text:
    No. 5390.
    Succession of S. Marx.
    The right granted to the widow or minor children of a deceased person by the homestead act, vests in them at the time of tbe death of the deceased, provided their condition of life at that moment entitles them to the benefit of the provisions of the act j their pecuniary circumstances at the time of the death of the insolvent, and not at any subsequent time, settles their right to any claim under the act.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Julian Michel & Charles Lauque, for tutrix and appellant. JE. J. Wench & J. L. Tissot, for opponent and appellee.
   Taliaferro, J.

The controversy in this case relates chiefly to whether the widow of the deceased is entitled to the benefit of the Homestead act upon her avowal of being left in necessitous circumstances at the death of her husband. Marx died in December, 1868, leaving a widow and six minor children. The property of his estate, real and personal, was appraised at $4245. There were debts against the estate amounting to $1200. The widow and tutrix, upon the advice of a family meeting, borrowed money by mortgaging the real estate to pay the debts. The money was loaned by one Boesel, the principal creditor. When the debt to Boesel became due and there being no means of the estate to pay it, the tutrix by advice'of a family meeting, sold the property to raise money for that purpose. On filing her account she placed herself upon it as entitled to one thousand dollars for the benefit of herself and children under the homestead law. The account was opposed by Boesel, who denies her right to the benefit of the act and who opposed various other items of her account. The judge a quo sustained the opposition, rejected the item for homestead claim, reduced the items for attorney’s fees and services of the appraisers, struck out the charge of the tutrix for commissions, and as thus modified homologated the account.

From this judgment the tutrix appealed. The judge a quo thought that, as it is shown the estate at the time of the death of Marx was worth $3045 over and above the amount of its debts, it can not be taken as insolvent, nor that the widow was left in necessitous circumstances. He assumed under the authority of the case of the succession of Norton, 18 An. p. 36, that “the right granted to the widow or minor children of a deceased person by the homestead act, vests in them at the time of the death of the deceased, provided their condition of life at that moment entitles them to the benefit of the provisions of the act; their pecuniary circumstances at the time of the death of the insolvent and not at any subsequent time, settles their right to any claim under the act.”

We find no reason for altering the decree of the lower court.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 3889.
    Lucy Hammitt and Husband v. Payne, Huntington & Co.
    Where final judgment was rendered in favor oi the two members of the defendant firm, who were before the court, and the appeal was taken as to one only:
    Held — That both defendants having an interest in maintaining the judgment, should both have been made parties. The motion to dismiss the appeal must prevail.
    APPEAL from the Fourth District Court, parish of Orleans. Thecm-d, J.

      Bemmes & Mott, for plaintiff and appellant. Breaux, Fenner ds Ball, for Payne, defendant and appellee.
   Howell, J.

A motion is made to dismiss this appeal for want of proper parties.

Judgment, it seems, was rendered in favor of the two.members of the defendant firm, who were before the court, and the appeal was taken as to one only. Counsel for plaintiff in their first brief say: “If the judgment of the court below had been final and res judicata, the motion to dismiss for want of proper parties would have been good.”

The judgment reads: “It is ordered that the plea of prescription herein filed by defendants be sustained and that this suit be dismissed at plaintiff’s costs.”

This is a final judgment, settling definitely the right of action against the defendants, in their favor. Both defendants have an interest in maintaining the judgment and should be made parties.

We think the jurisprudence is adverse to the ruling in the casein 6 R. 131, cited by plaintiff’s counsel in their second brief.

•It is therefore ordered that the appeal be dismissed at costs of appellant.


author: Taliaferro, J.

text:
    No. 3946.
    Samuel Logan v. City of New Orleans.
    The rule seems to "be that the powers of all corporations are limited "by the grants in their charters and can not extend "beyond them. But, if to provide for the relief of the indigent, who are unahle to procure for themselves the needs of suffering humanity, is an essential part of municipal government, the right to determine the means, form and manner of extending the rolief according to the exigencies of each particular case, must exist also. In this case, two policemen, who had been severely wounded in the discharge of their duties "by gun shots, and who were poor and destitute, had applied to the City Council for assistance. If the council had power to provide for them at all, it surely w had the power to provide the assistance most needed — that of the services of a skillful surgeon.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J. Jury trial.

      Sambola & Hueros, for plaintiff and appellee. Samuel _P. Blanc, Assistant City Attorney, for defendant and appellant.
   Taliaferro, J.

The plaintiff, a physician and surgeon, brings this suit for services rendered in those capacities to two men belonging to the Metropolitan police force, who were wounded in a riot that occurred in the city of Jefferson, in the year 1869. He alleges that the services rendered were engaged by the City Council of Jefferson, who authorized its Mayor to employ a surgeon to attend the wounded men. He predicates his claim, now brought against the city of New Orleans, upon the provisions of the act incorporating the city of New Orleans and Jefferson, by which the former is obligated to pay the debts and liabilities of the latter.

The plaintiff’s medical bill amounts to $1600.

It is not disputed that the services were rendered as charged, nor that they were not worth the amount charged. The main ground of defense is that the City Council of Jefferson were without authority to employ the plaintiff to render the services performed by him. The case was tried twice in the court below, and each time before a jury. The first trial resulted in favor of the defendant, the last in favor of the plaintiff, and the defendant has appealed.

The inquiry seems to be, had the municipal corporation of the City of Jefferson the power to employ a surgeon in the case presented ? The charter of the city grants the power of exercising all the rights and powers of municipal corporations generally. Acts of 1867 p. 105, and acts of 1868, p. 99. It was held by this court, in the case of Vionet v. The First Municipality, 4 An. 43, “that if it is a constituent power of municipal corporations to provide for the poor who are unable to labor, and during the prevalence of an epidemic, there is none the exercise of which is more imperative than that of furnishing medical assistance to those who are unable to procure it themselves.” In that case the question was, whether the council had the power to authorize the aldermen in their respective districts to select physicians and apothecuries who were to give and provide remedies for the indigent sick, during the prevalence of the epidemic. It was held that the council had the power. The couit proceeded to say, that “the power had been exercised by the former corporation of New Orleans, and we believe is admitted by all writers of authority to be an essential part of municipal government,” and referred to Blackstone’s Commentaries, 131, 360, and to Domat Droit Public, Liber 1, title 16. The rule seems to be that the powers of all corporations are limited by the grants in their charters and can not extend beyond them. But if to provide for the relief of the indigent poor who are unable to procure for themselves the needs of suffering humanity, is an essential part of municipal government, the right to determine the means, form and manner of extending the relief according to the exigencies of each particular case, must exist also. Oum quid conoedAtur, conceditur et hoe quod pervenitur at illud. In the case presented, the two recipients of the bounty were suffering from gunshot wounds; one of them had received wounds of a very dangerous character, from which he survived only after a confinement of many months, and requiring constant attention and frequent operations by the surgeon. It is shown that both were poor and destitute; the one most severely wounded having a wife. Surgical aid was then the most essential want of these persons. They had appealed to the council by petition for assistance. If the council had power to provide for them, it surely had the power to provide the assistance most needed, that of the services of a skillful surgeon.

We conclude the decision of the lower court is correct.

Judgment affirmed.


author: Morgan, J.

text:
    No. 2736.
    Frederick Belden v. Read & Hunt.
    "Whoro a rule was taken to set aside an attachment, on the ground that the suit was based on a partnership transaction, and therefore plaintiff was not entitled to an attachment, for the reason that he could not swear to the amount duo, until the rights of the partners should be settled according to law;
    Held — That the term partnership implies a community of goods, and a proprietary interest therein, which does not exist in this case. It was a mere consignment of goods, with an understanding that the profits and losses after the sale of the goods should be equally divided between plaintiff and defendants. The objection to the attachment, on the ground alleged, is therefore not well founded.
    Where the question was whether the allegations in the petition and in the affidavit were sufficient to warrant the issuiug of the writ of attachment, and the plaintiff prayed for judgment for $3500, or such amount as should be found due according to said allegations, ' and wliore the affidavit was that “ all the facts and allegations in the above and original petition wore true and correct, and that the defendants were disposing of their goods, rights and credits, with intent to defraud their creditors
    Held — That the allegations wore sufficient, and that the affidavit was in conformity with law.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux, Benner <& ELall, for plaintiff and appellant. William, Brant and A. B. Bong, for defendants and apptdlees.
   Morgan, J.

Belden agreed to furnish to Reed & Hunt a stock of hats, caps and straw goods, to the value of from $5000 to $15,000, the goods to be delivered from Belden’s store, at their invoice price, with three per cent, added to cover cost of transportation. It was specially-agreed that goods were to be received by Reed & Hunt as ou consignment, and that they are owned by Belden, and they were to be insured in his name, the premiums to be charged to the goods.

The proceeds of sales were to be turned over to Belden,-without deduction, every week, until all the g >ods so consigned should have been paid for. At the expiration of the term of the agreement, the parties were to settle as follows: Belden was to take the goods remaining unsold at their appraised value, and to be liable for and pay one-half of the losses, and be entitled to receive one-half of the profits. Reed & Hunt to be liable for and pay to Belden one-half of the losses and be entitled to and receive one-half of the profits of the sales of the goods; the profits to be credited and paid to each party only when realized and collected, and after the consignment of goods should have been fully paid for to Belden.

Plaintiff avers that the defendants have constantly violated their agreement; that they have failed to pay over the proceeds of sales each week, as they were bound to do, and have failed to give statements and returns of sales, and that he is entitled to the possession of the merchandise, books, etc.; that he fears, unless aided by process of law, he will be deprived of his rights. He prayed for a writ of sequestration, ordering the sheriff to take into his possession the merchandise in the hands of the defendants, which was the subject of their agreement, and that he be adjudged the owner, and be entitled to the possession thereof. The writ issued as prayed for on the affidavit of one of plaintiff’s counsel, plaintiff being absent from the State at the ■ time the suit was brought.

On the same day another petition was presented to the court in which the same allegations were substantially made, and in which it was averred that the defendants were withholding proceeds of sale amounting to at least $3500. To secure their rights they prayed for an attachment. There is no allegation in the petition upon which an attachment could issue. There is, however, the affidavit of one of plaintiff’s counsel that the defendants were disposing of their goods, rights and credits with intent to defraud their creditors. There is no-allegation in the affidavit that the plaintiff was absent when the attachment was asked for. Neither the allegations in the petition nor the affidavit were sufficient to authorize the issuing of an attachment, and it was properly dissolved.

Subsequently another petition was filed in which it was specifically alleged that the defendants were disposing of their goods with a view to deprive the plaintiff, one of their creditors, and the proper affidavit was made by the plaintiff himself.

A rule was taken to set aside this attachment; first, because the security on the attachment bond was not good; second, because the suit is based on a partnership transaction, and therefore plaintiff is not entitled to have an attachment, for the reason that he can not swear to the amount due; third, because plaintiff has not sworn to any sum certain as due him in accordance with law.

The district judge considered that the agreement between the parties was a contract of partnership, and that therefore until the rights of the parties should be settled according to law, plaintiff could not swear to the amount due, and he dismissed the attachment. Of this the plaintiff complains.

We are to determine whether the contract between the parties was a contract of partnership. In our opinion it was not. The term partnership implies a community of goods, and a proprietary interest therein. Between these parties there was no community of goods, and no proprietary interest in the goods which the plaintiff was to deliver to the defendants, and which they were to sell. It was in fact and in terms a mere consignment which they were to dispose of, and it was expressly stipulated between them that the goods so consigned were to remain the property of the plaintiff.

The terms of the agreement were, that, upon a settlement, the goods .should be taken at the price which they cost Belden, with a small percentage added, and that the profits and losses should be equally divided between them. The profits made were to be their recompense; the losses, they were willing to risk in consideration of the chances of gain, but this did not make them partners with the plaintiff in the ownership of the goods confided to them for sale. How then stands the case? Plaintiff’s goods were in the possession of the defendants. They owed him a considerable amount of money; they had violated their agreement; they were disposing of their property with the view of defrauding their creditors. At least these are the allegations, and they must be taken for true as regards the issuance of the conservatory writ. Under these circumstances we think he was entitled to an attachment.

The remaining question is, whether the allegations in the petition and in the affidavit are sufficient to warrant the issuing of the writ.

Plaintiff prays judgment against the defendants for “$3500, or such amount as shall be found due.” The affidavit is that “all the facts and allegations in the above and original petition, are true and correct, and that said Read & Hunt are disposing of their goods, rights and credits with intent to defraud their creditors.”

We think the allegations are sufficient and that the affidavit was in conformity with law. See Fowler v. Griffith, 12 La. 345. Defendant contends that the case cited conflicts with the cases of Levy v. Levy, 11 La. 581 and Brinegar v. Griffin, 2 An. 154. But an examination of these cases show we think a different state of facts.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the case be remanded to be proceeded in according to law.


author: Wyxy, J.

text:
    No. 3644.
    Widow F. L. Charbonnet v. Edward Dupasseur et al.—A. Rochereau, Intervenor.
    It is the duty of the appellant to bring up a complete transcript, or in proper time suggost-a diminution of the record, in order that it should be corrected, if possible, and the trial be proceeded -with. The fault being imputable to the appellant, the appeal must be dismissed.
    APPEAL irom the Fourth District Court, parisli of Orleans. Théard, J.

      A. VoorMes, for plaintiff and appellant. Johnson & Denis, for intervenor and appellee.
   Wyxy, J.

In this case the certificate of the clerk to the record is as follows: “that the foregoing 205 pages do form and contain a true, full and complete transcript of all the proceedings had, documents filed and evidence adduced on the trial of the case, with the exception of the certificate of registry, St. Charles parish, offered in evidence by intervenor, Albin Eochereau, on twenty-fourth May, 1871, which is missing and can not be found, atter due and diligent search being made for the same.” * * * • * * * *

This record was on file for nearly three years before the case was submitted and no certiorari was applied for, nor any effort made by appellant to correct it. The document missing when the record was made out, might have been found if diligent search had been subsequently made. Perhaps it may now be among the original papers of the suit. It was the duty of appellant to bring up a complete transcript, or in proper time suggest a diminution of the record in order that it should be corrected, if possible, and the trial be proceeded with.

The fault is imputable to the appellant, and the appeal must be dismissed. 7 An. 443; 8 An. 433; 17 An. 130; 21 An. 299; 18 An. 231.

Furthermore, the defendants have not been cited to answer the appeal.

It is therefore ordered that this appeal be dismissed at the costs of the appellants.

Eeliearing refused.


author: Morgan J.

text:
    No. 4676.
    Citizens’ Bank of Louisiana, for the use of the Phenix National Bank of New York v. John Baltz.
    This is a suit on a mortgage note drawn by defendant, and lost in transitu from How York to New Orleans, to which latter place it had been sent for collection. The Citizens’ Bank of Louisiana offered him a bond of indemnity if he would pay the note at maturity, which he declined. Under this statement of facts;
    Held — That the defendant is liable for the interest due on the note from the maturity thereof; for counsel’s fees, and for the costs of the act of mortgage. He could have avoided them all by depositing, or tendering a deposit of the amount of the note when it fell due, and thus putting the plaintiff in default. But he is not liable for the costa of advertisement for the recovery of the lost note, as he can not be made to pay for either the misfortune or the negligence of plaintiff.
    APPEAL from the Fourth District Court, parisli of Orleans. Lynch, J.

      A. Pitot, for plaintiff and appellant. Alcée J. Ker, for defendant and appellee.
   Morgan J.

Baltz owed a note, secured by mortgage, to the Phenix National Bank of New York

The note was sent for collection to the Citizens’ Bank of Louisiana. The note was lost.

When it matured, Baliz expressed a willingness to pay it, provided the note was presented, in order that he might thus cause the mortgage to be erased. The Citizens’ Bank offered him a bond of indemnity if he would pay the note. This he declined. Suit was instituted against him.

The only questions before us are: 1 — Whether he is liable for the interest due on the note from the maturity thereof. 2 — Whether he is responsible for counsel’s fees. 3 — Whether he should pay the costs of the act of mortgnge. And lastly, whether he should bo made to pay for the advertisement of the lost note.

To the three first questions we give an affirmative answer. He could have avoided them all by depositing, or tendering a deposit of the amount of the note when it fell due, and thus putting the plaintiff in default.

To the last question we say, no. He can not be made to pay for either the misfortune or the negligence of the plaintiff.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be amended by condemning the defendant to pay to the plaintiff eight per cent, interest on one thousand dollars from the nineteenth December, 1870, until paid, six dollars costs of copy of act of sale, and fifty dollars attorney’s fees, and that as thus amended the judgment of the district court be affirmed, with costs in both courts.

Rehearing refused.


text:
    No. 3938.
    Miss Henrietta Morfit v. Joseph Fuentes—Heirs of Farish, Called in Warranty.
    Where the objection to the introduction of an original act of sale as evidence was: 2Tirst— Because it was not an authentic act, having but one witness; second — because there was no proof of signatures; and. third — because the plaintiff, having declared on an authentic act, a private writing is inadmissible;
    Held — That the judge a quo did not err in admitting the evidence; because it is sufficiently proved that tbe instrument was signed by the parties, and is not so inconsistent with the one declared on as to make it inadmissible. It was signed by a notary public, and failed in being authentic only for want of the signature of one of the two witnesses named in the act which was and has'since been in the records of said notary. Besidos it is proved that the price of the sale was received and that the mortgage retained by the vendor was duly canceled. This shows that the title passed from the vendor to the vendee.
    APPEAL from t.lie Sixtl) District Court, parish of Orleans. Oooley, J.

      Zabatt & Aroni, for plaintiff and appellee. A. Pitot, for defen dant- and appellant. Honor & Benedict, for heirs of Farish, warrantors and appellants.
   Howell, J.

This is a petitory action to recover three lots of ground in the Third District of New Orleans. Plaintiff sets up title derived, through several mesne conveyances, from Daniel Clarke in September, 1809. -

The defendant claims title from the heirs of T. H. Farish," which had its origin in the suit of F. Marquez v. Myra Clarke Gaines and Charles Van Wyck, under execution in which these lots with others were sold by the sheriff and purchased by said Farish.

Defendant calls his vendors and said Marquez in warranty. We should also state that he excepted to plaintiff’s action while the judgment and sale in the above suit are not set aside.

The warrantors, heirs of Farish, besides the general denial, specially deny plaintiff’s ownership, and that of the several vendors subsequent to Daniel Clarke, plead the prescription of ten, twenty, and thirty years, and call F. Marquez, Mrs. Gaines, and Charles Van Wyck in warranty. The last named was not made party to the suit. Marquez did not appear and default was taken against him. Mrs. Gaines answered disclaiming any title, averring that her father, Daniel Clarke, sold the lots in question in his lifetime to Commodore Porter.

Judgment was rendered in favor of plaintiff against defendant, and in favor of the latter against the heirs of Farish and Marquez, and in favor of said heirs against Marquez, reserving their rights against Van Wyck, from which judgment the defendant and the heirs of Farish have appealed.

On the trial plaintiff offered in evidence a copy of the notarial act of sale irom Clarke to David Porter, before P. Pedesclaux, notary, on seventh September, 1809, to which the warrantors excepted, on the ground that it was a false copy. The objection being sustained, plaintiff then offered (he original, to which warrantors objected: First — because it is not an authentic act, havingbut one witness; second — because there is no proof of signature; and third — because plaintiff having declared on an authentic act, a private writing is inadmissible, and they cite Code of 1808, p. 304 art. 217; 5 N. S. 618 and 692.

The document was admitted under article 2235, Revised Civil Code, which says: An act which is not authentic through the incompetence or the incapacity of the officer or through a defect of form, avails as a, private writing, if it be signed by the parties.”

We think the court did not err. It was sufficiently proved that it was signed by the parties, and the instrument is not so inconsistent with the one declared on as to make it inadmissible. The allegation is “ described in a deed from the said Daniel Clarke, bearing date September 7, 1809, and signed by Pierre Pedesclaux, notary public.” It was so signed and failed in being authentic only for want of the signature of one of the two witnesses named in the act, which was and has since been among the records of said notary. Along with this and in support of it, two instruments were introduced showing that the agent of Clarke’s executors collected the price from Porter, and that the mortgage retained by Clarke was duly canceled.

This shows that title passed from Clarke to Porter. Acts of transfer were introduced from D. Porter to his son, W. D. Porter, from the latter to H. M. Morfit, plaintiff’s father, and from his coheirs to herself, which were severally objected to on grounds which, perhaps, might have force in favor of the heirs or creditors of the Porters and Morfit, but not in favor of the defendant and warrantors before us, who claim only by virtue of a sheriff’s sale of said property as belonging to Mrs. Gaines and one Van Wyck, the origin or nature of whosp title is not established. It is clear that Mrs. Gaines has and had no title to said lots, and the admission of title to some fifty-four lots, including these, in her answer, filed in the suit of Marquez v. Gaines and Van Wyck, did not divest the title which had vested in David Porter and the subsequent vendees.

We think the judgment in favor of plaintiff is correct; but that against the warrantors is defective for uncertainty in amount, no amount being mentioned, and the evidence does not enable us to fix the amount. The defendant paid $7000 for fourteen lots, being at the rate of $500 per lot, but the evidence shows that the dimensions and boundaries of the three lots claimed by plaintiff are different from those described in the act of sale to defendant. For the purpose of adjusting this matter and ascertaining the proportion to which defendant is entitled for these three lots, which, at the time of the sheriff’s sale and the one to himself, were the “property of another,” and not of the defendants in the execution or the vendors of defendant, the case will have to be remanded as suggested by defendant’s counsel. The judgment, as to Mrs. Gaines, is correct, and as to Marquez, who has not appealed, it seems to be final.

It is therefore ordered that the judgment in favor of plaintiff against defendant, that in favor of Myra Clarke Gaines, and that as to Van Wyck, be affirmed, with costs in lower court as to each respectively. It is further ordered that the judgment in favor of defendant, J. Puentes, against the heirs of T. H. Parish, as warrantors, be set aside, and the case as to these parties be remanded to the lower court for the purpose specified in the foregoing opinion. The costs of appeal to be paid by the appellants.


text:
    No. 4775.
    Teutonia National Bank of New Orleans v. H. Loeb & Co.
    Tbe Teutonia National Bank was clearly without right to hold Loeb & Oo.’s note, pledged to secure a particular debt of Gretzner, 'Winehill, & Co., on account of any other indebtedness of that firm to the bank. When Loeb & Co., and also Gretzner, Winehill & Co. with them, offered to pay and take up the note of the last named parties, the bank upon receiving payment in full for that note should have surrendered the collateral.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J. Jury trial.

      Kennard, IToiue c& Prentiss, for plaintiff and appellant. B. B. Forman, Clarice, Bayne <& Benshaw, Ihomas, T. & Wm. M. Cooley, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues on a promissory note for $2586, drawn by the defendants to the order of and indorsed by Gretzner, Winehill & Co., dated twentieth August, 1871, and due four months after date. The defense is that the plaintiff is not the owner of the note sued on ; that it was made solely as an accommodation note for the benefit of Gretzner, Winehill & Co., who pledged it to the plaintiff to secure the payment to the Teutonia Bank of a note of their own for $1000, maturing at an earlier date. The defendants allege that, after learning that this disposition had been made of the accommodation note, they went in company with one of the members of the firm of Gretzner, Winehill & Co. to the bank, and in presence of two witnesses tendered through its proper officers, in legal tender notes, one thousand dollars, with interest thereon- to said date and costs of protest, to pay and take up the $1000 note of Gretzner, Winehill & Co., and notified the said officers that the note for $2586 they held as collateral security for the $1000 note held by them against Gretzner, Winehill & Co., was an accommodation note without consideration; that the plaintiff refused to receive full payment of the $1000 note and deliver up the note pledged to secure its payment; that defendants then notified the plaintiff not to protest the said note, and if they did they would be held liable for all damages that might result therefrom; that, notwithstanding, the plaintiffs persisted in holding said note against the will of Gretzner, Winehill & Co., as well as that of defendants, and did cause it to be protested, by which act the credit and character of the defendants, as merchants, were seriously affected and their business injured 'to the amount of at least ten thousand dollars. They allege that the thousand dollar note of Gretzner, Winehill & Co. has been paid. The defendants pray that the plaintiffs’ demand be rejected, and they pray judgment in reconvention against the plaintiffs for ten thousand dollars damages, with legal interest from judicial demand, etc.

Judgment was rendered in favor of the defendants for ten thousand dollars, less the amount of Gretzner, Winehill & Co.’s note for $1000 and interest, held by the plaintiffs. The plaintiffs appealed. In this court defendants ask that the credit allowed by the judgment be stricken out.

Pending the proceedings in this case in the lower court the plaintiffs sued out a writ of attachment against the defendants, on the allegation that they were about to convert their property into money or evidences of debt, with intent to place it beyond the reach of their creditors. The defendants’ stock of merchandise and other personal property were seized by the sheriff, and afterwards released by the defendants on bond.

The Teutonia National Bank was clearly without right to hold Loeb & Co.’s note, pledged to secure a particular debt of Gretzner, Winehill & Co., on account of any other indebtedness of that firm to the bank. When Loeb & Co., and also Gretzner, Winehill & Co. with them, offered to pay and take up the note of the last named parties, the bank upon receiving payment in full for that note should have surrendered the collateral. It is fully proved that Loeb & Co. when they went to the bank carried with them legal tender notes wherewith to pay the thousand dollar note of Gretzner, Winehill & Co., and offered to pay it, which the bank refused to receive. The plea, therefore, that no tender was made of the money is unavailing; no formal tender was required after the money was refused by the bank.

We must concede from the mass of testimony in the record, in reference to the effect upon the credit of Loeb & Co., as merchants, resulting from the protest of their note, held by the bank against the earnest request of the makers, that they did, in reference to their credit in mercantile circles, suffer some injury; but the difficulty in such a case is to fix satisfactorily a sum in money that shall be the measure of the damages. We are of the opinion that the amount assessed by the jury is too large.

It is therefore ordered that the judgment of the lower court be annulled and reversed. It is further ordered that the plaintiff recover from H. Lo.eb & Co., the defendants, the sum of one thousand dollars• that plaintiff return to the defendants the note sued upon in this case.

It is further adjudged and decreed that H. Loeb & Co., recover from the plaintiffs on their reconventional demand, three thousand five hundred dollars. The plaintiff paying costs in the lower court, and the defendants and appellees the costs of this appeal.


author: Howe. J. Taliaferro, J.

text:
    No. 3631.
    Henry Reiners v. Valentine St. Ceran—S. D. Maxwell, Surety on Appeal Bond.
    A motion to dismiss an appeal oh the ground, that it is frivolous can not prevail, although it may ho a good one for giving damages when tho case shall he tried on its merits.
    A party may obtain judgment on motion after ton days notice.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, J.

      J. J. JE. Blanchard & A. J. Villere, for plaintiff and appellee. Hornor & Benedict, for S. D. Maxwell, defendant and appellant.
   On Motion to Dismiss.

Howe. J.

The plaintiff moves to dismiss the appeal of S. D. Maxwell, on the grounds first — that it is frivolous, and second — that the appeal bond is not given for a sufficient amount.

The first reason is not a good one for dismissing the appeal, though it may be for giving heavy damages when the case shall be tried on its merits. The second reason is not sustained by the record. So far as we can gather from any thing in the record the amount of the bond is sufficient.

Motion overruled.

On the Merits.

Taliaferro, J.

The plaintiff sues the defendant Maxwell as surety on the appeal bond of St. Ceran from a judgment the plaintiff obtained against the latter.

In the lower court the plaintiff had judgment in his favor, and Maxwell appealed.

The only point made in the defense seems to be that in the court below, a rule to show cause why judgment should not be entered up against the surety was filed on the sixth of November, served on the seventh and the day fixed for the hearing was the seventeenth November, ten entire days not intervening between the seventh and the seventeenth.

We see the judgment was rendered on the eighteenth of November. We think the requirements of the law have been complied with. “ The party may obtain judgment on motion after ten days notice.” Revised Statutes, section 3736, page 725.

Judgment affirmed.

Rehearing refused.


text:
    No. 3902.
    Marceline Latoix v. Germania Insurance Company of New Orleans.
    ’Wiiero tlie defendants answered tliat they liacl issued tlie policy of insurance sued upon at tlie instance of Bader, agent of tlie plaintiff; that, when called upon to pay the premium, he referred them to plaintiff who declined paying on the ground that her agent must have paid it; that, afterwards calling on Bader and informing him of the failure of plaintiff to make payment, he advised them to cancel the policy, which they accordingly did, wherefore they were no longer hound:
    Held — -That whero a policy of insurance is issued -without prepayment of the premium, the . inference is that the insurers intended to extend a credit for its payment,* that it was not at the option of the company to cancel the policy; that they only had the right to claim a dissolution of the contract for nonpayment of the premium upon putting the other party in mom; that Bader was only empowered to apply for the renewal of the policy, and was without instructions or authority to consent to its annulment.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      M. E. Idvaudais, for plaintiff and appellee. O. E. Schmidt, for defendants and appellants.
   Taliaferro, J.

The plaintiff sues defendants on a policy of insurance against loss by fire, and claims $1900, the entire amount of the policy, alleging a total loss and destruction by fire of the building and premises insured. The defendants answer that they issued the policy at’ the instance of Theodore Bader, a merchant in good standing in the city who was in tlie habit of taking out insurances for various persons, and witli customers of that kind it was the practice to collect the premiums at the end of each month; that when Bader was called upon to pay the premium he referred them to plaintiff who declined paying it, saying that her agent must have paid it; that afterwards calling on Bader and informing him of the failure of the plaintiff to make payment, he advised them to cancel the policy which they accordingly did. They contend that they are no longer bound, the policy being canceled by the authority of the plaintiff’s agent. Judgment was rendered in favor of the plaintiff and the defendants have appealed.

Where a policy of insurance is issued without prepayment of the premium, the inference is that the insurers intended to extend a credit for its payment. We do not think that it was at the option of the company to cancel the policy. They had the right to claim a dissolution of the contract for non-payment of the premium upon putting the other party in mora. Neither do we think that Bader can be considered as an agent of the plaintiff clothed with power to consent to the annulment of the policy. It is clear we think, that Bader had no agency in the business further than to apply at the request of the plaintiff for a renewal of the policy, the previous one having expired. No payment was demanded of him. The polioy was not delivered to him and ho was without further instructions or authority from the plaintiff than to request a renewal of the policy.

An examination of the evidence inclines us to believe there is error in the decree of the lower court in regard to the value of the property. One witness puts its value at $2200; another, at from $1800 to $2000; a third, at $1800; this witness appraised the property in July, 1869 ; he put the entire property, lot and building at $1800. He was of the opinion that the improvements alone, separately from the lot of ground, were worth $1000. Assuming a medium estimate from the several amounts fixed by the witnesses, $2000 may be taken for the value of the entire property. From this sum deduct $800, the price for which the naked lot sold after the fire, there are then $1200 left, from which should be deducted $38, the unpaid premium and the remainder then is $1162, the amount for which judgment should be rendered.

It is therefore ordered that the judgment of the lower court decreeing the plaintiff entitled to fourteen hundred dollars, be annulled and set aside, and it is now ordered that the plaintiff recover from the defendant the sum of eleven hundred and sixty-two dollars with legal interest from judicial demand and costs of suit, the plaintiff and appellee paying costs of this appeal.


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    No. 5358.
    Succession of Francois Babin—Opposition to account of Administratrix.
    Tlie right of the administratrix to revoke her power of attorney to administer the affairs of the estate which she had in charge, can not be doubted. All acts done by her agents under said special power, subsequently to the revocation and notice to them of the revocation, can not be considered as binding upon her. The account filed by them was without effect and the court a qua erred in acting upon it.
    APPEAL from the Parish Court, parish of Jefferson. Hyman, J.

      Oharles Louque, for the administratrix, appellant. J. J. & A. J. Homan, for opponents and appellees. W. W. Hdwards, for absentee.
   Taliaferro, J.

Margaret Babin, one of the heirs of Francois Babin and wife of Wattigny was appointed administratrix of her father’s estate in September, 1873, in place of August Babin, the former administrator, who left the State permanently without making a settlement of his administration. She gave as sureties on her bond Louis Gordon and Frederick Diebel. The conditions upon which they agreed to become her sureties were, that she should give the entire and exclusive control of the business of the estate to Messrs. J. J. & A. J. Roman, attorneys at law. They became her attorneys in fact, also under special power. The attorneys, accordingly, took the affairs of the estate in charge and continued in the settlement of its affairs until January or February, 1874, when the altercation arose which has connected itself with the administration of this estate. On December 23, 1873, the administratrix addressed to her attorneys a letter of revocation of her authority previously given to them to act for her in regard to the estate, This letter, it seems, was delivered to them on the day of its date. She again wrote to her attorneys on the twenty-ninth of January, 1874, rebuking them for presenting a tableau as her attorneys and formally discharging them as such. This letter was delivered to them, as appears by the testimony of a witness, on the day alter it was written. The attorneys filed an account of the administration of the estate on the twenty-fourth of January. The administratrix had previously, on the fifteenth of that month, filed an account which was signed by herself and husband. A number of oppositions were filed to the account presented by the administratrix. The larger number of the opponents prayed that the account filed by the attorneys in her name be homologated. The judge a quo recognized the account filed by the attorneys as the proper and legal one, and proceeded to consider it against the exceptions and opposition of the administratrix. He rendered an order homologating the account allowing a claim of $25 for work done on the property of Francois Babin, which had been disallowed by the attorneys. The oppositions to the account of the administratrix were sustained, and her account made to correspond with the second one as amended by the court. The administratrix has appealed.

We regard the proceedings as wholly irregular. The right of the administratrix to revoke her power of attorney can not be questioned. All acts done by them subsequently to the revocation and notice to them of the revocation can not be considered as binding upon her. The account filed by them was without effect and the court erred in acting upon it.

There are several bills of exception in the record which it is not important in this case to pass on.

It is therefore ordered that the judgment of the Parish Court beannulled and reversed. It is further ordered that the account filed by the attorneys be stricken from the record of the proceedings in the matter of the succession of Francois Babin deceased, and that the following changes and amendments be made in the account filed by the administratrix, viz : The clerk’s opposition is dismissed and his claim for fees be allowed only for $40 55. The opposition of Edwards, curator ad hoc, is sustained and his claim for $40 allowed. In like manner, the opposition of Charvet & Duplantier for attorneys fees is sustained and their claim for $61 85 be allowed. The claim of J. J. & A. J. Roman for $250 is allowed; so also the claim of Kaiser for curbing be allowed for $72 instead of $50, as fixed by the administratrix. The claim of Connell for paving is allowed for the amount of his bill $141 10. Against the claim of August Babin for $25 for work done for his father Francois Babin, the administratrix offers the prescription of three years. This must prevail. The evidence shows the work was done eight or nine years before the claim was presented. The oppositions of J. J. & A. J. Roman, of Gordon & Diebel, so far as they pray the account of the administratrix to be rejected and stricken out, are overruled as irrelevant.

The opposition of the said Diebel is sustained so far as relates to his claim for notarial fees, and he is allowed the full amount claimed, viz: $73 50 instead of $50 for which he is placed on the tableau. The sheriff’s claim is allowed for $18 70 instead of $10 allowed by the administratrix.

It is lastly ordered that the account of the administratrix, as herein altered and amended, be approved and homologated. The costs of these proceedings to be borne by the succession.


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    No. 3912.
    John Page v. Nicholson & Co.
    ‘Where tbe terms of the contract for building were, that “no extra was to be admitted or allowed for, unless executed under written authority, and all omissions, additions or alterations should bo estimated for, and the value thereof agreed upon by the superintendent, and added to or deducted from the contract sum, as the case may be, by an endorsement, or no allowance for the same shall he made by the other party; ”
    Held — That certain items of extra work claimed by plaintiff, could not be proved by parol evidence under the contract, and second, because they were outside of the contract, in no manner connected with the specifications in the contract, and contrary to the allegations in the petition.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      Semmes & Tharp for plaintiff and appellee. Brecmx, Fenner & Kail, for defendants and appellants.
   Morgan, J.

Defendants appeal from a judgment condemning them to pay the plaintiff $984 89, for extra work done od a certain building constructed for them by plaintiff. The .allegation in the petition is that during the progress of the work certain alterations and additions were made thereon at the request of the defendants, and their claim for the amount above stated is the result of this work.

The terms of the contract were that “no extra to be admitted or allowedfor, unless executed under written authority,” * * * “ and all such omissions, additions or alterations shall be estimated for, and tbe value thereof agreed upon by the superintendent, and added to or deducted from the contract sum, as the case may be, by an endorsement, or no allowance will be made for the same by tbe other party.”

On the trial the plaintiff offered to prove and did prove by parol, items of extra work amounting to $1378 70, which is more than the sum claimed to be due.

To this evidence the defendants objected on the grounds, first — that, these items could not be proved by parol, under the contract, aod second — that they were outside the contract and in no manned connected with' the specifications in the contract, which was contrary to. the allegations in the petition.

Both objections were good, and the testimony should have been excluded. This leaves the plaintiff without any case.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed, and that there be judgment in favor of defendant with costs.

Rehearing refused.


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    No. 3884.
    Steamboat Carrie Converse and Owners v. Jacob Feitig et als.
    Plaintiffs are not seeking in this case to recover a specific piece of property which they allege to have been unlawfully taken from them and found in the possession of defendants. The petition declares upon an indebtedness, inasmuch as the petitioners say that defendants are indebted to them in a certain sum of money, whioh one in their employ unlawfully took from them and which was subsequently taken from him in an unlawful manner hy defendants who keep a gambling establishment. The court a qua did not err in dismissing the petition which showed no cause of action.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, J.

      Given Oampbéll, J. A. JRozier, for plaintiffs and appellants. A. A. Atocha, for defendants and appellees.
   Morgan, J.

Plaintiffs allege that on the eighth May, 1871, they were the owners of $2200 in United States currency, that on that day W. A. Deven noy, who was then in their employ, unlawfully took this money and went with it to a gambling house, kept and owned by the defendants, where, by means of pursuasions and inducements, and by plying him with liquor, they induced him to gamble and bet against a banking game in their house, called faro, and that by unlawful devices and tricks, they got possession and control of this money. They allege that-they had no knowledge of these facts at the time they were transpiring, and that they did not countenance or consent to them; that no legal title to this money ever passed from them to Devennoy, or to the defendants who unlawfully obtained possession of it, and have converted the same to their own use; that they have amicably demanded payment of the sum thus illegally detained from them by the defendants, wherefore, they pray for judgment against them in solido for $2200.

It will be observed that tbe plaintiffs are not seeking to recover a specific piece of property which they allege to have been unlawfully taken from them and found in the possession of the defendants. Tbe petition declares upon an indebtedness; they allege, in terms, that the defendants are indebted to them in the sum claimed and for the reasons abovestated. In otherwords, they say that the defendants are indebted to them because one in their employ unlawfully took their money, which money was unlawfully taken from their employe by the defendants.

We think with the district judge, that they disclose no cause of action, and that their petition was properly dismissed.

Judgment affirmed.

Rehearing refused.


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    No. 5386.
    Daniel and James D. Edwards v. The Bringier Sugar Extracting Company—Third Opposition of M. S. Bringier.
    Where a patent, transferred for full paid in stock to a company, was subsequently seized and sold by the creditors of said company, and bought by the original proprietor of said patent, who paid the amount of tbe sale into the sheriff’s bands, and claimed tbe same by virtue of his vendor’s alleged privilege, as third opponent;
    3j0],¿_Xhat the clause in the charter that tbe full paid stock should not be issued until the ordinctA'y stock should bo taken, and its non issuance in consequence thereof, did not make the third opponent any the less the owner of his shares. Considering his transaction with the company as a sale, he received the price, and hence has no vendor’s privilege, nor would he have any if considered as an exchange.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Hornor & Benedict, for plaintiffs and appellants. A. Canonge, lor M. S. Bringier, third opponent and appellee.
   Howell, J.

The plaintiffs, having judgment against the defendants, caused a certain United States patent to be seized and sold by the sheriff. It was adjudicated to M. S. Bringier, tbe original patentee, who paid the price to tbe sheriff and claimed the same by third opposition, by virtue of his alleged vendor’s privilege. From a judgment in his favor the plaintiffs have appealed..

It is shown by tbe evidence that tbe third opponent transferred to tbe defendant company the patent in question, for and in consideration of three thousand three hundred and thirty-three shares of the stock of the company, and that ho appeared on the books of tbe company and in the charter, as tbe owner of said stock. Tlie clause in tbe charter that the full paid stock (of which opponent’s was part) should not be issued to tbe stockholders until all tbe ordinary stock should be taken, did not make the third opponent any the less the owner of his shares. He was recognized as. the owner thereof, and so was his right to dispose of a part as he did, the transfer to be completed at the proper time. Considering his transaction as a sale, we think he received the price, and hence lie has no privilege as vendor. As an exchange, he clearly has not a vendor’s privilege.

It is therefore ordered that the judgment appealed from be reversed, and that the demand of third opponent be dismissed, with costs.


author: Taliaeerro, J.

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    No. 5405.
    E. A. Deslonde, Testamentary Executor v. The State National Bank.
    *WTiere it clearly appears that neither the motion in open court was made, nor an order granting an appeal was obtained within the required time, the motion to dismiss must prevail.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Grover <& Hunton, for plaintiff and appellee. J, McConnell, for defendant and appellant.
   On Motion to Dismiss.

Taliaeerro, J.

The grounds for this motion are :

First — That the motion for a suspensive appeal was not made in open court within ten judicial days after the judgment of the Superior District Court was signed.

Second — That there was no order of the judge of the Superior Court allowing a suspensive appeal or fixing the amount of security on the appeal-bond within ten judicial days after the judgment was signed.

Third — Because the judge of the Superior District Court did not, within ten judicial days after the signature of the judgment, cause the order for a suspensive appeal to be entered upon the minutes of the court as required by law.

Fourth — -Because the appeal was not taken and allowed in the manner and within the time required by law to operate as a suspensive appeal.

Fifth — Because the judgment was rendered upon confession.

It appears clearly that neither the motion in open court was made nor an order granting an appeal obtained within the required time.

The motion to dismiss must prevail. 21 An. 481; 20 An. 336; 17 An. 23.

It is ordered that the appeal in this case be dismissed.

Rehearing refused.


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    No. 2638.
    Dennis Cronan v. Edward Cochran et als.
    Where a bill of exceptions was taken to the admission in evidence of an act of sale set up by defendant as the source of his title, on the ground that the vendor was, when she executed the act, a married woman unauthorized in any manner to execute the deed;
    Held — that the court a qua did not err in admitting the evidence. The want of authorization of the husband, or of that of the court if the husband refused his assent, rendered the act she performed a relative nullity only, and one which only the husband or wife, or their heirs, could set up proceedings to annul.
    The right of the party assailed in a petitory action to inquire into the validity of the proceedings under which the party attacking acquired title can admit of no doubt.
    A purchaser at sheriffs sale .can not maintain a petitory action to recover the property, where it has not been actually taken possession of by the sheriff in making the seizure.
    An adjudication under an illegal or insufficient seizure conveys no title.
    In this case, the whole proceeding purporting to be in rem, was carried on up to the very day of the sale without the knowledge of the defendant, the owner of the property, who was by himself or tenants in actual po-session thereof. The special law establishing certain formalities to be observed in judicial proceedings in order to constitute a seizure of real estate in the parishes of Orleans and Jefferson, does not apply to a ease of this sort. That law, acts of 1857, p. 185, directs that notice is to be given to the party whose property is to be seized, to be followed by the recording of the notice in the office of the recorder of mortgages.
    APPEAL form the Seveuth District Court, parish of Orleans. Galiens, J,

      Hornor efi Benedict, for plaintiff and appellant. .JeromeMeunier, for defendant and appellee.
   Taliaferro, J.

This is a petitory action to recover a lot of ground with the buildings and improvement on it, situated in the Third District of New Orleans.

The petitioner prays to be decreed owner of the premises, and for rent for the same during the time he has been deprived of the use and enjoyment of the property.

The answer is a general denial. The defendant avers that he bought the property in question from Mrs. Julia Zoe, widow, by a former marriage, of John Sharkey, by notarial act dated June 11, 1864, and that he has been in continuous possession of it ever since. By way of re-convention, the defendant alleges the judgment under which plaintiff sets up title to be null and void and without effect. He calls in warranty his vendor, and prays judgment over against her if judgment be rendered against him. He prays that pjlainiifif’s suit be dismissed and that he have judgment in his favor. Judgment was rendered in his favor, and the plaintiff lias appealed.

The plaintiff derives title from a sheriff’s sale, made under an execution issued upon a judgment obtained by himself in a suit styled Dennis Cronan v. A Lot of Ground,” etc., numbered 9865 of the docket of the Sixth District Court of New Orleans.

The defendant exhibits as the muniment of his title a notarial sale and transfer of the property claimed by the plaintiff from the said Mrs. Sharkey, then wife of one McCollum, dated June 11, 1864.

The plaintiff introduces in evidence the record of the suit No. 9865 of the Sixth District Court, by which we learn that the plaintiff was under contract with the city of New Orleans, about the year 1860, to construct the sidewalks on Spain street, a work which he performed, and which was accepted by the city. In the performance of this job he constructed the sidewalk in front of the lot of ground in controversy, the cost of which amounted to seventy-nine dollars and eighty-seven cents. In February, 1862, the plaintiff by a proceeding in rem caused the property to be provisionally seized, on the ground that after diligent inquiry he was unable to ascertain who the owner was, and that he had a privilege upon the property. A curator ad hoc was appointed to represent the unknown party, contradictorily with whom plaintiff had judgment with recognition of the lien and privilege claimed. The property was sold under this, judgment and the plaintiff bought it. A. bill of exceptions was taken to the admission in evidence of the act of sale set up by the defendant as the source of his title, on the ground that the vendor was, when she executed the act, a married woman, unauthorized in any manner to execute the deed. We think the court did not err in admitting it. The want of authorization of the husband or of that of the court, if the husband refused his assent, reudered the act she performed a relative nullity only; and one which only the husband or wife or their heirs could set up proceedings to annul. Civil Code, article 133; 5 An. 369; 9 An. 216; 10 An. 433; 17 An. 204.

- Two other bills of exceptions were taken by the plaintiff. One to the question put by the defendant’s counsel to the defendant himself, whether in the proceeding of Cronan, the plaintiff against the property, notice of seizure had been served upon the defendant. The other was to the refusal of the judge to strike out of the defendant’s answer all portions thereof which allege error in the proceedings in the suit No. 9865, on the ground that the judgment rendered in that suit was res judicata between the parties thereto; and that Cochran acquired no rights to the property other than those of his vendor, who is estopped by law from contesting said proceedings, as it is alleged said vendor was present in the parish when the sale was made under which Cronan acquired title and suffered the same to be made without opposition. The purport of both these bills are to the same effect, and they may be disposed of together.

The right of the party assailed in a petitory action to inquire into the validity of the proceedings under which the party attacking acquired title can admit of no doubt. The decisions of this court have been frequent on this point. See the case of Surgi v. Colmer, 22 An. 20, and cases there referred to, and also 8 N. S.105; 5 An. 678, and 11 An. 761.

We think the defendant has been successful in showing the nullity of the judgment set up as the basis of Cronan’s title. The defendant sets out by announcing that it was essential to the validity of Cronan’s provisional seizure tiiat he should have had a privilege, and that the owner of the property should have been unknown. He then adduces in evidence the following facts to show that, at the time the writ of provisional seizure was issued, Cronan had no privilege. The survey- or's certificate, declaring tile account correct, is dated twenty-fourth of February, 1860. The order of court for the issuance of the writ of provisional seizure was rendered on the fourth of November, 1862, more than two years after the date of the surveyor’s certificate. The plaintiff bases his right to privilege on the act of 1840', p. 51, sec. 7. The defendant rejoins by referring to the proviso in that act which declares “that the privilege shall only exist when the account for paving, certified by the treasurer and controller, shall have been duly recorded in the mortgage office of this city, and shall exist only for two years after the tax has become due. If the registry were ever made, it was not until two years after the debt became due, when the right to the privilege and the privilege itself, if existing, was prescribed. It appears- that the surveyor’s certificate was recorded in the mortgage office on the ninth of January, 1863. The defendant shows that the house was occupied by the same tenant at the time of the construction of the sidewalks, and continuously afterward until 1865; that this tenant knew the property to belong to Mrs. Sharkey, rented it from her agent Nim, and afterward directly from her and paid his rent to her. The property v as assessed in Mrs. Sharkey’s name for the years 1861 and 1863. By ordinary diligence the plaintiff, it seems, might have ascertained that the owner of the property was not unknown. The seizure of the property was a mere paper seizure. Actual corporeal possession of the property by the sheriff was never effected. The jurisprudence on this subject is well determined by numerous decisions of this court. An actual taking into possession of the property by the sheriff is essential to the validity of a seizure. It was held in the case of Cone v. Stafford, 24 An. 262, that a purchaser at sheriff’s sale could not maintain a petitory action to recover the property where it had not been actually taken possession of by the sheriff in making the seizure.

In the case before us this whole proceeding, purporting to be m rem, it is shown was carried on up to the very day of the sale without the knowledge of the defendant, the owner of the property, who was by himself or tenants in the actual possession of the property. An adjudication under an illegal or insufficient seizure conveys no title. 11 An. 761; 12 An. 275.

The sheriff recites in his return that he “notified personally John Culbertson, curator ad hoc for the unknown defendant, of the seizure, and caused said seizure to be recorded in the office of the recorder of mortgages for the parish of Orleans and city of New Orleans.” It has been fully shown, as we have seen, that the owner of the property was not unknown, but, on the contrary, that he was in the possession of the property pretended to have been provisionally seized at the time it was made. The special law establishing certain formalities to be observed in judicial proceedings, in order to constitute a seizure of real estate in the parishes of Orleans and Jefferson, do not apply in a case of this sort. That law, acts of 1857, p. 185, directs that notice is to be given to the party whose property is to be seized, to be followed by the recording of the notice in the office of the recorder of mortgages. See Revised Statutes, sections 3625, 3626, 3627 and 3628. We can regard the judgment of Cronan, under which he sets up title to the property, in no other light than a mere nullity, and conferring no right upon him.

It is therefore ordered and adjudged, that the judgment of the district court be affirmed with costs.


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    No. 3918.
    Michael Muller v. H. L. Stone and Willoz & Rostand—Mary Catherine and William Muller, Intervenors.
    The proprietor of a building leased to a tenant is not liable in damages to third parties resulting from the use to which the tenant may put the leased property, unless it be shown that, at the time the lease was made, he knew the uses and purposes the tenant would apply it to, and that such use, from the nature of the business, would prove a nuisance.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble,

    J. Jury trial.

      8emmes & Mott, for plaintiff and intervenors, appellees. Says <& New, for defendant and appellant.
   Taliaferro, J.

The plaintiff alleges that he is the owner of certain lots of ground and the buildings thereon situated at the corner of Gravier, Front and Fulton streets, in New Orleans; tiiat the house he occupies at that locality is used both for thepurposes of his business and as his family residence; the upper story of the building being appropriated for the use of the family, the lower story being used for a refreshment saloon. He complains that the adjoining building owned by the defendant Stone, and leased by him to Willoz & Rostand, is used by the lessees for the purpose of carrying on a sugar refinery, in the opperating of which a steam engine of great power is used on the basement story of the building; that the working of this engine, which is in operation night and day, causes himself and family an annoyance which is insupportable; that the force of this steam power rocks the foundation of the plaintiff’s building, causing a tremor and cracking of the walls, which threaten the destruction of the entire fabric; that for the safety of his family and to relieve them from the constant noise, agitation and vapors proceeding from the action of the steam engine, he has been compelled to remove them to another residence for their safety and comfort. He alleges that from the same cause he has been injured in his business by the loss of the patronage of his friends, who decline coming to his saloon in consequence of the unsafe and uncomfortable condition of the plaintiff’s establishment superinduced from the aforesaid causes. He prays damages to the amount of ten thousand dollars, and that the defendants be injoiued from operating the said steam engine in their said building to the danger and annoyance of the plaintiff. Catherine Muller and William Muller alleging that they are owners to the extent of an undivided half share and interest of the property occupied by the plaintiff, and from the proper use and enjoyment of which he is debarred by the defendants, intervened in this case joining the plaintiff and adopting all the allegations of his petition.

The defendants put in a general denial — aver that they have paid the city of New Orleans two hundred and four dollars as a license for carrying on their sugar refinery in the building referred to by the plaintiff; that the payment of this license and the granting of the permit by the city to them was preceded by an examination of the building by the city surveyor who reported the same to be of sufficient strength to prevent motion or vibration from the action of the steam engine used by the defendants. They aver also the payment of a State license for the same privilege. They pray that the plaintiff’s demand be rejected, and that the city of New Orleans as their warrantor, be called in to defend them against the action. The city excepted that the defendants have no cause of action ; that the permission granted to them by no means binds the city to maintain them in the use of the premises permitted to be used.

The case was tried before a jury, who awarded damages in favor of the plaintiff for the sum of fifteen hundred dollars. The defendant, Stone,ha= appealed. Two bills of exceptions were taken by defendants. Both refer to the charge of the judge to the jury. We do not find error in the charge given to the jury and think the exceptions were not well taken.

We think the plaintiff has fully made out a case which entitles him to relief. The important inquiry is whether Stone, the proprietor of the building leased to Willoz & Rostaud, is liable in damages. We have seen that the judgment of the lower court condemned the proprietor and the lessees in solido, and that Stone, the owner of the leased premiseSj has alone appealed. Stone, it is shown at the time the lease was made by his agents, Green & Elder, was residing in the State of Massachusetts. Under date of July 9, 1870, Green & Elder wrote to Stone saying, “ Mr. Willoz wants the premises to put in apparatus for reboiling molasses,” etc. On the fourteenth of the same month, Stone answers, “1 prefer renting them (the stores) for some other purpose, but, on the conditions he names, that the floors should not be cut, the buildings to be returned as clean and in the same good condition as be receives them, etc., you may let him have them for three years at $2500 for the first year, $3000 for the second and $3500 for the third.” A sugar refinery was established on the premises instead of placing therein apparatus for reboiling molasses. The proprietor of a building leased to a tenant, it has been held, is not liable in damages to third parties resulting from the use to which the tenant may put the leased property unless it be shown that at the time the lease was made be knew the uses and purposes the tenant would apply it to, and that such use from the nature of the business would prove a nuisance. 4 Denio, p. 317.

We think that Stone can not be held responsible for the manner in which the sugar refinery may have injured the business of the plaintiff.

It is therefore ordered that the judgment of the lower court) so far as it condemns the defendant, Stone, to pay damages to the plaintiff, be annulled, avoided and reversed; it is further ordered that the plaintiff and appellee pay costs of this appeal.


author: Taliaferro, J. Howell, J., Morgan, J.,

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    No. 5352.
    Charles Diamond v. Robert E. Diamond et als.
    In tliis suit, instituted by plaintiff to recover bis share in the succession of bis grandfather and grandmother, the only question being whether the Second District Court, parish of Orleans, had jurisdiction to issue the order of sale to operate said partition 5
    Held — That the court a qua did not err, under the state of facts existing in the case, and by virtue of art. 924 of tlio Code of Practice, in maintaining its jurisdiction. Having jurisdiction, it could order the sale of the property to be partitioned, and it follows that the liens and mortgages on the property sold were shifted to the proceeds. The opponent, Sickerman, retains his right to participate in said proceeds to the extent of his mortgage. The purchasers of said property could not be compelled to pay the price before they were tendered an unencumbered title, and all that they required was the erasure of the mortgages on the property sold.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Hiram J- Grover, James H. Grover, for plaintiff and appellee. Robert J. Kerr, Hornor & Benedict, for defendant and appellant.
   Taliaferro, J.

This suit was instituted by the plaintiff to recover bis share of the successions of bis grandfather and grandmother, derived to him and his brother, representing their deceased father as one of the four heirs of their grand parents. Charles Diamond, the grandfather, died in the year 1867. His wife died in 1864. The surviving husband administered her estate. In 1865 he filed an account of his administration, by which it appeared that after paying the debts, the remaining assets of the estate amounted to about $16,000. He never filed a final account, and was never discharged from his liability as administrator. It seems that Robert E., John A. and Amelia Diamond, three of the heirs of their mother, executed an act acknowledging to have received from their father all their portions of their mother’s estate. Charles Diamond, Jr., the plaintiff, and his brother, Anthony, were not parties to this act, and as to them there was no release.

It appears that Charles Diamond, Sr., treated the assets of his wife’s estate as his own. It seems to have been the fixed purpose of himself and the three heirs of age, to deprive the present plaintiff and his brother, heirs of a predeceased son, from all participation in the succession of their grandmother. Charles Diamond, Sr., left a will at his decease. He bequeathed all the property, that of his wife’s estate as well as his own, to his three living children, before named, leaving nothing to the two grandchildren. He injoined upon the three legatees to divide the property among themselves in peace and harmony. They proceeded to execute the will, Robert E. and John A. Diamond being the executors. In March, 1869, the three legatees proceeded to a partition of all the property among themselves. The portion which fell to the lot of Robert E. Diamond was the property known as the Louisiana Hotel. He executed a mortgage upon this property on the tenth of March, 1871, to secure a debt of $3000; the notes given for the payment came into the hands of A. Sickerman, one of the appellants in this case. The plaintiff brought this suit, claiming one-fourth part of all their grandmother’s estate, one-fourth of all the property mentioned in their grandfather’s will, embracing, among other property, the'Louisiana Hotel. They prayed the annulment of the will, for an inventory and partition, for recognition as heirs, and to be put into possession, etc. The contest was a long and arduous one. The defendants began their defense by the following exception:

“For exception to the jurisdiction of this honorable court (the Second District Court) in the premises, they allege that the plaintiff sues herein for a partition of the estates of Charles Diamond and Mary Onyet, deceased, which has descended to these defendants and which they are in possession of as heirs, by judgment of this honorable court, and the defendants say, therefore, that the court is wholly without jurisdiction to entertain a suit for partition such as is here brought.”

The judge a quo overruled the exception, on the ground that where, as in a case of this kind, when the heirs are all of age, residing in the State, and can not agree upon the partition and mode of making it, the court has jurisdiction ; referring to Code of Practice, art. 924, paragraph 14.

There was a final judgment rendered in favor of the plaintiff, recognizing him as an heir of Mary Onyet and Charles Diamond, annulling the will, ordering the filing of an account, and decreeing that a partition be made of all the property of the estates according to law, etc. Here it seems the controversy ended between the heirs, the defendants having filed a motion for a suspensive appeal, but proceeded no further.

An auctioneer, duly authorized, proceeded to advertise the property for sale. After the advertisments were made, several creditors of Robert E. Diamond sued out writs against him in the other courts. The property was sold. The purchasers desiring to have the mortgages against the property released, a rule was taken upon the recorder of mortgages, and those holding recorded claims against Robert E. Diamond, to show cause why their mortgages should not be erased. Opposition was made by several persons. The rule was made absolute, and only Sickerman and the recorder of mortgages appealing from the judgment, ordering the mortgages to be erased.

The opposition of Sickerman seems substantially to be: that the Second District Court is without jurisdiction to render a decree of partition, and the judgment is null;

That the seizures against Robert E. Diamond after the order of sale by the Second District Court, divested that court of jurisdiction over the property ordered to be sold.

That the purchasers did not pay their money and execute their notes for a title before they got a title;

We do not find that the opposition has any force. Under the state of facts existing in this case, the court had jurisdiction. C. P. art. 924. The sale shifted the liens or mortgages from the property to its proceeds. The opponent, Sickerman, retains his right to participate in the proceeds to the extent to which his mortgage bore on the Louisiana Hotel. Robert E. Diamond could only mortgage what belonged to him. It is clearly shown that the plaintiff owned a share and interest in that property. The purchasers could not be compelled to pay the price before they were tendered an unencumbered title. All they required was the erasure of the mortgages on the property.

We think the judgment does no injustice to any of the parties, and it is therefore ordered that it be affirmed, with costs.

Howell, J.,

concurring. I concur in the conclusion in this case on the ground that the constitutionality of the article of the Code of Practice in question is not raised in the case or by the parties, and. it is not the provision of the court to raise such question.

Rehearing refused.

Morgan, J.,

dissenting. As is stated in the opinion of Mr. Justice Taliaferro, this suit was instituted by the plaintiff to recover his share in the succession of his grandfather and grandmother. It is a suit not to be recognized as heir of a succession or to be put in possession of a succession under administration. It is a suit for a partition instituted by an heir of age against co-heirs of age, and third- parties who had acquired an interest in or upon the property to be divided. Over such proceedings, between such parties, the Second District Court of New Orleans is, in my opinion, without jurisdiction. I think the exception to the jurisdiction should have been maintained.


text:
    No. 3974.
    Henry T. Cottam v. George H. Smith & Co.
    A "bill of exceptions being taken to the admission in evidence of a notarial act, on the ground that tbe plaintiff bad not alleged in Ms pleadings the assumpsit of the debts of an old ffnn by a new one, which it was the object of the evidence to establish;

    Held — That the evidence was properly admitted. The defendants, by pleading a general denial, put at issue the Question of their liability to pay the note sued upon, and the plaintiff had the right, by proper evidence, to show that they were liable.
    By the commercial law every member of a commercial firm can bind the others by drawing or indorsing commercial paper, if by an agreement inter se, a different rule wore established by commercial partners, it would be without effect against third parties, unless it were shown that such third party had knowledge of that agreement.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      'Brauglvn,, Buck & Binkelspiel, for plaintiff and appellee. JS. K. Washington, Randolph, Singleton & Browne, for defendants and appellants.
   Taliaferro, J.

The plaintiff sued George H. Smith, Simeon Belden, J. W. Hillman, Edward Gay and James B. Eudt, severally and in solido, as commercial partners doing business under the style and name of G. H. Smith & Co., on a promissory note for $1000, with interest, cost, etc. Judgment was rendered in favor of the plaintiff and the defendants appealed. The answer was a general denial. One of the partners, Simeon Belden, subsequently filed a separate answer. In this answer it is alleged that the promissory note sued on was indorsed G. H. Smith & Co. without authority from the commercial firm of G. H. Smith & Coq that said note was neither given or indorsed by authority of said company, nor in connexion in any manner with the business of said commercial firm. The note, it seems, was drawn by James B. Eudt to the order of G-. T. Raoul and by him indorsed, and further indorsed by Gr. H. Smith & Co. After the note was indorsed, Messrs. Belden and Hillman became members of the firm, but the new firm, by notarial act, assumed the obligations of the old one. A bill of exceptions was taken to the admission in evidence of this notarial act, on the ground that the plaintiff had not alleged in his pleadings the 'assumpsit of the debts of the old firm by the new firm. We think the evidence was properly admitted. The defendants by pleading a general denial put at issue the question of their liability to pay the note, and the plaintiff -had the right by proper evidence to show that they were liable.

By the commercial law every member of a commercial firm can bind the others bv drawing or indorsing commercial paper. If by an agreement inter se a different rule were established by commercial partners it would be without effect against third parties, unless it were shown that such third party had knowledge of that agreement. In this case it is not alleged that any such agreement existed, and if there had, there is no proof that the plaintiff knew anything of it.

We think the decree .of the court a qua correct.

Judgment affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 5282.
    Mrs. Estelle Rosa Weaver v. D. B. Penn and Alfred Penn.
    Article 313 of tho Revised Code and Article 964 of the Code of Practice do not authorize the appointment of a curator ad hoc for the purpose of receiving notice of protest, nor was the plaintiff required to serve notice on the curator who was not appointed as such until fifty-one days after the protest.
    Neither the plaintiff nor the notary seem to have had any knowledge that, ten days before service of notice of protest, the heirs of the indorser of the note sued upon, had filed a petition for his interdiction, and no information in regard to it was communicated to the notary when he handed the notice of protest addressed to the indorser to his son-in-law at the residence of said indorser.
    At the time of the protest, no legal representative having been appointed for the indorser, the notice addressed to him and left at his domicile on the day of protest was sufficient to fix his liability. The plaintiff, through the notary, had exercised reasonable diligence and given such notice of protest as under the existing state of facts the law required to be given.
    APPEAL from tbe Sixth District Court, parish of Orleans. Saucier, J.

      Robert G. Rugue, for plaintiff and appellee. O. Ml Oonrad & Son, J. W. Thomas, for defendant and appellant.
   Wyly, J.

On eighteenth January, 1872, D. B. Penn executed his promissory note for $5500, payable twelve months after date to the order of Alfred Penn who indorsed it, and plaintiff subsequently became the owner thereof.

On twenty-first January, 1873, this note was protested for nonpayment, and on the same day notice thereof, addressed to the indorser, Alfred Penn, was served, as stated by the notary, “at his residence No. 2 South street, in this city, on Mr. W. B. Krumbhaar, his son-in-law, by whom I was informed that said Alfred Penn was confined to his room by sickness and could not be seen or attend to business on the day below written.” Ten days before the protest, to wit: on eleventh January, 1873, the children of Alfred Penn filed a petition in the Second District Court praying for his interdiction, and on fifteenth February following, judgment of interdiction was rendered against him.

Subsequently, George R. Preston was appointed curator of said interdicted person.

Plaintiff then brought this suit on said note against D. B. Penn the maker, and Alfred Penn the indorser, represented by his curator George R. Preston. There was judgment in the court below against both the maker and the indorser, and from this judgment Preston the curator, appeals.

Inasmuch as “ the interdiction takes place from the day of presenting the petition for the same,” Revised Code 400, and inasmuch as ‘ all acts done by the persons interdicted from the date of filing the petition for interdiction.until the day when the same is pronounced, are null,” Revised Code, 401, the appellant contends that the service of the notice of protest is not valid and the estate of the interdicted person is released from liability on the note. He further contends that the plaintiff was not without recourse in regard to the service of notice of protest) that there were two modes, by either of which a valid notice could have been served:

First — Plaintiff could have provoked, under article 313, Revised Code and article 964, C. P. the appointment of a curator ad hoe, upon whom notice of protest could have been served.

Second, — That notice of protest should have been served on the appellant, the curator of the interdicted person, as soon as he was appointed, which was on the fourteenth March, 1873.

The articles cited do not authorize the appointment of a curator ad hoc for the purpose of receiving notice of protest, nor was the plaintiff required to serve notice on the appellant who was not appointed curator until fifty-one days after the protest.

Neither the plaintiff nor the notary seem to have had any knowledge that ten days before service of notice of protest, the heirs of Alfred Penn had filed a petition for his interdiction, and no information in regard to it was communicated to the notary when he handed the notice of protest addressed to Alfred Penn to Mr. Krumbhaar, his son-in-law, at the residence of Mr. Penn.

At the time of the protest no legal representative had been appointed for Alfred Penn, and we think the notice addressed to him and left at his domicile on the day of the protest, was sufficient to fix his liability.

The plaintiff, through the notary, has exercised reasonable diligence and given such notice as under the existing state of facts the law required to be given. Story on Bills 370, Nos. 305 et seq.; 12 Barb. 245; Parsons on Bills 500, 501; Story on promissory notes 387 No. 310 and authorities there cited. See also, Stewart vs. Eden, 2 Caines 121; Merchants Bank vs. Birch, 17 John. R. 25; Willis vs. Green, 5 Hill; 9 Howard 552; 4 Howard 33; 6 Pet. 250; 10 Pet. 571; 22 An. 227.

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


text:
    No. 5411.
    Succession of Celestine Dorville—in the Matter of the Executor’s Account.
    An inspection of the record in this caso shows that there is no note of the evidence, and it appears that there was in fact no evidence introduced to sustain the various items in the executor’s account, amounting to 8678 50, grouped in said account, as “amount of privileged claims paid.” Under article 1042 of the Code of Practice, the evidonce in support of the claims should have been taken in writing and annexed to the record. The ends of justiee require that this case should be remanded.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.
    Cr. -Z5. Schmidt, for appellants on order of homologation. A. A. Tilleré, for testamentary executor et als., appellees.
   Taliaferro, J.

The heirs'of the widow de Santegeme alleging themselves to bo creditors of the decedent, have appealed from the judgment of the Second District Court, homologating the second provisional account of the testamentary executor filed in that court, on the second of September, 1874. These appellants complain, that this judgment of homologatiou was rendered without legal notice having-been given of tbe filing of the executor’s account; that the items of the account are unsupported by any evidence; that the appellants are creditors of the decedent, Celestine Dorville, in the sum of $11,087, exclusive of interest and costs; a part of this indebtedness, viz: $4100, is secured by mortgage, tbe remainder being ordinary claims; that to enforce these claims they had instituted two suits, which were pending in the Second District Court at the time of the homologation of the account on the twenty-first September, 1874; that in March previous, the executor bad acknowledged tbe indebtedness of the succession to the heirs of de Santegeme, on a mortgage note, amounting at that date, to $6732, principal and interest, and filed a petition íor a sale of part of the property of the estate, to raise means for paying this debt. It appears, that the executor has not, in his provisional account of the second of September, 1871, made provision for paying any thin g to these appellants, or in any manner recognized their claims. They allege they are aggr:eved by the order homologating the executor’s account, and ask relief from this court. The objections urged against the notice of filing the account, we do not regard as having much weight. An inspection of the record shows that there is no note of evidence, and we find there was no evidence introduced to sustain the various items, amounting to $678 50, grouped in the account as “amount privilege claims paid.” This case, in some material points, resembles that of the succession of Ross, 21 An. 511. In that case, as in this, no oppositions were filed and no evidence presented in support of the account. We held in that case that under article 1042 of theCodeof Practice, the evidence in support of the claims should have been taken in writing and annexed to the record. We think the ends of justice require that we should remand this case.

It is therefore ordered, that the judgment appealed from be annulled and set aside. It is further ordered, that this case be remanded to the court of the first instance for further proceedings according to law. The costs of this appeal to be borne by the succession.


text:
    No. 5408.
    F. Dupierris v. J. W. Hallisay.—E. Benjamin & Co. Garnishees.
    When a firm is cited as garnishees, the answer to the interrogatories made in behalf of the firm needs not be sworn to and signed by each membor thereof. If the firm only is cited, the firm only is bound to answer, and any member thereof may make oath and sign the firm name. If the separate answer of each member be desired, citation must be addressed to and served on each member.
    from the fifth District Court, parish of Orleans. Oullom, J.

      A. & W. Voorldes, for plaintiff and appellee. Breaux, Fenner & Ball, for defendant and appellant.
   Wyly, J.

Plaintiff having judgment against defendant, issued execution thereon and instituted this garnishment proceeding, by propounding certain interrogatories to the commercial firm of E. Benjamin & Co., the citation addressed to the firm being served personally on Louis Benjamin, one of the partners. The answer in behalf of the firm, was signed by E. Benjamin. A rule was made absolute taking the interrogatories jpro eonfessis against Louis Benjamin, and condemning him to pay the amount of the fieri famas, because the latter failed to sign also an answer to tlie interrogatories for the. firm. From this judgment Louis Benjamin appeals.

The question is, when a firm is cited as garnishees, must the answer to the interrogatories made in behalf of the firm, be sworn to and signed by each member thereof? We think not. If the firm only is cited, the firm only need answer, and any member thereof may make oath and sign the firm name. If the separate answer of each member be desired, citation must be addressed to and served on each member. See 10 An. 53; 25 An. 312.

It is therefore ordered that the judgment appealed from be annulled, and it is now decreed that the rule herein against Louis Benjamin be set aside and discharged; plaintiff paying costs iu both courts.

Rehearing refused.


author: Ltjdeling, C. J.

text:
    No. 3586.
    J. E. Prudhomme v. O. B. Plauche et als.
    The defense to the plaintiff's claim is the prescription of three and ten years. The relation of the parties was that of agent and principal, and the right of the planter to sue his factor for an account is only prescribed by ten years. But if this relation had not existed between the parties, the defendants rendered an account in which they acknowledged their indebtedness. This acknowledgment would prevent the prescription of three years from applying, as to an open account.
    Appeal from the Secoud District Court, parish of Orleans. Duvignaud, J.

      Syams & Jonas, for plaintiff and appellee. Saucier & Michinard, for defendants and appellants.
   Ltjdeling, C. J.

The defendants, factors or commission merchants, are sued for a balance in their hands in favor of their principal.

The answer is a general denial, and the plea of prescription of three and ten years. On the eleventh of November, 1861, accounts current were rendered and sent to plaintiff, showing a balance of $10,501 53 in his favor, and on the twenty-eighth of December, 1865, the sum of $1024 96 was paid on said account, and subsequently $500 more were paid. This suit was instituted on the thirteenth of May, 1868.

The relations of the parties were that of agent and principal; and the right of the planter to sue his factor ior an account is only prescribed by ten years. C. C. 3544. But if this relation had not existed between tbe parties, the defendants rendered an account in wbicb they acknowledged their indebtedness. This acknowledgment would prevent the prescription of three years from applying as to an open account.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 3940.
    John Pemberton et al., Administrators, v. Jules Maignan.
    ■Where parol evidence does not establish a debt against a dead person, but simply shows under what circumstances and for what purposes payments were made, it is admissible.
    Appeal from the Fourth District Court, parish of Orleans. Théct/rd, J.

      A. Pitot, for plaintiffs and appellees •, 2$. Bermudez, for defendant and appellant.
   Morgan, J.

This suit is instituted on four promissory notes for $2500 each, dated June 8, 1863, and payable in one, two, three and four years, with interest from date. The defense is prescription.

On each of the notes payments of interest are indorsed which take it out of the statute of limitation.

Defendant, however, contends that he never authorized the indorsements to be made. He admits that he 2>aid the money, but says in the absence of instructions the law would impute the payment to the first note. But the evidence is, we think, conclusive that the sums which he paid was in discharge of the interest which was due at the time payment was made. The evidence by which this was established was objected to because it was parol, but we think it was properly admitted. The testimony does not establish a debt against a dead person ; it simply shows under what circumstances and for what purposes the payments were made. This, we think, can be established by parol.

Judgment affirmed.