text:
    A. Brother, Syndic, v. The Bank of Louisiana.
    Tlie appellant will not be relieved from the penalty which attaches to his failure to file the record in the appellate court within the time prescribed by law, by showing that the neglect was attributable to the Clerks of the Supreme and District Courts, with whom his counsel had an arrangement for filing the records in cases in which those counsel were engaged.
    from the Second District Court of New Orleans, Zea, J.

      Kunton and Bradford, for plaintiff.

      Pi&ree and Boselius, for defendants and appellants.
   Voorhies, J.

The appellee has moved to dismiss the appeal in this case, on the ground that the appellants did not file the copy of the record from the court below within the time fixed by the inferior Judge, or within the delay fixed by law, nor until the appellee had obtained from the clerk of this court the usual certificate and filed the same in the court below, to have execution on the judgment.

The appeal was granted on the 4th of January, 1853, was returnable on the first Monday of November following, and the transcript was not filed until the 22d November.

It is urged that the motion ought not to prevail, as the failure to file the transcript in due time was not imputable to the neglect and fault of the appellants. “ That both the counsel of these appellants had a permanent agreement or understanding with the Clerks of the District and Supreme Courts, that the former should send all transcripts of appeals in which said counsel appear for the appellants, to the office of the Clerk of the Supreme Court, and the latter file all such records, without any special bond to secure the costs being furnished, said counsel being responsible for the payment of said costs; that before the return of the appeal in this case, the Clerk of the Supreme Court applied to the Clerk of the Second District Court, in order to ascertain whether there were any transcript of appeals returnable on the first Monday of November, 1853, in which either of the counsel of the appellants were concerned, and examined all the transcripts handed to him by said Clerk, who stated, at the the same time, that he had no other transcripts in his office, returnable on the first Monday of November, 1853, and among the transcripts thus exhibited to the Clerk of the Supreme Court, that of the record in this case was omitted: in consequence of which omission said transcript was not filed, as otherwise it would have been on the return day thereof, &c.”

Jt is not in our power to grant to the appellants the relief which they seek at our hands. The transcript may be filed within three days of the time allowed the appellants for appearance by the citation of appeal; but if prevented from doing so, by any event beyond his control, he may, before the expiration of three days, demand a further time to bring it up. When the transcript is not filed in due time, the production of the certificate of the Clerk of this court to that effect in the inferior court, entitles the appellee to an execution on the judgment, “which then becomes irrevocable.” C. P. 589,88(5,883'. The Act of 1839, in relation to appeals, is applicable only to cases arising from defect, error, or irregularity in the petition or order of appeal, or in the certificate of the Clerk or Judge, or in the citation of appeal or service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear that such defect, error, or irregularity is not imputable to the appellant.” In the case of McDowell <& Peek v. T. <?. Dead et dl. 5 An. 42, scarcely distinguishable from the present, the court said: “ The absence of a seasonable filing, is at least prima facie evidence of neglect. And if the neglect was on the part of the Clerk of the District Court, he was in that matter the mere agent of the appellants, and his negligence is theirs. The preparation of the transcript pertained to his official functions; his’ promise to file it in the Supreme Court was a mere personal matter between him and the appellants. See also 3 An. 246.

Appeal dismissed.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    State v. L. Porte’s Securities.
    A bond reciting that defendant had been convicted by the District Court for selling liquor to slaves, reciting also that defendant had taken a suspensive appeal from said judgment to the Supreme Court, and having for its condition that the defendant should “ abide by and satisfy the judgment of this (the District) court, if confirmed by the Supreme Court,” is neither a bail bond nor a recognizance. As an appeal bond, it is defective, as the defendant was exempt from giving one.
    The law of 1852 empowers Clerks to issue legal process under the mandates and decrees of the Supreme Court, without waiting for the regular term of the District Court, or for its order to file and record them.
    from the District Court of Point Coupée, Cooley, J.

      P. A. Boy, for the State.

      Prowsty & Farrar, for defendant and appellant.
   Voorhies, J.

The defendant, Louis Porte, was convicted of the offence of selling spirituous liquors to a slave, and sentenced to pay a fine of $310, and to be imprisoned for the term of one month. From which judgment he took an appeal, giving his bond for the sum of $800, the condition of which is stated to be as follows, viz:

“Now, the condition of the above obligation is such, that whereas the above bounden Louis Porte, has been convicted by the honorable the Ninth Judicial District Court of the State of Louisiana, at its December term, 1853, upon an indictment for selling liquor to a slave on the 12th of July, 1853, and has been sentenced to one month’s imprisonment and to a fine of $310 ; and whereas the said Louis Porte has taken a suspensive appeal from said judgment to the Supreme Court of the State, returnable on the 4th Monday of January, at New Orleans. Now, if the above bounden Louis Porte, abide by and satisfy the judgment of this court, if confirmed by the Supreme Court, this obligation is to be null and void,-otherwise to remain in full force and virtue. Signed,) Louis Porte, Auguste Geaugnard, C. Kleborn, H. Casenave. Attest, James A. Morgan, Sheriff.”

The judgment thus appealed from was affirmed in February last. See 9' Annual.

The judgment rendered in this case against the sureties and appellants,, decreeing the forfeiture of this bond, was based on the summary mode of proceeding prescribed by the Statute of 1887, which makes it the duty of the District Attorney, on the second, or on any other subsequent day thereafter, of each regular term of the District Court, by motion with leave “ to call any or all person or persons who may have entered into any bond, recognizance or obligation whatsoever, for their appearance or attendance at court, and also to call on the surety or securities to produce inslanter, m open court, the person of such defendant or party accused, and upon failure to comply therewith, enter up judgment against principal and securities in solido for the full amount of the bond,” &c. Session Acts, 1837, 99.

Under the Statute of 1846, it is made the duty of the Clerk of this court upon the final decision of any criminal cause, to transmit a certified copy thereof to the court from which the appeal may have been taken, which copy shall, on motion, be filed, recorded and ordered to be executed by the lower court in the manner provided by law in civil cases.” Session Acts, 1846, 102. This Act was subsequently amended, by delegating to the Clerks of the District Courts, “the power to receive, file and record all mandates and decrees rendered by this court in causes taken up by appeal from their respective courts, and to issue all legal process under said mandates and decrees.” Acts-1852, 207. It is therefore obvious, that the judgment against the defendant,. Porte, affirmed by this court, could have been carried into execution previous to. the regular term of the District Court, or without its previous order for the filing and recording of the mandate of this court. Hence there was no legal obligation on the part of the defendant in this case to appear at the regular term of the court; but the necessary capias should have been issued against, him.

But the question presented in this case is, whether the defendant’s bond is to be considered as a bail bond, or as an appeal bond. “ Bail, in criminal cases, is defined to be a delivery or bailment of a person to his securities, upon their giving, together with himself, sufficient security for his appearance, he being-supposed to be in their friendly custody, instead of going to prison.” It is clear that such is not the condition stipulated in the bond sued on, the principal in which having only bound himself to abide and satisfy the judgment of the District Court, if confirmed by this tribunal, from which he had taken a suspensive appeal. It possesses none of the attributes of a bail bond or recognizance. And as an appeal bond, it is void and of no effect, as the defendant was legally exempted from giving an appeal bond. Acts 1846, 10.0.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the appellants..


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

text:
    New Orleans, Opelousas & G. W. R. R. Co. v. P. Lagarde, Sen’r.
    ln an act!on by a Railroad company to expropriate property, under the Act of 8th of March, 1852, the Judge charged the jury that “ in assessing the land and improvements they had not any right to take into consideration the benefit derived by the owner from thecontemplatedimprove-ments, yet they could take the benefit derived by the owner from the improvement into consideration in assessing the damages, if any, the owner would sustain.” Held: The charge was correct.
    The Judge rufused to charge the jury in this case, that in making “ their estimate of the price which should be paid for the expropriation, they must take into consideration not only the general value of the property, of the same nature and quality, but the particular value which the land may possess in relation to the rest of the estate, from which it is to be dismembered, and to the injury which this dismemberment may cause the defendant.” The Judge refused, also, to charge that “ the law contemplated the expropriation should be made before operations are commenced, and if this be not done, whatever augmentation may have arisen in the value of the land from the location of the road, if allowed at all, is not to be allowed in compensation for damages done until the expropriation is legally effected.” Held: The refusal in both cases was correct.
    APPEAL from the District Court of the Parish of Lafourche Interior, Oole, J.

      J. 0. & A. Beatty, for plaintiffs :
    The court decided that the jury in estimating the value of the land expropriated could not take into consideration the benefit derived by the owner from the contemplated improvement, but they could take the benefit derived by the owner from the improvement into consideration in assessing the damages, if any, the owner would have sustained.
    Is the law correctly stated in this instruction? We maintain the affirma-ative. The third section of the Act, (Laws of 1852, p. 91) directs that the jury ■shall find two things :
    First, what is the value of the land with its improvements.
    And second, what damages, if any, the owner would sustain in addition ‘to-the loss of the land by its appropriation to the uses of the company.
    The distinction being thus clearly made in the third section between the value of land and the damages, the fourth section proceeds to declare that in estimating the value of-the land no deduction is to be made on account of any benefit derived by the owner from the contemplated improvement, but it is altogether silent as to the rule to be followed in estimating the damages.
    There could be no stronger case than this for the application of the rule that the inclusion of one is the exclusion of the other. It cannot be said in this matter one case was in the mind of the Legislator and not the other. In the immediately proceeding section of the law the two questions are distinctly made, and the jury are directed to make a separate finding as to each. In the fourth section a rule is established for their guidance in determining one of these questions. The conclusion is irresistible that the same rule was not intended to be applied to the decision of the other questions.
    But this difference as to the rule in estimating the value of the property actually taken and the damage to the rest of the property is not a merely arbitrary one established by the law; it is founded in sound reasqn.
    For, although the road may be an inconvenience and a disadvantage to the defendant, in some respects, as in the working of his mill, as is proved in this case, yet, if on the other hand the convenience and advantage of the road to the land is such as actually to have already doubled its value, as is likewise clearly proved in this case, it is impossible to say that the property has been damaged. It seems, at all events, to be an inappreciable sort of damages to a man which makes him twice as rich as he was before.
    In opening streets, the benefits derived to the rest of the property are considered* an offset even to the value of the property actually taken. See case of Euplvrosine Street, 7 Ann. p. 72.

      Sail <& Bush, for defendant and appellant.
   Vooriiies, J.

This action is based on the Act entitled “ An Act to provide for the expropriation of lands for railroads and other works of public utility,” approved 8th March, 1852. The plaintiffs allege that they required for the construction of their railroad, a certain portion of the defendant’s land, measure-ing six and seven-tenths acres, as described in a plan annexed to their petition, that they could not agree with the defendant for the price thereof. They therefore pray that said land may be adjudged to them at the value which may be fixed and allowed to the defendant according to law.

The defendant alleges that the quantity thus claimed is greater than that which is necessary for the railroad. He claims $150 per acre as the value of.said land, and $1500 for the improvements thereon, and also claims $2500 as damages resulting from said expropriation.

The case was submitted to a jury empannellcd under said Act, and the defendant is appellant from a judgment rendered on their verdict, awarding him $191 50, as the value of his property, and rejecting his other claims.

On the trial, the District Judge overruled the defendant’s objection to the _ introduction of testimony to show that the construction of the railroad instead of causing any injury to the defendant, would materially improve the value of his property.

We do not think the Judge erred. Evidence of this kind is admisssable in mitigation of damages. Under the third section of said Act, it was incumbent upon the jury to determine “what was the value of the land described in the petition, with its improvements, and what damages, if any, the defendant would sustain, in addition to the loss of the land, by its appropriation to the use of the company.”

In assessing the damages, which could only be conjectural, it was therefore proper for the jury to consider what probable advantages, or injury, might result to the defendant in consequence of the construction of said road The Judge’s charge was clearly in accordance with said statute; he charged the jury “ that in assessing the land and improvements (by which we understand as meaning by him the land and improvements taken) they had not any right to take into consideration the benefit derived by the owner from the contemplated improvement, yet, they could take the benefit derived by the owner from the improvement into consideration in assessing the damages, if' any, the ■owner would sustain.”

We think the Judge, a quo, did not err in refusing to charge the jury that in making “their estimate of the price which should be paid for the expropriation, they must take into consideration not only the general value of the property of the same nature and quality, but the particular value which the land may possess, in relation to the rest of the estate, from which it is to be dismembered, and to the injury which this dismemberment may cause the defendant.” This may be considered essential as a general rule in relation to cases for the compulsory transfer of property, as prescribed under our Code, (Article 2604, et seq.) but the present case forms an exception to it. Although not required to be given specially in charge, j-et we doubt not but that the jury, in forming their verdict, must have taken it into consideration.

The defendant’s counsel also requested the Judge to charge the jury “that the law contemplated the expropriation should be made before operations are commenced, and that if this be not done, whatever augmentation may have arisen in the value of the land from the location of the road, if allowed at all, ’ ’ is not to he allowed in compensation for damages done until the expropriation is legally effected.” We think the charge was properly refused. If the proposition assumed be correct, it would entirely defeat the object of the lawmaker. The divestiture only takes effect from the time of the payment of the price of the property taken for purposes of public utility, to ascertain which, It is necessary that the laud should be surveyed and its value determined according to the mode prescribed by law.

In the present case, we think the assessment was made upon legal and equitable principles, and strictly in accordance with the fourth section of said Act.

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

Slidell, 0. J.

There is some obscurity, and, perhaps, incorrectness in portions of the Judge’s rulings and charge, but in determining whether the verdict and judgment shall be set aside as erroneous, we should enquire what are the legal rights of the defendant under the Statute and Constitution, and whether upon a fair application of the law of the case to the evidence, substantial justice has been done by the verdict. For if it has, the obscurity of the Judge’s charge, or even an error in it, are insufficient reasons for disturbing a just verdict and judgment.

The defendant can at the utmost claim as payment for the land taken from him a price equivalent to its just value at the time it was taken. Now, as to the price of the land taken, the assessment of the jury, §191 60, is unquestionably an adequate, and even a liberal estimate. There is no injustice, then, on this score.

But the defendant contended at the trial that the convenient use and the value of the land and buildings left to him, would be impaired by dismembering them from the part taken from him ; that he was entitled to damages' for this impairing of the convenient use and value by the dismemberment; and that against these damages there could not be a set off of the increased value given to the property left by the construction of the railroad, for the purposes of which a part of his land was taken.

This proposition, in my opinion, cannot be sustained. In the case of the -opening of Euphrosine street, decided under the Constitution of 1846, which contains the same provisions on the subject of expropriation as the present Constitution, it was hold by a majority of the court that prospective benefits accruing from a public improvement to the land left, could be set off, even against the estimated value of that part of his land taken from the proprietor. A fortiori, can such sot off be made in estimating the damages incurred as to tlie^land left.

The consideration that in the case referred to it was the municipal government, asking an expropriation for the purpose of a street, and here it is a private corporation, asking for an expropriation for the purpose of a railroad -track, makes no difference. For, in the one ease, and in the other, the authority to ask a judicial expropriation is granted with a view to accomplish an object of public utility. The public' good is the motive of the legislative grant of authority in both oases.

A consideration of the evidence in this cause has satisfied me that the verdict gives the defendant a liberal price for the land taken, and that any injury accruing by the dismemberment, to the use and value of the land left, is amply compensated by the increased convenience and increased value arising from the construction of the railroad.

I am, therefore, of the opinion the judgment should be affirmed.

Spofford, J. I concur in the foregoing opinion of Mr. O. J. Slidell.


author: Buchanan, J.

text:
    Olinde and Husband et al. v. M. Saizan, Administrator.
    "Where several attorneys in fact are employed, they are bound jointly for acts jointly done, and moneys jointly received. O. 0. 2983.
    If a subscribing witness to a paper when called on to prove his handwriting, deny it, experts may be appointed to establish it, by comparing the signature to the paper with the admitted signature of the witness. This is an exception to the general rule that a party cannot contradict his own witness.
    from the District Court of the Parish of Pointe Coupée,

      JRobert-son, J. W. H. Oooley, for plaintiffs.

      Provosty, for defendant and appellant.
   Buchanan, J.

This record offers a lamentable example of the manner in ■which a settlement of a small succession may be burdened with unnecessary costs. We have here, in a transcript of two hundred pages, the history of three suits, brought by the same heirs, against the same mandataries, to recover the share of the former in an inheritance of which the latter had the management; the two first of which suits were dismissed, and the third resulted in the payment of three hundred and sixty-five dollars, which is fully sustained by the evidence, and from which, nevertheless, both parties have appealed.

Oesain Olinde died in the parish of Poínte Coupée, in the year 183C, leaving a numerous progenjr by two marriages. One of his daughters, Manon or Marie, died shortly after him, leaving four children, who were collectively entitled, by representation, to one-ninth part of their grandfather’s succession. On the 27th April, 1841, Hubert Olinde, as natural tutor of those children, Oelanie and Eugenie, and Baptiste Olinde, one of the sons and co-heirs of the deceased Gesain Olinde, by notarial act before Samuel Bush, notary in Poínte Coupée, constituted and appointed Jean Laurans and Laurent Ghitz their general and special attorneys in fact, for everything necessary for the settlement and liquidation of the estate of their ancestor. Pour days afterwards, the same parties, joined by two other co-heirs of Cesain OlindeJ his daughters, Julie andPelagie, made another procuration, by authentic act before Gustare Delaman, notary in Pointe Coupée, for the same purposes, to the same attorneys in fact. The only difference between the two procurations is that in the last the mandataries were authorized to act either jointly or separately. Under these powers of attorney Laurans and Ghitz acted in a partial partition of the estate of Oesain Olinde, which took place in August, 1841, and in making collections and payments on account of their principals through a series of years. In May, 1845, Julie Olinde revoked her mandate to laurans and Ghitz and constituted Charles Boy dr as her attorney in fact in relation to the inheritance of her grandfather. In the month of Juno following, Poydras, as attor" ney in fact of Julie Olinde, settled with laurans, whom he styles “un des liquidataires de la succession Gésain Olinde,” and gave him a receipt in full for “ ce qui revient á, la dite dame, d’aprés le réglement final de la dite succession.”

In May, I860, Gelanie and Eugenie brought suit against the representatives of Laurans and Ghitz, who were both dead, for their portion of their grandfather’s estate, collected by them under the powers aforesaid, and stating the amount of the same at $8,157 57 — which is the amount stated as their share in the partial partition of August, 1841. In March, 1851, this suit was dismissed on motion of plaintiff’s counsel.

In September, 1851, another suit was brought by Gelanie and Julie against the representatives of Laurans and Ghitz for the same object as the former suit, stating the amount due plaintiffs at $1,464, after giving a credit for sums received on account, of $1,561. This suit was dismissed by judgment of court, in April, 1852, on some exception which we do not find in the record. It is to bo observed that the counsel of plaintiffs in the second suit was Mr. Mahouieau, who did not represent Gelanie Olinde either in the first suit brought in 1850, nor in the present action, but who had an intimate acquaintance with all that has been done in the settlement of Gesain Olinde's succession, and who was a witness in the present case. Indeed it was upon his evidence that the District Judge has fixed the amount due to Gelanie, in the judgment appealed from.

Finally, in September, 1852, Gelanie and Julia Olinde instituted the present action through different counsel from those previously employed, claiming $3,500 as their share in their grandfather’s succession, charged as having been jointly received by Laurans and Ghitz, and without any credit given. A great deal of evidence has been taken, and the result was, as already stated, in June, 1854, a judgment in favor of Gelanie against the succession of Laurans for .$'365 25. --.As to Julia Olinde, there was judgment of dismissal.

,.-T^ie,on,ly fíales before this court are Gelanie Olinde, wife of Gebhart, and Auguste Prbvosty, "administrator of Laurans ; both of whom have appealed.

, The judgment.$ the court below proceeds upon the ground that the attorneys plaintiff are bound jointly for acts jointly dono and moneys jointly.received,.under the powers of attorney in evidence. This is in accor-cla'nce 'with .&rt. -2983 of the Code. There has been an attempt to show that Ohitz was the sole agent of plaintiffs, but, as the Judge below correctly said, this attempt has failed. All sorts of evidence seem to have been offered and received on this point — declarations of Laurans — loose memoranda of Ghitz— mutual receipts passed between them, impressions of witnesses, &c. This has been the subject of a bill of exceptions, which wo would examine now minutely if the objectionable evidence had appeared to have exercised a prejudicial effect upon plaintiffs’ case. But the Judge, in a very carefully prepared opinion, has separated the wheat from the chaff in the evidence, and has thus spared us a good deal of labor.

Another bill of exceptions relates to the admission of evidence to contradict a witness introduced by the party who sought to contradict him. TYc think, under the circumstances, the court did not err. A procuration under private signature (of Julia Olinde to Gharles Poydras) signed with the ordinary mark of the constituent, was attested by those subscribing witnesses, two of whom were living, and in court at the trial. The first of those witnesses, Martin Major, being called, swore that his name at the bottom of the paper as witness, was not written by him. The other subscribing witness was asked whether he did not see the first one sign his name to the paper, and answered affirmatively. He also proved his own handwriting, and the mark of the constituent. The party who had offered both those witnesses, then asked the court to appoint experts to compare the name of Martin Major, at the bottom of the procuration, with admitted signatures of the witness, for the purpose of contradicting him, which tho court ordered. This is clearly an exception to the ordinary rule that a party cannot contradict his own witness. Being the subscribing witness of the paper, the party who wished to make use of the paper-as evidence, was bound to produce him, if he could be had. But that very necessity is a reason for protecting him against the defective memory, or wilful prevarication of the witness. 1st Greenleaf’s Evid. § 447.

It is needless for us to notice those points 'which have been made in argument, in relation to the interest of the plaintiff, Julie Olinde, as she has not appealed from the judgment dismissing her action.

Judgment affirmed; costs of both courts to be paid by the defendant, Au-guste Prowsty, administrator of the succession of Jean Zaurans.


text:
    Dunlap, Moncure & Co. v. G. R. Price.
    Where an appeal bond is not valid at the time it is given, the defects cannot afterwards be cured.
    from the District Court of the Parish of Concordia,-J.

      E. & H. Harr and 3. B. Shaw, for plaintiffs and appell^ Sparrow, for defendant.

      It does not appear what Judge tried the case in the District Court.

   Voorhies, J.

The defendant, George E. Price, has mo appeal in this case on several grounds, among others, “ that ] the defendants, or either of them, has ever been 'executed : to authorize an appeal.”

This action was instituted against the defendant for the reí and also for tho revocation of an alleged contract of sale William Elgin, on the ground of fraud and simulation. No evidence’applars to have been introduced on this branch of the action, and it does not appear from the judgment that the Judge, a quo, passed upon it.

The appeal is devolutive. The plaintiffs and appellants as principals, and Henry B. Shaw as surety, in the bond, “ are held and firmly bound unto the firm of Dunlap, Moncure & Co., in the sum of one hundred dollars,” &c.

It is urged by the appellants, in answer to the objection, that the insertion of their names as obligees in tho bond was evidently a clerical error, and have offered, with the consent of the surety, to rectify the same. We are only permitted to inquire whether the bond was at the time the appeal was taken, such a bond as the law requires. It is perfectly clear that the bond in this case was null at the time the appeal was brought up, and cannot, therefore, be made afterwards valid by the substitution of one name for another.

The appellees have also filed a copy of a new bond, filed in the inferior court on the 16th February, 1855, nine days after the transcript was filed in this Court. This is clearly unavailable.

It is, therefore, ordered and decreed that the appeal be dismissed, at the appellants’ costs.


author:
Spoefokd, J.
      Buchanan, J.

text:
    J. Lachaud v. His Wife.
    la a proceeding for a divorce, a vinculo 'matrimonii, based on a decree of separation from bed and board, obtained six years before, and on a continued abandonment, the absent spouse may be cited through a curator ad hoc.

    O. 0. 143.
    PPEAL from the District Court of the Parish of Pointe Coupee, Ooolay J.

      W. Beatty, for plaintiff and appellant.
    Mahoudeau, for defendant.
   Spoefokd, J.

Petitioner sued for a divorce, a vinculo matrimonii. He alleged that on the 15 th February, 1848, he obtained a decree of separation from bed and board against his wife, in the District Court for the Parish of Pointe Coupee, where the present suit was brought; that the decree was based on the ground of abandonment of the conjugal domicil by the wife, and was preparatory to a divorce, which he hoped ultimately to obtain; that more than six years had elapsed since the rendition of said decree, and no reconciliation had since taken place, but that his wife still continued to reside in France; wherefore he prayed that she be cited to answer, through a curator ad hoc.

A curator ad hoe was appointed by the Judge, who excepted that upon the face of the petition it appeared that the court was without jurisdiction, and that the appointment of a curator ad hoe in the case was not sanctioned by law, as the defendant had no property in the State, and a judgment against her could not be executed.

The District Judge sustained the exception, and the plaintiff appealed.

The statute of March 19 th, 1827, § 4, (Bul. and Our. p. 285) authorizes a decree of divorce, a vinculo, upon proof of abandonment for the space of five years, and upon exhibiting a decree of separation of bed and board rendered two years previous to the application for divorce, with evidence that no subsequent reconciliation between the parties had taken place. By the Code abandonment is made a ground of separation from bed and board. In a suit of that character, if the defendant be absent the summonses to return and notifications of judgment must be made upon him or her at the place of residence of the attorney who shall be appointed to him or her for that purpose. 0. 0. 143.

The appointment of an attorney ad hoc to represent the absent spouse, who has abandoned the matrimonial domicil, and left the State, being specially authorized by law in the preliminary proceeding for separation, which forms the basis of an ultimate decree of divorce, when no reconciliation takes place, it is a reasonable inference that the same constructive citation was intended by the Legislature to be adopted in the final proceedings against the party who persists in such a violation of conjugal duty. Gúm quid conceditur, conceditur at it per quod penenitur ad illud. Judgment reversed, exception overruled, and cause remanded for further proceedings, appellee paying costs of appeal.

Buchanan, J.

dissenting, with whom concurred Vooehies, J. The one hundred and fourteenth Article of the Constitution of 1852, has wisely prohibited the Legislature from granting- divorces. It would not be difficult to demonstrate, that any State law which has granted a divorce, was a violation of the Constitution of the United Slates. Such a law impairs the obligation of a contract. To the judiciary belongs the power of declaring a contract annulled or no longer operative, upon the complaint of the party aggrieved, and after hearing all the parties and the evidence adduced by them respectively. But this high power is to be exercised strictly within the limits prescribed by law, more especially when the contract impeached is one which may, in many respects, be said to constitute the foundation of civilized society.

The suit is for a divorce, prayed for on the ground of a judgment of separation of bed and board, rendered six years previously.

If the separation was decreed, as alleged, on the ground of abandonment of the conjugal domicil, it is singular that the petition for separation should have stated, as alleged, that that suit was “-merely preparatory to a divorce,” for the form of proceeding sanctioned by our law in such cases, so far from being on its face a preparation for a divorce, is, on- the contrary, an invitation to union. See Civil Code, Art. 141, and following. In' that proceeding, the law allows an appointment of a curator ad hoe in case of absence from the State of the defendant. C. C. 143. But in a suit for divorce'the law only authorizes the appointment of an attorney to represent the absent defendant in one case, viz: when the party defendant has been charged with an infamous offence, and has fled from justice. Act of 1832, Bull. & Curry, page 286. I conclude that the defendant cannot be brought into court through an attorney or curator ad hoc in any other case. The general principle- upon which such appointments are made, has been most judiciously settled by the late Supreme Court, restricting greatly the loose practice which previously prevailed. A citation by a curator ad hoc is, at best, but a fiction of law, as such it cannot be recognized=as bind--ing except in cases distinctly and expressly pointed out by law.

I think the judgment should be affirmed.


author: Slidell, C. J.

text:
    J. B. C. Gazzo v. S. Baudoin.
    A plea of partial payment after maturity, made by the drawer of a bill, witlibdt further qualification, creates, in the absence of other evidence, the presumption that the bill had been presented,, and notice of non-payment given to the drawer, or that he had no funds in the hands of the drawee. ¡

    A PPEAL from the District Court of the Parish of Lafourche Interior, Gole, J.
    ■ÍTJL Sail & Bush, for plaintiff.

      Belcher, for defendant and appellant.
   Slidell, C. J.

It is an embarrassing task to apply legal principles to pleadings and proceedings, so loose and anomalous as are presented in this cause. But on the whole, we are not prepared to say, the judgment was erroneous j, for the defendant pleaded a partial payment of the bills after maturity, without alleging or showing that the payment, which was admitted at the trial, was mads with any qualification at the time of payment. In the absence of contrary evidence, it may be inferred from this payment by the drawer after maturity, that the bill had been presented and notice of non-payment had been given, or that the drawer had no funds in the hands of the drawee, or was otherwise without defence. We have here the simple fact of a partial payment by the drawer after maturity, without any evidence of antecedent laches.

Judgment affirmed,, with costs.


author: SpoPPobd, J.

text:
    Williams, Phillips & Co. v. W. M. Benton.
    Plaintiffs received, the note sued on, which is not negotiable, after maturity, and with notice of equities against it. Held: Their rights are not greater than the payee from whom they took it.
    from the District Court of the Parish of Carroll, Perkins, J.

      Stacy S Sparrow, for plaintiffs.

      Selby, for defendant and appellant.
   SpoPPobd, J.

The plaintiffs are transferees of a note given by the defendant to John L. Willson, for the purchase of a tract of land in the parish of Carroll, upon which the vendor retained his privilege and a special mortgage.

The note is not negotiable in its form, and was transferred to the plaintiffs long after maturity. Moreover, the notarial act of transfer, as well as the note itself, gave them notice of its consideration and of the equities now pleaded by the defendants. They, therefore, stand in no better position than Williams himself would, were he the party plaintiff.

The note is, on its face, a conditional obligation :

“ Pbovidekce, Nov. 11, 184G.

“ Twelve months after date,-1 promise to pay to JohnB. Willson, the sum of $1*450, for value received, with eight per. cent, per annum interest from maturity until paid, subject to the stipulations in the deed of even date with this note, for the purchase of lot of land No.'16, township No. 20, of range No. 13 east.

“ (Signed,) W. M. Benton.”

Referring to the deed identified with the.note, we find the following clauses i ■“The said Willson hereby warrants and defends unto the. said Benton. a good and valid title to the said land against the claims of all persons whatsoever; and stipulates to have removed all and every incumbrance that may now exist thereon, and to deliver to the said Benton a patent which the said Willson says has issued from the United States to D. O. Bwi'ton, B. Hempkin, or himself, or to have the same patent recorded in'the office of the recorder of mortgages for this parish, within twelve ■ months from this dale; and that the mortgage retained on said lot for the payment of the note given by the said Willson with Thomas B. Patten, security, for the purchase of said lot of land at the probate sale of the succession of D. 0. Barton, shall be erased and discharged by said Willson, within twelve months from this time; that if the said patent shall not be produced and the said mortgage erased and discharged at the end of t-welve months, and all other incumbrances removed from the said lot of land, then the note executed is not to bear interest from the maturity thereof, but only from the time said stipulations are complied with.”

Giving a fair and reasonable interpretation to this portion of the deed, we must infer that the defendant contracted his obligation to pay upon a suspen-sive condition. The note was not intended to be exigible until the vendor complied with his stipulations to remove the incumbrances from the land sold, and to procure the patent specified in the act of sale.

The evidence leads us to the conclusion, that' neither has been done, and the suit was therefore prematurely brought. None of the mortgages alluded to appear to have been erased. No patent appears to have been issued either to Barton, Hempldn or Willson. In 1851, the land was patented to Zephariah Liles and Jane Garríale, persons who are not shown to have any priority with the vendor, and whoso title must therefore be presumed to be adverse to his.

The plaintiffs have made no attempt to explain these facts, or to excuse Willson or themselves for not complying with the stipulations of his deed. They rely upon a nice verbal construction of this instrument, and seek to restrict the effect of the vendor’s stipulations to the question of interest alone.

As we think they had a deeper meaning than that, the judgment must be reversed, and the plaintiff’s petition dismissed as in case of non-suit, with costs in both courts.


author: Spofford, J.

text:
    John Bird v. J. L. Lobdell.
    Rule for computing interest where there hare been partial payments. Calculate the interest on the principal from the maturity of the debt, till the day of a partial payment, and add the interest to the principal; deduct the partial payment from the amount, the balance continues to bear interest until the next partial payment, and so on unless the payment rnude is not sufficient to extinguish ihe interest then due. But where the payment is not sufficient to extinguish the interest then due, if a new balance is struck by deducting such payment from the aggregate of the principal and interest, and the balance taken as a new principal, the interest will be compounded. So, if the payment be less than the interest due, the surplus of interest must not be taken to augment the principal.
    from the District Court of the Parish of West Baton Rouge, Robertson, J.

      Brunot, for plaintiff.

      Lobdell, for defendant and appellant.
   Spofford, J.

There was error to the prejudice of the appellant in capitalizing the interest on the 19th May, 1851; the payment of $358 09 then made, did not equal the interest which had accrued.

The rule for computing interest where there have been partial payments, is well settled. Interest should be calculated from maturity of the debt, till the day of a partial payment and added to the principal, and then the partial payment be deducted from the amount, the balance to continue to bear interest until the next partial payment, and so on, unless the payment made is not sufficient to extinguish the interest then due. Martenstein v. His Creditors, 8 Rob. 9. Estebene v. Estebene, 5 An. 738.

But, when the payment is not sufficient to extinguish the interest then due, if a new balance is struck by the deducting such payment from the aggregate of the principal and interest, and this balance taken as a new principal, to bear interest thence forward, it is obvious that the interest will be compounded.

So, if the payment be less than the interest due, the surplus of interest must not be taken to augment the principal. Connecticut v. Jackson, 1 Johnson’s Ch. R. 17. Story v. Livingston, 13 Peters, 349.

There is also a mistake of twenty dollars against the defendant in casting interest upon the note for $5,500.

This must be deducted from the amount of the judgment, and the interest must also be reduced in conformity with the rule already stated.

There is no evidence in the record to sustain the other grounds of complaint sot forth in the appellant’s brief.

Itis therefore ordered, that the judgment of the District Court, as against the defendant, Lobdell, bo reversed; and, proceeding to render such judgment as should have been rendered in the court below, it is ordered, adjudged and decreed, that the plaintiff, John Bird, recover of the defendant, John L. Lob-dell, the sum of seven thousand four hundred and thirty-seven dollars and nine cents ($7,437 09), with interest at the rate of eight per centum per an-num upon the sum of five thousand and five hundred dollars from the 19th of May, 1851, until paid, and ten dollars costs of protest and copies, and all costs in the District Court; and that the plaintiff’s special mortgage, a copy whereof is annexed to his petition, be recognized and enforced, and the property therein described, seized and sold according to law, to satisfy this judgment. It is further ordered, that the plaintiff pay the costs of this appeal.


text:
    W. R. Peck v. E. M. Bemiss, et al.
    To maintain a petitory action against tlie defendant, who is not a mere trespasser, but holds under deeds on their face, translative of property, the plaintiff must make out a better title as owner.
    Plaintiff claims the land in controversy, under an instrument in these words: “Be it known and remembered, that on this, the 23d day of September, 3847, that I, Don JF. Sims, agent of John IT Overton, of Opelousas parish, have this day agreed to sell, as agent aforesaid, to William It. Decía, the following described tract of land, [the land is here described] on the following terms [which are stated in the instrument.] Pone and signed in the presence of Wir. Amonett.’ D 3?. Sims, Agent. I hereby accept the foregoing sale and am ready to comply on my part as soon as possession is given. “William It. Peck.”
    At the time, and for many months previous, to the knowledge of Pede, the defendant was in possession and engaged in preparing the land for cultivation.”
    .In construing this instrument the court held: This is a promise of sale which did not make Pede, the owner of the land. It gave him. only the right of-becoming so at a future time. It created in .his favor an obligation binding upon Overton, and by which, if he refused voluntarily to complyj he could be judicially constrained to a specific performance, or subjected, if he had put it out of his own power to comply, to an action of damages. Until a voluntary or forced execution of the promise, the ownership did not pass to Pedo.

    «0. C. 2437.
    I PPEAL from the District Court of the Parish of Madison, Berkins, J.

      Amonett, and Stacy & Sparrow, and Bradford, for plaintiff.

      Eustis and Boselius, for defendant.

      Hyams, for the heirs of Winn, called in warranty.
   Slidell, C. J.

Our first inquiry in this cause is, as to the character of the. action. Its character will be obvious upon a statement of the material aver-ments of the petition and answer. Peak, who brought suit in November, 1848, alleges that he is the owner of a tract of land in the parish of Madison, which he describes. He admits that the defendant is in possession, and prays that he be adjudged the lawful owner, placed in possession, and quieted in his title. The defendant answers that she is the lawful owner of the tract, alleges an open and undisputed possession since October, 1846, and recites her titles as owner.

The action is, therefore, clearly petitory.

To maintain it against the defendant, who is not a mere trespasser, but holds under deeds on their face translative of property, the plaintiff, on whom the burden lies, must, according to principles too well settled to require discussion, make out a better title as owner. Causa idónea ad transferendum dominium.

This brings us to a vital question in this cause, which is, whether the title exhibited by the plaintiff is a title translative of ownership ? For, if it be not, there is no foundation for this petitory action.

The instrument under which the plaintiff claims is in these words:

State of Louisiana, i

Parish of Madison, j

Be it known and remembered that on this, the 23d day of September, 1847, that I, Don F. Sims, agent of John 3. Overton, of Opelousas Parish, have this day agreed to sell, as agent aforesaid, to William B. Peck, the following described tract of land, (to-wit,) the north half of fractional section number fifty-seven, containing one hundred and sixty acres, more or less, on the following terms, (to-wit:) At ten dollars per acre; one-third of which is to be paid cash, when possession is given, and the balance in one and two years, at eight per cent, interest after due, with a mortgage on the land sold to secure payments.

DON. F. SIMS, Agent.

Done and signed in the presence of

Wit. Amonett.

I hereby accept the foregoing sale and am ready to comply on my part as soon as possession is given.

¥m. R. Peck.

The above lands is the n. $ of fractional Section No. 67, Township No. 18, of Range No. 13, East.

Upon the same instrument, in a different handwriting, exeept the signatures,, is the following certificate:

State of Louisiana, i

Parish of Madison. J

Before me, Jacob 0. Seale, Recorder in and for said Parish, personally came and appeared, Don F. Sims and William B. Peck, both residents of the parish of Madison, in the State aforesaid, who acknowledged that they executed and signed the foregoing instrument on the day and date therein written, and for the purposes therein expressed, and that the land conveyed by said instrument is the north half of fractional section No. fifty-seven, in township No. eighteen of range No. thirteen oast. In testimony of which) I have said appearore to sign their names hereto, in presence of James Orandell and Richard N. Graves, competent witnesses, who sign with said appearors and mo, Recorder, after due reading hereof, on this tenth day of April, eighteen hundred forty-eight.

WH. R. PEOK,

DON. P. SIMS.

R. W. Gbaves,

J. L. Ckandell.

J. 0. SEALE, Recorder..

State oe Louisiana, Parish of Madison.

Recorded in Conventional Record Book B, pages 547 and 548 ; also in Notarial Record Book 0, page CC. Witne’ss my signature and official seal, this-10th April, 1848. J. 0. Seale, Recorder.

We shall overlook the grave questions which concern the authority of Sims to make this contract, the authority of another agent, Wilson, to approve it, or its tacit approval by Overton. Assuming the authority for the purposes of the only discussion which we deem material, we limit ourselves to the consideration of the meaning and legal effect of this instrument.

In the search for the intention of the parties, we are to look to the whole language of the instrument, and the surrounding circumstances to which the instrument itself points. The plaintiff treated with Sims as an agent. The letters of instruction from Overton to Sims, then in his possession, construed in their most liberal sense possible, did not clothe him with authority to sign deeds of sale. The instrument, on its face, implies an inability then to give possession of the land, and at the time, and for many months previous, to the knowledge and before the eyes of Peek, Mrs. Bemiss was in possession and engaged in preparing it for cultivation and erecting a building, which stands partly upon it. Construing the language of the deed, with the aid of these surrounding circumstances to which the deed itself, by implication, points, our minds are brought to the conclusions, that the instrument is a promise of sale, a reciprocal promise, by which Sims, for Overton, engaged himself to sell the land to Pecio at a futuro time, and Pecio engaged himself to purchase it -when possession should be given, on the terms of cash and credit designated in the instrument.

It remains to inquire what is the legal effect of such a contract with respect to the transmission of ownership. The contract, to this day, has never been executed, although a suit has been brought by Peck, against Overton, to enforce a specific performance; and the question is, what rights passed by the instrument itself, assuming the authority of Si/ms to sign it.

This reciprocal promise of sale did not 'make Peck the owner of the land. It gave him only the right of becoming so at a future time. It created in his favor an obligation binding upon Overton, and by which, if he refused voluntarily to comply, he could be judicially constrained to a specific performance or subjected, if he had put it out of his own power to comply, to an action for damages. Until a voluntary or forced execution of the promise, the ownership did not pass to Peck.

It is true that the 2437th Article of our Code declares, that a promise to sell amounts to a sale, when there exists a reciprocal consent of both parties, as to the thing and the price thereof, or as it is said in the French text, La promesso de vendre vaut vente, lorsqu’il y a consontement réciproque des deux parties sur la chose et sur le prix. But that we are not to take these emphatic expressions au pied de la lettre, and recognize no difference between a sale and a promise to sell, is obvious from other provisions of our Code, from the history of the corresponding article of the Napoleon Code from which our own is taken, and from a just appreciation of the nature of things and the suggestions of common sense, applied to the practical dealings of men with each other. The law would be censurable for a strange violation of the principles of reason and justice, and for a shortsighted view of expediency, if it deprived individuals of the right of making prospective agreements for a sale, or told them that if they make each other a reciprocal promise to buy and sell a thing a year hence, for example, that they should be absolutely considered as having made a present sale, with all the incidents of a shifting of the risk, revenues, accretion, &c., which pertain to a contract of sale.

The antecedent history of the jurisprudence of France, from whose Code we have taken this article, and which is luminously considered by Marcadé, is a satisfactory key to the true meaning of the expressions — La promesse de vendre vaut vente. It seems to have been dictated by a desire to put at rest the question which had divided learned minds, whether a promise of sale created such an obligation as entitled the promissee to an action for specific performance, or simply an action for damages. It is in this sense the Code speaks, as we think that author has justly remarked — La promesse de vendre vaut vente, c’est á dire, oblige a passer lo contrat.

Being of opinion that the plaintiff has not shown a right to maintain a petitory action, his suit against Mrs. Bemiss must fail. The reversal of his judgment against the defendant, carries with it a reversal of the judgment as to the warrantors.

The judgment in favor of the plaintiff against Overton, who was cited by Mrs. Bemiss as warrantor, is clearly irregular. His exception should have been ■sustained, and the plaintiff should have awaited the result of the suit against Overton for specific performance then pending. That this present suit should not have been brought at all until a voluntary or forced performance by Over-ton, follows from what has been already said in the consideration of the plaintiff’s title.

It is therefore decreed, that the judgment of the District Court be reversed; that there be judgment against the plaintiff and in favor of Mrs. Bemiss, the ■defendant, and that the costs in both courts be paid by the plaintiff. And it is further decreed, that the right of said plaintiff against said John 3. Overton, if any he has, be reserved, this decree being made without prejudice thereto.


author: Slidell, 0. J. Buciianan, J.

text:
    A. Lebeau et al. v. L. H. Trudeau, Testamentary Executor.
    The will of George Lebeau contained the following clause:
    “ I, the undersigned, George Lebeau, in the enjoyment of my intellectual faculties, wishing to put my affairs in proper order, and to make my last will, and to make known the persons to whom I bequeath my property:
    “ After my debts paid, ray property shall be divided in equal proportions, among the persons' hereinafter named, that is to say, L. It., 3?. 33., I. 3)., 33. 33., J. 33., 33. W., L. G., L. II. T.
    ‘‘I have hereinbefore mentioned the names of the persons to whom I bequeath all my property» these are my last testamentary dispositions. I will that they shall be respected.”

      Held,: The legacy is made without the testator’s having assigned the part of each co-legatee. “ The assignment of the parts of each co-legatee,” (O. 0. 1T00,) contemplates an express specification and assignment of the respective portions of the legatees, calling each to his particular portion. There is not that specific and distinct assignment of the parts necessary to constitute a distinct legacy to each, of distinct portions of the estate. The testator has called the legatees conjointly to partake equally in the totality of the estate, and mentioned the equality of their portions, for the purpose of regulating the distribution of the totality. The right of accretion takes place, under these clauses.
    In the interpretation of a will, the true intentions of the testator are to be searched for, as deduci.ble from the wholelanguage of the instrument. If there be obscurity or doubt as to the meaning of the testator, in any particular clause, other clauses are to be brought in juxtaposition, an interpretation must bo deduced from all of them, if possible, which will make them all harmonize.
    0. 0. 1699, 1700, 1701, 1702.
    The intention of the testator is to assign to each of the persons named in the will, a particular portion in the property bequeathed — the assignmentof the portion being direct; it is a declaration as to the part each legatee shall receive in the distribution to be made of the net estate; not a partition of the legatees among themselves, but an assignment of a portion to the legatees severally; hence there is no right of accretion. Budhama/n, J., with whom Voorkies, J., concurred, dissenting.
    from the District Court of the Parish of Point Coupée, Oooly, J.

      Provosty, for plaintiffs and appellants.

      TJ. B. & B. B. Phillips, for defendant:
   Slidell, 0. J.

This case presents a question of the right of accretion under a testamentary disposition made in favor of eight legatees, by the following will:

Je, soussigné, George Labeau, jouissantde toutes mes facultes intéllectuelles, voulant mettre ordre á mes affaires et faire connaitre mes derniéres volontés ainsi que los personnes auxquelles je legue mon bien.

Je vais parlor premiéroment do mes dettes. Je dois t, Mademoiselle Emma Bertrand, comme son tutcur, pour les droits héréditaires provenant do ses pére et mére, une somme de cinq cent vingt piastres, ci: $520. C’est á peu prés tout ce queje dois, hormis deux perils comptes de marchando.

Je déciare queje donne la liberté á mon petit négre nommé PéricUs ; il Tes-tera sous la surveillance &'Elizabeth Wilson, f. d. c. 1., jusqu’á l’áge de vingl-un ans, au cas que la dite Elizabeth viendrait á mourir, je le recommande aux soins de Madame Grousard jusqu’á sa majorité. Aprés mes dettes payees mon bien sera partagé par portions égales aux personnes ci-aprés nommées savoir: Lezine Lebeau, Polixene Bertrand, John JDemonielle, Emma Bertrand, Jem Bertrand, Elizabeth Wilson, Laure Grousard, L. IT. Trudeau.

J’ai mentionné ci-dessus les noms des personnes auxquelles je légue tout mon bien, ce sont mes derniéres volontés. Je veux qu’elles soient respectées.-

Fausse Riviérc, 21 Juin 1858.

George Lebeau.

In the interpretation of this will, we are to search for the true intention of the testator, as deducible from the whole language of the instrument which he has framed to express his last wishes. If there be obscurity or doubt as to his meaning in any particular clause, we are to bring other clauses in juxta-position with it, and deduce, if possible, from all, an interpretation which will make them all harmonize.

Approaching the will before us in this spirit, I And no difficulty in discovering the true intention of the testator. I read the will thus : I desire to dispose by this will, of all that I possess, and In no respect to die intestate.' I wish my debts first paid ; I liberate my slave; I give all the residue of my property to Lezine Lebeau, Polixene Bertn'and, John Demoruelle, Emma Bertrand, John Bertrand, Elizabeth Wilson, Laure Grousard, L. E. Trudeau, to be equally divided among them. No one else is to participate in my estate. They are the persons to whom all my property is to be given. This is the true substance of the will, its unmistakable intention.

To say that by the failure of the legacy as to any one of these eight benefl-ciailes thus jointly constituted his universal legatees, any other person than they should profit, is to fly in the face of the testator’s clear and unequivocal intention* and surely sucha result-should not be permitted, unless there be some insuperable provision of law to override that intention. It is not suggested that it can be found any where but in Arts. 1699 and 1702 of our Code. Article 1700 declares, that accretions shall take place for the benefit of the legatees, in case of a legacy being made to several conjointly; and that the legacy shall be reputed te bo made conjointly, when it is made by one and the same disposition, without the testator’s having assigned the partof such co-lega-toe in the thing bequeathed. Article 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer subsist, except in the cases provided for in the Arts. 1699 and 1701. And Article 1702 declares that except in the cases prescribed in the two preceding Articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, either to a legatee or to an instituted heir, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the legitimate heirs.

Now here, the legacy is made by one and the same disposition. Is it made without the testator’s having assigned the part of each co-legatee in the thing bequeathed? I think it is.

“ The assigning of the parts of each co-legatee,” moans something more than is comprehended in the language of this will, which, according to my understanding of it, simply directs their participation of his whole estate in equal portions. I apprehend the terms used in the Code contemplate an express specification and assignment of the respective portions of the legatees, calling each to his particular part. But in the present case, there is not that specific and distinct assignment of the parts, which, in my judgment, is necessary to constitute a distinct legacy to each, of a distinct portion of the deceased’s fortune. lie appears to me, on the contrary, to have called them conjointly to partake equally in the totality of iris estate, and has mentioned the equality of their portions for the purpose of regulating the distribution of that totality. They are conjointly his universal legatees.

Judgment affirmed, with costs.

Mr. Justice Ogden, and Mr. Justice Spoeeoed, concurring.

Buciianan, J.

(with whom concurred Vooehies, J.,)

dissenting. Oeorge Lebeau died in the year 1854, leaving an olographic testament, which ivas admitted to probate and execution, and which contained the following clause :

“ Aprés mes dettes payees, mon bien sera partagé par portions ég'ales aux personnes ci-aprSs nominees, savoir; Leeine Lebeau, Polixene Bertrand, John Demoruelle, Emma Bertrand, Jean Bertrand, Elisabeth Wilson, Laure Gtrou-■sard, L. E. Trudeau

Tho heirs at law of George Lebeau, who are his brothers and sisters, and nephews and neices, bring this action, to set aside the will, as being invalid in law and in form. Their petition avers, that, even should the will be held to be valid in form, two of the legacies contained therein are illegal, to wit, the legacy of freedom to a slave named Pericles, and the legacy of one-eighth of the succession to Elisabeth Wilson, who was the concubine of the testator, and as such, incapable of receiving from him by a donation mortis causa. The heirs -also attack certain donations inter vivos made by tho deceased to the same Elizabeth.

The defendants, who are the legatees mentioned in the clause of the will copied above, have excepted that the heirs at law are without interest to attack the will, because, even supposing Elisabeth Wilson to be incapable of receiving from the deceased, her portion in this estate will belong, by accretion, to her seven co-legatees. This exception was maintained by the District Court, and the suit dismissed. The plaintiffs have appealed.

The first thing- which demands our attention, is a motion to dismiss the appeal, on tho grounds: 1st That the appellants, being married women, have not been authorized by their husbands to take the appeal.

2d. That certain parties interested in maintaining the judgment ajipealed from, have not been made parties to this appeal.

Neither of these grounds are tenable. There are many plaintiffs, and many •defendants in this suit. Only a portion of the latter have made any appearance Those who have appeared, have pleaded, separately, the exception abovemen-tioned.; which having been taken under advisement by the court, the parties, at the end of tho term, entered into a written agreement, “ that the Judge will, as soon as he has prepared his judgment on the exceptions of defendants, hand it to the Clerk of this court; that the judgment so rendered will have the same form as if rendered according to law in open court; and that, on furnishing a bond to the amount to. bo fixed by the court to answer for costs, the party cast will have tho right of taking the case on appeal to the Supreme -Court in New Orleans, on tho 4th Monday of January next, without notice and without petition of appeal, and citing tho appellees.” This agreement is the law of the parties who have signed it, and who are the same that move to dismiss the appeal.

It is not protended that the appeal bond given was not in conformity to the agreement. That bond is not signed by the married women who are mentioned as principals, but by their attorney. The authorization of these married women to bring the suit, is not understood as being contested; and they were dearly the party cast by the judgment appealed from. As to the objection, that three persons named in the motion should have been made appellees, being interested in maintaining the judgment, it may be replied, that two of the three were not cited in the court below, and the third, though cited, had made no appearance, nor had any default been entered against her. Besides which, the appeal' bond is in favor of Louis H. Trudeau and others, legatees of George Lebeau, deceased,” under which general designation, the whole of the parties named in the motion, might, without impropriety, be included.

Proceeding to the decision of the appeal, as well taken, we find the point upon which the plaintiffs’ action has been dismissed by the court below, to be, the accretion of inheritance — a doctrine which, according to Toullier, (vol. 5,. No. 683,) “ passait avec raison pour la matióre la plus subtile et la plus épineusc du droit romain.”

The extent of this right of accretion, as it was recognized by at least a portion of the Roman jurists, was much circumscribed by the Articles 1044 and 1045 of the Code Napoleon, which are copied literally in the Articles 1700 and 1701 of the Louisiana Code. According to the former of those articles, accretion only takes place in favor of those co-legatees who are joined by name in one and the same clause of the will, without the testator’s having assigned the part or portion of each co-legatee in the thing bequeathed. Under this legislation, a legacy of a thing, or of all the testator’s estate, to several persons in equal portions, does not give rise to a right of accretion in favor of one or more of those persons, in case the rest should be incapable of inheriting. But in the construction of the Article 1044, the French courts have made a distinction, as'to whether the assignation depart is made by the testator in a disposing form,, •or in an executory form.

Thus, if the testator say, “I leave my estate to Peter, Paul and James, in •equal portions,” there is an assignation depart which precludes accretion; but if he says, “I leave my estate to Peter, Paul and James,.to be by them divided equally,” there is no assignation de part by the tesatorthis form of expression, implying that the legatees are to take the thing bequeathed in an undivided form, although it is in the contemplation of the testator, that they shall subsequently divide it equally among themselves. This distinction appears very refined; and Marcadé, (Explication du Code Civil,.Arts. 1044, 1045,) observes, thereupon, “ Comment veut-on qu’un marchand, un cultivateur, et méme tout homme du monde, apercoive une difference aussi capitale entre Je legue mes biens 4 Pierre et á Paul, chacun pour moité” et 11 Je légue mes biens á Pierre et á Paul, pour se les partager chacun par moitié” ? Est-ce que cette difference, si vraie qu’ellc puisse étre, no serait pas insaisissable pour les neuf dixiémes des citoyens.” In fact, the doctors of the French law are much divided upon the correctness of this distinction, sanctioned though it be by several decisions of the Court of Cassation. In citing these conflicting opinions, Mar-cadé joins Coin Delisle in refusing to adopt either, absolutely; but concludes that the intention of the testator, as to the assignment of portions in the legacy, is to be gathered from the context, as a guide for the application of the right of accretion. The District Court, proceeding upon the rule of construction laid down by Marcadé, has found in the commencement and in the close of the will of Lebeau, expressions of his intention to dispose of the whole of his property in favor of the eight persons named in the extract above quoted. Of that intention, we think with our learned brother of the District Court, that there can be no doubt. But the matter which we have to decide, is not the intention of bequeathing the whole of his property to particular persons,hut the intention of assigning to each of those persons, a particular portion in the thing bequeathed.

The expressions of the disposing clause are, “ aprés mes dettes payees, mon ¡bien sera partagé par portions égales aux personnes ci-aprés nominees,” etc.

It is very clear, from the context, that the words “ mon bien” mean all the property of the testator. This property shall be divided, says the will, in ■equal portions, after the payment of debts. The assignment of the portion is here direct — it is made by the testamentary disposition. It is not, to be sure, an assignment of so much money to one, or of such a farm to another, but it is a declaration what part each legatee shall receive, in a distribution to be made of the net estate — aux personnes ci-aprés nominees: not a partiton by the legatees among themselves, but an assignment of a portion to the legatees severally.

This is a very different form of expression from that which we find in the case of Ddaporte's will, cited by Toullier, Duranton and Marcadé. “ J’institue pour mes héritiers généraux et universels le sieur Plante et ses deux sceurs, mes trois neveux, pour par eux jouir et disposer de mon entiére hérédité, aprés mon décés, par portions égales, á leur volonté, en payant mes dettes.”

It should be observed also, in reference to the construction of the Articles 1700 and 1701, that our Code contains two articles, which are not found in the Code Napoleon, and which immediately precede and follow those two articles.

Articles 1699 declares, that the right of accretion relative to testamentary dispositions, shall no longer subsist, except in the cases provided in the two following articles:

Article 1702 says: “Except in the cases prescribed in the two preceding articles, every portion of the succession remaining undisposed of, either because the testator has not bequeathed it, or because the heir or the legatee has not been able, or has not been willing to accept it, shall devolve upon the heirs at law.”

. Had these articles existed in the Code Napoleon, we are not permitted to suppose that Marcadé would have maintained, as we find him doing, in opposition to Duranton and others, that the right of accretion of legacies was not limited to the'cases mentioned in Articles 1044 and 1045 of the French Code.

I think the judgment appealed from should be reversed.

      1, the undersigned, George Lébeau, in the enjoyment of my intellectual faculties, wishing to put my affairs in proper order, and to make my last will, and to make known the persons to whom I be-queathe ray property:
      I will first mention my debts. I owe to Miss Emma Bertrand, being her tutor, by reason of her hereditary rights, growing out of the successions of her father and mother, the sum of $520. This is about all I owe, with the exception of two small accounts due merchants.
      I declare that I give freedom to my young negro boy named PeHcles; he shall remain under the superintendancc of Elizabeth Wilson, i. c. w., until he shall attain the age of twenty-one years. In case that the said Elizabeth should die, I recommend him to the care of Madam Groussard, until he comes to his majority. After my debts paid, my property shall be divided, in equal portions, among the persons hereinafter named, that is to say, Lesine Lebeau, Polkcene Bertrand, John De-moradle, Emma Bertrand, Jean Bertrand, Elizabeth Wilson, Lanre Grousard, L.1L Trudeau.

      I have hereinbefore mentioned the names of the persons to whom 3 bequeathe all my pi operty. these are my last testamentary dispositions. I will that they shall be respected.
      Fausse Reviere, 21 Juen, 1S53. George Lebeau.


text:
    M. A. Hoggatt, Tutrix, v. H. P. Morancy, Dative Executor.
    The mother, as natural tutrix of her minor children, is entitled to the seizin of an estate bequeathed to them as universal legatees of their grandfather, notwithstanding the will under which they derive appoints another person to the tutorship.
    The nomination by the grandfather in his will of a tutor to his grandchildren, to the prejudice of their surviving parent, is illegal, and the disposition null, and conside ed as not written. C. C. 1506.
    The nomination of tutor by last .will, can only be made by the surviving father or mother. C. C. 275.
    from the-District Court of the Parish of Madison,' Snyder, J.

      Stacy & Sparrow, for plaintiff.

      Hynes, for defendant and appellant.
   Buchanan, J.

(Ogden, J., absent.)

The plaintiff as natural tutrix of her minor children, who are the heirs of Nathaniel Hoggatt, deceased, claims of the defendant, dative executor of the last will of said Nathaniel Hoggatt, the seizin of the estate and an account of administration. Her right thereto is unquestionable, under Article 1664 of the Code. See also the case of Claque v. Claque's Executors, 13th La. Rep. 5. There are no movable legacies, except one, which is not, however, a charge upon the estate administered defendant, being devised upon the express condition that the legatee shall give a quit claim to the heirs of that estate, under penalty of forfeiture of the legacy. It is to be observed, that Nathaniel Hoggatt died possessed of property, both in Mississippi and Louisiana ; and that the Louisiana estate alone is administered by defendant.

The contest between these parties has grown entirely out of the peculiar phraseology of the following clause of Nathaniel Hoggatt's will:

“ Item: — I give, devise and bequeath to the legitimate children of my son Anthony, who may be living at the time of his death, or the legal descendants of such as may previously die, such portions as my son Anthony may, by deed or will, appoint; and in default of such appointment, in equal portions, the descendant of every deceased child taking but one share, all the lands, slaves and movable effects belonging to me in the parish of Madison, State of Louisiana, or which may be therein at the time of my death. I appoint my said son Anthony, guardian of his said children,, and will and require that he shall manage and control said lands, slaves and movable effects to the best advantage for said children, and with the increase thereof, provide for the general support and liberal education of said children and their descendants according to his judgment and discretion. I further will and devise, that as each of said children shall' arrive at the age of twenty-one years or marry, that said Anthony shall set apart and give the usufruct of a portion of said property to such child to such amount as he deems just; after which, he shall not be accountable for the receipt or disbursement of the income of such property so set apart, nor for the support of the child so advanced. I wish it well understood, that if Anthony should die before his children arrive at the age required by this will to take charge of the property, in that case I wish my executors to take charge of every species.-o£ property herein mentioned for my son Anthony's children, and act according to this will."

Anthony Hoggatt died shortly after his father; and the plaintiff has qua li fled in Mississippi, the place of her residence, as guardian of the five children, issue of her marriage with Anthony; and also in Louisiana, as natural tutrix of said minors. 1

So far as regards the institution of heir contained in the foregoing testamentary disposition, it is perfectly distinct, intelligible and legal. But when the testator proceeds to nominate a tutor for his grandchildren, whom he has thus instituted his heirs, and that, to the prejudice of the right of the surviving parent of those grandchildren, he does something contrary to law, and his dispositions, to that extent, are absolutely null — are considered as not written. C. C. 1506.

The tutorship of the minor child, belongs of right to the surviving mother or father. O. CL 2-68. The disposition of the will which gave the guardianship of Anthony Hoggatt’s children, at hia death, to the executors of the testator, violated this article. In that respect, this case resembles that of Claque, in 13th Louisiana Reports, above cited. But this case presents another feature of illegality not found'in that of Glaque. The appointment of a tutor by last will, can only be'made by the surviving father or mother. C. 0. 275. Here, it is made by the grandfather, in the lifetime of both parents of the minor.

Judgment affirmed, vnith costs.


author: VooRniES, J.

text:
    E. H. Cornell, Wife, &c. v. R. Geddes.
    A dermttid fof three frúrvdred dollars, together with interest and costs of suit, is not within the jurisdiction of this court,
    from the Sixth District Court of New Orleans, Cotton, J.

      Holland & Scott, for plaintiff,

      Wolfe & Singleton, for defendant and appellant.
   VooRniES, J.

The plaintiff has moved to dismiss the appeal in this case, on the ground that the amount in dispute is not within our jurisdiction. In her petition, she alleges that the late Ma/ry'Cornell, of whom she is the sole heir, during her lifetime, leased from ■Franeis'Soule, a certain lot of ground for a term of years, ending the 3l£t-of Dec., 1858, 'to the use and enjoyment of which she is entitled as such heir; that the defendant had taken forcible possession of said property, and kept the same against her will during the whole of the months of April, May and June, and erected thereon certain buildings, which he was required to remove, and also to restore her possession to said lot; and that during his forcible retainer, the defendant derived a large revenue from said lot and buildings. In consequence of which, she claims the sum of $300, averring that said “ lot of ground was well worth the sum of $100 per month for each of the said months.” She prays that the defendant be condemned to pay her said sum of $300, “ together with interest-.and costs of suit.”

In answer to this objection, it is argued by the appellant that the appellee’s claim for interest, (which is allowable under the Act of the 9th March, 1852,) being- superadded, produces an amount sufficient to confer jurisdiction.

This position is untenable. The appellee’s demand being for damages resulting from a quasi-offence, it is clear that it cannot be considered as a debt coming within the purview of the Act of 1852 ; indeed, her claim for interest is not specific as to date; the Judge a quo did not notice it, giving judgment in her favor for the sum of $284 with costs. It follows, therefore, that the amount in dispute is not within the jurisdiction of this court.

It is therefore ordered and decreed, that the appeal bo dismissed at the appellant’s costs.


author: VoouniES, J.

text:
    S. M. Hart & Co. v. The Mayor and Board of Selectmen of the Town of Baton Rouge.
    A tacit consent to the erection of a wharf in front of the property of the builder on the banks of the Mississippi river, within the limits of the town of Baton Rouge, doe3 not give to the owner the exclusive use of the bank of the river covered by the wharf.
    The banks of the river are public property, subject to be used by the public at large. O. 0.446.
    An Act of the municipal council extending the public landing so as to-include a wharf erected by . an individual, and allowing the lessee of the right of establishing and. keeping a wharfboat, at the steamboat landing to remove his boat to the end of that wharf, does not render the Town Council liable to a claim for damages or for the value of the whaatf thus erected by an1 individual for his own use.
    from the District Court of the Parish of East Baton Rouge, Robertson, J.

      Brunot & Ilerron,, for plaintiffs and appellants.
    Seymour, for defendants.
   VoouniES, J.

The plaintiffs in their petition, after stating that they are the assignees of the firm of Pike, Freleigh <& Go., allege that “ about three years past, this firm erected on the bank of the Mississippi liver, and within the corporate limits of Baton Rouge, and in. front of the store then occupied by them, a wharf for the convenience of trade or commerce in the shipment of merchandize and produce, and in the receipt thereof by them and for their benefit solely.” The cost of this work is set down at $3.r50'0,. for which sum, the plaintiffs aver they offered to sell it to the corporation of the town of Baton Rouge, which offer was not accepted. The petition proceeds to charge the defendants with having committed acts of ownership on their wharf, by extending the steamboat landing so as to include it, and authorizing the owners and keeper of the wharfboat thereby to use it; by converting their wharf to the use of tlie public and of said town authorities ; and by repairing it for the public convenience, without allowing the petitioners any payment or compensation fb«-these improvements, thus unjustly and wrongfully appropriated to the public; use. The plaintiffs therefore pra}’, that the defendants be condemned to pay; them said sum of $2,600, with legal interest.'

The defendants, in "their answer, specially deny that the3r have even- tekorn possession of the propert3r in question, or authorized any one to do so-;; that the plaintiffs have never been obstructed in the use of their wharf, aauSthnttiff any repairs have been made on it by the defendants, it was with ths/consosift and at the instance of the plaintiffs, and in order to render the steamboat Ihiiiii-ing.accessible and capable of being occupied.

The evidence shows that the plaintiffs erected in front of their warehouse on the river, a wharf, at a cost of about $2,500, beyond the landing established by the municipal authorities of the town of Baton Rouge. On the IGth of May, 1850, William Markham purchased at auction, “ the exclusive right and privilege of establishing and keeping a wharfboat at the landing at Baton Rouge, known and designated as “ the steamboat landing,” for five years from the 10th Maj', I860 and on the 7th June, 1850, the Mayor, with the authorization of the Selectmen entered into the contract, guaranteeing those rights to Markham. This lessee, in compliance with the conditions of his contract, brought his wharfboat at the corporation landing on the 21st June, 1850, and, subsequently (80th July, 1850,) a proposition was made by the plaintiffs to the defendants to purchase their wharf for $2,500, payable in five equal annual installments, which offer was rejected. The plaintiffs had then the exclusive use of their wharf; but Markham being of opinion that this was in violation of his privilege, complained of it to the Selectmen, who thereupon granted him relief by extending the landing, so as to include the wharf and authorizing him thereby to remove his boat to the end of it.

The work erected by the plaintiffs for their exclusive benefit, as they allege, then became of service to the public at large, as well as to the plaintiffs themselves, who were never obstructed in the free enjoyment of their wharf. Sometime afterwards, on account of the caving from the soft nature of the land, and, probably to a certain extent, the constant use of it by the public, the wharf became dilapidated, so much so as to become dangerous. One of the plaintiffs, who was then a Selectman, having stated that his firm had already spent a good deal of money to erect it, and that the Selectmen might make the necessary repairs, if they thought proper, a resolution was passed, authorizing the repairs of the wharf to be made at the cost of the corporation. This was done at two different times, on the 1st of September, 1851, and the 9th of September, 1852.

This constitutes the substance of the evidence. The question then presents itself, are the defendants under any obligation to pay the plaintiffs the value of the work thus erected by them ? The petition distinctly charges, that the defendants have taken possession of their wharf, and have unjustly and wrongfully appropriated it to the public use. This clearly precludes the idea of the existence of any contract of sale between the parties; the evidence only shows a mere proposal to sell on certain terms of credit, and a refusal to purchase at all. It is however contended, that there was a subsequent acceptance of the plaintiffs’ proposal before the defendants had altered their mind on the subject. In this we think they are not sustained by the evidence. It is idle to argue that the fact of repairing the plaintiffs’ wharf, with their consent, amounted to a tacit consent to complete the sale; nor can any importance be attached to the act of the municipal council in extending the landing, so as to include the plaintiffs’ wharf, and'allow the lessee the right to remove his boat.,to the end of the plaintiffs’ wharf. At all events, had the defendants evinced in due time an intention to close the bargain offered by the plaintiffs, it must have been with the understanding that the conditions were still the same; and when a credit of five years had been proposed, the acceptance must be qualified with that condition. The pleading and the evidence in this case, leave no room for a doubt as to the absence of any contract of sale of the wharf in question, from the plaintiffs to the corporation of Baton Rouge.

It is impossible to perceive upon what grounds the action of the Town Council can he made the foundation of a claim for damages against them. It is true they did not object to the erection of the plaintiffs’ wharf; but this did not give to the latter the exclusive use of the bank of the river covered by their wharf. The banks of the river Mississippi are public property, subject to be used indiscriminately by the public at large. C. C. 446.

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


author: Ogden, J.

text:
    A. Cavellier v. C. Davenport et al.
    Plaintiff enjoined a sale of real estate provoked by the administrator of a succession. The apparent title was in the succession, but the plaintiff was really jointly interested. Pending the suit the defendants were evicted in favor of a third party, by which the title of both plaintiff and defendant was defeated; defendant claimed damages in reconvention, on the ground that a person was ready on the day of sale to buy the property and assume the risk of the claim of the evicting party, and plaintiffs’ injunction had prevented the sale. Held : That plaintiff was not bound to accede to a compromise of his rights and his refusal so to do, caused merely damnum absque in-juria,

    from the District Court of East Baton Rouge, Burle, J.

      T. G. & P. S, Morgan, for plaintiff.
    Mam, for defendants and appellants.
   Ogden, J.

The administrator of the estate of John Davenport, obtained an order for the sale of certain lands in the parish of East Baton Rouge, which order of sale was enjoined by tine plaintiff on the ground, that although the apparent legal title to the property was vested in John Davenport, yet in point of fact the property had been purchased by Davenport for the joint account of the plaintiff and himself. The object of the suit was to obtain a decree recognizing the plaintiff as the owner of an undivided half of the propertjv After the suit was instituted, the estate of Davenport was evicted from the lands, which are the object in controversy, by a judgment rendered in the Circuit Court of the United States for the Eastern District of Louisiana, in favor of the heirs of Fletcher. It has been admitted by both parties to the present appeal, that the title to the property has, by the effect of that judgment, forever passed away from them both, and that it is therefore unnecessary for us to inquire into the correctness of the judgment of the court below, which decreed the plaintiff to be the owner of one-half of the land. The defendants, however, contend that they are entitled to a judgment on their reeonventional demand, claiming damages for the injury alleged to have been sustained by them by the illegal interference of the plaintiff, by which a sale of the property was prevented. They allege, in their answer, that on the day on which the property was to have been sold, a purchaser was present ready and willing to assume the claim of Fletcher's heirs, and pay a large sum for the land.

If a reeonventional demand for damages could be properly admitted in a case like this, we are unable to see how the plaintiff, in prosecuting his claim to be recognized as joint owner, with Davenport's estate, of the land in controversy, can be said to have done an illegal act for which he might bo made responsible in damages. The plaintiff was not bound to make the compromise which the defendants urged upon him, and were it certain that his refusal to do so, occasioned ultimately a loss to both parties, by depriving them of an opportunity of selling to a person who was willing to take upon himself the risk of the adverse title of the Heirs of Fletcher, it was damnum absque injuria, and the defendants are not entitled to any damages from the plaintiff.

We see no error in the judgment appealed from, which justifies us in reversing it; but as it has been admitted by both parties, that the title under which thej7 claim has been sot aside by the judgment in the United States’ Court in favor of the Heirs of Fletcher, wo will direct that no writ of possession issue in favor of the plaintiff, as long as the judgment of the Circuit Court of the United States remains unreversed.

It is therefore ordered and adjudged, that the judgment of the court below be affirmed, but that no writ of possession issue under said judgment, as long as the decree of the Circuit Court of the United States for the Eastern District of Louisiana in the case of Fletcher's Heirs, complainants, v. John Daveport's Heirs, remains in force. It is further ordered, that the costs of this appeal be paid by the appellants.