author: Slidell, J.

text:
    John Perkins, Syndic, v. B. Bailey, Tutor, et al.
    It is the duty of courts td sdftitinize with jealousy the conduct of those who act in a fiduciary1 capacity, and to take care they do not make a personal benefit from the maimer in which they manage the estates confided to them. But it is equally true, no one is permitted td enrich himself at the expense of another.

      Minors are answerable to their tutors for goods furnished by them for a necessary purpose and at a just rate, and which have inured to the advantage of the minors.
    APPEAL from the District Court of East Baton Rouge.

      Burk, J. E. T. Merrick, for plaintiffs.

      G. S. Lacey, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

James Mansker was one of the executors of the will of John Gilmore, deceased. Plis children Yel'e minors, and he had directed that his plantation should not be sold, but cultivated for the benefit of his children. It is said also, by the counsel of the appellants, that under the circumstances of the case, Mansker had superinduced, upon his liability as executor, the responsibility of a tutor. For the purposes of our present inquiry this may be conceded. Supplies of various kinds were required for the use of the plantation. These were furnished out of his own stock by Mansker, who was a tradesman.

The argument is, that a tutor cannot sell his own goods to his ward; and that these items must therefore be stricken from his account. The district judge declared himself satisfied, by the evidence, that the articles were furnished at moderate prices; that they were necessary to cany on the plantation; that the estate was without means to pay for them in cash; and that Mansker was obliged either to furnish them from his own stock or advance money to buy them. We do not understand the appellants as seriously questioning these facts.

It is, unquestionably, the duty of courts to scrutinize with jealousy the conduct of those who act in a fiduciary capacity, and to take care that they do not make a personal benefit from the manner in which they manage the estates confided to them; but it is equally true, that no one is permitted to enrich himself at the expense of another. No principle of equity is violated in making the appellants answerable to their tutor for liis own goods furnished to them for a necessary purpose and at a just rate, and which have inured to their advantage. Judgment affirmed, with costs.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    M. D. Cooper & Co. v. Elizabeth H. Cotton.
    Marriage between persons who do not live in the State gives rise to a community of acquets only from the time they come here to live, and where they do not come to live in this State, the wife has no community interest in the property acquired here by the husband.
    APPEAL from the District Court of West Feliciana, Penn, J.

      Brewer and

      Collins, for plaintiffs.

      Ratliff and Cowgill for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant is sued as partner in the community alleged to have existed between her and Joseph Cotton, her late husband, on the ground that she has never renounced the community and that she has used and continues to use the properly of which it is composed in such a manner as to render herself liable for one-half of its debts.

The defendant pleaded the genersl issue, and further averred that her husband and herself were residents of the State of Tennessee; that the property left by her husband in this State, at his death, had been brought by him from Tennessee to Louisiana; that he never acquired property in Louisiana, if he had bis domicil there, and that of the defendant being out of the State to the time of his death, the laws regulating the community of acquets and gains would not have been applicable to such acquisitions.

The case is before us on the appeal of the plaintiff from the judgment rendered against him in the first instance.

Every marriage contracted in this State superinduces of right a community of acquets and gains, unless there is a stipulation to the contrary. But marriages contracted out of the State without any intention to .remove to Louisiana, do not come under that rule, and until parties married abroad come here to live, the property acquired by the husband in this State does not fall into the community. C. C. 2369, 2370. Packwood’s case.

It is urged, that at the dissolution of the marriage, all the property left in this State is presumed to be common until the contrary is shown. This is true; but the contrary may be shown, as it has been in this case, by proof that the marriage was entered into out of the State, and that the parties had not come here to live when the property was acquired. .

There having been no community, the defendant could not make herself liable for debts contracted by her husband by failing to make an inventory, or by the other acts charged. We deem it just to say, however, that under the proof adduced her liability would hot be established, if there had been a community between her and her husband.

The judgment is therefore affirmed, with costs.


author: Preston, J.

text:
    State of Louisiana v. J. St. George Hamill, et al.
    The defendant was convicted and sentenced on the last day of the term, hut not appearing to answer to the sentence, judgment was entered on his bail bond against his sureties, from which judgment they appealed. On the Succeeding term the defendant appeared and submitted to the sentence of the court. The sureties took a rule, their appeal being still pending, to be discharged from the judgment against them on the bail bond. Held: They were entitled to be discharged.
    The object of the bail bond is to secure the presence of the accused to answer to the charge. It would be unreasonable to require him both to submit to the punishment inflicted by the sentence, and at the same time to pay his bail bond.
    The act of 11th of March, 1837, is not exclusive of the powers of the courts to relieve parties from the effects of judgments on forfeited bail bonds, as recognized by the common law. That statute points out one of the modes of relief, but does not exclude the common law remedies. • ’
    from the District Court of East Feliciana, Stirling, J.

      Z. S. Lyons, District Attorney, for the State.

      J. M. Elam, for sureties.
   The judgment of the court was pronounced by

Preston, J.

J. St. George Hamill was accused of assault and battery, and gave bond in the sum of $500, with KirJdand and Dixon as his sureties, to appear at the District Court for the parish of East Feliciana, in April, 1850, to answer to the charge. He appeared, and was tried and convicted on the 13th day of April. A motion was made for a new trial, which was overruled on Saturday the 29th day of April, being the last day of the term of the court. The accused and his securities were then called, and he not being produced, the bond was declared forfeited and judgment rendered against the principal and hig sureties in solido for its amount and costs.

On the 10th of May the sureties applied for and obtained a suspensive appeal from the judgment against them. On the 16th of July, 1850, being the second day of the next term of the court after the conviction, the sureties produced the accused in court to receive the sentence of the law-ior the offence of which he was convicted, and he was sentenced to thirty days imprisonment, to pay a fine of live dollars and the costs of the prosecution.

The sureties then moved the court for a rule on the district attorney, to show cause why they should not be discharged from all further liability as sureties, and why the judgment rendered against them upon the bond should not be declared satisfied, on the ground that their principal had been produced and punished in satisfaction of the penal obligation of the bond. They set out other reasons and also excuses for the failure of Hamill to appear on the last day of the last term, which it is unnecessary to notice.

The district attorney answered that the sureties had shown no sufficient reasons why their rule should be made absolute, and traversed the allegations contained in it. He further opposed the rule because on the 10th of May, 1850, the sureties obtained from the court an order allowing them to appeal to the Supreme Court of the State from the judgment rendered, against them, and that he had been cited to appear on behalf of the State and answer their petition of appeal; and therefore the district court had no longer jurisdiction of the case. The district court was of that opinion and dismissed the rule ; from which judgment the sureties have appealed.

They rely for a reversal of the judgment on the following bill of exceptions : Be it remembered, that upon the trial of the rule to show cause, which had been previously obtained by the sureties of the accused in the above entitled case, the counsel for the said sureties offered to prove, by the records of the court and by other competent testimony, the following- facts in support of said rule, viz : 1st. That the accused, J. St. George Hamill, appeared at the April term, 1850, of the Seventh Judicial District Court in and for the parish of East Feliciana, and State of Louisiana, and that the said Hamill was regularly tried and convicted of the crime of which he was charged, viz., the crime of assault and battery. 2d. That after the said trial and conviction, a motion having been made and filed by the counsel of the said Hamill for a new trial, a day was agreed upon, (as understood by the said Hamill and his counsel) upon which said motion was to be argued and decided, and the said Hamill was to receive his sentence in case the said motion was overruled; and that the said Hamill was in attendance pn said day, viz., the Thursday preceding the Tuesday on which the said court adjourned, and that said motion was not then disposed of. 3d. That on the Saturday following the said Thursday and preceding the Tuesday on which the said court adjourned, the said Hamill was on his way to the courthouse in and for the parish of East Feliciana, where the said Seventh Judicial District Court was in session, but was informed by a person returning from the courthouse that said court had adjourned; whereupon, the said Hamill returned to his residence at Port Hudson, in the parish and State aforesaid, where he has continued until the.present term of the court. 4th. That on the Monday preceding the adjournment of the court, which took place on Tuesday, the — day of — , and late in the morning of the day first aforesaid, and after all the business of the said court was disposed of, excepting the signing of the minutes of the said court, the said motion for a new trial in the said case of The State v. J. St. G. Hamill was taken up, and after argument, was overruled, and the bond of the said sureties and the said Hamill declared to be forfeited, and judgment accordingly rendered thereon. 5th. That on the second day of the present term of this honorable court, being the first term immediately succeeding the term of said court at which the said bond was declared by said court to be forfeited, they the said sureties of the said Hamill, by their counsel, surrendered in open court the body of the said Hamill; whereupon the said court sentenced the said Hamill to thirty days imprisonment in the parish jail, to pay a fine of five dollars and the costs of the prosecution, and to stand committed until the sentence is complied with. 6th. That the said Hamill was, at the time said rule was taken up for a hearing, viz., on the 9th day of August, 1850, within the four walls of said prison, suffering the penally of the law and abiding the sentence of the court.

To the introduction of evidence to prove the foregoing matters and things the district attorney in and for said parish and State objected, upon the following grounds, viz: That nothing could now be offered in support of the said rule which could have been plead in opposition to said judgment before it was rendered, and that said matters and things should have been urged at' the term of the court at which the said bond was declared to be forfeited. That an appeal having been taken by the said sureties to the Supreme Court in and for said State from the judgment of the said Seventh Judicial District Court in and for said parish on said bond, the said Seventh District Court was without jurisdiction, and could not hear and pass upon the matters and things which were sought to be proved, and which were set forth and urged in said rule, as a reason why said sureties should be discharged.

And the court, after argument of counsel, and having taken the said objections to said testimony under advisement, came to the conclusion that the court was without jurisdiction in the premises, and that it could not hear and determine said rule, and therefore refused to hear any testimony whatever in support of said rule.

The counsel for the said sureties then prayed the court for leave to annex to this bill of exceptions the testimony of witnesses which was offered in support of said rule, in order that the Supreme Court might pass upon the admissibility and legal effect of the said testimony, and in case the said court should be of opinion that the said rule was improperly discharged without admitting any testimony in support of the same, that then and in that case said Supreme Court might render a final decision on said rule. But the court refused to suffer said testimony to be placed upon the record or to be annexed to this bill of exceptions. To which several rulings of the court the said sureties by their counsel excepted and tendered this bill of exceptions for the signature of the court.

The district attorney urged in addition to the objections stated in the foregoing to the introduction of testimony to prove the allegations in the rale, that under the act of 1837, the matters and things therein set up could not be proved, because no physical disability is alleged, and because the sureties being the custodiers of the accused under their bond, had alleged- no sufficient cause why said rule should have been granted so far as they are concerned.

By the judge : The court refused to receive testimony on the grounds taken by the district attorney, but did not refuse to permit the counsel to annex to his bill the record in the case of The State v. Hamill, and it is ordered that he now have leave to do so. Jas. L. Stirling, Judge. August 10th, 1850. Filed August 10th, 1850. F. HAUDESTr, Clerk.

In the appeal taken by the sureties from the judgment rendered upon thuir bond, nothing can be examined but the correctness or incorrectness of that judgment, and the decision must depend alone upon what was before the court in its rendition. In the rule now under consideration, the sureties applied to set aside that judgment, upon facts and for reasons not before the court in rendering the judgment.

It is not necessary, however, in this case to decide whether the district court had jurisdiction to annul the judgment while an appeal was pending, although we know of no reason why it mightnot be done upon sufficient grounds. Nor is it necessary to determine whether a judgment forfeiting a recognizance at one term of the court can be set aside at all at a subsequent term. There are cases in which the court would not do it if the power were conceded — as where the witnesses for the State were dead, or from other causes could no longer be had. In such a case the court would undoubtedly allow the State to proceed upon the forfeiture, instead of compelling it to pursue a vain prosecution.

The present case may be determined without investigating either of these subjects. The sureties allege that the judgment against them has been satisfied by the punishment of their principal, and that they have a right to have it decreed satisfied by the judgment of the court. To the bill of exceptions is annexed the record of the court in the case of The State v. Hamill, by which it appears that the accused, for whose appearance the sureties became bound, has been’duly convicted and punished according to law for his offence.

The punishment of the offender took place subsequently to the appeal of the sureties from the judgment against them, and affords a ground of relief entirely distinct from the appeal. By the appeal they sought to reverse the judgment. By the- rule we are considering they presented the sentence of the accused to punishment as a satisfaction of the judgment on the recognizance against him, the principal, and therefore as to them, the sureties ; indeed, as a satisfaction by one of a judgment in soliden against throe defendants. They do not therefore seek to reverse the judgment; but contend that, whether right or wrong, it has been satisfied. The appeal therefore presents no obstacle to the determination of the question, whether or not the judgment has been satisfied.

At common law, the court's to which recognizances were made, in the language of the court in the case of The King v. Tomb, 10 Modern, 278, “the Courts of Oyer and Terminer are the proper judges whether recognizances are to be estreated, (as the term then was) or spared. The Court of Exchequer, to which a recognizance estreated was sent to be enforced, was authorized by statute to, compound or discharge the recognizances, and both courts to extend the time for appearance, and thus, perhaps, perpetually to suspend the forfeiture.”

The common law, thus modified by statute, was adopted by our Territorial Legislature, and we see no reason why our courts should not exercise the same discretionary powers which belonged to the courts in England.

The statute of 1837'provides that the judgment of forfeiture may be set aside at the same term at which it was rendered, by the appearance, trial and acquital or conviction and punishment of the accused; and that judgment of forfeiture should not be rendered at all if it was made to appear by evidence that he was prevented from attending court by physical inability. It is strenuously contended that by no other means and at no other time could the judgment of forfeiture be prevented or set aside when rendered!

The late Supreme Court decided, in the case of The State v. Cotton, that this was too literal and rigid a construction of the act of 1837. 19 L. R. 550. We concur with them, and consider that the Legislature by no means intended to curtail the necessary and salutary control of our courts by virtue of their common law powers over recognizances returned to them, until the actual payment of the penalty into the treasury.

Neither the appeal nor the statute of 1837 precludes us, therefore, from adopting in this case the principles held by Chief Justice Marshall in the case of The United Stetes v. Feely, and which he took pains to show he derived from the common law. He states the case ás follows: “A. scire facias has been sued out of this court by the attorney of the United States against Feely and his security, requiring them to show cause why execution should not be had against them on a recognizance entered into by them, conditioned for the appearance of Feely on the first day of the last term, to answer to an indictment filed against him in this court. Feely did not appear, and his default was recorded. He appeared on the first day of this term, and is now in custody on the motion of the attorney of the United States.. It is contended on the part of the United States that this court possesses no power over this recognizance; that, being forfeited, it has become a debt due to the United States, which is no more subject to the control of the court than a debt upon contract.”

Upon this argument and the facts stated, the chief justice, after examining the principles of the common law and statutes of England, observed : “ The object of a recognizance is not to enrich the treasury, but to combine the administration of justice with the convenience of a person accused but not proved to be guilty. If the accused has, under circumstances which show that there was no design to evade the justice of his country, forfeited his recognizance, but repairs the default, as much as is in his power, by appearing at the succeeding term and submitting himself to the law, the real intention and objects of the recognizance are effected and no injury is done. If the accused prove innocent, it would be unreasonable and unjust in Government to exact from an innocent man a penalty intended only to secure a trial, because the trial was suspended in consequence of events which are deemed a reasonable excuse for not appearing on the day mentioned in the recognizance. If he be found guilty he must suffer the punishment intended by the law for his offence, and it would be unreasonable to superadd the penalty of an obligation entered into only to secure a trial. 1 Brockenbroug’s Rep. 256.

Adopting the same principle in the present case, it would be more palpably unreasonable to superadd the penalty intended only to ensure the punishment of the offender to the infliction of the punishment itself.

This view of the subject is strengthened by the authority of Chief Justice Savage, of New York, who, in the case of The People v. Stager, observed that “one object of the recognizance is to cause the accused to appear and answer the charge, and to submit to such punishment, if any, as shall be adjudged; if that object has been answered by his subsequent arrest, then the bail are discharged.” 10 Wendell’s Rep. 435.

Had the bond in the present case been collected from his securities before the accused was arrested a second time, it is very true that its payment would not have prevented his punishment for the offence; for although the punishment satisfies the bond, the payment of the bond, does not satisfy the law for the commission of the crime. It was the duty of the district attorney, therefore, to have prosecuted the bond as speedily as possible; the failure of the accused to appear did not prevent it; and if he had succeeded in having the money paid into the treasury before the accused submitted to the judgment of the court, the court would not have interfered to afford the securities relief, but have left them to the justice of the Legislature. So, if costs or expenses Were incurred in prosecuting the bond to judgment, the State would be entitled to them. But it appears by the record that the accused was sentenced to stand committed until all costs were paid.

Upon the whole, therefore, we are of opinion that the rule should have been made absolute, and accordingly reverse the judgment of the district court, and decree that the judgment against the sureties of Hamill is satisfied, and their bail bond discharged.


text:
    Sarah Jane Leake v. T. P. Linton, her Husband.
    Proof that the husband is an habitual drunkard, and that he has been guilty of wanton cruelty and gross personal abuse towards his wife, entitles her to a decree against him of separation from bed and board.
    Proof of habitual intemperance does not entitle the wife to a divorce a vinculo matrimonii until two years after a decree of separation from bed and board
    APPEAL from the District Court of West Feliciana, Stirling, J. This was an action on the part of the wife against the husband for a divorce. The following extract from the decision of the district judge shows the nature of the case: “The testimony adduced shows that the defendant is an habitual drunkard and that he has been guilty of wanton cruelty and gross personal abuse towards the plaintiff. And that said drunkenness, cruelty and abuse are, in the opinion of the court, of such a character as to render it insupportable.”

      Brewer and Collins, for plaintiff.

      C. Ratliff, for defendant.
   The judgment of the coui't was pronounced by

Rost, J.

The habits of the defendant and his conduct towards his wife have been correctly stated by the district judge, and we fully concur with him in the opinion that the plaintiff is entitled to a separation from bed and board.

We do not concur in so much of the decree as dissolves the bonds of matrimony, considering such a decree premature. The act of 1848 (p. 57) amends the fourth paragraph of section first of the act of 1827, (p. 31,) by inserting the words habitual intemperance, so as to read as follows: “ Married persons may reciprocally claim a separation and divorce on account of habitual intemperance, excesses, cruel treatment, or outrages of one of them towards the other, if such habitual intemperance or such ill treatment, are of such a nature as to render their living together insupportable.”

The act of 1827 commences with an enumeration, in five paragraphs, of the various causes for which divorces may be granted. Four of them enumerate cases of adultery on the part of husband and wife, condemnation to an ignominious punishment and abandonment. The remaining paragraph provides for cases of excess, cruel treatment or outrages. With these last mentioned cases the act of 1848 has associated the case of habitual intemperance; and the legislation, as it now stands, must be interpreted by the application of the familiar rule, noscitur a sociis. It is clear, that under the statute of 1827, an immediate, divorce could not be decreed except in cases where there had. been adultery or condemnation to an infamous punishment. In other cases no divorce could be granted, “ unless a judgment of' separation from bed and board shall have been previously rendered1, and unless two years shall have expired from the date of separation from bed and board, and no reconciliation may have taken place.” See sec. 4, Act of 1827, p. 132. The case of habitual intemperance must be restricted to the same remedy as the cases with which it is associated, and consequently the plaintiff cannot have a divorce a vinculo matrimonii at the present time.

We consider the testimony insufficient with regard to the plaintiff’s claim for paraphernal effects. The case, as presented, is too loose and conjectural to satisfy the mind that the wife’s effects have been converted by the husband to his individual benefit.

We are not disposed to disturb the judgment of non-suit as to the slave mentioned in the petition. The only evidence on the subject of the minor’s ownership, was the testimony of a witness, as to a verbal acknowledgment made by the defendant; which testimony did not satisfy the district judge.

It is therefore decreed, that so much only of the judgment of the district court as dissolves the bonds of matrimony between the plaintiff and the defendant, and condemns the defendant to pay the plaintiff three hundred and eighty-two dollars, and grants a tacit mortgage therefor, be reversed; and that in all other respects the said judgment be affirmed; the costs of the appeal to be paid by the plaintiff. And it is further decreed, that the right to claim in this suit, after the legal delay, a divorce a vinculo matrimonii be reserved to the plaintiff; and that this cause be remanded for further proceedings according to law.


text:
    Lucinda Jane Boyle v. James Swanson.
    A transfer of a dwelling bouse and gin house separate from the plantation on which it is situated, cannot be recognized in law so as to embarrass executions. From their nature they are inseparable, and should be sold together.-
    APPEAL from the District Court of West-Feliciana, Penn, J.

      Z. S. Lyons, for plaintiff.

      Collins, Muse and Merrick, in behalf of defendant, contended:
    1st. No sufficient consideration has been shown for said transfer. The voluntary sale from a husband to his wife cannot certainly give her any greater rights than a decree of the court executed. ¿ C. C. 2402. When such a sale is attacked the burden of proof is on the wife; JDeblancv. Deblanc, 4 L. R. 422. 2d. The husband cannot make any other contract with his wife than that of sale. C. C. 2421. But a sale of improvements, stock, and farming utensils upon a plantation could not be considered a sale, because the owner of the soil would still be the owner of the improvements and thingo attached to the plantation by destina- ■ tion. C. C. 455, 459. 2 L. R. 93. 3d. A conditional contract like the one exhibited cannot be executed between husband and wife under said art. 2421, and the husband cannot create a conventional mortgage in favor of the wife. C. C. 2309.
    4th. The proof does not show that the improvements claimed by the plaintiff are on the plantation seized. 5th. But were it so shown, and were it possible to sell improvements separately from the land, still it would be no ground of injunction; for the owner of the improvements could not prevent a sale of the land and the residue of the plantation. He could, perhaps, claim a separate appraisement, and share the proceeds of the sale.
    6th. The plaintiff in her petition conditionally prays for a rescission of said sale, and that she be decreed to have a mortgage upon the property of her husband. But.this certainly does not authorize her to enjoin the"execution. Besides, Swanson's judgments having been recorded, were older than the sale by Judge Boyle to his wife.
    7th. In conclusion, we submit to the court that this is a case in which the full amount of damages and interest allowed by law ought to be decreed against the plaintiff and her surety, Gordon A. Smith, because the plaintiff enjoined the sale of all the property seized, on the pretence that she owned the improvements on the land, claiming no other of the property seized ; because by her conduct she has prevented a sale of the property seized, for a series of years, and has occasioned defendant actual damage to the amount of the damages and interest claimed, by the loss and delay which will now be occasioned in following the proceeds of the property seized into the succession of Judge Boyle, and also by the expense of defending this suit in both courts.
   The judgment of the court was pronounced by

Preston, J.

James Swanson obtained two judgments and issued executions against William D. Boyle, of the parish of West Feliciana, and caused the sheriff of the parish to seize and advertise for 3ale a plantation, with a dwelling house, out buildings, gin house, and other improvements on the same.

The plaintiff, the wife of Boyle, by him authorized, enjoined the sale. She alleged that she inherited from her father the sum of two'thousand live hundred dollars, which her husband had received in the partition of his estate, and had used for his own benefit; as also twelve hundred dollars, the price of two slaves which were her paraphernal property, and which he had sold, and received and used the proceeds.

She alleges that her husband, wishing to reimburse to her these sums, amounting to $3600, did on the 29th of February, 1844, transfer to her by a notarial act, among other things, all his right, title and interest in and to a dwelling house, gin and out houses on the plantation where they reside, which she accepted in payment and restitution of the sums due to her, but only on condition that she should never be molested or disturbed in the quiet and peaceable enjoyment of the property.

She prayed that the defendant might be perpetually enjoined from selling her property thus acquired from her husband; or if she should be disturbed in the enjoyment of the same, in violation of the condition of the transfer to her, that it might be rescinded, and that she might have judgment against her husband for the amount of her paraphernal claims; and that her legal mortgage to secure the same might be enforced upon the property seized by Swanson, and about to be sold under his execution.

She produced a notarial act of transfer from her husband, to the effect stated in her petition, and by which she moreover, in consideration of the transfer, renounced her legal mortgage upon all the present and future property of her husband, for the restitution of her paraphernal funds. She also exhibited proof of her claim against her husband on account of the inheritance from her father, to the amount of $2103 70 ; and on the trial, with the leave of the court, withdrew her claim on account of the price of the sale of her slaves, received by her husband.

The court rendered judgment rescinding the transfer from her husband to the plaintiff; dissolved the injunction, and condemned her and her surety in the injunction bond, to pay five per cent damages on the amount of the executions enjoined, with costs; and they have appealed.

The dwelling house and other buildings on a plantation are immovable by their nature and also by their destination. Code £55, 459. The dwelling house, the out houses and gin house, which the sheriff seized and was about to sell with the plantation of William D. Boyle, was so inseparably attached to the planta-* tion, in law and in fact, that it was impossible to separate them and sell the one without the other under execution. A transfer, like that from Mr. Boyle to his wife, purporting to sever things which are inseparable cannot be recognized in law so as to embarrass executions. From their nature, it was necessary to sell both together; and therefore it is clear the wife had no right to enjoin the sale.

The court, in pursuance of the condition of her contract with her husband, and of the prayer of her petition, rescinded the transfer from him to her, reserving her rights by virtue of her legal mortgage against her husband’s property for the security of the money received from her father’s succession and used by him.

The judgment of the district court, in dissolving the injunction and making this provision for any rights the plaintiff may establish against her husband’s succession, appears to be not only just and legal, but equitable; and we are at a loss to know on what ground the plaintiff hoped for its reversal.

It is therefore affirmed, with costs.


text:
    R. Perry, Syndic, v. D. Holloway.
    By baying out the interestof the partners and receiving the partnership assets, the purchaser himself becomes the debtor of the creditors of the partnership to the extent of the assets. The interest of a partner in a firm is his portion of the residuary excess of partnership assets over liabilities.
    APPEAL from the District Court of East Feliciana, Penn, J.

      Z. S. Lyons and W. D. Winter, for plaintiff.
    E. S. Merrick and J. H. Muse, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

There is some obscurity in the phraseology of the decree rendered by the Supreme Court in this case, and reported in 10 R. R. 111. The intention of the court, as we infer from the language used in the opinion and from the pleadings and evidence, was to charge Holloway with $3000, as the value of the interest of Powell in the partnership of Harris 8f Co., a commercial firm composed of Powell and Harris. They ordered the defendant to surrender the lot of ground and the two slaves which he had pui’chased at the sheriff’s sale in 1840, because these existed in kind, and could be restored. The interest of Pmoell in the partnership, whose entire assets had been under the sole control of Holloway for more than four years, was not susceptible of restoration in kind. Hence, we think, the court intended to charge the defendant with Powell’s interest in that partnership at the valuation exhibited by the testimony before them. The defendant now assumes the position that he bought at the sheriff’s sale merely the merchandise contained in the store. But this is inconsistent with the interpretation given to the purchase “ of the interest of H. J. Powell in the store at Port Hudson” by himself in his pleadings and acts. The original petition in this cause alleged that the defendant had bought, at the sheriff’s sale in 1840, “the interest which said Powell had in the store in Port Hudson, then held by him in co-partnership with R. W. Harris, under the name and style of R. W. Harris Sf Co.” The word store, although a loose expression to be used in pleading, was undoubtedly intended to designate the •mercantile establishment and partnership assets oí Harris Sf Co. And so the defendant understood it, for in his answer he says: “ he admits that he, this ■defendant, is the legal owner and possessor of the real estate and slaves described in plaintiff’s petition, and that he was the owner of said interest in said store and co-partnership.” Soon after the purchase, we find him buying out, for $3500, the interest of the remaining partner Harris, and thus obtaining the entire control of the partnership funds. Harris was examined as a witness at the former trial. He deposed that Powell and himself were equal partners; that he considered Powell’s interest in May, 1840, when it was sold by the sheriff to Holloway, as worth $3000. It was, undoubtedly, upon this evidence the court acted in fixing the liabilities of Holloway at $3000.

If, however, the disputed clause in the decree of the Supreme Court is not to receive the interpretation contended for by the plaintiff, but is to be considered as assessing the value of Powell’s interest in the merchandise of the firm merely, it would not change the aspect of this case to the defendant’s advantage. For he took possession not only of the merchandise of the firm, but of all its assets, and would be bound to render an account of them, which he has not done.

In his amended answer, filed after the cause was remanded, the defendant set up a claim for various credits; and the principal contest before us has been as to their allowance. After a careful examination of the evidence, we are of opinion that none of them can be allowed except the payments made by Holloway of the judgments in favor of Wagner Sf Co. and H. R. Lee Sf Co. The judgment in favor of Whiling and Slarlc appears to have been paid by Powell. The items charged for rent, clerk hire, &c., being the last seven items stated in the defendant’s answer, cannot be allowed. They pertain to the affairs of Harris Sf Co.; and moreover the principal portion of them were debts of that concern which occurred after Holloway became the owner of the interest of both partners. By buying out the interest of the partners and receiving all the partnership assets, he became himself the debtor of the creditors of Harris Sf Co. at least to the extent of those assets. The interest of a partner in a firm is his portion of the residuary excess of partnership assets over partnership liabilities.

We think the court below erred in refusing to allow the plaintiff to file an amended petition claiming the value of the services of the slaves Harry and JacJc, from the date of the sheriff’s sale in 1840 until they were restored to the syndic under the decree of the Supreme Court. It will be observed, that in the original petition, the syndic, acting in affirmance of the sale of the land, slaves and other property, claims its price. But the Supreme Court being of opinion that the sale was invalid, decreed the restoration of the land and slaves. As to the sale of Powell’s interest in the partnership, as it was not susceptible of restoration, they charged Holloway with its value. They did not act upon the question of the value of the services of the slaves, because from the course which the litigation had taken in the court below, that matter was not presented by the pleadings or evidence. There-would be an obvious injustice in permitting Holloway to have the service of the slaves without charge to the detriment of the creditors of the insolvent. There is nothing in the terms of the decree, properly interpreted, to preclude the syndic; on the contrary, justice to both parties was contemplated by the clause in the decree providing for a settlement of accounts.

In closing the litigation between these parties in all other respects, by our , decree we will reserve to the syndic his right of action for the services of the slaves during the interval above mentioned.

Deducting from the sum of $3000 the amounts paid by Holloway to Wagner Co. and H. R. Lee, there remains a balance of $2207 for which, with interest, judgment will now be rendered.

In conclusion, it is proper to say that the relations and dealings between Poioell and Holloway, and various circumstances exhibited by the record and evidence, cannot be reconciled with the hypothesis of good faith on the part of the defendant towards Powell’s creditors ; and this has been one of our reasons for charging the defendant with interest from 1841.

It is therefore decreed, that the judgment of the district court be reversed; and it is further decreed, that the plaintiff, Robert Perry, syndic of the creditors of Howell J. Powell, do recover from the defendant, David Holloway, the sum of $2207, with interest thereon from the 1st day of February, 1841, until paid, and costs in both courts. And it is further decreed, that there be reserved to the said plaintiff the right to bring suit against the said Holloway for the recovery of a reasonable compensation for the services of the slaves Jack and Henry, from the 25th day of May, 1840, until the date when they were restored by the said defendant to the possession of the said plaintiff.


text:
    The State v. Joseph J. Capers.
    In an indictment, if tbe time and place be stated with grammatical certainty so as to exclude tbe possibility of the commission of tbe crime at any other time or place, a repetition of tbe phrases “ then and there” is not required.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      R. G. Beale, for the State, contended :

      Joseph J. Capers was indicted for inveigling, stealing and carrying away a slave. The jury, by which the cause was tried, returned a verdict of guilty. Subsequently, a motion for a new trial and also for arrest of judgment was filed by'the counsel for defendant. Several grounds were set forth, only one of which was considered or acted on by the judge a quo, to wit: “The place where the offence was committed is not charged with sufficient certainty.” Upon this ground the motion was sustained. From this judgment the district attorney has appealed.
    The part of the indictment objected to as insufficient, is as follows: “ Then
    and there being found did feloniously and wickedly inveigle, steal and carry away.” The counsel for defendant contended that the offence was not sufficiently charged, because the words “ then and there” are not repeated before the words inveigle, steal and carry away.
    We think that the court erred in sustaining the motion in arrest of judgment, because the offence was set forth with such certainty and precision as is required by the law in such cases. The words “ then and there,” as used in the indictment, apply not only to the being found, but to the inveigling, stealing and car-lying away. There being no stop or division of the sentence which would authorize the deduction that the meaning of the words “ then and there” was intended to be restricted to the qualification of the being found.
    In cases of murder it is necessary to say “ then and there” did make an assault, and to repeat the words “ then and there” before the striking. The reason for this strictness is obvious; for to make out the case, it is necessary that the striking should be coupled with the malice and the assault — all being essential in connection; for if the blow was given at another time of the day even it would not be sufficient.
    In larceny the case is different, no such strictness being required; it only being necessary to charge the offence with'such certainty, that the accused might know to what charge he was called to answer, and with such certainty that the accused would not be in danger of being called on to defend himself a second time for the same offence.
    The repetition of the words “ then and there,” as decided to be necessary by the judge a quo, is not required by the authors on criminal law. Archbold’s Criminal Pleading, 204 — Form of Indictment for Larceny. And we think that this strictness is dispensed by the statute of Louisiana, by which the common law was adopted in criminal proceedings.

      Andrew S. Herron, for the accused, contended:
    There is only one point in this case, which is, that the place where the offence was committed is not charged in the indictment. The court will perceive that the words of the indictment are, “ the said slave Betsy then and there being found, did steal,” &c. This is uncertain and insufficient, the “ then and there” referring to the slave being in the parish, and not to her being stolen there. The indictment must charge the place where the offence was committed with precision and certainty. Blackstone’s Com. p. 306, vol. 4.
    If, in an indictment for murder, it be stated, “ J. S. at such a time and place, having a sword in his right hand, did strike I. N.” &c., it is insufficient. Arch-bold’s Crim. Pleadings, p. 37, vide Indictments, p. 191, 197, 198, 199. The judgment should be affirmed.
   The judgment of the court was pronounced by

Preston, J.

The defendant was indicted and found guilty of stealing a slave. A motion in arrest of judgment, on the ground that the place where the offence was committed was not charged with sufficient certainty, was sustained, and the State has appealed.

In support of the motion, it is stated that the words of the indictment are : “one slave named Betsy, of the value of $400, the property of John Buliler, then and there being found did feloniously and wickedly inveigle and steal, and carry away.” It is urged, that to render the time and place of the theft sufficiently certain, the adverbs then and there, should have been repeated before the words did inveigle and steal and cany away, so as to read then and there being found, did then and there inveigle, steal and carry away; for if not, the slave being then and there found, the accused might have stolen her elsewhere or at another time.

The finding of the slave was a mere circumstance attending the felonious act, and not the felonious act charged itself; and as this circumstance is stated with certainty as to time and place, and the felonious act immediately referred to it, we are inclined to think, that with this reference alone, the time and place of the felonious act itself was stated with sufficient certainly.

Be that as it may, when the whole charge is read, we find that the grand jurors did present “that Joseph J. Capers,’on the 6th day of December, 1849, at the parish of East Baton Rouge, in the Sixth Judicial District, the slave named Betsy, then and there being found, did feloniously and wickedly inveigle, steal and carry away.” This presentment of time, the 6th of December, 1849, and of place, at the parish of East Baton Rouge, is antecedent to and directly qualifies the charge “ did inveigle, steal and carry away.” The time and place specified are antecedents of nothing else than the main charge. So that it is charged with absolute certainty that the accused did inveigle, and steal and cany away the slave on the 6th of December, 1849, at the parish of East Baton Rouge, so as to exclude the possibility that the felonious act was done at any other time or place. The indictment could not possibly, therefore, have more certainty as to time and place.

The authorities referred to by the counsel of the accused, are not applicable to the present case. They intend to establish this principle, that when it requires a number of distinct facts, supposed to have been done at the same time, to constitute a crime, the time and plaee of the first act being stated, it would be necessary to refer the other acts to the same time and place by the words then and there. For example, if to constitute the offence charged, it was necessary to inveigle, and to steal and to carry away the slave, it is supposed the time and place of the inveigling should be stated, and that the accused then and there stole, and then and there carried away the slave. But even in this case, since the referrence of the other acts to the time and place of the first, by the copulative conjunction, would be attended with grammatical accuracy, and all the certainty used by the most exact men in their ordinary transactions, we can see no reason why the language should be iacumbered, and the charges clouded by the repetition of the adverbs.

If, however, the repetition should be held necessary in the case supposed, it is not required in the present indictment; for the statute makes each fact alleged the completion of the ci'ime. The words are, “whoever shall inveigle, steal or carry away,” &e. Even then, if legal tautology is required, where several acts are necessary to constitute a crime, it cannot be necessary in the present indictment, where the inveigling charged of itself by the statute constitutes the offence, and which act the time and place stated unquestionably qualifies.

The judgment of the district court is therefore reversed; the motion in arrest of judgment overruled, and the case remanded for further proceedings according to law; the appellee to pay the costs of the appeal.


text:
    The State v. Joseph J. Capers.
    [Tried with the preceding case.]
    THIS case differs in nothing from that just decided, except that the accused is indicted in the present case for stealing a horse.
   For the reasons given in the case decided, the judgment of the district court in this case is reversed ; • the motion in arrest of judgment over-ruled, and the case remanded for further proceedings according to. law; the appellee to pay the costs of the appeal. •


author: Eustis, C. J.

text:
    B. Haynes, Liquidator, v. Succession of T. Lawson.
    The failure to file an appeal in time will not be excused upon the ground that the plaintiff was a liquidator of an insolvent corporation, who had resigned, and no successor had been appointed until after the return day the of appeal had passed, especially when no diligence had been shown.
    APPEAL from the District Court'of East Feliciana, Stirling, J.
    On motion to dismiss the appeal, Z. S. Lyons contended :
    The court is referred to the affidavit of the attorney for appellant, showing that there was no one who could stand in judgment at the time the appeal was made returnable.
    The appeal was taken within the year; and the only question for the court is, whether when there is no party who can stand in judgment, no one who may become bound for the costs in the Supreme Couit, &c.
    The court may remember, that some months since an application was made by the appellant, through G. Watts, Esq., for an extension of time to bring up the record. It was based on the same ground now taken, and supported by a similar affidavit made by the plaintiff himself. This court gave uo written opinion ; but from what it was understood this court intimated, the record was 0P filed before the return day in course, and the parties duly notified of the fact.
    The court will perceive that the Clinton and Port Hudson Railroad Company and its creditors, the principal one being the State, ivas unrepresented by the officer appointed by law to act. Who was to bring up the record ? Who was to be bound to the clerk for the costs of the appeal? It is suggested, with diffidence, the attorney would not have the power to find any subsequent appointee or the interests represented by him.
    The record was not brought up and filed at the return day, because in the opinion of the counsel who acted there in the matter, there being no one to. stand in judgment, and no party, it would be a vain thing. The undersigned, was absent and not advised of the conclusions his colleague came to, but he advances these views for the consideration of the court.
    Should the court deem it to have been the duty of the attorney to have brought up the record, then this court will not permit the interests of the State, represented by the liquidator, and the other interests entrusted to that officer to be sacrificed by a mistaken view of the law, entertained by an attorney who had been acting only as the attorney of a liquidator who had gone out of office, and consequently carried with him the attorneys who had been employed by him. Indeed, at the time the appeal was made returnable, there was no liquidator and no attorneys, the attorneys only holding under that officer. See Act of 1848.
    The Supreme Court has decided, in several cases where the police jury were parties, that they will give relief against the mistakes or the negligence of their, agents. The court will not, however, consider it conceded that after the resignation of the liquidator his appointees remained in office, under the Act of 1848; or that they or either of them had the right to carry up an appeal and give bond for costs.
    The appellants having been fully advised of this application, and of the filing of the record, no injury can happen to them. They have ample opportunity to protect their rights, and have done so in this court. They may gain an advantage, but cannot suffer a loss.

      W. D. Winter, for appellees, contended :
    In January, 1851, more than twelve months having elapsed since the rendition of the judgment below, nine months since the return day fixed for the appeal, and since obtaining the clerk’s certificate by the appellees, without any new citation of appeal or other proceedings, the appellant files his record, and seeks now to prosecute his appeal. It seems to us to be clearly too late ; that the judgment has long since become final and-irrevocable. And, even admitting that the plaintiff had lost his capacity as liquidator during the period that intervened between the execution of the appeal bond and the return day, we cannot conceive that this can now avail him. He should have brought up his record and made his parties in this court. We cite, upon this branch of the case, C. P. 593, 567, § 2, 574, 589, 289, 884. 3d Ann. 339, Jenkins’ Curator v. Bond. lb. 226, New Orleans and, Carrollton Railroad Company v. Hood. Ib. 668, Penny v. Sumerville. Ib. 245, Hucournau v. Levistones. 2d Ann. 453, Davis v. Hood. lb. 723, Champomier v. Washington. lb. 769, Guilbeau v. Creditors. We deem it unnecessary to cite further authorities.
   The judgment of the court was pronounced by

Eustis, C. J.

The appellees have moved to dismiss this appeal, on the ground of the record of appeal not having been filed in due time.

The judgment was signed on the 6th of August, 1849, and on the same day an order was made, granting the appeal to the appellant, who was liquidator of the Clinton and Port Hudson Railroad Company, returnable on the 2d Monday of February then next ensuing. A bond was filed by the appellant on the 24th of August, 1849. The record is not filed in this court until the 6th of January, 1851. The record thus not having been filed until nearly a year after the return day, it is urged by the counsel for the appellee, that under the repeated decisions of this court and of our predecessors that the appeal must be dismissed. It is urged, that this case presents an exception to the general rule, inasmuch as the appellant resigned his office as liquidator in December, 1849, and no successor was appointed until April or May, 1850. These facts are supported by affidavit, and are not contested. The liquidator of this company was appointed by the State; and the affidavit contains no averment of any diligence on the part of any one in having the vacancy filled, or in relation to the bringing up of the appeal.

The attorney of the liquidator, or any party in interest, could have brought up and filed the record, and the appeal would not have been dismissed for the want of a nominal party, unless the party had been in fault in having had the case left in such a condition. The authorities cited by counsel fully sustain his position.

The appeal is therefore dismissed, with costs.


author: Peeston, J.

text:
    Francis A. Tete v. Cantrelle and Villavosa.
    The transfer of a judgment with all the rights resulting therefrom does not include a judgment for special damages allowed on the dissolution of an injunction taken out against an execution issued on the judgment so transferred, but it does include the interest of ten per cent allowed by the judgment dissolving the injunction.
    APPEAL from the District Court of Assumption, Randall, J.

      J. G. and A. Beatty, for plaintiff.

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

Peeston, J.

On the 20th of May, 1843, Cantrelle and Villavosa obtained a judgment against Auguste Tete for $937 54 with interest and costs, and having issued execution upon it, the defendant enjoined the sheriff from proceeding in the execution, because he seized a quantity of sugar instead of a tract of land pointed out to him by the defendant.

On the 25th of May, 1844, the injunction-was dissolved, and the plaintiff in the injunction and his security, Francis A. Tete, the present plaintiff, was condemned to pay ten per cent interest on the amount of the judgment from the date at which the injunction was obtained, and twenty per cent damages and costs. From this judgment, however, an appeal was taken.

On the 27th of May, 1844, Cantrelle and Villavosa acknowledged to have received $937 54 from the Ocean Insurance Company and interest at five per cent from the date of its rendition; and in consideration thereof, transferred to the company the judgment with all the’ rights of mortgage and other rights resulting from the judgment and its registry.

The appeal from the judgment dissolving the injunction and allowing damages and interest was not prokecuted, and on the 4th of January, 1847, Cantrelle and Villavosa issued execution upon it. The execution has been enjoined by Francis A. Tete, the security on the injunction bond, on the ground that the damages and interest had been sold and transferred by the plaintiffs to the Ocean Insurance Company, and that he had arranged the claim with them. It is not pretended that these damages and interest 'were expressly transferred, but it is contended that they were mere accessories to the original and principal judgment, and that by its transfer they necessarily followed it.

The court are divided in opinion as to the question whether the additional interest allowed upon the original judgment for the dissolution of the injunction is an accessory of the judgment, so as to raise a presumption that it was transferred with it, and have concluded not to disturb the judgment of the district court as to that part of the case.

In consequence of the confirmation of the decision of the district court as to the interest, it becomes unnecessary to examine in this case the point made by the plaintiff’s counsel, that the additional interest on the judgment should cease with the dissolution of the injunction.

The damages allowed on the dissolution of an injunction are given by law to indemnify the defendant in the injunction for bis trouble in defending the suit, the vexation it occasions him and the expenses he incurs for counsel fees or otherwise.

These damages are not accessory to the original judgment. They do not grow out of it. They are given in a separate suit and by a separte judgment, and are not by it, like the increased interest, added to the original judgment. The transfer of the original judgment is not a transfer of the judgment for damages, nor does it afford any presumption that the damages are transferred with it, because they are not necessarily connected with or dependant upon it. The judgment for damages belongs to the party who has suffered the damages, by incurring the expense and undergoing the trouble and vexation of defending an unfounded injunction suit.

Cantrelle and Villavosa suffered all that damage in the present case: the judgment for the damage is in terms rendered in their favor ; and their transfer of the original judgment affords no presumption that they transferred their damages given to them by a separate judgment and in a separate suit.

The judgment of the district court is therefore reversed; the execution is perpetually enjoined as to the ten per cent interest on the original judgment, but dissolved as to the sum of one hundred and eighty-seven dollars, thirty cents damages allowed and legal costs; the appellee to pay the costs of this appeal, and the appellants or defendants in the injunction the costs of the district court.


text:
    E. and A. Fridge v. John Buhler et al.
    Where executors, without judicial sanction, compromiso a note given for the purchase of property of a succession, they will be held liable for the amount of the note so compromised, unless they can show there Was a defence to the note, or the insolvency of the party bound to pay the note.
    from the District Court of East Baton Rouge, Burk, I.

      J. M. Elam, for plaintiffs, contended:
    Should the court conclude to examine into the merits of this case, the authorities cited by appellant’s counsel, from 6 L. R. 225, and 2 L, R, 148, will show that the plea of res judicata was properly overruled.
    The judgment only condemned the executors to account for one note. There is no legal evidence as to the deficiency in the quantity of land sold as belonging to Fridge's succession. The land was not surveyed. There might have been an error in making Roach’s inventory, or Roach might have sold a part of the land before his death. Be that as it may, neither Buhler nor Tabitha Fridge, who has not appealed from the judgment, had any right to compromise exti'ajudicially the interest of the estate they represented.

      O. S. Lacey, for defendant, contended:

      Alexander Fridge, the father of petitioners, having departed this life, John Buhler and Tabitha Fridge were qualified as his tesamentary executor and executrtrix, and accepted the administration of his estate.
    On the 8th May, 1835, Buhier filed his petition in the then Probate Court of East Baton Rouge, together with his tableau of distribution, and prayed “that after due publication of notice, the same might be homologated and made the judgment of the court, and he discharged.”
    May 22, 1835, a judgment was rendered: “In this case it appearing to the court that due notice has been given, as required by law, to all persons interested, to oppose the tableau of distribution, and more than ten days having elapsed from the date of such notice, it is ordered, adjudged and decreed, that the said tableau be homologated ; that the said executor be authorized to pay the creditors in conformity thereto; and that on filing his vouchers and receipts in court, his bond be cancelled and annulled.”
    The vouchers and accounts being filed, Buhier considered himself discharged. Thus matters stood until December, 1846, when the plaintiffs, who are two of the heirs of the deceased, Fridge, filed their petition, calling upon their mother and Buhier, as executrix and executor, for the rendition of their account. Buhier excepted to the plaintiffs’ action, on the ground that he had been discharged by the judgment of the probate court, above referred to; and prayed to be dismissed. The court a quo considered that the judgment urged as the basis of the plea of res judicata was not binding upon the plaintiff's, they not having been cited, and the published notice not operating against them, and overruled the exception filed by Buhier.

    The exception having been overruled, Buhier filed his answer, and reserving to himself his right of appeal from the judgment on the plea of res judicata, re-offered the account previously filed by him as executor, and to which the court was referred.
    To the aforesaid account an opposition was filed by the plaintiffs, for the reason that the executor is responsible for the two notes of $300, with interest from maturity, being the two last installments of the purchase money drawn by William Roach, and endorsed by Isett and Slaughter, secured by mortgage on a tract of land sold at the succession sale of Alexander Fridge, as shown by the adjudication. The cause was tried upon the aforesaid opposition, and a judgment rendered in favor of the plaintiffs, and from such judgment the defendant, Buhier, has appealed.
    The first quesion which presents itself for consideration is, ought the exception of res judicata to have been sustained? We freely admit that the settlement of this question must depend upon the solution which your honors may give to another, viz : was it necessary to have cited in the heirs of Fridge to the probate proceedings of Buhier, under which he claims to have been discharged ? If it were, the exception of res judicata was properly overruled. We frankly refer the court for information, to 6 L. R. 225; 2 L. R. 148.
    If the judgment of the lower court overruling the plea of res judicata be affirmed by your honors, we will be driven to consider the case upon' its merits; and in doing so, we will contend that the defendant is not responsible for the amount of the two notes mentioned in the opposition, and which is made the sole ground of liability for a recovery.
    We are not liable for the note given for the first installment, because the amount of that note' is already charged against Buhier in the account by him filed. Nor are we liable for the note given for the second installment, for the reason that this note, (on account of a deficiency of land for which the note was in part given by Roach at the time of his purchase,) was surrendered to the estate of Roach, upon the payment of one hundred dollars; and which amount was received by the plaintiff’s mother, she then being their tutrix.
    I am aware, that it was perhaps a stretch of authority for either the executor or executrix to enter into a compromise relative to the note under consideration; nevertheless, they cannot be made responsible to the plaintiffs on account of such transaction, if the latter have sustained no damage. We consider Gates v. Bell, 3d Ann. 63, applicable to the present action, and the rule therein laid down is sufficiently broad to protect Buhier from liability to the plaintiffs in this suit. In the case referred to, the sheriff had transcended his authority, in releasing sequestered property without taking a legal bond; yet, as he acted in good faith, the court limited itself to the inquiry of the real and actual damage which Gates had sustained by not having a bond obligatory upon the security. The same equitable rule may be inferred from Qauldqn, v, McPhaul, 4th Ann. 81, What damage then have the plaintiffs sustained by the compromise? None, clearly, if they have by such compromise yielded up nothing more than the law would have taken from them had the estate of Roach been sued upon the note compromised. '
    Upon referring to the inventory in the estate of Fridge, the court will perceive that the land subsequently sold to Roach, is made to contain two hundred and forty acres more or less, when it in fact contained but two hundred arpents. The price deducted bears about the same proportion to the whole price as the deficiency in the tract sold to Roach to the entire track; and the deduction is not only equitable, but would have been enforced by law in an action upon the note: unless the fact of the sale being made by metes and bounds and with the terms more or less would have produced a different result. If, then, the amount released by the executrix would have been deducted by the court in an action upon the note, the plaintiffs have sustained no damage by reason of the aforesaid compromise; and,- under the authorities above cited, Buhler should have been relievéd from all responsibility on account of such note.
    Even if the compromise was illegal and the plaintiffs have really sustained damage to the amount of the note under consideration, principal and interest, judgment for such amount should have been rendered against their mother, as their tutrix.
    Upon reading the testimony, your honors will at once perceive that the transaction relative to the above mentioned note was alone conducted by the mother of the plaintiffs, Buhler having nothing to do with it. The plaintiffs, moreover, have ample security of their mother as tutrix, and can well recover the amount of the note compromised, by charging the same to her as tutrix. There is no reason, at least in equity, why Buhler should be made responsible; and if the plaintiffs can be protected in the manner above urged, the judgment should not have been rendered against him.
   The judgment of the court was pronounced by

Slidell, J.

From the evidence before us, it does not appear that Roach had a legal defence against the note which he gave the executors for the price of property of the deceased purchased by him, and which they failed to collect. As the compromise made by one of the executors was without judicial sanction, and as they have not excused themselves by showing the insolvency of Roach or an absence of legal liability on his part, they were properly held liable for its amount.

A plea of prescription was filed in this court. In declining to sustain it, it is sufficient to observe that the plaintiffs and the other heirs of the deceased were minors at his death ; and the evidence does not inform us at what time they came of age. It appears that some of them are still minors.

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


author: SlideIl, J.

text:
    Charles A. Jacobs v. Thomas Butler’s Representatives.
    Where a party has settled his account by giving a note, which after an examination of the account he admits, in the presence of a third person, to he correct, and thereby induces the third person to take the note, he will not afterwards be permitted to resist the payment of the note upon the ground that usurious interest had been charged in the account which was settled by the note.
    from the District Court of West Feliciana, Penn, J.

      U. B. Phillips, for plaintiff.

      Z. S. Lyons and Collens, for defendants.
   The judgment of the court was pronounced by

SlideIl, J.

This action is brought upon three notes of the defendant for 15000 each, payable to the order of and endorsed by Lambeth and Thompson, Two of them are dated on the 13th January, 1841, and were payable at sixty and seventy days after date. The other is dated on the 18th February, 1842, ,(and was payable on the 12th January, 1843. ,

Lambeth and Thompson had been for many years the factors of Butler. Jacobs had been a partner in commendam of that house from August, 1837, until March, 1840, at which time he retired and settled his account with his partners. The two first mentioned notes with two others, one of $2000 and one of $3000, had been given by the defendant to Lambeth and Thompson, to cover cash balances. In January, 1842, they, in consideration of money advanced by Jacobs, transferred him the four notes. In January, 1843, Jacobs applied to the defendant for a settlement. Upon this occasion they met at the counting-house of Lambeth and Thompson, and Butler examined his accounts with that house. The defendant claimed a certain deduction from his account, which after some discussion was conceded by Ldmbeth and Thompson. Butler then expressed himself satisfied, and in order to accommodate Jacobs, who could not get the notes discounted in bank as they were past due, gave him for the two notes of $2000 and $3000 a new note of $5000,'dated 12th January, 1843. Fi'om this time down to the year 1846, it appears that the defendant did not dispute his indebtedness to plaintiff; but on the contrary, repeatedly acknowledged it, and made partial payments. In 1846, however, when suit was brought, the defendant resisted their payment upon the ground that the notes originated in his transactions with Lambeth and Thompson as his factors, and that their accounts contained charges for usurious and compound interest, for which he was entitled to credit.

The counsel for the plaintiff has endeavored to establish in argument, and perhaps successfully, that the defendant would have been precluded by settlements from time to time, and imputations of payments, from any investigation of the disputed items of the accounts of Lambeth and Thompson, had they been plaintiffs in this cause. But we do not deem it necessary to enter into this inquiry. We think the defendant is estopped as regards Jacobs by his own acts and admissions, upon the faith of which he permitted Jacobs to act, and whose conduct, it is obvious, was influenced and controlled by a reliance upon them. The mere statement of the practical result of sustaining the defenco pleaded is sufficient to illustrate its injustice. It would be to turn the plaintiff back for his indemnity, after an interval of several years, to Lambeth and Thompson alone, when the defendant’s own admissions and promises had assured the plaintiff that he held the liability both of the maker and endorsers.

Judgment affirmed, with costs.


author: SniDEim, J.

text:
    Cook and Morehouse v. Dodge and Johnson.
    The privilege accorded by art. 3175 C. C. for supplies or provisions furnished to the debtor or his family, does not apply to such supplies when furnished to a hotel.
    Servants employed in a large hotel are not entitled to the privilege allowed by art. 3172 C. C. That article applies only to such servants as are employed in the service of a family or the private establishment of a person keeping house.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      William Dunbar and P. C. Wright, for appellants.

      Pitot, Livingston(
      J. D. Mix, Van Mater, Bemiss, G. W. Christy, Emerson, Wolfe and Singleton, Clarke, Hornor, Haggan, J. C. Wright and H. S. Bryon, for appellees.
   The judgment of the court was pronounced by

SniDEim, J.

The defendants kept a large tavern in the city of New Orleans. The furniture and other movable effects contained in it, being seized on execution, were sold ; and various creditors claimed privileges upon the fund. The court ordered it to be applied as follows: 1. To the payment of costs. 2. To the payment of the landlord’s claim for rent. 3. To the payment of vendors of the respective portions of the furniture. 4. To the payment of creditors who had levied executions.

These creditors absorbed the entire fund, leaving nothing for the servants and furnishers of provisions, whom the court ranked after the fourth class above named.

Howlancl was a creditor for wages ; Wood for groceries alleged to have been sold to the defendants for the St. Louis Hotel, within the previous six months, to the amount of $3906 36. They have appealed.

Wood contends that the privilege upon movables accorded by the article 3175 of the Civil Code, takes precedence of the privilege acquired by seizure under fieri facias. We do not think it necessary to decide the question, inasmuch as in our opinion Wood has not a privilege under that article. The intention of that article, we think, was to give a privilege for provisions and liquors furnished to a family or private establishment. It was an encouragement to the dealer to supply the necessaries of life to a family or individual, who otherwise might suffer, and was adopted, as it seems to us. as much in the interest of the debtor as of the creditor. The case of large supplies to a tavern-keeper for consumption by his guests does not fall within the intendment of the code. In the interpretation of the article 3175, reference must be made to article 3158, No. 5. Its language is, “supplies of provisions made to the debtor or his family, during the last six months by retail dealers, such as bakers, butchers and grocers.” In commenting upon the similar article of the Napoleon Code, Duranton observes : Le privilege étant donné pour les fournitures de subsistance faites au débiteur et d sa famille, il suit de lá qu’il n’a pas lieu pour les fournitures faites par un boucher ou un boulanger, a un aubergiste, si ce n’est toutefois pour’la portion de ces subsistances qui serait jugée avoir probablement été consommée par la famillo du débiteur, mais non pour le surplus qui a été consommé par les personnes qui ont été repues dans 1’auberge. Vol. 19, No. 65. The claim of How-land is reserved for future consideration.

It is therefore decreed, that the said Wood take nothing by his said appeal, and that he pay one-half of the costs of said appeal. And it is further ordered, that the case as to Howland remain under advisement.

Same Case.

THE appellant Howland is the assignee of the claims of several persons who were employed as servants in the St. Louis Hotel, a large tavern kept by Hodge and Johnson, in New Orleans, tie claims a general privilege on movables under the article 3172 of the Civil Code. This article, which is explanatory of the fourth class or enumeration found under the article 3158, is in these words: “ Servants or domestics are those who’ receive wages and stay in the house of the person paying and employing them for his service or that of his family; such are valets, footmen, cooks, butlers and others who reside in the house.” In the French text the language is: “On appelle domestiques ou gens de service ceux qui rejoivent des gages et demeurent dans la maison de la personne qui les paie et les emploie á son service personnel, ou á celui de sa famille. Tels sont les valets, laquais, cuisiniers, maítres-d’hótel au autres qui sont á demeure dans la maison.

The interpretation in matters of privilege is strict, because privileges are in derogation of common right. The general rule is that the property of the debtor is the common pledge of his creditors, C. C. 3150, and therefore privileges are to be allowed only when expressly granted by the code. Ib. 3152.

We think it was the intention of the lawgiver in the article relied upon to protect domestic servants, that is to say those employed in the service of a family or the private establishment of a person keeping house, and that the servants of a place of public entertainment were not contemplated. We took a similar view of the claim of Wood for groceries furnished for the St. Louis Hotel.

It is perhaps to be regretted that all pei’sons who earn their bx'ead by their bodily labor, have not been protected by the lawgiver; but it will be found upon examining the code that such is not the case. See also Stevens v. Sawyer, 3d Ann. 429.

It is therefore decreed, that the judgment as.to Howland be affirmed; and that half the costs of the appeal be paid by him.


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    Jacob Jacobson v. John Sevill.
    Where a party who has sequestered property which was bonded proceeds with his suit, and after obtaining judgment with privilege upon the property which had been sequestered, again seizes and sells the same property on execution, the surety on the forthcoming bond for the property sequestered is released from all liability on the bond.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      M. Grivot, for plaintiff.

      T. W. Collens, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant from a judgment of the Court of the Fifth District of New Orleans, by which the succession of Wood was condemned to pay to the plaintiff the sum of seven hundred and fourteen dollars with costs, by reason of a sequestration bond in which Wood in his lifetime became the surety of one Sevill.

The bond was taken under the 280th article of the Code of Practice, which provides that the surety shall be responsible that he, the defendant in the suit, shall not send the movables out of the jurisdiction of the court, that he shall not make an improper use of them, and that he will faithfully present them after definitive judgment, in case that he should be decreed to restore the same to the plaintiff. Barker v. Morrison, 4th Ann. 372.

The judgment against Sevill was for a sum of money, with a privilege on the property sequestered. After the institution of the original suit, which was for the settlement of a partnership concern, in which the partnership property had been sequestered and delivered to the defendant on his bond, the plaintiff instituted another suit against Sevill, in which he claimed a privilege on Sevill’s interest in said property for the price thereof which remained unpaid. He had judgment with the privilege as prayed for. Under an execution the objects sequestered, consisting of the machinery of a camphine manufactory and its appendages, were sold by the sheriff previous to the judgment being rendered; from which this appeal is taken.

The plaintiff, by seizing and selling under a privilege the property sequestered, necessarily released the surety on the sequestration bond. Code 3030.

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


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    A. W. Walker v. L. L. Ferriere.
    Tbe term Le2?rosy, used in tlie article 2502, prescribing the absolute redhibitory vices of slaves, does not apply to mere cutaneous diseases, which are not shown to be incurable, and which do not materially affect the value of a slave, although such diseases may be styled leprosy in the more general signification of that term.
    APPEAL from the District Court of Jefferson, Clarke, J.
    E. Iieistand, for plaintiff.

      Benjamin and Micou, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The motion to dismiss in this case is unfounded in fact. The appeal was taken during the same term in which the judgment was rendered. On the merits, we are unable to adopt the conclusions of the district judge. It is clear to us that the slave in controversy was not affected with leprosy, unless that word is understood in the extended signification which one of the physicians, examined as a witness, states it formerly had, when it was considered as including all diseases of the skin. It is not used in that sense in the articles of tbe Codes of 1808 and 1825, which make leprosy one of the redhibitory defects of slaves.

The form of leprosy known by the name of elephantiasis is an African disease, which was common in Louisiana before the suppression of the slave trade, as it is at this day in the island of Cuba, where that trade is still earned on. This was the form of leprosy which the lawgiver had principally in view. Wo do not mean to say that the general expression used in the code might not bo extended in cases of lepra vulgaris; but it is inapplicable to any other cutaneous disease.

It is not shown satisfactorily that the disease in this case existed at the time of the sale, and that it is incurable, or that the value of the slave is materially diminished by 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.


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    Fanny Dussnau and Husband v. L. F. Generis.
    The law does not contemplate the dissolution ofleases except in extreme cases, hut rather an equitable indemnity to the tenant for a temporary inconvenience, sustained unexpectedly and without fault on the part of the lessor.
    "Where a tenant in the city of New Orleans suffered a temporary inconvenience from the overflow produced by a crevasse, Held: That he could.not on account of it claim a dissolution of the lease, and was bound to pay the rent accruing after the inconvenience ceased.
    from the Third District Court of New Orleans, Kennedy, J.

      Sigur and Bonford, for plaintiff.

      H. St. Paul, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff leased to the defendant a dwelling house in the city of New Orleans for the term of one year, to wit, from 1st of November, 1848, to 1st November, 1849. In the early part of May, 1849, a crevasse occurred a few miles above New Orleans. The water of the Mississippi overflowed the rear of the city, and covered the pavement and banquette in front of the house occupied by the defendant. It rose into the alleyway which was the means of communication between the street and the back buildings of his premises, and nearly reached the yard. The municipal authority caused wooden bridges to be laid along the banquettes, by which the inhabitants were enabled to traverse the streets. One of the neighbors removed his family. Many families remained. The water retired in June. An offensive smell prevailed in the inundated streets; but no injury appears to have been occasioned to the sanitary condition of the inundated district. The defendant removed his furniture and abandoned the house in the month of May.

The district judge was of opinion that the plaintiff had satisfied the equity of the case by remitting the rent for the period of the overflow; and gave judgment for the rent for the residue of the term. The defendant has appealed.

The plaintiff having waived any claim for rent during the inundation, the only question presented for our consideration is whether, under the circumstances, the defendant had a right to consider the lease-dissolved.

There is no express provision in our legislation for a case of this kind. But a consideration of the provisions of our Civil Code on the subject of letting and hiring, with reference to their general spirit and intendment, leads us to the conclusion that the lawgiver did not contemplate the dissolution ofleases, except in extreme cases, but rather an equitable indemnity to the tenant for a temporary inconvenience sustained unexpectedly and without the fault of the lessor. And in this respect it harmonizes with the spirit of the Roman law and that of France. Le fait de force majeure dont se plaint le preneur, says Troplong, doit lui oceasioner un dommage grave. Si plus quam tolerable sit, disait le jurisconsulto Gauis; sans quoi une simple géne, tin légere diminution des avantages du bail ne serait pas ijne cause de resiliation. It will be observed that in the present case the lessee was not deprived absolutely of the use of the premises. He was subjected to inconvenience, it is true; but the house was still habitable. Moreover, the inconvenience was not of such character as to menace discomfort during the entire term. It was temporary, and such as in the ordinary course of things must entirely disappear long before the expiration of the lease.

Judgment affirmed, with costs.


text:
    J. P. M. Dupre, Administrator, v. F. Uzee, Widow.
    A party will not be allowed to do that indirectly which cannot he done directly; and where a person, wishing to evade the prohibition of the law against donations to a concubine, has the title to a slave purchased by him made out as though the purchase had been made by the concubine, her title is no better than if it had been a donation in form. C. 0.1468.
    The concealment of a donation to a person incapable of receiving, under the form of an onerous contract evidenced by a notarial act, is in law a fraud upon the heir; and to establish that fraud, he may contradict the notarial act by parol proof or any other legal evidence. The rule, that the possession follows the authentic act by which immovables are transferred, is a fiction of law, not applicable to a case where the thing sold remains in the corporeal possession of the seller, who is suffered to act ad owner to the injury of a third person.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. L• Tissot, for the plaintiff contended :
    L’Acte de vente de la négresse Harriet, consentié par Hile á Anna Sinnet, est en date de 1838 ; celui de la propriété fonciére est de 1841, consentié par Uzée. A cette époque, Uzée n’était point marié; il pouvait vendre sans faire de tort a personne; il n’avait ni héritiers ni créanciers, car ce n’est qu’en 1843 quil épousa la défenderesse é. ce procés.
    En supposant, cependant, qu’il eút fait un acte simiié, (il ne pouvait en faire un frauduleux, il n’avait point de créanciers) pourrait il aujourd’hui se prévaloir de sa turpitude pour annuler ses oeuvres? Qui allegans turpiludinemsuam non est audiendus, dit la loi Romaine.
    II ne peut étre recu aucune preuve par témoins contra et outre le contenu aux actes, etc., etc. Ce n’est que dans l’intérét des tiers, et parcequ’il leur est toujours impossible, eu ce cas, de se procurer une preuve par écrit, que la loi autorise la preuve de la fraude et du doi, etc., par témoins. Rollañd de Villargue, vol. 6, p. 494, § 2, No. 9. C. N. art. 1353.
    L’imprudent signataire, ou ses héritiers ou ayant cause doivent rester dans la position oú ils se sont placés.
    Parol evidence is not admissible between the parties or their representatives to prove a sale evidenced by a notarial act to have been simulated. A counter letter, or other written evidence equivalent thereto, is the only proof of simulation admissible under such circumstances. C. C. 2256. Dabadie v. Poydras, 3d Ann. 153. Gravier’s Curator v. Cardby’s Administrator, 17 L. R. 118.
    Celui qui co-opére & la fraude ne peut jamais s’en prévaloir pour faire annuler ensuite le contrat de vente. Dalloz, Dictionnaire de Jurisprudence, vol. 4, page 640, No. 79.
    Le principe, que les personnes capables de s’engager ne peuvent, pour se soustraire á leur engagements, opposer l’ineapacité de cedes avec lesquelles elles ont contracté, est un principe de droit commun qui régit les engagements souscvits. Dalloz, Supplément au Dictionnaire de Jurisprudence, vol. 5, page 709, Nos. 317, 321, chap. 1125.
    Or done, si d’aprés ces principes Joseph Uzée n’avait pu attaquer lui méme son propre acte, ses héritiers auraient ils plus de droits que lui? On ne peut transmettre á autrui plus de droits qu’on n’en a soi-méme. C. P. ait. 23, 24. 10 L. R. 592.
    Mais, dit le juge de district, nous pensons que si Anna Sinnet eüt été en possession, la cour n’eút pas soutenu les prétenüions des héritiers Uzée.

    Nous ferons observer que toujours Anna Sinnet a été en possession de ses propriétés. Quant é l’esclave Harriet, cela ne soulFre méme pas la discussion. Joseph Uzée n’était pas le vendeur.
    Relativement é. la propriété fonciére, malgré Topinion du juge de district, nous prenons la liberté de citer l’article 2455 du Code Civil:
    “ La loi considere la tradition ou délivrance des immeubles, comme accornpagnant toujours l’acte public qui eu transporte la propriété. Tout obstacle que le vendeur pourrait mettre ensuite á la prise de possession corporelle par Tache» teur, serait consideré comrne an trouble.” Where the vendor and vendee of an immovable reside in the same house, possession follows title. Wederstand v. Marsh, 11 R. R. 533.
    L’administrateur, termine en feisant remarquen á la cour, qu’il a invoqué, devant la Deuxiéme Cour de District. L’art 1973, C. C. Sur faction révocatoire; puis l’art. 3507, C. C. Sur la prescription, qui se lit ainsi: “L’action en nullité, et celle en rescisión des contrats, testamens ou autres actes; celle en reduction de donations inofficieuses; celle en rescission de partages, etc.; se prescrivent par cinq ans.”

      J. J. Michel, for the defendant, contended:
    1st. The facts relied on in the answer are unquestionably established. Joseph XJzée bought the slave Anna from Millet, and lived with her in open concubinage. 2d. That the sale of the lot of ground and the slave Harriet were donations made by Uzée to his concubine Anna. 3d. That Uzée remained in possession,.exei’cising all acts of ownership, up to the time of his death in 1850 : from which facts we respectfully submit: 1st. That the sale from Uzée to Anna, of 3d of June, 1841, was simulated, and was but a donation in disguise, which is void in law. 2d. That the sale from Hite of the slave Harriet was in reality made to Uzée, and the title was merely placed in' the name of Anna to cover another donation he was making to his concubine, which act is also void in law. C. C. 1468, 2456, 1915, 1887, 1888. 17 L.R. 353. Thibodeaux v. Thomason. 17 L. R. 381. 2d Ann. 912.
    In the record is a bill of exceptions taken by the plaintiff to the ruling of the court below, admitting the evidence of defendant, both documentary and verbal. We respectfully submit to this honorable court that the evidence was properly admitted: 1st. The testimony was introduced to prove the continuous and uninterrupted possession by Joseph Uzée, during the lifetime of Anna and after-wards, with a view to establish simulation. 2d. The testimony was also introduced to establish the pecuniary incapacity of Anna to purchase such property, and the illicit connexion existing between her and Joseph Uzée at that time. Such facts can only be proved by verbal testimony, and to reject the evidence would be to frustrate the law.
   The judgment of the court was pronounced by

Rost, J.

This is a suit by the administrator of Anna Sinnet, a free woman of color, with whom the late Joseph Uzée lived in open concubinage before his marriage, against the minor heirs of Uzée represented by their mother and natural tutrix, to recover from them a house and lot and a female slave, together with rents and profits, on the ground that in 1838 Anna Sinnet acquired said slave from Samuel N. Hite, for the price of $700 paid by her in cash, and that in 1841 she acquired the house and lot from Joseph Uzée for the price of $3500, which he acknowledged in the act of sale to have received.

The answer is, that Anna Sinnet lived in open concubinage with Joseph Uzée at the time these sales were made, and that they are donations in disguise, prohibited by law, and therefore void. That Uzée retained, and Anna Sinnet never claimed, the possession of the property after the sales, because they were unreal and simulated. The defendant prays that the acts of sale to Anna Sinnet be declared null and void, and that the house and lot and slave claimed be decreed to be the property of her minor children. There was judgment in her favor, and the plaintiff appealed.

The fact of concubinage and the absolute inability of Anna Sinnet to pay the price mentioned in the acts of sale to her are clearly proved, and the evidence in the record satisfactorily shows those sales to have been disguised donations.

It is urged that the sale made by Hite of the slave Harriet was a real contract and constitutes a valid title: but it is proved that Uzée himself bought the .slave, and that he caused the sale to be passed to his concubine to evade the prohibition of the law. He cannot be permitted to do indirectly what the law 'forbids him from doing directly, and the sale thus made does not place the con* cpbine. in a more favorable position than one made by Uzeé himself,

Tlie exception taken by the plaintiff’s counsel to the admission of evidence to Contradict the acts of sale and to show the real parties to it and the inability of the nominal purchaser to pay the price was properly overruled. The concealment of a' donation to a person incapable of receiving under the form of an onerous contract is in law a fraud upon the heir, and he may establish that fraud by all kinds of legal evidence. The right of the defendant to plead and to prove it in this suit cannot be doubted. The plaintiff claims the execution of contracts, and she may set up all legal defence against their validity. The rule, that possession follows the authentic act by which immovables are transferred is a fiction of law not applicable to cases like this. Thibodeaux v. Thomason et al., 17 L. R. 359.

Art. 1468, C. C., provides that those who have lived together in open concubinage are respectively incapable of making to each other any donation of immovables. This disposition of law is conclusive against the plaintiff. The real defendants in interest being minors, the plea of prescription is clearly untenable.

The judgment is therefore affirmed, with costs.