpentier, who received their full share in the price, but refused to Francois J. Lecarpentier, on account of the general mortgage against him..
    We thereupon caused a notarial receipt to be prepared, in which F. J. Leearpentier, in his own name, and as tutor of his minor son, gives a full and complete acquittance of the portion of the price still remaining in the hands of the notary, and called upon Mrs. Samory to accept this receipt, and give us the written order agreed upon in the act of sale.
    This, however, she refused to do, and thus compelled us to bring her into court, by a rule to show cause. That rule came on for trial, and was dismissed by the court, upon the ground that the general mortgage against F. J. Lecarpentier still existed on his share in the property, notwithstanding the judicial sale thereof, and would continue to exist until superseded by a special mortgage furnished according to the requirements of the law. From this decision the present appeal is taken; and we contend that the rule should have been made absolute, upon the following grounds, to wit: 1. That, under the judicial sale made for the purpose of' effecting a partition amongst the co-proprietors, the property has passed to the purchaser, free and disencumbered, upon her satisfying the claims of those creditors who had a mortgage upon it. Union Bank v. Marin, 3d Ann. 34. 2. That the creditor in this case being a minor, his tutor had the right to receive that portion of the price to which his mortgage attaches, and that payment to him, as tutor, is good and valid, and would fully and completely exonerate the vendee from all liability in the premises. C. C. 2136.

      C. Maurian, for the defendant,
    contended : 1. We deny that under the judicial sale relied on, although made for the purpose of effecting a partition, the appellee acquired the property free and disencumbered ; and we say, 1st. The partition was ordered by a judgment rendered by consent. Now, this honorable court, in the case of the Union Bank of Louisiana v. Marin, 3d Ann. 35, have clearly laid down, that “ consent decrees decide nothing, they merely authenticate private agreements,” and thus, the position we took in our answer to the rule, that the judgment did add nothing to the rights which the parties would have had without it, to make an amicable partition, and that, therefore, it did not raise the mortgage more than an amicable partition could have done. 2d. The view which your honors took of the statute of 1843, in the case just cited, and which is copied in appellant’s brief, has been, we think, justly attributed by the judge á quo to either a misprint, or a misreading of that statute; and the part of that decision upon which the appellant’s counsel most particularly relies, to wit, that in which it is said : “ But they were sold at public sale and by an express provision of law, the mortgage attaches to the proceeds— acts of 1843, p. 44 — was evidently founded in error; for the statute referred to contains no express provision of the kind. This is even admitted by the counsel of the appellant, who endeavors to make out by implication that which he conld not establish by express provision. Hence, he has, with his usual ability, commented upon the proviso of the second section of the act of 1843 in question; but we apprehend, that by an attentive reading of his remarks, taken together with that proviso itself, your honors will see that he has made out our own case, probably much better than we could pretend to do it ourselves. Nay, we might, perhaps, safely admit the law to be, that the mortgage attaches to the proceeds, and still it would not follow that such proceeds should remain in the hands of the mortgagor. 3d. We certainly admit fully the principle, that no one can be forced to remain in indivisión, and that that principle is one of public right and policy; but our friend and adversary will also admit, we trust, that the laws made for the protection of minors, are of no inferior grade ; and, in direct opposition to his assertion, that mortgage is not of the essence of tutorship, we say that it is, wherever the tutor has mortgageable property ; and that, although a natural tutor, who, it is true, is not bound to give security, and who should not possess one cent’s worth of property, could have a right to receive money accruing or belonging to his ward, it does by no means follow, that when such a tutor has property, a mortgage does not attach to it, and that it is in his power to get r’id of it without securing by other means the rights of his ward.
    2. We shall say but little on the second point made by the appellant, we think it does not touch the question now before your honors. It may be conceded, that a tutor, and especially a natural tutor, has generally the right to receive monies belonging to his ward, (although in the decision of the case of Foley v. Dufour, 17 L. R. 522, and some others, we might find, that the afcquittance of a tutor does not always operate as a discharge,) but we only contend that he has no right to destroy the mortgage which exists in favor of his ward, on his own property, unless he replaces it by some other equivalent security.
    The appellee in this case does not seek to avoid payment. Indeed, the funds have actually been paid by her, and remain deposited in the hands of the notary. Her only object is, to obtain a good title, and to be sheltered against future claims on the part of the minor. Now, the whole question reduces itself to this : Mr. Lecarpentier being the tutor of his son, and possessing no other property than that which has been sold to the appellee, his son having rights in the succession of his mother, and in that of his grand-father, the amount of which rights is not even ascertained to this day, (as is admitted on record,) would Mrs. Samory, the appellee, be protected against any future claim of the minor, on the property by her purchased, were she to pay the purchase money to the tutor, and would that property be for ever clear of the minor’s mortgage 1 If yea, the judgment of the court below may be reversed ; if no, we respectfully contend that it ought to be affirmed. We will not close these remarks without calling the serious attention of your honors upon the consequences which the decision of this case may have on the security of property in this State.
   The judgment of the court was pronounced by

Rost, J.

We are of opinion, that the sale in this case having been made under a consent decree, the partition has not the character of a judicial partition. In all judicial partitions, the fact that the property cannot be conveniently divided in kind must be made to appear by a report of experts. Placencia’s heirs v. Placencia et als. 8 L. R. 576.

In this case no experts were appointed, and no evidence of that fact was adduced. It does not necessarily follow, from the fact that the property consisted of a house and lot, that it could not be divided in kind. The buildings may have been of little value, and the location such as to render a sub-division advantageous to the parties. Had the licitation been in all respects lawful, the property would not have passed in the hands of the purchaser free from the legal mortgage, which affected the share of one of the joint owners. The act of 1843 relied on by the plaintiffs, is not applicable to licitations under which the property is adjudicated to a party having previously no interest in it. Such an adjudication is not, in legal intendment, a partition. It is a sale., and does not affect the rights of mortgage creditors. Any intimation of this court to the contrary, must have originated in a mis-reading of the act of 1843.

The difficulty which prevents F. J. Lecarpentier, the plaintiff in the rule, from receiving his share of the proceeds of the sale of the .common property, may be obviated in three ways. 1st. By giving the defendant .satisfactory security to indemnify her against the mortgage ; 2d. By causing his share to be invested in real estate, under the supervision of the court, and the advice of a family meeting, and giving a special mortgage on the property thus purchased under the provisions of the act of 1831; or, finally, by agreeing with the defendant, that she will retain the amount until the majority of the minors, on paying a stipulated rate of interest. Leaving the plaintiff the choice of means, we will simply affirm the judgment, dismissing the rule,

The judgment is affirmed.


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    Nicolo Clacor v. Thomas W. Lane.
    A curator ad hoc has no right to consent ía submit the case in which he was appointed to the court for decision in vacation.

      APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Pitot, for appellant.

      Marks and Elliott, for appellee.
   The judgment of the court was pronounced by

Rost, J.

The property of Thomas W. Lane was attached by various creditors, and purchased by Haydon, also an attaching creditor, on twelve months’ credit, subject to a mortgage of six thousand dollars made by Lane and held by Clacor. After the sale under the attachment, Clacor instituted an action of mortgage on the note of Lane for six thousand dollars, and had a curator ad hoc appointed to represent Lane, a non-resident. The curator ad hoc answered in the suit, and a short time after filed an answer, and submitted the case in vacation to the court, when a judgment was rendered on the note and execution issued, and by virtue of the sheriff’s sale made under it, Eugene Troisgros (also an attaching creditor) became the purchaser. Troisgros sued out a monition to perfect said sale, and both Haydon and Lane filed oppositions to its homologation for these reasons: 1st. A curator ad hoc cannot be appointed to represent a party who is neither in court by his property or personal service of citation. 2d. A curator ad hoc cannot waive any of the rights of the party he represents.

The district court considering that the curator had not the right to submit the cause to the decision of the court in vacation, sustained the opposition, set aside the monition, and annulled the sheriff’s sale. Troisgros appealed.

The judgment is clearly correct, and in accordance with the uniform decisions of this court. Stockton v. Hasluck, 10 M. R. 474. Krukler v. Bank of the United States, 12 R. R. 464. Edmonson v. Mississippi and Alabama Railroad, 13 L. R. 282.

Judgment affirmed.