author: Vooriiies, J. Slidell, 0. J.

text:
    Succession of William S. Barr.
    Parties cannot be controlled as to tbe order in which, they choose to introduce their evidence.
    It is true, as a general principle, that the authority of an attorney at law cannot be disputed, except under certain circumstances; but the principle only extends to cases in which he is acting within the limits of the duties which his profession imposes on him. When disputed, the authority of an attorney at law, not of record, requires proof, as in cases of agency.
    Appeal from the District Court, Parish of St. Mary, Nioholls, J.

      Olivier, for plaintiff.

      Walker, for defendant and appellant.
   Vooriiies, J.

In this case, James Y. Smith, classed as one of the creditors on the tableau of distribution filed in the Succession of William S. Barr, deceased, in May, 1834, took a rule on Robert. B. Brashier, the curator, to enforce the payment of his claim.

The curator answered by pleading, as matter of defence, prescription and payment.

There was judgment in favor of plaintiff, making the rule absolute, and the defendant appealed.

Our attention has been drawn to a bill of exceptions in the record. On the trial of the rule, the Judge cb quo ruled out a receipt offered in evidence, which was given to the. defendant by Franklin Wharlon, holding himself out as the attorney of plaintiff, for the sum of five hundred dollars. In connection, the defendant offered a letter written to him by Wha/rton, for the purpose of fixing the date of the receipt. The rejection of the evidence was based on the ground of the absence of proof showing the authority of Whw'ton to act as the attorney of plaintiff. It is conceded he was not the attorney of record for the plaintiff. Under the rules of practice, as settled by our jurisprudence, it is clear that parties cannot be controlled as to the order in which they choose to introduee their evidence. Hence the defendant had clearly the right to introduce in the first place, the receipt; and if afterwards he failed to connect it with proof of the authority of the attorney, as a matter of course, it would produce no effect. It is true, as a general principle, the authority of an attorney at law cannot be disputed, except under certain circumstances; but, as we understand it, the principle only extends to cases in which he is acting within the limits of the duties which his profession imposes on .him. AATien disputed, the authority of an attorney at law, not of record, requires proof as in other cases of agency.

Although the Creditor appears to have waited a long time for the payment of his claim, yet, as the defendant may have it in his power to show the authority of the attorney and to substantiate his right to the credit which he claims, the ends of justice, we think, require that the case should be remanded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and the case remanded to be tried according to law. It is further ordered that the costs of appeal be borne by the appellee.

Slidell, 0. J.

As my brethren think the ends of justice will be promoted by remanding- this cause, and the circumstances of the case, (the long lapse of time and long silence of the creditor, &c.,) are such as to create doubts in my mind as to the extent of the defendant’s liability, I concur in the decree remanding the cause ; but wish to be considered as not expressing an opinion upon the bill of exceptions.


source: Caselaw Access Project

author: Vooehies, J.

license: Public Domain

text:
    Bank of Louisiana v. Gerasime Richard.
    Plea of prescription having been filed in the Supreme Oourt, the case was remanded to enable plaintiff, if possible, to show an interruption.
    APPEAL from the District Court, Parish of St. Landry, Overton, J.

      J. B. King, for plaintiff.

      Garland & Lastrappes, for defendant and appellant.
   Vooehies, J.

The defendant, sued as endorser of a promissory note drawn by Bumm'tn'ait, Bordelon & Go., is appellant from a judgment rendered thereon against him. He relies on prescription as a bar to the action. The note sued on is dated the 27th of June, 1846, payable twelve months after date, and protested at maturity for non-payment, of which the defendant was notified.

The prescription is clearly acquired, unless ihterrupted by one of the causes prescribed by law.

As the plea has originated in this Court, the ends of justice require that the case should be remanded to enable the plaintiff to show such interruption.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed, and the case remanded for further proceedings. The costs of appeal to be borne by the plaintiff.


author: Slidell, C. J.

text:
    Leonora, alias Nora, f. w. c., v. Edward P. Scott and Wm. E. Walker, Testamentary Executors, &c.
    Petition dismissed, as in case of nonsuit, for want of proper parties to the action.
    Appeal from the District Court, Parish of St. Martin, Voorhies, J.

      M. Simon, for plaintiff.

      J. JS. Nicholls, for defendants and appellants.
   Slidell, C. J.

The condition of the record in this cause is such that we do not consider it proper to pass upon the important questions which have been argued before us.

The case involves the validity of the gift of freedom by the testator, Douglas Wilkins, to a female slave with whom he lived in concubinage, and of donations to his illegitimate children, born to him by the concubine. It appears by the proceedings offered in evidence by the plaintiff, that of the two executors, Walker and Scott, named in the will, one of them, Walker, qualified. Two years before this suit was instituted, Walker had rendered an account of his executorship, and had given up the estate to the residuary legatees named in the will, to wit: the testator’s sister, who was made usufructuary during her natural life, and her minor children, represented by their tutor. This action is brought against the testamentary executors, solely in their capacity as such ; the usufructuary and the minor children, residuary legatees, are not made parties. Their interest in the questions presented is obvious, and the executors (one of whom never qualified, the other is functus officio,) were incapable of representing them. Indeed, the District Judge seemed to consider the executor as no longer charged with the estate, but that his functions had expired; and the decree is against “the heirs and universal legatees of Douglas Wilkins, deceased,” who are not parties to the cause.

It is, therefore, decreed, that the judgment of the District Court be reversed, and that the petition be dismissed as in case of nonsuit, the costs in both Courts to be borne by the plaintiff.


author: Rost, J. Ogden, J.

text:
    Thomas Wilcoxon v. Thomas Maskell.
    In an hypothecary action against a third possessor, Articles 69 and 70 of the Code of Practice, and Article 8365 of the Civil Code, require no other formality than the plaintiff’s affidavit that he had demanded payment of his debtor thirty days before presenting his petition for an order of seizure and sale.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      J. H. Lewis and Olivier, for plaintiff.

      Maskell, for defendant and appellant.
   Rost, J.

This is an appeal from an order of seizure and sale sued out against the defendant, who is a third possessor.

There is no evidence of any kind to show a demand from the original debtor thirty days previous to the institution of the proceedings.

The defendant, in the sale to him, has assumed the payment of the note, but the assumption is made on conditions which have not been fulfilled; and no demand was made of him before the seizure. Under the ruling of the case of Valetti v. Gurlie, 15th Louisiana, 189, the appellant is entitled to relief.

It is ordered, that the order of seizure and sale appealed from he set aside, and that the plaintiff pay the costs of this appeal and all costs in the District Court since the filing of the petition.

Olivier, for plaintiff, applied for a re-hearing :

In the above entitled case, the plaintiff and appellee moves this honorable Court for a rehearing, and begs leave most respectfully to assign the reasons which induce him to make the motion.

The Code of Practice, article TO, provides that: “ the creditor who brings this (the hypothecary) action, must declare on oath, in his petition, that the debt, for which he demands the seizure of the hypothecated property, is really due to him, and that he has in vain demanded panjment from his debtor, thirty days previous to his bringing his suit.” In the case of Smith’s heirs v. Blunt, 2 L. 135, and in Gravier v. Bacon, 4 L, 240, the Supreme Court held, that it is only in the executory, and not in the ordinary proceeding, that the affidavit, mentioned in the article above quoted, is necessary or required. If this doctrine is correct, and I do not see how it can be controverted, it follows necessarily that the oath taken by the plaintiff is to be taken as affording full proof of what is therein sworn to. If the affidavit is required only when the creditor proceeds in the via executiva, it appeal's to me most clear, that the intention of the law maker was to ehable the creditor, under the responsibility of his oath, to proceed by seizure and sale against the mortgaged property in the hands of the then possessor, without subjecting him to the necessity of procuring additional evidence to establish the amicable demand on the original debtor. If it were otherwise, I confess, in all humility, that I cannot understand why it should be required. If it proves nothing, require it not.

It is not my province to inquire whether the law which enables a party to make evidence for himself, by means of his oath, is reasonable or unwise. I take the law, such as I find it written, and respectfully ask that it be applied to the case.

In the case cited by the Court, 15 L. 189, which was an injunction suit, the defendant, Qurlie, had proceeded against the plaintiff in injunction, not as a third possessor, but had treated him as his immediate debtor, and no affidavit, alleging the amicable demand on the original debtor, for aught that appears, was annexed to the petition. Such is not the case here; Maslcell was proceeded against as third possessor. See plaintiff’s petition and affidavit annexed.

The plaintiff and appellee, therefore, most respectfully prays that this honorable Court may reconsider the opinion delivered on yesterday, and that final judgment may be rendered in favor of the plaintiff.

A rehearing having been granted, the judgment of the Court was pronounced by

Ogden, J.

In this case a rehearing was granted by the former Supreme Court, and the case is now presented for our decision. The only point involved in the case is whether the plaintiff’s affidavit that he had demanded payment of a mortgage debt thirty days before presenting his petition, is sufficient to authorize an order of seizure and sale in an hypothecary action against a third possessor. Articles 69 and TO of the Code of Practice and 3365 of the Civil Code seem to us to require no other formality than this, and the plaintiff fully complied with it. The question is presented by an appeal from the order of seizure and sale, and assignment of the want of proof in the record of the demand, as error. No other proof than by the plaintiff’s affidavit is required by law. Other matters of defence are set up' which could not be brought before this Court on an appeal from this order of seizure and sale. We can only notice error in the judgment, apparent on the face of the record, and no other has been assigned but the one above mentioned.

It is, therefore, ordered that the judgment heretofore rendered by the Supreme Court be set aside, and it is further ordered, adjudged and decreed, that the judgment of the Court below be affirmed, with costs.


author: Ogden, J.

text:
    Nathalie Judice, wife of P. Lebesque, v. Charles Kerr.
    A creditor with a tacit mortgage is not bound to follow the proceeds of the sale of the property in the hands of the Sheriff, and enjoin him from paying them over: he may pursue the property itself.
    Where the amount due by the husband to the wife has been fixed by a judgment obtained contradictorily with a creditor of the husband, such judgment is res judicata as to the amount due by the husband to the wife, as well against the assignees of the creditor as the creditor himself.
    A wife, by the hypothecary action, sought to make property, which had been bought at a sale provoked by a creditor of the husband, liable for her claim. By the Gom't: Under Article 711 of the Code ot Practice^ such a privity exists between the purchaser aDd the suing creditor, that the purchaser may call on the suing creditor to appear in the suit and defend him, or directly avail himself of any legal or equitable defence by which the suing creditor might himself oppose the hypothecary action.
    Where after a judgment obtained by the wife against the husband for a specific amount, a public act has been made, signed by the husband and wife, fixing the sum due her for dotal and paraphernal rights at that established by the judgment—such public act is an estoppel to the wife’s claiming from the husband, as against his creditors, a larger amount. Third persons have a right on the faith of the public act, in connection with the judgment, to consider themselves secure in purchasing property of the husband free from all claim on the part of the wife, except for the balance which, by the act, appeared to be due her.
    Appeal from the District Oourt, Parish of St. Martin, VoorMes, J.

      A. VoorMes, for plaintiff.

      E. Simon, for defendant and appellant, and J. Q, Olimier, for warrantor.
   Ogden, J.

The decision of this cause turns on a question as to the force and effect of a judgment rendered between two of the parties before us, which it is contended, on the part of the appellants, has the authority of the thing adjudged, and settles the controversy in the present suit. The circumstances under which the question arises are peculiar—no cases have been cited as authorities for our guide, and the proper solution of it must depend on the application of the well known general principles of law and the correct interpretation of the provisions of the Code. The plaintiff’s husband on the 29th of November, 1849, made a sale to her of certain property, consisting of houses and lots in St. Martinsville, and ten slaves, for the price of four thousand, five hundred and fifty dollars, which, the notarial act recites, is to be considered as so much of a larger sum due by the husband to the wife for her dotal and paraphernal effects, received by him during the marriage. Felicité Reda, a creditor of the husband, on the 11th November, 1880, instituted a suit against the plaintiff and her husband. P. Lebesque, to set aside the sale thus made to the wife, denying that the husband was indebted to his wife in the amount specified as the consideration of the sale, and charging the sale to be fraudulent and prejudicial to her rights as a creditor of the husband. The wife, who is the present plaintiff, joined issue in that suit, alleged in her answer that she was ready to prove that her husband was indebted to her in a much larger amount than the sum for which she had received from him the transfer of property sought to be annulled, and prayed to be quieted in her title under the sale. The case was tried and a judgment rendered, in 'which it was established that the rights of the wife amounted only to the sum of $3497 39, and the transfer to her by her husband was annulled and set aside, reserving to the wife, in the words of the judgment, “the right to exercise her legal mortgage on the property to an amount sufficient to secure the payment of her said claim.” This judgment was rendered on the 5th of April, 1851, and no appeal from it has ever been taken. On the 13th of May, 1851, Pierre lebesque, by notarial act, made another transfer to his wife of the same property embraced in the first alienation, with the exception of one of the houses and lots in St. Martinsville, which is not embraced in the transfer and is the same that now forms the subject of controversy. The consideration is stated as follows to be : “the sum of three thousand and twenty-five dollars, to be credited on the sum of three thousand and forty-nine dollars, fifty-one cents, and four hundred and forty-seven dollars, eighty-eight cents, which Lebesque owes to his wife for the replacement of her dotal and paraphernal effects, which amount together to the sum of three thousand, four hundred and ninety-seven dollars, thirty-nine cents, that the said Lebesque had converted to his own benefit during the marriage.” This act is signed by both husband and wife. Shortly after, a suit is instituted by the wife, who is the present plaintiff, against her husband, for a separation of property. She claims three thousand and forty-nine dollars and fifty-one cents, as coming to her from the succession of her father, and nineteen dollars and ninety cents, as coming from the succession of her mother, claims two slaves as belonging to her, and a judgment against her husband for the balance due to her after crediting him with the sum of three thousand and twenty-five dollars, the price of the property transferred to her by the last act of alienation. Felicité Neda filed a third opposition in this suit, which, however, was subsequently withdrawn, and the wife of Lebesque obtained a judgment against him for a sum far exceeding the amount at which her rights had been established in the previous suit of Felicité Neda against herself and husband. On the 12th of August, 1851, the defendant in this suit became the purchaser of the property in dispute at a Sheriff’s sale, under execution issued on a judgment obtained by Felicité Neda against P. Lebesque for one thousand eight hundred dollars, with interest, which judgment was rendered as far back as the 7th April, 1849. The property was adjudicated to him for one thousand, throe hundred and ten dollars, for which he executed a twelve month’s bond, according to the terms of the sale. It is admitted that one hundred and fifty dollars of the above pric'e has been paid, and the balance remains due. The only other fact, which it may be material to notice, is, that, after the second transfer made by Lebesque to his wife, Felicité Neda caused a. portion of the property, embraced in the transfer, to be seized under an execution on her judgment—that the plaintiff, Nathalie Judice, filed a third opposition, claiming the property under the last sale made to her, and that a judgment was rendered sustaining her opposition, on the ground that the second transfer, made to her by her husband, was for a legitimate consideration and in no wise affected by the judgment annulling the first transfer.

The plaintiff having, under these circumstances, obtained a judgment against her husband for about the sum of one thousand, four hundred and forty-nine dollars, as duo to her over and above the value of the property transferred to her, now seeks by an hypothecary action to render the property purchased by the defendant Kerr, liable for the amount. The defendant, in his answer, denies the indebtedness of her husband to her, and charges the judgment to have been obtained by fraud and collusion, and denies that it can have any effect against him as the purchaser of the property, or against Felicité Feda, the suing creditor,'under whose execution he purchased, and prays that Felicité Feda may be made a party to the suit, and cited to protect the title transferred to him by the Sheriff. Felicité Feda, without any objection being raised by the plaintiff to her being made a party, appears and joins issue with both parties—she denies that she is bound to warrant the defendant’s title, and denies that the plaintiff’s claim against her husband is greater than the amount which she says was definitively established in the former suit between them, and plends that judgment as res judicata against the plaintiff

The defendant sets up also another defence to the action which we think cannot be maintained. He contends that, inasmuch as the price of the property remains unpaid, a creditor seeking to enforce a tacit mortgage has no right to disturb the sale which has been regularly made under the execution of another, but must look to the proceeds in the hands of the suing creditor, which, he says, being in the shape of a twelve months’ bond, not yet satisfied, is within the reach of the plaintiff. We do not understand 'that to be the law'—the creditor with a tacit mortgage may, if he chooses, look to the proceeds of the sale in such a case and enjoin the Sheriff from paying them over, but it by no means follows that his rights cannpt be exercised by pursuing the property itself. That defence was, therefore, properly overruled. It then remains to be decided, what effect in the present controversy is to be given to the judgment in the suit of Felicité Feda against F. Lebesque and his wife. If that judgment is to be considered as res judicata in this suit, it fixes the amount of the plaintiff’s claim against her husband at the sum of $3497 39, of which she has been paid $3025, leaving a balance due to her of only $472 39, instead of $1449, for which she obtained judgment against her husband. The plaintiff contends that the judgment in the suit of Felicité Feda against Lebesque and wife, annulling the first transfer, cannot be considered as a judgment fixing the amount due to the wife. We cannot so consider it. The object of the plaintiff in that suit was to compel the present plaintiff to prove the real amount due to her by her husband, in order to render as much property of the husband, as might remain after satisfying the wife’s claim, subject to the judgment she had obtained against him. Issue was joined between the parties directly on that point, and we are bound to consider that, as between Felicité Feda and Nathalie Judice, respecting the rights of the latter as a mortgage creditor of her husband, the judgment fixed the amount of the rights of the wife, and, not having been appealed from, was final and conclusive. But it is next contended that the defendant, Kerr, not having been a party to that suit, cannot avail himself of the benefit of the plea of res judicata based on that judgment. The principle is well settled that a judgment rendered by a competent tribunal is final and conclusive, not only between the parties themselves, but also as to their successors or ayams cause. See Pothier on Obligations, Nos. 901, 904; Delabigarre v. Municipality, 3d Ann. R. 230. In what relation then does the present defendant stand to Felicité Feda, who was the party plaintiff in the suit in which the judgment was rendered establishing the amount of plaintiff’s rights against her husband ? He derives his title from a sale made under an execution issued on her judgment against Lebesque. He has not paid the purchase money, and if he is evicted from the property, he will not be bound to pay. Art. Til of the Code of Practice declares, that when a suit has been commenced against the purchaser, in virtue of a general mortgage, to make him quit the property, he may retain the price, unless the suing creditor shall relieve him from the disturbance, or give him security against it. Such a privity then exists between the purchaser and the suing creditor, that he may, in our opinion, either call on the suing creditor to appear in the suit and defend him, or directly avail himself of any legal or equitable defence by which the suing creditor might himself oppose the hypothecary action—and this right is the more important to him because, by Article T13, if he has paid the money he only has recourse to the party in execution and not to the suing creditor. The suing creditor did become a party to this suit,' and has set up the plea of res jildicata, and even if any objection could have been made to his being cited as a party to the suit, it appears none was made in the Court below. The defendant, as well through the aid of the suing creditor whom he has called to protect his title, as by his succession to all the rights of the suing creditor by virtue of the Sheriff’s adjudication, has a right to invoke the benefit of the final judgment, by which the rights of the plaintiff in the suit against her husband were established. We are also of opinion that the plaintiff is estopped from asserting a larger claim against her husband, so as to operate a prejudice to his creditors, by the public act signed by herself and her husband a little more than a month after the judgment was rendered fixing the amount due to her, in which they declare that her paraphernal and dotal rights amount to that exact sum, as fixed by the judgment. Third persons had a right, on the faith of that declaration in connection with the judgment rendered, to consider themselves secure, in purchasing property of the husband, from all claim on the part of the wife, except for the balance which, by that act, appeared to be due to her. For that balance, which is i$iT2 39, the property in the hands of the defendant is still liable.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be avoided and reversed, and proceeding to give such a judgment as, in our opinion, ought to have been rendered—it is ordered, adjudged and decreed, that the property described in the plaintiff’s petition and in possession of the defendant, be seized and sold to satisfy the sum of four hundred and seventy-two dollars, thirty-nine cents, the balance due to the plaintiff by her husband, P. Lebesque, with interest at the rate of five per cent, per annum from the 25th of June, 1851, and that the costs of this appeal be paid by the plaintiff and appellant, and the costs of the Court below by the defendant.


author: Slidell, J.

text:
    William M. Neyland v. Williams Neyland.
    Cause remanded because continuance should have been granted.
    Appeal from the District Court, Parish of Calcasieu, Overton, J.

      Kirby, Szoayzé & Moore, for plaintiff and appellant.

      J. K. Jarvis, for defendant.
   Slidell, J.

This action is upon a promissory note which matured in March, 1845, made by the defendant in favor of M. Neyland and by him indorsed to the plaintiff. It has endorsed upon it a receipt by the payee of a partial payment in March, 1846. The suit was brought by attachment on the 5th January, 1852. The citation which issued summoned the defendant to appear on the third Monday of March, from which we infer that that was the opening day of the next regular term. The writs of attachment and -citation were returned on the 16th March, and on the same day the defendant made a personal appearance, and pleaded, among other matters, want of consideration and prescription. On the 17th the cause appears to have been called for trial. Whether it was set on the previous day for trial does not appear. Thereupon the plaintiff’s attorney moved for a continuance upon the ground of absence of witnesses, and inability to obtain their testimony seasonably, they being in Texas. The application was accompanied by an affidavit made by the attorney, in the absence of his client, whose presence he swore he had expected. The affidavit sets forth the testimony which it was expected to obtain; and its showing, connected with what appears of record touching the course and condition of the suit, is such as to create in our minds the belief that there had not been a want of diligence on the part of the plaintiff. It is not easy to perceive how the plaintiff could, before the cause was called for trial, have obtained in competent form the testimony of witnesses residing out of the State, to meet the special matters of defence which were pleaded on the 16th. The Court refused a continuance, to which refusal a hill of exception was taken, and the cause being immediately pressed to trial, the plaintiff established the execution of the note, the endorsement of the payee, and that the endorsement of partial payment was in the handwriting of the defendant and signed by the payee. But the plaintiff having no evidence to rebut the plea of prescription, judgment was, on the 17 th, rendered in favor of the defendant upon that ground. On the next day the plaintiff’s attorney applied for a new trial, and supported his application by the affidavit of a person who says he arrived at the house of the attorney on the previous night, after the trial had taken place, bringing intelligence from the plaintiff, who was in Texas, to his attorney, that he was prevented by sickness from coming. The new trial was refused, and the plaintiff has appealed.

It is with reluctance we disturb the ruling of a District Judge on a question of continuance; but after carefully considering the affidavit made, and the attendant circumstances, as exhibited by the record, we are all of opinion that the continuance should have been granted. We find no laches on the part of the plaintiff, and, as we have said, it is not easy to perceive how the plaintiff could, under the circumstances shown in the affidavit, have been expected to be prepared on the 17th with testimony to rebut the plea of prescription filed on the preceding day.

We think that the justice of this case will be more satisfactorily ascertained by remanding it for a new trial.

Judgment reversed and cause remanded for a new trial, defendant to pay the costs of the appeal.


text:
    Blossman Hayes v. Isaac Hayes.
    It is against public policy to permit a person to stipulate for a partial immunity for the commission of a future immoral act.
    Appeal from the District Court, Parish of St. Landry, Overton, J.

      Lewis & Porter, for plaintiff.

      Dwpr'e, King & Linton, for defendant and appellant.
   Slidell, J.

The exception pleaded by the defendant and which vims overruled by the Court below, involves the proposition that a man may lawfully agree with another to limit his responsibility in damages for a future offence against such person’s good name. Such a doctrine is as inadmissible as it is novel. It is manifestly inconsistent with public policy that a man should he permitted to stipulate a partial impunity for the commission of a future immoral act.

Such being our opinion, it is unnecessary to inquire whether the motion to dismiss the appeal, upon the ground that the judgment was not final, was well made.

Judgment affirpied, with costs.


author: Dunbar, J.

text:
    Isaac Alloway v. Marguerite Babineau et al.
    Action to annul a nuncupative will by public act. It was proved that one of the three witnesses to the will was not present when it was written by the notary. Meld: 'ihe will was null and void. Under the Spanish laws marriage could be proved by reputation.
    Appeal from the District Court, Parish of Lafayette, Overton, J.

      Girwrd, for plaintiff.

      O. H. & E. Mouton, for defendants and appellants.

      Girard, in support of evidence of marriage, cited Succession of Prevost, 4 A. 348 ; Beaulieu v. Ternoir, 5 A. 480; Patton v. Philadelphia, 1 A. 104.
   Dunbar, J.

This suit is brought to annul the will of Frederick Mathias, and to have the plaintiff recognized as his only heir. It was proved to the satisfaction of the District Judge that one of the three witnesses to this nuncupative will by public act, was not present at the writing of the will by the notary, and that, whilst the latter was writing the will, this witness went about the town attending to his own business. This Court has decided that a nuncupative will to he valid must be dictated and written by the notary, as dictated, in the presence of three witnesses, residing in the place, &e., and then read to the testator by the notary in the presence of the witnesses, 12 La. 114, Langley's Heirs v. Langley's Ex'rs. The will not having been written in the presence of one of the three witnesses is, therefore, null and void.

The next question in this case is the heirship of the plaintiff. We agree with the District Judge, that his heirship has been established by legal evidence. It having been established by reputation that the marriage of plaintiff’s father and mother took place while Louisiana was under the government of Spain, proof of marriage by reputation was sufficient under the laws of that country. Succession of Prevost, 4 Ann. 341.

As to the rights of Marguerite BaMneau, wife of the deceased, as usufructuary, we will leave them where the District Judge left them, reserving all rights that she may have in that capacity.

The judgment of the District Court is, therefore affirmed, with costs.


text:
    Mechanics’ & Traders’ Bank v. J. B. Theall and Ann E. Dougan.
    Decision in Norwood v. Derail, T Annual, 528, affirmed.
    Appeal from the District Court, Parish of Vermillion, Voorhies, J.

      O'Brien, for plaintiff.

      Walker, for defendants and appellants.
   Slidell, J.

The defendants being sued upon a promissory note, which matured nearly eight years before the date of this action, (February, 1852,) pleaded prescription. There was judgment for plaintiff, and the defendants have appealed.

The only question presented for our consideration is, whether prescription was interrupted by a former suit upon the same note, in which the defendants were cited in March, 1849, and in which suit there was the following decree : “ In this case the plaintiff failing to appeal- and prosecute this suit, by reason thereof, it is ordered, adjudged and decreed, that the plaintiff be nonsuited.” It is said by the defendants that, in such case, the plaintiff is to be considered as having abandoned the suit, within the intendment of Article 3485 of the Code, and that therefore, in legal contemplation, no interruption has taken place. This point was much discussed in argument, and received the careful consideration of the Court, in a recent case, (Norwood v. Devall, 7 Annual, 523.) We were of opinion that, in such case, the suit was not to be considered as abandoned, and we refer to the reasons then given.

Judgment affirmed, with costs.


author: Rost, J.

text:
    Roswell Beebe v. David Robbins.
    The vendee who suffers personal property to remain in the possession of the vendor, and thus enables him to acquire credit, or deceive a subsequent purchaser, cannot resist the claim of his vendor’s creditors, nor that of a subsequent l)onct> Ji&e purchaser.
    Appeal from the District Court, Parish of St. Mary, VoorMes, J.

      Lewis and Wilson & MeOlarty, for plaintiff.

      Gibbon, for defendant and appellant. Wilson & McOla/rty :

    Bringing slaves into the State to defeat the rights of property in other States, always discountenanced. Frierson v. Irwin, 5 A. 530. A purchaser can acquire no greater title than his vendor had. Hopkins v. Van Winkle, 2 A, 143 ; 4 A. 52; McGregor v. Bull, 4 A. 290 ; Walker v. Municipality No. 1, 5 A. 10. The doctrine laid down in Jenkins v. Theriot, 9 R. R. 34 ; and 11 ibid, 450; was reviewed by the Court in Moore v. Lambeth, 5 A. 66; in which last case the rule asserted -was that “ an honest purchaser of a defective title cannot hold against the true proprietor.”
   Rost, J.

James Debaume, a resident of the State of Arkansas, conveyed certain slaves to trustees for the benefit of the creditors named in the indenture, with full power to sell the slaves at public or private sale.

The slaves, thus conveyed, were left by the trustees in the possession of Debaume. They were, shortly after, advertised to be sold at auction, but Debaume failed to produce them on the day appointed, and the sale was, in consequence, postponed for about two months. Before the day of sale, Debwame caused the slaves to be run off to Louisiana. They were offered for sale in Arkansas notwithstanding their absence, and adjudged to the plaintiff for $194. Debaume soon after came to Louisiana, resumed possession of the slaves, and after executing various paper titles and fictitious powers of attorney, sold them to the defendant, who is a citizen of this State and a planter, for the sum of $3000, which he received. That occurred in 1843.

The plaintiff now claims those slaves from the defendant, on the ground that the legal title vested in him, under the sale of the trustees, and he has adduced a very able opinion of the Supreme Court of the State of Arkansas which sustains his position adversely to the claim of Debaume. We do not doubt the correctness of that decision, but the present case turns upon other principles. There is nothing in the record to impeach the good faith of the defendant, and he must be viewed as an honest purchaser for a valuable consideration, which he has paid.

The facts of this case are identical with those in Verdier v. Leprette, 4th La. 42. The slaves, in that case had been conveyed to the plaintiff by Campbell, in Florida, by a deed of trust, and had been suffered to remain in the possession of Campbell, from whom Leprette had acquired them.

A witness testified in that case, as in this, that the indenture, under which the plaintiff claimed, was a deed of mortgage only, and not one of sale ; but Judge Martin, who was the organ of the Court, said:

“ Whether the indenture bo considered as a deed of mortgage, or a deed of sale, as the plaintiff contends, it appears to us that the first Judge was equally correct in rejecting- his claim: on the first hypothesis, as the hypothecary action was not instituted ; and if it had been, on account of the absence of a record of a mortgage in this State.
“ On the second hypothesis, the vendee who suffers personal property purchased to remain in the possession of the vendor, and thus enables him to acquire credit, or deceive a subsequent purchaser, cannot resist the claim of his vendor’s creditors, nor that of a subsequent bona fide purchaser.”

This authority is conclusive against the pretensions of the plaintiff.

It is 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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    State of Louisiana v. Washington M. T. Smith.
    A recognizance should be endorsed as filed in Court, and should state the cause of its caption, and if it does not, it cannot be explained by reference to the indictment, found after it was entered into.
    Appeal from the District Court, parish of Vermillion, Yoorhies, J.

      Simon, jr., District Attorney, for the State and appellant.

      O'Bryan, for McDonald,

   Rost, J.

The State has appealed from a judgment rendered in favor of the surety on the recognizance of the defendant taken by the committing magistrate, and forfeited by his failure to appear at Court. The recognizance is without endorsement or filing in Court, or return from the magistrate ; it does not set forth the cause for which it was taken, and as it was executed before the indictment was found, it cannot be explained by reference to it. The case does not differ from that of the State v. Wooten, 4th Ann. 515. It is time that magistrates should learn that the cause of taking- recognizance should be stated in them.

The judgment is affirmed, with costs.


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    Villeneuve Bordelon et al. v. Thomas H. & W. B. Lewis.
    Article 127 of the Constitution of 1845, does not restrict the power of School Directors in the imposition of taxes under the Act of 8d May, 1847.
    APPEAL from the District Court, Parish of St. Landry, Overton, J.

      Linton & Martel, for plaintiffs.

      T. H. & W. B. Lewis, for defendants and appellants.
   Dunbar, J.

This case comes up for the second time before us, having been remanded at a former term of this Court for a new trial. The plaintiffs, Directors of School District, No. 1, parish of St. Landry, sue the defendants for $124, being the amount of their special school tax for said' District, assessed upon the ad valorem value of their property subject to taxation, under the provisions of the Act of the Legislature of Louisiana, approved the 3d May, 1847, entitled an Act “ to establish free public schools in the State of Louisiana.” A judgment was rendered in the Court below for the plaintiffs, and the defendants have appealed. In their answer the defendants set up by way of defence, that the tax was more than double any amount that might be necessary, was exorbitant and unreasonable and in violation of the constitution of this State. Fortunately for ns these very important questions are not now presented for the first time to our consideration. The counsel for the defence, in their oral argument, relied much upon the point that this tax was unconstitutional, it being in violation of Art. 127 of the Constitution of 1845, which is in these words: “Taxation shall be equal and uniform throughout the State.” In the case of th Second, Municipality v. Duncan, 2 Ann. 182, we decided that this Article of the Constitution applies to State and not to municipal taxes, and that the ordinance of the Council of the Second Municipality of New Orleans of the 29th August, 1846, imposing a special tax on all real estate within the limits, of the Municipality for the purpose of paying its debts and providing for the support of the public schools, is legal and constitutional. Chief Justice JEustis, in delivering the opinion of the Court, quoted from the decision of the Supreme Court of Kentucky, in the case of the City of Louisville v. McQuillan's heirs, 9th Dana’s Reports, remarks equally applicable to our constitution as to the constitution of Kentucky: “ Among these political ends and principles, equality, as far as practicable, and security of property against irresponsible power, are eminently conspicuous in our State constitution, but an exact equalization of the burden of taxation is unattainable and utopian.” And then went on to remark: “ That the extreme difficulty of approaching an equality in the distribution of the burthens of taxation, is obvious to the most superficial observer—nor is its solution rendered easy by the progress of the science of political economy. The various, complicated and hidden sources of wealth, and the different opinions of economists as to the operation of any one tax or impost, show the obstacles which would attend any judicial inquiry as to the approximation to equality in a system of taxation. In the case before ns, to use the language of Chief Justice Marshall: ‘We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate one, and what degree may amount to the abuse of the power.’ MaCulloch v. State of Maryland, 4th Wheaton, 430.” In the case of the Providence Bank v. Billings & Pittman, 4th Peters, 563, on the game subject, Ohief Justice Marshall says: “ The power of legislation and consequently of taxation operates on all the persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. It resides in government as a part of itself, and need not be reserved, when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens; and that portion must be determined by the legislature. The interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract against unjust and excessive taxation ; as well as against unwise legislation generally.”

This Court did, however, say in the case of the Second Mumcvpality v. Duncan, just referred to, “ That it might not be out of place to state that, as the guardians of the rights and property of citizens, we should fail in our duty if we were to forbear to exercise our power on any proper occasion to protect them from spoliation; at the same time it must be confined to its constitutional .limits, and to those cases in which its authority cannot be questioned, and its action will consequently be effectual.”

We do not consider the case under consideration is of this character, nor does it require, or admit of judicial interposition. We cannot perceive in the Act of the 3d of May, 1847, anything in violation of the constitution. If the legislature has the right, under that instrument, to delegate the power of taxation to the city of New Orleans, or one of its municipalities, to promote public education, as we have already determined, there is no good reason why the same power should not be delegated to School Directors in the various parishes of the State. Such a power has been delegated to Police Juries for the purpose of making roads, levees and bridges, and for other purposes, from the commencement of our State government to the present time. Their power to lay taxes for such purposes has not been questioned before the Courts or the people, and we think it is now too late in the day to question it. Indeed, we think that such powers are, not only constitutionally conferred upon the Police Juries and School Directors for parochial purposes, but that such powers could not, to advantage, be entrusted or exercised by the Legislature itself or Courts of Justice. It would be impossible for the Legislature to exercise such powers without being in constant session, and then they would have to do it without the local knowledge or information necessary—and as to the ordinary supervisal, or administration of such parochial concerns, it is certainly not the province of the judiciary. There is nothing in the record to satisfy us that the tax in this case can amount to a spoliation, or an unlawful appropriation of private property, and we think the only remedy the defendants have is the ballot box, if the conduct of the School Directors does not meet their approbation.

We said in our former opinion in this case, that “if no tax was imposed by the former directors, and the people of the district have had the benefit of the schools, they are bound in conscience to pay those expenses for which a tax might have been imposed, and they have suffered no injury by the delay which has been given them. Laws should receive a reasonable interpretation.” We see no good reasons for change in our opinion upon this question, and we still think that, upon a fair construction of the Act of 1847, that the plaintiffs had a right to levy a tax to discharge the indebtedness of their predecessors in office.

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


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    Barthelemy LeBeau, for the use of, &c. v. John Glaze.
    The rule is without exception that the mortgage falls with the principle obligation to which it is accessory.
    Appeal from the District Court, Parish of St. Landry, Oushman, J., presiding.

      Olivier, for plaintiff and appellant.

      T. IT. Lewis, Lewis & Porter, and Bwa/yzé & Moore, for defendant and appellant.

      Olivier, for plaintiff:
    The general principle, that when the principal obligation is prescribed, the acccessory falls with it, is one which will not be controverted when the property mortgaged remains in the possession of the original obligor. But it is respectfully submitted, that when the property goes into the hands of a third person, having notice of the incumbrance, and against whom the hypothecary action is brought within the time for prescription, the mortgage becomes, as it were, isolated from the principal obligation, and is more particularly in contact with the right of property of the third possessor. In other words, though the notes executed by P. II. Glaze may be prescribed, that prescription does not carry with it the extinction of the mortgage, but that prescription alone can avail which the third possessor could set up against an adverse claim to the property itself. I will not be charged, in-urging this doctrine, which I believe to be the true one—the only one resting upon the immutable principles of eternal justice—with confounding the principles of modern jurisprudence with those which prevailed in the days of the law Gum Notissimi. This law, which fastened the effect of the mortgage upon the mortgagor, when the mortgaged property had remained in his possession, though the personal action against him was barred, was clearly irrational and in conflict with the maxim which we find in the Roman Law itself—that with the principal obligation perishes the accessory. In France it is provided (O. N., Art. 2180) that the debtor acquires the prescription of the mortgage, as to the properly which remains in his hands, by the time fixed for the prescription of the action which gives the mortgage or the privilege. Thus, in that case, the mortgage—the accessory—follows the fete of the principal obligation. But not so, when the mortgaged property passes into the hands of a third party. Grenier, in his Traite des Hypotheques, Yol. II., No 51Ó, tells us:—
    L’hypothéque se present par lo méme laps de temps quo l’obligation principale, lorsque l’immcuble aff'ectc est resté on la possession du débiteur; mais lorsque cet immeuble passe dans d’autres mains, l’hypothéque le suit; elle s’isolc, pour ainsi dire, de l’obligation, et se trouve plus particuliéreinent en contact avec le droit de propriété du nouveau posscsseur. Ce u’était done plus dans ce cas, le temps régle pour prescrire l’obligation, mais bien colui fixé pour prescrire la propriété, qui devait servir de base au législateur pour déterminer la prescription de l’hypothéque ; aussi, l’art. 2180 porte, &c.
    Troplong, in his Droit Civil Explique, verbo Hypotheques, Vol. IY., page 44, No. 878, says:—
    Dans le ca¡s ou la prescription est opposée par un tiers détenteur de l’immeuble hypothéqué, on suivait, d’aprés le droit romain, les principes gónéraux en matiére de prescription. Le tiers détenteur prescrivait par dix et vingt ans lorsqu’il avait titre et bonne foi, ou par trente ans lorsqu’il était de mauvaise foi. O’est aussi ce qui est décidé par notre article. Le tiers détenteur prescrit contre l’hypothéque par le méme laps de temps qu’il peut prescrire la propriété.

      It results from this reasoning, that when the property mortgaged goes out of the hands of the mortgagor, the creditor has two actions; one, his personal aotion against his debtor, and the other, his hypothecary action, against the third possessor, and his rights against each become distinct and independent. He may interrupt prescription in one case, though he may have suffered it to run in the other-. Is there any textual provision in our code which clashes with the doctrine contended for-, and which prevails in France ? It is true our code declares that the mortgage is accessory to a principal obligation, of which it is to secure the execution, and that when the principal debt is extinguished, the mortgage disappears with it. Such was the principle of the Roman law, and such is now the principle in France. True, the article of the French code restricts the principíete cases in which the property mortgaged'has remained in the hands of the mortgagor, and our code docs not so provide in express terms. Must we, then, because no distinction is expressly made, say that the Legislature intended that none should bo made, or shall we adopt a more rational system, and go back for information to those countries which have had similar laws for centurics before they passed to us?
    Does the language of the Code (Art. 3252) bear out the defendant in the position assumed by his counsel, that this action cannot stand, because, first, the notes being proscribed, the mortgage falls with it, and secondly, because the mortgage was not reinscribod within the time required by law. Article 3362 of the Code provides that “ Creditors who have either a privilege or mortgage on immovable property or slaves, may pursue their claim on them in whatever hands they may happen to pass, to be paid out of their proceeds according to their rank, provided that their titles have been registered according to law.”— Plaintiff’s mortgage having been registered according to law, his right of action against the defendant was areal right which attached the moment the notes which he held matured, the slaves having gone into defendant’s possessionin 1841. (10 L. R. 496.) In 1843 the plaintiff brings his action to subject the slaves to the payment of the mortgage, and Patrick S. Glaze having, years before, removed to Texas, a bankrupt, no step is taken against him personally on the notes. In this view of the case, it is admitted that if the plaintiff had taken no action under the mortgage before the notes were prescribed, his hypothecary action could not stand; but having commenced his action in 1845, is the mortgage gone? Under Article 3362 of the Code, the plaintiff in 1845 commenced the pursuit of his claims on these slaves in the hands of the defendant. At that time, at least, it will be conceded, no prescription could be opposed to his action. After the amicable demand, and notice to him as their possessor, John A. Glaze, was bound, under Article 33G3 of the Code, to pay the debt, or relinquish the property. He did not do it. The plaintiff, by his suit, then demands that the slaves mortgaged be seized and sold to pay his claim. This right he certainly had, and having exercised that right against John A. Glaze the third possessor of the mortgaged property, the only person against whom the right could be exercised, is it possible that the plaintiff should have now lost that right, because there was some delay in bringing that right to a final issue ? Is not this confounding the right with the exercise of the right? And if you say that prescription has run, whilst the right, guarantied by Article 3362, was asserted in the only legal .manner that it could be—that is, by citation—what becomes of Article 3484 of the Code? Is the language there used mere inanity, having no meaning at all? Is it a mere lure which the Code holds out to the creditor, when it tells him in express terms, “ A legal interruption takes place when the possessor has been cited to appear before a court of justice on account either of the property or of the possession ?” But I may be told that this operates an interruption of the prescription by which property is acquired, but not of the prescription by which debts are discharged. I answer that the causes which interrupt prescription in the two cases are the same. (C. C., 3516.)
    I know that it has been held again and again, that the extinction of the principal obligation by prescription, payment, novation, or otherwise, operates a release of the mortgage. But all the decisions I have read on the subject, are confined to cases where the hypothecary action had not been instituted before the extinction of the principal obligation by prescription. This is the first time, then, as I am aware, that the question comes up for solution. Our Code contains no express disposition on the subject. Neither public policy nor the demands of justice prescribe the recognition of a principle by which this action must be defeated.

      Is it true, however, that the notes held by plaintiff are prescribed ? It will be conceded that they constitute the title or evidence by which the principal obligation was created; if so, are they not, with the mortgage which was designed to secure their payment, made the basis of this action ? Was not then the defendant, the third possessor, at the inception of this action, bound to the plaintiff to the full value of the slaves held by him ? If so, he was, pro tanto, a co-debtor of P. H. Glaze, and for that amount was as much bound to the plaintiff as P. Hr Glaze himself. It follows, necessarily, that the citation served on John A. Glaze had the effect of interrupting prescription as to P. H. Glaze, the maker of the notes. At all events, the defendant cannot plead the prescription of the notes. Prescription is an exception which the creditor and his debtors alone can plead. The obligation subsists until they avail themselves of the prescription ; Courts of justice cannot supply it. (2 An. 368.) As to the first two notes, the payment of which this mortgage was also intended to secure, it is clear that they have been extinguished by prescription, and the mortgage itself is extinguished pro tanto. (2 An. 927.)
    The next objection is that the mortgage was not reinscribed. That the pend-ency of an hypothecary action to subject property to a judicial mortgage does not exempt the mortgage from the necessity of reinscription is no doubt true. In the case reported at p. 632, in 5 An., the plaintiff claimed to subject the property to her judicial mortgage ; posterior to the first inscription of the judgment from which resulted the mortgage, rights had been acquired upon the property by another party, and as a judicial mortgage “ exists and has vitality only by inscription, if there be no inscription there can be no judicial mortgage,” and the third party, who in the meantime has acquired adverse rights, must he protected against the mortgage. Oan the same bo said of a conventional mortgage ? Will the counsel for the defendant contend that a conventional mortgage has no effect, no vitality unless and until recorded? Surely not. (O. 0. 3316 and 3319; 1 An. 219.) If during the pendency of this action ten year's had elapsed from the time the right under the mortgage could have been exercised, without a renewal of the inscription, and in the meantime third persons, not claiming under the party sued, had acquired rights upon the mortgaged property, I concede at once that the mortgage could not operate to their prejudice, because the effect of the first inscription would have ceased. The mortgage itself, however, would have remained unimpaired by the omission to reinscribe, as between the defendant, claiming under the mortgagor, and the mortgagee. (0. C. 3314, 3315, 3316 ; 2 An. 776.) We show, however, that the inscription of the mortgage was renewed on the day of , 185 . No action could have been brought by the plaintiff before the 19th of May, 184-2. I-Iow is Art. 3333 of the Code to be construed ? Does it mean, what it purports on its face, that the registry preserves the evidence of the mortgage during ten years, reckoning from the date of the mortgage? If such be the meaning of that article, it strikes at the very foundation of another principle, the propriety and justice of which had never been questioned, and which is, that prescription begins to run against a right only from the time that the right can he exercised. The mortgage under which the plaintiff claims is dated the 25th of October, 1838; the notes it secures, and which came into the possession of the plaintiff, fell due in May, 1842, and May, 1843. His right of action could only be exercised after the maturity of the first note, in 1842. Suppose, however, that the note was payable in 1849, the right under the mortgage might have been barred before it could be exercised! If this be law, I confess I do not understand the reason of the law.

      T. H. Lewis, for defendant:
    This case presents two questions:
    1st. Whether the pendency of an action against the third possessor of mortgaged property will dispense the creditor from the necessity of reinscribing his mortgage? We say that his failure to reinscribe is fatal to his claims against the defendant. La. 0. 3333. 2 An. R., 100, 520, 776 and 799.
    2d. The plaintiffs, having suffered the notes, by which his debt is evidenced, to be prescribed, the mortgage granted to secure it is also extinguished, and cannot be enforced against a third possessor of the mortgaged property. La. 0. 3505, 3030, 2157, n. 2.
   Rost, J.

The plaintiff has appealed from a judgment rendered against him in an action of mortgage, instituted against a third possessor, upon a note prescribed upon its face.

The first ground of error assigned, is that the principle that the accessory falls with the principal obligation only applies so long as the property mortgaged remains in the possession of the original debtor, and that when it passes into the hands of a third person having notice of the encumbrance, and against whom the hypothecary action is brought, as it was in this case, before prescription accrued upon the principal obligation, the mortgage becomes isolated from, and does not fall with it.

This distinction is in direct conflict with Art. 3252 of the Code, which provides that, in all cases where the principal debt is extinguished, the mortgage disappears with it. It also conflicts with Arts. 3249, 3494 and 3495, as expounded by our predecessors, in the case of Shields v. Brundige, 4 La. 326. The passages cited from Grenier and Troplong, have reference to the dispositions of the Code of France, which regulate the prescription of mortgages; our Code contains no such dispositions, and the rule here is without exception, that the mortgage falls with the principal obligation to which it is accessory. See Succ. Linderman, 3d Ann. 714; Succ. of Dubreuil, 12 Rob. 1207; Auguste v. Bernard, 3d Rob. 389.

The judgment is affirmed, with costs.


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    Robert Cade v. M. Yocum & Z. Jones.
    A plaintiff who neither arrests the defendant, nor disturbs her property, will not be mulcted in damages, because it turns out that he was mistaken as to what he supposed were his legal rights.
    Appeal from the District Court, parish of Yermillion, Voorhies, J.

      Brent, for plaintiff.

      Walker, and Lewis & Porter, for defendants and appellants.
    Defendants’counsel cited to sustain claim for damages—C. C. 1928; Guise v. Harney, 14 L. R. 202; Gopely v. Berry et al., 12 R. 80 ; 2 A. 620; 3 A. 588; Penwy v. Taylor, 5 A. 713, C. 0. 2294.
   Slidell, J.

The object of this suit is to recover from the defendant the amount of a debt paid by plaintiffs as surety of Rutherford, the former husband of the defendant, upon the ground that she had not taken the necessary steps at the time of his death to exonerate herself from the payment of one-half' of the community debt; and also upon the further ground that she had inter-meddled in the estate. A judgment obtained by the wife against the husband was also attacked as fraudulent.

The defendant asserted the validity of her judgment, denied her liability on the grounds charged, and pleaded an agreement between herself and plaintiff, whereby he received from her in compromise certain cattle, and abandoned all further claim against her.

The cause was tried by a jury, who found a verdict.for the defendant.

A charge was given to the jury by the District Judge, in which he noticed various points of law raised by the parties. But he also told them, that in his opinion, the main question in the cause was the agreement setup by the defendant ; that if they should be of opinion, from the evidence, that the stock of cattle and horses was given to the plaintiff in consideration that he should discharge the defendants from any further liability resulting- from his claim against her husband, their verdict should be for the defendants.

We have considei-ed the conflicting testimony on the subject of the agreement, and giving due weight to the finding of the jury, we are not prepared to say that the defence on that ground was not made out. Witnesses may differ in their recollections of distant facts, and a clear conflict of evidence may occur, without necessarily involving a disposition on the part of any of the witnesses to pervert the truth. We may add that there are circumstances in the evidence, independent of their testimony, which indicate (although not, it is true, in such a manner as to estop him) the plaintiff’s recognition of the validity of the wife’s judgment, and the existence of amicable relations subsequent to the agreement, giving countenance to the proposition that the present claim had been adjusted and compromised. It is also to be observed that the evidence renders it at least probable that the wife had a just claim against her husband, and the plaintiff may, therefore, well have considered a compromise, by which he obtained something, preferable to litigating with the wife, whose mortgage would still survive, if her claim was proved, even although the judgment obtained by her against her husband should be set aside.

There was a claim in reconvention set up, which we think the jury properly disregarded. We see no ground to relieve her from the partial payment of the claim against her husband which she thought proper to make in order to buy her peace; and as to the damages claimed for the expense incurred by the defence of this suit in counsel fees, and the trouble and mental annoyance to which it has subjected her, such matter is clearly not a subject for damages. The case is one in which the plaintiff, without arresting the defendant’s person, or disturbing her property by seizure, simply presents before a Court of justice a money demand; and he is not to be mulcted in damages because it turns out he was mistaken as to what he supposed were his legal rights.

Judgment affirmed, with costs.


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    Melaide Broussard v. François Robin, Adm’r. Girard Prejean v. The Same.
    On tlie filing of a final tableau by an Administrator making distribution among the heirs—the Administrator, having asked for citation for the heirs, cannot be forced to trial before they have been made parties.
    Appeal from the District Court, parish of St. Landry, Cushman, J., presiding.
    Linton, for plaintiff and appellant.

      Swczyzé & Moore, for defendant.
   Slidell, J.

In these cases the true subject matter is a rendition of account to the heirs, and a distribution among them of the remaining assets of the succession. In such a proceeding, the necessity that all the heirs should be in some form before the Court, seems obvious. The Administrator, upon filing his tableau, asked a citation of all the heirs, but was forced to trial before this had been accomplished, and to this ruling of the court he took a bill of exceptions. We are of opinion that the exceptions were well taken, and it becomes indispensable, therefore, to remand the causes.

It is therefore decreed that the judgment of the District Court be reversed, and that the consolidated causes bo remanded for a new trial, and for further proceedings, according to law—the heirs, appellees, paying the costs of the appeals.


author: Rost, J. Rost, J.

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    Dunlap, Moncure & Co. v. Alexander Brette et. al.
    Plaintiff charged an indebtedness on the part of defendant for advances, as would appear by vouchers, from No. 1 to 12, that would be produced on the trial. On the trial, a contract was oifered in evidence, to the admission of which a bill of exceptions was taken. Held—the evidence was properly admitted. The defendant might have craved oyer of the vouchers, of which the contract was one—and having filed his answer without doing so, the presumption is, he knew what they were.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Maslcell & McGill, for plaintiff.

      Brette & Frieker and Gibbon, for defendants and appellants.
   Rost, J.

The plaintiffs allege that they advanced to the defendant, Brette, at sundry times, §48,649, to be invested in the purchase of sugar for his own account, which sugar was to be consigned to them at Richmond, Virginia, to be sold, and the proceeds thereof applied to the reimbursement of the amount thus advanced, together with interest and commissions.' They further allege that the defendant Fay became the surety of Brette for the reimbursement of those advances. They claim from both defendants the balance due them, arising from losses on the sugar bought by Brette.

Brette urges as his principal defence, that he acted as agent of the plaintiffs in the purchase of the sugar, and that he has rendered to them a full and correct account of his agency. He denies the indebtedness alleged, and has also filed a claim in reconvention, which the opinion we have formed renders it unnecessary to notice. The defendant Fay adopts the defence of Brette, and denies being indebted to the plaintiffs as a surety, or in any other manner.

There was judgment against both defendants for a portion of the sum claimed, and against Bt'ette alone for another portion. The defendants have appealed, and the plaintiffs’ counsel asks that the judgment be amended, by allowing them commissions as if they had sold the sugar, and that Fay be condemned to pay them the whole amount due them by Brette.

On the trial of the cause, the defendants’ counsel objected to the admission in evidence of a writtten contract for the loan of $6000 by Henry W. Moncure, in the name of the plaintiffs, to Brette, with the security of Fay, on the ground that said contract was not set forth and described in the petition, and was different from the contract therein set forth; but the Judge admitted the evidence, and the defendants’ counsel took a bill of exceptions.

We are of opinion that the District Judge did not err. It is alleged in the petition that the plaintiffs advanced to Brette the sum of $48,649, as per vouchers, from No. 1 to 12—which will be produced on the trial. The defendant might have craved oyer of those vouchers before filing his answer, and as he did not do so, the presumption is that he knew what they were. The contract objected to being one of them, could not have operated a surprise to him, under our liberal system of pleading. We think the evidence was properly admitted. In justice to the defendants, as well as to the parties who made the loan, we must believe that this sum of $0000 was, as the other advances made, to be employed in the purchase of sugar, or at least in making advances to planters who agreed to ship their crops to the house of the plaintiffs; otherwise the stipulation in the contract that the amount loaned should be refunded to the plaintiffs out of the proceeds of the sugar shipped to them by the planters, at the instigation of Brette, would have contemplated a fraud which no Court of justice could sanction.

¥e think with the Distrct Judge, that the capacity with which Brette acted in these transactions, is free from difficulty, and that there is no pretence for saying that he was the agent of the plaintiffs. The letters, upon 'detached portions of which counsel rely in support of that position, prove the reverse; and the facts that his father-in-law became his surety for the advances made, and that Brette himself had a settlement with the plaintiffs, as their debtors, by which the amount of the original debt was reduced to the sum claimed, are conclusive against him.

On the merits, we are satisfied that there is no error in the judgment to the prejudice of the defendants.

Brette claims the proceeds of the shipment of the thirty-three hogsheads of sugar, purchased by him from Amelin and shipped to the plaintiffs. The sum credited to him in the settlement of November, 1847, at the date of the 12th of April, 1847, is the net proceeds of that shipment, upon which it appears a profit was made. The expression in that settlement that the sum of $36,181 21 was the net proceeds of all the said sugar and molasses sold by Brette, except thirty-three hogsheads, means that out of all the sugar purchased by Brette, which was to have been consigned to them, they only sold thirty-three hogsheads, and that the remainder was sold by Brette.

It is in evidence that the plaintiffs advanced $6000 to Brette, for the use of one Crawford, $3,720 of which was for sugar purchased of Crawford by Brette; Brette refunded to them the balance of $2,220, and now claims the proceeds of a shipment which Crawford made to the plaintiffs the year after, to pay that balance. This sum of $2,220 is not charged to Brette in the settlement made between the parties; the plaintiffs only charged $3,780, the cost of the sugar purchased and sold by Brette. The subsequent shipment made by Crawford was a matter between him and the plaintiffs, in which Brette has no interest.

On the 11th of March, 1847, the defendant Fay entered into the following agreement with the plaintiffs:

“In consideration of the facilities furnished to Alexander Brette, my son-in-law, by Messrs. Dunlap, Monewre & Co., of Richmond, Virginia, to meet the said Brette's purchases of sugar this season, the advanqe being for the full cost of the sugar and molasses, which is to be consigned to said firm at Richmond, for account and interest of my said son-in-law, I hereby oblige myself to be responsible to Dunlap, Monewre & Co. for any deficiency which by possibility may arise in the net proceeds of the sales.”

The District Judge was of opinion that this agreement only extended to the faithful accounting by Brette of the net proceeds of the sugar, and that Fay was not liable to the plaintiffs for the amount of advances unpaid. This is clearly an error; it could not be in the contemplation of the parties at the time the contract was made, that Brette should account for the proceeds of the sales of the sugar, because the sugar was to be shipped to the plaintiffs who were to sell it, and themselves account for the proceeds to Brette. The plain intent of the obligation is that, as the plaintiffs advanced to Brette the entire price of the sugar bought, and left themselves no margin in case of loss, Fay would secure them against the unusual risk thus incurred by them; and make good their advances in case of loss by the shipments. The plaintiffs are entitled to have the judgment amended in that respect. "We do not think that they have against the defendants any claim beyond those asserted by them in the settlement of November, 1847.

It is, therefore, ordered that the judgment bo amended, and that the plaintiffs recover of the defendant Fay, as security of Brett, the sum of $3,649 97, with legal interest from the 4th of January, 1850, until paid ; and that the judgment as amended be affirmed, with costs.

AMENDED DECREE..

Rost, J.

The Court having fallen into an error of fact in this case, and it appearing from the record, that on the 2d of February, 1848, the plaintiffs received of Henderson Crawford, on account of the defendant, Brette, the sum of $2,220 capital and $244 interest, they should have been made to account for those sums. These amounts imputed to the note of $6000, which is the most onerous debt of the defendants, will over-pay it by $51 08. This balance must be deducted from the amount due the plaintiffs on the open account.

The judgment heretofore rendered in this case is, therefore, changed so as to read as follows:

It is ordered that the plaintiffs have judgment against and recover from the defendants, Alexander Brette and Theodore Fay, insólido, the sum of $3,589 97, with legal interest from the 4th of January, 1850, until paid, and costs in both Courts.


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    William F. A. Fleetwood v. Henry C. Dwight.
    Damages al owed for the wrongful issuance of a provisional seizure for rent, without malice.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Tucker & McGill, for plaintiff.

      Gibbon & McMillan, for defendant and appellant.
   Dunbar, J.

This suit was brought to recover damages for the wrongful suing out of a writ of provisional seizure for rent due by the plaintiff in this action, to one of the defendants. It appears that the plaintiff, being the tenant of Henry C. Dwight for the. rent of a store in the town of Franklin, at the rate of $25 per month, failed to pay his landlord any rent for the space of fifteen months. It is true that the plaintiff sets up as an excuse for such conduct, that notice had been given to him that some third person claimed the property rented—but this difficult}', if any, was at once obviated by the agent of the defendant offering to give him good security against any such claim. Under these circumstances, the plaintiff having a very small stock of goods on hand, the agent of H. C. Dwight sued out a writ of provisional seizure for $375, the amount of the rent due. Before taking this step, the agent of Dwight had made frequent demands of Fleetwood for the rent, and had further agreed to wait with him upon his giving security to the end of the year. But Fleet- wood failed to give the security, although the indulgence was extended to him by the agent. On the trial of the provisional seizure Dwight had judgment for his rent, with legal interest from judicial demand, but the seizure was set aside.

On the trial of the present suit for damages, the jury gave a verdict for $683, for which amount the Court below gave-judgment in favor of plaintiff.

Both parties complain of this verdict and judgment. The plaintiff complains that adequate damages have not been awarded to him for the injury done to his credit as a merchant, and contends that his small stock of goods was much injured whilst under seizure. We cannot see how a man, who had not paid any rent to his landlord for fifteen months, with a stock of goods not worth more than a few hundred dollars, could have had his credit very much injured by an order of seizure against him, and it must be remembered that he brought it upon himself by his own fault in not having' paid one dollar to his landlord for fifteen months at the small rent of $26 per month.

We consider that the evidence shows groat indulgence and forbearance on the part of the landlord, and an entire absence of malice on his part, or his agent. We cannot see, from the evidence, that the plaintiff has much right to complain oí the damage done to his goods whilst under seizure. It appears that they were not probably injured more than 10 per cent whilst under seizure, and it is further shown that when appraised at $338 67 they actualty sold for $444 45 at the Sheriff’s sale.

Erom a review of these facts we have come to the conclusion that excessive damages have been given by the verdict of the jury. We have heretofore held, “that damages for the wrongful issuance of a provisional seizure for rent will not be allowed where the seizing creditor acted without malice, and where the circumstances were such as to give probable cause for the seizure.” T. & G. Forbes v. Geddes, 6th Ann. 402. Instead, however, of giving a judgment in this case for the defendants, we will lessen the damages.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed, and it is further ordered, that the plaintiff have judgment against the defendant JET. O. Dwight for $150, with costs in the Court below, and that appellee pay the costs of this appeal.


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    Robert McCarty v. A. R. Splane et al.
    The transferree of a litigious right from one who purchased it, but was incapacitated to buy, under Article 2422 of the Code—to the knowledge of the transferree—acquires nothing—and the debtor, when sued, may set up the nullity of the sale.
    Appeal from the District Court, Parish of St. Mary, Voorhies, J.

      Walker, for plaintiff and appellant.

      Olivier, for defendants.

      Walker, for plaintiff:
    On the trial of the case nisi, 1 contended as I do now, that the sale of Splane's judgment against McGan'Vy could not be treated as a nullity until the nullity was ascertained and determined by a suit brought for that purpose; that by a long series of decisions, this Court had fixed the rule that no sales could be treated collaterally as nullities, except such as were clearly simulated, and referred the District Judge to 4 L. R, 39 ; 11 R. R, 288; 5 L. R, 124; 4 L. R, 838 ; 3 L. R, 448; 8 L. R, 146 ; 9 R. R, 70 ; 14 L. R, 424 ; 3 Ann. R, 640; 2 Ann. R, 912. In the last of the foregoing cases, the Court say: — “ Having failed to establish the continued possession of the vendor after this registered and recorded sale, it was indispensable to the success of the defence set up in this action by the defendants, to prove that averment of simulation by other evidence ; for when there has been a real though fraudulent sale operating to the detriment of creditors, the title and possession of the purchaser cannot be disregarded. The creditor, in such cases, can only reach the property conveyed, by causing the sale to be annulled in a direct revocatory action. It is well settled that the title in such cases cannot be attacked directly commencing with a seizure.” In the case at bar there was a public sale, which became a matter of record, and the defendant, Splane, was bound to know it, even if he had not been specially notified by the Sheriff of the seizure.
   Slidell, J.

Splane having a judgment against McCarty, took out a fieri facias; and then MeOwrtij obtained an injunction in the present action, alleging that Splane’s judgment against him had been sold under execution, and that he, McCarty, was now the owner of it. He prayed for the perpetuation of the injunction and $200 damages for the annoyance. Splane pleaded in defence the nullity of the judicial sale under which McCarty claimed.

It appears then at the time of the judicial sale of Splane’s claim against McCarty, it was a litigious right, the suit upon it being then pending on an appeal to this Court. The person to whom it was adjudicated for one dollar at the Sheriff’s sale, and who subsequently transferred it to McCarty, was an attorney at law, practising in the Court where Splane’s suit was brought, and in this Court. Under the Article 2422, he was incapable of purchasing; his transferree was aware of the incapacity; and the defendant had, in our opinion, a right to set up the nullity as a means of defence against the present suit.

Judgment affirmed, with costs.


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    Martin F. Demaret v. Joseph T. Hawkins.
    In judicial sales the amount of mortgages assumed by the purchaser, and which turn out not to be due, enure to the benefit of the defendant in execution.
    The right to rescind a sale for lesion beyond moiety, is the only restraint upon the liberty of the the citizen to bind himself and his property according to the dictates of his own judgment: and the evidence relied on to establish lesion should be peculiarly strong and conclusive.
    Appeal from the District Court, Parish of St. Mary, Voorliies, J.

      Lewis & Olivier, for plaintiff.

      Gibbon, for defendant and appellant.
   Rost, J.

This is an action for the recission of a sale of immovable property on the ground of lesion beyond moiety.

The defendant admits the purchase, but avers that the price stipulated, and the onerous conditions imposed upon him, were the full value of the property at the time he acquired it.

The ease was tried before a jury, who limited their verdict to the finding of the following facts:

1st. That the real consideration of the sale was $17,830 00.

2d. That the property was worth on the day it was sold $37,923 80.

The defendant has appealed from the judgment rendered against him on this verdict.

It is stated in the act of sale, which is authentic, that the price agreed to be paid is $20,576, and the fact found by the jury that it was $17,836 is manifestly erroneous. The purchaser is bound, under all circumstances, to pay the price stipulated, and if the amounts, which he assumed to pay as part of it, were not due, or have since been paid by the vendor, the latter can recover them from him. 3d M. R. 248. It has been frequently held that in judicial sales the amount of such mortgages, assumed by the purchaser, as turned out not to be due, enure to the benefit of the defendant in execution. We consider the principle elementary.

This was clearly the view taken originally by the plaintiff’s counsel, as is shown by the allegation in the petition, that the property was sold for $20,576, which is alleged to be less than half of its value ; and it is singular that the jury should have disregarded that admission, and the authentic evidence of its truth. Taking this sum to have been the real consideration, lesion beyond moiety was not proved to the satisfaction of the jury; and after a careful perusal of the evidence, we are satisfied that if there is error in their estimate, it is not because it is too low. Under the view we took in the case of Beale v. Ritters, 7th Ann., of the limits in which the estimates of the value of the property, at the time of the sale, should range in cases of ksion, that evidence is far from being satisfactory. Probable estimates are at best an inferior kind of evidence, admissible only when no better can be had, and they seldom carry conviction to the mind. In this case, for instance, thirty-two witnesses were examined, and made as many different estimates, ranging from $22,637 00 to $42,250 00. The estimate of the jury differs from all the others. Such a result has not the reasonable certainty upon which alone courts of justice can act in setting aside a contract entered into in good faith. See Seaton v. Municipality No. 2, 3d Ann. 44.

The right to rescind a sale for lesion beyond moiety, is the only restraint upon the liberty of the citizen to bind himself and his property according to the dictates of his own judgment, and the evidence relied on to establish that right, should be peculiarly strong and conclusive.

It is ordered that the judgment in this case be reversed—that there be judgment in favor of the defendant, with costs in both Courts.


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    Nathalie Judice v. Felicite Neda.
    The insolvency of the husband will‘not prevent a conveyance of property by him to his wife for the purpose of replacing her dotal and paraphernal effects, alienated during the marriage.
    Appeal from the District Court, Parish of St. Martin, Voorhies, J.

      Albert Voorldes, for plaintiff.

      Olivier, for defendant and appellant.
   Rost, J.

The plaintiff opposes the seizure of immovable property, made at the suit of the defendant, on the ground that this property was conveyed to her by her husband, to replace her paraphernal effects alienated during marriage.

The defence is, that the husband was insolvent at the date of the sale, and that Art. 2421 of the Code does not extend to the case of a husband in failing circumstances.

This is clearly an error; the wife, before she obtains a separation of property is bound to allege and prove the embarrassment of her husband, and to justify her belief that his property may not be sufficient to meet her rights and claims; so that the husband must generally be in failing circumstances before a separation of property can he obtained-—and yet article 2421, expressly authorizes transfers of property by the husband to the wife in satisfaction of those judgments. There is no distinction made between transfers made after a judgment of separation, and those which are made without such a judgment.

The case of MontilU was one of declared insolvency by the husband, and came as such under the provisions of the Act of 1817. The sale made to the wife in that case was set aside because she had not brought herself within the letter or spirit of the proviso of the 24th section of that Act, by showing the reality and good faith of the transaction. In this case there is no declared insolvency, and the claim of the wife is conclusively proved. 1 Ann. 42.

Creditors are not without remedy in cases where the husband has given an unjust advantage to his wife, under the pretext of replacing her dotal or paraphernal rights. See Spurloch v. Maner, 1st Ann. 301.

If it were alleged and made probable that the value of the property given in payment to the wife was underrated, and the husband was shown to be insolvent, wo would feel authorized to grant relief—but there is nothing in the record upon which we can act.

The plea of res jvdicata is clearly untenable. The contract avoided in the first suit was not the one under which the defendant claims.

The judgment is affirmed, with costs.


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    Prescella Lacomb v. Her Husband.
    Appeal from the District Court, Parish of St. Landry, Overton, J.

      Linton, for plaintiff and appellant.
   Rost, J.

There is nothing in the record to show the embarrassments of the husband, which render a separation of property necessary.

A judgment of separation of property, obtained under those circumstances, is held in law to be collusive; and although we cannot reverse it without a prayer of the appellee to that effect, we do not feel bound to amend it as prayed for by the appellant. No amendment made by us would give it validity against the "husband’s creditors.

The appeal is dismissed with costs.


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    W. B. McCutcheon & Co. v. John Davis.
    Decision in Magee y. Dimbar, 10 L. R., 550, affirmed.
    APPEAL from the District Court, Parish of St. Landry, Overton, J.
    J. E. King, for plaintiffs.

      Swcvyzé & Moore, for defendant and appellant.
    Plaintiffs’ counsel
    cited Burns v. Hayes, 13 L. R. 12; Magee v. Dunbar, 10 L. R. 546.
    Defendant’s counsel
    cited 1 L. R. 113, 283 ; 3 M. 378; 2 N. S, 389.
   Slidell, J.

The suit is brought upon certain unindorsed notes of the defendant, of which the firm of W. B. McCutcheon & Co., is the payee. In the petition it is alleged that John B. Howell, William B. McOuteheon and Stoddart Howell compose the firm, and as such they sue. In his plea the defendant denies that those' persons compose the firm. The notes being produced and offered at the trial, and the signature of the maker proved, the District Judge gave judgment for the plaintiffs, by which we understand a judgment in favor of the firm of Wm. B. McGutcheon & Go., the payee, the suit throughout being entitled as the suit of that firm. The defendant has appealed, and now insists that proof should have been given that the above named individuals composed the firm. The opinion of the District Judge that such evidence was not essential to a recovery under the pleadings, seems to be sustained by the opinion of our predecessors in Magee v. Dunbar, 10 L. R. 550, and we do not feel disposed to disturb that precedent.

Judgment affirmed, with costs.


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    Eugene Wartelle, Agent, &c., v. John P. Hudson et al.
    The maker of a promissory note, transferred by the holder to the vendor of property, cannot resist payment on the ground that the vendor had no authority to sell.
    Suit on a note payable to the order of H. & It, but endorsed by H. alone. By the Qowri: The defective endorsement on the note was cured by the subsequent declaration of R., that II was authorized to use the note as he did : the date of that declaration is immaterial.
    Appeal from the District Court, Parish of St. Landry, Oushman, J., presiding.

      Garland & Lastrappes, for plaintiff.

      Linton, for defendant and appellant.
   Rost, J.

The plaintiff, acting as agent of Fremont and wife, who reside out of the State, sold four slaves to Fergus Hathorn, one of the defendants, and received, in part payment, a note subscribed by the other defendant, John P-. Hudson, payable to the order of Hathorn and Beeves, and endorsed by Hathorn in his own name. This note was protested at maturity, and the plaintiff now seeks to recover the amount of it from the drawer. The petition also prays for judgment against Hathorn, and that the slaves sold may be subjected to the mortgage retained upon them to secure the payment of the price.

Hathorn made no defence. Hudson pleaded the general issue, that the plaintiff had no authority to sell the immovable property of Fremont and wife, and that Hathorn was likewise without authority to transfer a note belonging to the firm of Hathorn & Peeves for his private benefit.

There was judgment against the defendants in solido, and John P. Hudson has appealed.

Had the defendant Hathorn set up the defence of the appellant, it would have been a serious question whether the power of attorney, under which Wcvrtelle acted, authorized him to sell the slaves of his principles; but as he has not raised that objection, it is clear that his debtor had no capacity to raise it. He owes the amount of the note, and is bound to pay it to the assignee of his creditor, who is a party to the suit, and does not object to the payment.

The defective endorsement on the note was cured by the subsequent declaration of Peeves, that Hathorn was fully authorized to use the note as he did; the date of that declaration is immaterial.

There was no obligation in solido between the defendants, but as they are each hound for the whole amount of the judgment, the objections to its form are mere verbal criticisms and do not authorize the reversal of it.

The judgment is affirmed, with costs.


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    Francis Billeadeau et als. v. Thomas Keller et als.
    Under the Code of Practice and laws of this State, there is no other mode of compelling a party to a suit to give evidence than that by interrogatories on facts and articles.
    Appeal from the District Court, Parish of St. Landry, Cushman, J., presiding.

      Linton, for plaintiffs and appellants.

      Swan/zé & Moore, for defendants.
   Dunbar, J.

This is a suit to recover damages on an injunction bond. The District Judge gave a judgment for plaintiff against the defendants in solido for one hundred and fifty dollars, with interest from the 19th April, 1848. The conflicting and contradictory testimony with regard to the damages suffered by plaintiffs, owing to the suing out of the injunction by the defendants, renders it doubtful whether damages ought to have been allowed. There was only one witness as to the proper amount to be given to the plaintiffs for counsel fees for defending the suit, or writ of injunction. This witness fixed the amount at $150, and we cannot say that the Court erred in giving judgment for this amount only. There is, however, an exception taken by plaintiffs to the opinion of the Court refusing to compel Caleb L. Sioayzé, one of the defendants, to give testimony in this case. Under our Code of Practice and laws of evidence we know no other mode of compelling a party to a suit of giving testimony than by interrogatories on facts and articles. This is similar to the Chancery practice, and established by positive provisions of our Code of Practice, hut'is unknown to the rules of evidence of the Common law.

The judgment of the District Court is, therefore, affirmed, with costs of this Court to be paid by appellant.


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    Noel Vasseur v. François Dupre, adm’r, &c.
    Until the succession is liquidated it is impossible to ascertain whether the wife died rich, and unless she did so, and the husband is shown to be in necessitous circumstances, the marital portion is not due.
    In a suit for the marital portion, the heirs must be made parties, the administrator having no capacity to stand in judgment.
    Appeal from the District Court, Parish of St. Landry, Gushman, J., presiding.

      Linton, for plaintiff and appellant.

      Dupri, for defendant.
   Rost, J.

There is no error in the judgment sustaining the exception filed by the defendant, and dismissing the petition.

Until the succession is liquidated it is impossible to ascertain whether the wife died rich, and unless she did and the husband is shown to be in necessitous circumstances, the marital portion is not due. See 6th La. 160 ; 17th La. 375; 9th Rob. 110.

After the judgment dismissing the petition had been rendered, there was nothing before the Court, and the motion to amend the petition was properly overruled.

We will further observe that administrators have no capacity to stand in judgment in actions of this kind, and that the heirs should, in all cases, bo made parties.

The judgment is affirmed, with costs.


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    John D. Moore v. Raphael Johnston.
    It is of the essence of aleatory contracts that there should be risk on one side or on both, and that all risks appertaining to the contract and not excepted, are assumed by the parties.
    Appeal from the District Court, Parish of St. Landry, Overton, J.

      Dupre, for plaintiff.

      Linton, for defendant and appellant.
   Rost, J.

The plaintiff and Solomon Johnson entered into a written agreement to run a horse race for two hundred dollars a side, and to forfeit one hundred dollars in case either should conclude not to run his horse at the time appointed.

On the day agreed upon, the horses were brought up, the stakes deposited into the hands of the defendant, and upon the word being given, the horse of the plaintiff started fairty, and ran the distance stated in the agreement, but the defendant’s horse reared up, threw himself across the track, and could not be forced through the starting posts. Under these circumstances the judges of the race were unable to decide it, and this action has been instituted to recover the amount deposited with the defendant. Solomon Johnson has not been made a party, but he is the surety on the appeal bond, and the defence is evidently carried on for his benefit, The case was tried before a jury, who found in favor of the plaintiff, and the defendant has appealed from the judgment rendered on the verdict.

This case does not differ in principle from that of Henderson v. Stone, 1st N. S. 039, in which it was held, that it is of the essence of aleatory contracts that there should be risk on one side, or on both, and that all risks appertaining to the contract, and not excepted, were assumed by the parties.

The only limitation of risks, contained in the agreement, was the right which either party had to withdraw his horse by paying the forfeit of one hundred dollars; but as the defendant did not avail himself of that right in time, it cannot now be invoked to diminish his liability.

If the conract can be considered as ambiguous, the ambiguity must be determined according to the usage of the country where it was made; and if it is not, the omission to provide for the contingency which has occurred, may be supplied by the same usage. Much evidence in relation to it has been adduced, and upon that evidence, which is conflicting, the jury had come to the conclusion that, according to the usage of the country, the plaintiff had won the race. They know the witnesses, and are, no doubt, more familiar with the usages of the turf than the members of this Court pretend to be. We feel bound, therefore, to take the facts as they have found them, and to affirm the judgment.

The judgment is affirmed, with costs.