author: Merriok, O. J.

text:
    The Master and Wardens of the Port of New Orleans v. Ship Charles Morgan et als.
    The provision of the Act of 1855, organizing a board of Port Wardens for the port of New Orleans, winch allows such Port Wardens to demand from each vessel arriving from sea the sum of five dollars, whether they he called upon to perform any services or not, is not a charge imposed as a duty, without regard to a corresponding and equivalent benefit, and is not, therefore, unconstitutional.
    from the Third Justice’s Court of New Orleans.

      M. Hahn, for plaintiffs. If. J. Leovy, for defendants and appellants.
   Merriok, O. J.

Another ease entitled The Board of Harbor Masters v. The Ship Charles Morgan etal., No. 5907, was submitted with these eighteen suits in which the Master and Wardens of the Port of New Orleans aro plaintiffs, and upon the same argument and briefs.

As the case of the Harbor Masters presents a question differing somewhat from the eighteen above mentioned cases, we shall consider it by itself on another occasion, and proceed now to decide the said cases, numbered on this docket from 5800 to 5817 inclusive.

The cases now under consideration present substantially the same questions which were recently decided by us in the case of the same plaintiffs against the ship Martha J. Ward. Defendants’ counsel, however, supposes, contrary to the fact, that he presents to us a question not decided in that case when he calls our attention to the fifth ground of nullity set forth in the auswer, as follows, viz :

“ The said Act of 1855, No. 343, is null and of no effect, because the 6th section provides that the Master and Wardens shall be entitled to demand from each vessel arriving in the port of New Orleans from sea, the sum of five dollars, whether they be called upon to perform any services or not," and these defendants allege that their vessels arrive at this port several times a week, and that in no manner whatever do the Master and Wardens, or either of them, render any services for these defendants, or for their steamers’ officers or crews.

On this point, defendants contend that, “ whenever a charge is imposed upon a vessel by the sovereign authority, without any regard to a corresponding and equivalent benefit and advantage, the charge is a duty and is imposed unconstitutionally.”

Without undertaking to controvert this proposition of defendants’ counsel, which he has sustained by a very elaborate argument and numerous quotations of authorities, we think we may affirm of the statute relative to the Master and Wardens of the port of New Orleans, that as a whole, it is not obnoxious to the charge made against it. It is true that the sixth section of the Act grants to the Port Wardens a right to demand the sum of five dollars from each vessel arriving in the port of New Orleans from sea, “ whether they bo called upon to perform any services or not.” But the meaning of the phrase is, whether they be called upon by the officers or persons in charge of the ship to perform any special service, or not. For it is evident, that it is the interest of the shipping that there should be disinterested persons in the port easily found and clothed with authority to perform such duties as are imposed upon the Port Wardens: for, as every ship entering from the gulf has been subject to the damages and casualties of the sea, so it is the interest of such ship that there should be some person clothed with official authority to inspect the hatches, hold surveys of ship or damaged goods, to pronounce upon the sea-worthiness of the vessel, to order and make sales of damaged goods, and to make an official record of all such proceedings for the protection of the owners and all concerned in ship and cargo. The Act in question provides for these necessities of commerce, and it compels the Port Wardens to keep an office where they may be found, and to keep a record of their proceedings. The Legislature has deemed it the best and most equitable mode to keep up this office, and maintain these officers during all seasons of the year and the prevalence of the frequent epidemic diseases to which the city is subject, to levy a contribution upon all ships arriving from sea, and for the benefit and the necessities of which the expense is required to be incurred.

The maintenance of these officers (who also regulate the conduct of the pilots) is a benefit to the entire shipping interest, and each ship receives an equivalent in the convenience of obtaining- the services and immediate presence of these officers, although they may not have been called upon to perform any special duty for the particular ship in question.

The Acts of the Legislature relative to the Port Wardens do not, therefore, on a review of the question, appear to us to be unconstitutional on this ground.

The other questions in this case have been decided in the case of these plaintiffs against the ship Martha J. Ward, and we are satisfied with that decision.

Judgment affirmed.

Cole, J., absent, concurred in this opinion.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    A. V. Robert et al. v. W. W. Brown et al.
    A commission to soli property of minors issued by tlie clerk will not supply the place of the necessary ^ order of sale; nor will it be inferred from sucli commission that a decree of sale existed, although it recites that it was issued 11 in pursuance of the order of the District Court.”

    The facts that a family meeting was convoked, and advised the sale, and that a petition had been presented to the court to homologate tho proceedings, will not cure the nullities arising from the sale of property made under such a commission.
    The proscription of five years, established by the Act of 1855 to cure tho informalities growing out of public sales, cannot apply to a case where there is a total want of authority to sell; it euros only those informalities which may occur m the execution of a decree, or other authority to sell.
    from the District Court of the Parish of Natchitoches, Chaplin, J.

      Elam í6 Campbell, for plaintiffs and appellants. Smith, Levy & Moise, for defendants.
   Merrick, C. J.

“ This is an action brought by the administrator on account

of the creditors, and the heirs in tlieir own right, to restore the property in controversy, together with the fruits and revenues, to the successions of Samuel & Susan M. Quarles.

“Plaintiffs allege, that the land was owned by their ancestors, Samuel & Susan M. Quarles, at the time of their death, in 1848, and that their title has never been legally divested; that the sale by John II. Quarles, on the 1st of April, 1850, under which the defendants claimed, is null and void, because he had no authority to make it, that is to say, there was no order of tho court, or judgment authorizing the sale; that it was void for informalities, and defendants wei'e possessors in bad faith.

Defendants aver that they hold under good and valid titles, and if not, they are entitled to the fruits and revenues, and to recover the value of their improvements. Afterwards they excepted to the action, on the ground that plaintiffs have made no return, or offered to return the price paid by the defendants; that such return or offer was necessary, because the sum so paid enured to the benefit of the plaintiffs in the payment of a debt due by their ancestors, from whom they claim to have inherited the land.” And they plead the prescription of five years to the action.

A trial of the case before a jury resulted in favor of the defendants, and the plaintiffs appeal.

Under the issue made in this case, our first inquiries have been directed to ascertain the fact, whether an order for the sale of the property ever existed. No vestige of such an order has been found among the mortuary proceedings, after the most careful examination. The clerk’s fee docket has no charge for such an order, although it was the habit, as well as the interest of tho clerk, to make such entry.

A commission to sell issued by the deputy clerk will not supply the place of an order of sale. Neither can it be inferred from such commission, that a decree of sale existed, although it contains the recital that it is “ in pursuance of the order of the District Court.”

One of the witnesses swears that ho found the records in the Quarles succession “ in a very tattered and torn condition.” But then the first suit was commenced in five years after the sale, and it is shown that tho probate proceedings were recorded, and moreover, that one of the witnesses, who would have become a bidder and given a higher price, absented himself from the sale because he had been informed there was no order of sale, or some other irregularity in the proceedings.

The petition to homologate the proceedings of a family meeting advising the sale does not strengthen plaintiffs’ position, nor does the first petition of the administrator, praying for the sale of the merchandize, and the decree thereon (which is only responsive to the petition) add any strength to the defendants’ case.

Considering the recent period of the sale, the testimony is inadequate to establish the presumption of the existence of an order of sale which has been lost. Beard, tutor, v. Morancy, 3 Rob. 121.

The prescription of five years has been pleaded under the Act of 1834, reenacted in 1855, curing the informalities growing out of public sales. Phillips’ Dig., p. 22, sec. 4. We are of the opinion, that this statute does not cure the total want of authority to sell, but merely irregularities and informalities in the execution of the decree, or other sufficient authority to sell.

If the defendant bought at the administrator’s sale under a commission reciting the decree for tho sale of the property, and the adjudication was in the usual form, we are not prepared to say that he is in bad faith for the want of a decree upon which the commission issued. But in this case, there is other testimony which was offered for the purpose of showing that the defendant was in bad faith. Under the circumstances, w'O think it best to remand the case, in order to enable the jury to pass upon the question of good or bad faith in the defendants, and to settle the claims of the parties respectively for improvements and revenues.

If the defendants were in bad faith, and wore responsible for rents and revenues beyond improvements, to an amount equal to the price paid for the property and interest, it is evident that equity required no tender on the part of the plaintiffs prior to the institution of this suit. Under the circumstances, we thinlc the defendants’ right to reimbursement, if such they have, may be secured by refusing the plaintiffs execution until the requisite sum be tendered the defendants or deposited with the clerk. This may bo regulated by the decree of the District Court hereafter to be rendered.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the said tract of land be declared to belong to the successions of said Samuel & Susan M. Quarles, represented by said administrator, and that this cause be remanded for further proceedings according to law and the views herein expressed, the defendants paying the costs of the appeal and the costs of the lower court up to the present date.


author: Laxd, J.

text:
    H. W. Reynolds, Ex’tor., v. W. B. Stille.
    The copy of an act under private signature does not prove the genuineness of the original, although admitted to record on the affidavit of a subscribing witness.
    from the District Court of the Parish of Sabine, Chaplin, J.

      Tucker & Levy, for plaintiff and appellant. J. B. Elam, for defendant.
   Laxd, J.

This suit was instituted to recover certain tracts of land in the possession of defendant, and claimed by him as owner.

It was necessary, under the pleadings, for plaintiff to prove title in himself, and in order to do so, he had to prove the authority of an attorney in fact, who had made a conveyance of the lands, for two former proprietors, from whom he derived his alleged title. And for the purpose of proving such authority in the agent, he offered in evidence, two certified copies of acts of procuration which had been recorded in this State, on the oath of one of the subscribing witnesses.

The powers of attorney were acts under private signature, and the defendant objected to the introduction of the copies, on the ground that they were not the best evidence, and did not make proof of the originals. The objection was sustained, and the plaintiff took his bill of exceptions to the ruling ■ of the court. The cause was tried, and a final judgment rendered in favor of defendant.

The District Judge did not err in rejecting the copies offered in evidence. In the case of Norwood v. Green, 5 N. S. 176, it was held that the copy of an act under private -signature did not prove the genuineness of the original, although admitted to record on the affidavit of a subscribing witness, for the reason, the proof of execution was ex parte

In the case of Parham v. Murphee, it was directly held that a certified copy of a power of attorney did not make proof of the original. 4 N. S. 355. The Judge, however, erred in rendering a final judgment against the plaintiff, the judgment should have been one of nonsuit.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed ; and it is now ordered, adjudged and decreed, that there be judgment against the plaintiff as in case of nonsuit, and that he pay the costs of the lower court, and the defendant pay the costs of this appeal.


author: Voorhies, J.

text:
    N. B. Whitfield v. Hardy Bryan et als.
    "When, after issue joined, one of the defendants dies, and the plaintiff delays or neglects to revive tho suit against his representativos, the other defendant caimot have the suit dismissed, hut if ontitled to a separate trial, may compel the plaintiff to try the case as far as lie was concerned.
    from, the District Court of the Parish of Natchitoches, Chaplin, J.

      J. M. B. for and Smith & for defendants.
   Voorhies, J.

On the trial of this case in the court below, the plaintiff obtained from the jury a verdict for the sum of $38,250 ; but, on motion of the defendants, the verdict was set aside and a new trial ordered. Subsequently, one of the defendants died ; and several sessions of the District Court having been held without the suit being- revived by making the legal representatives of the deceased defendant parties, the other defendant caused the suit to be dismissed at the plaintiff’s costs. The plaintiff took a bill of exception to the ruling of the District Judge, who refused his application to reinstate the case on the docket; and, from the judgment of dismissal, this appeal is taken.

The reasons assigned by the District Judge are as follows : “ that at the December term of this court, 1857, tho death of Leon Bryan, one of the defendants, was suggested, and leave granted to plaintiff to revive the suit against his representatives ; that afterwards, at the May term of said court, the case was continued on plaintiff’s application, no administrator having been appointed to Leon Bryan’s succession, or any steps taken so to do ; that at the present term of the court, the counsel for plaintiff having moved to dismiss, because no administrator was appointed, and plaintiff’s counsel having stated that one had been appointed who would qualify at the present term, and the said counsel having subsequently declared that the administrator would not qualify; and it appearing to the court that- the plaintiff had had ample time to make proper parties, and had neglected so to do, and was now asking for further delay ; and the court being of opinion that a co-defendant could not be thus harrassed or delayed in the trial of his case by the evident neglect or laches of tho plaintiff,.”

If there were proper parties before the court, and the plaintiff was not entitled to a continuance, he should have been ruled to a trial, and not dismissed from court. The plaintiff was present through his counsel, and the utmost that the defendant could require of him was an immediate trial. O. P. 536.

“ If, after issue joined, either the plaintiff or the defendant die, it is not necessary to recommence the action, it continues between the surviving party and the heirs of the one deceased.”.0. P. 361. The plaintiff had the right to have the suit revived against the legal representatives of tho deceased defendant; on the other hand, the co-defendant, if entitled to a separate trial, might with propriety have compelled the plaintiff to try the case, so far as they were concerned. The dismissal was unauthorized.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded for further proceedings, the appellee paying the costs of appeal.


text:
    Harriet H. Parnell et al. v. C. A. Petrovic—William Layster v. C. A. Petrovic.
    The husband is prohibited by law from purchasing the property of his wife in a direct sale, and he therefore cannot bo permitted to acquire a title to her property indirectly for a price fixed beforehand by the machinery of legal proceedings against the wife, resulting in the sale of her property.
    The relationship of the husband to the wife forbids an arrangement by the husband with the creditors of the wife, under which tbe title of the wife is to be divested by judicial proceedings against her, and the property transferred to the agents of the husband.
    The purchaser of the property of the wife, under an agreement between the husband and the purchaser, that when the debts of the wife assumed by the purchaser should be paid off from the revenues of the property, the property should be conveyed to the husband or his heirs, will not divest the wife of her title, or enable the husband or his heirs to hold the property adversely to the wife and her heirs.
    from the District Court of the Parish of Natchitoches, Chaplin, J

      Moise & Randolph, P. A. Morse, and A. N. Ogden <& Stanshury, for plaintiffs and appellants. B. L. Hodge and W. M. Levy, for defendant.
   Merrick, C. J.

The plaintiffs in this action, and the plaintiff in the case of Layster, tutor, against the same defendant, claimed title to the real estate, slaves and movables in controversy, as heirs of Mrs. Harriet II. Petrovic, by her former marriages. The defendant claims as sole heir of Peter Petrovic.

“ Peter Petrovic and Harriet H. Winter, were married in the parish of Natchi-toches in the year 1833. By a marriage contract, dated February 4th, 1833, the property of the future wife was transferred to the future husband, and for its estimated value, twenty-five hundred dollars, and the balance in cash, he acknowledged himself her debtor to the amount of eight thousand one hundred dollars.

“ On the 4th of December, 1841, Mrs. Petrovic obtained judgment against her husband for the sum of thirteen thousand dollars, for separation of property, dissolution of the community, &c. At a sale of the husband’s property, made on the 24th March, 1842', under a writ issued upon this judgment, Mrs. Petrovic purchased 143 33-100 acres of land, two preemption claims, a stock of cattle, and thirteen slaves, for the sum of $6,645. And in satisfaction of the balance of her judgment, her husband, on the 20th of July, 1842, conveyed to her nine slaves.

Petrovic obtained a discharge from all his debts under the bankrupt law.

“ The property thus acquired was mortgaged by Mrs. Petrovic on the 20th of July, 1842, to the Union Bank of Louisiana, for a loan of $12,268.

“ In 1836, Peter Petrovic had mortgaged certain other lands and slaves which he then owned, to Lambeth S Thompson, which mortgage they obtained an order of sale upon, and on the 12th of Sept., 1840, the property so mortgaged was sold, and purchased by T. E. Touzin, at the price of $34,000. Of this sum Touzin retained $24,000, to be applied to mortgages having preference over that of Lambeth & Thompson. Petrovic had borrowed $25,000 from the City Bank of New Orleans, on the 1st of April, 1837, and Lambeth & Thompson had agreed that the mortgage given by him to the bank, should have priority over theirs ; so that the property thus purchased was still subject to the Oity Bank mortgage, as well as some others.

“ On the 25th of August, 1842, Touzin conveyed the property, acquired as just stated, to Mrs. Petrovic, she assuming the payment of certain debts, and more particularly the mortgage debt due the Oity Bank, just referred to, which amounted at that time to $20,000, and a debt due A. Ledoux <& Co., secured by mortgage on the said property, amounting to $19,495 23.”

The Oity Bank of New Orleans having obtained a judgment against Petrovic and wife, upon the mortgage in favor of that institution, issued an execution (January 2d, 1847) against Mrs. Petrovic, and caused the property affected by said mortgage to be sold. The bank became the purchaser for the sum of $20,000, which left over $5,000 due the bank still unpaid.

On the 18th day of February, of the same year, 1847, the following agreement (which we copy at length) was entered into between Peter Petrovic and Messrs. A. Ledoux & Co., of New Orleans :

Memorandum of an agreement between Messrs. A. Ledoux & Co., of New Orleans, and Peter Petrovic, of Natchitoches.

1st. It is known and understood, that Mrs. Harriet H. Petrovic, wife of P. Petrovic, is largely indebted unto the Oity Bank of New Orleans, the Union Bank of Louisiana, and to Messrs. A. Ledoux <& Co. — the true amounts will be hereafter ascertained by the parties.

“ 2. It is known and understood that the several banks and Messrs. A. Ledoux & Co. have a mortgage upon all the lands and slaves belonging to Mrs. Petrovic.

3d. It is known and understood that the said banks have instituted legal proceedings against Mrs. Petrovic and her husband, and that the City Bank has sold, and the Union Bank is now proceeding to sell the lands and slaves respectively mortgaged to them, and that each bank will buy in the lands and slaves under her respective proceedings.

“4th. It is known and understood, that when the banks shall complete the sales, that the said banks will sell the whole of the lands and slaves purchased by them at the sale of Mrs. P.’s property to Messrs. A. Ledoux & Co. — that the banks are to reduce their debts down to a certain sum, and that the Oity Bank will grant a credit of one, two and three years, without interest, to Messrs. A. Ledoux & Co. for the payment of Mrs. Petrovic’s debts, and that the Union Bank will grant a credit of one, two, three, four and five years, without interest, to Messrs. A. Ledoux <& Co. for the payment of the debt due her by Mrs. Petrovic; and it is understood and agreed that Messrs. Ledoux <& Co. are to assume to the said banks the debts due the said banks (after the deduction now in contemplation to be made on said debts by said banks shall be made) by Mrs. Petrovic, on the terms above specified.

“ 5th. It is understood and a,greed that the banks are to convey to Messrs. A. Ledoux & Co., the whole of the lands and slaves, sold and purchased by them, at the sale of Mrs. Petrovic’s property.

6th. It is understood and agreed, that when the banks shall have made their sales to Messrs. A. Ledoux <& Co., Mrs. Petrovic shall also convey to Messrs. A. Ledoux & Co., the whole of the lands and slaves, and the appurtenances belonging to the plantation of Mr. Petrovic, left unsold by the banks, so that the whole of the slaves, plantation and appurtenances shall be in the name of Messrs. A. Ledoux & Co.

7th. It is understood and agreed that P. Petrovic is to work the plantation and slaves, in the name of A. Ledoux <& Co., for the term of five years, that is the years 1847, 1848, 1849, 1850 and 1851, and if at the end of the said five years, he shall, from the proceeds of the plantation, have repaid the Messrs. A. Ledoux & Co. the amount which they shall have paid the said Oity and Union Banks, the debt and interest due to Messrs. Ledoux <& Co., by Mrs. Petrovic, and the sum of four thousand five hundred dollars for their name, trouble, risk and care on account of their assumption and attention aforesaid, then Messrs. Ledoux & Co. shall and will reconvey to Mr. Peter Petrovic, or his heirs, the whole of the said slaves, land and appurtenances, free from all incumbrances.

“ 8th. It is understood and agreed that if Mr. Petrovic foils to meet the installments as they shall severally become due to the banks, the payment made to the banks by Messrs. Ledoux <& Co., shall be considered in the nature of advances made for Mr. Petrovic, and he shall allow to them the usual commissions of two and a half per cent., and interest at eight per cent, on such advances, and to form a portion of the aggregate debt to be repaid in the five years, as above mentioned.

“ 9th. It is understood and agreed, that every bale of cotton made on said plantation is to be shipped to the house of A. Ledoux <& Co. by Mr. Petrovic, any time they may order it, to be sold by them ; that they are to be allowed the usual commission of two and a half per cent, for selling and charges for their troubles, and that the net proceeds, after deducting expenses of plantation, shipments, sales, &e., &c., are to be by them applied in liquidation of the above debts, and that the same are first to be applied in payment of the debts arising from the bank debts then due, and when they shall be discharged, in payment of the debt now due Messrs. A. Ledoux & Co., and the interest thereon, and in all cases to the interest before the capital.

“ 10th. Messrs. A. Ledoux <& Co. are to furnish the plantation with the necessary supplies for carrying it on.

• “ 11th. Mr. Petrovic is to be allowed to draw from Messrs. A. Ledoux & Co., annually, a sum of money not to exceed five hundred dollars, which is to be repaid by Mr. Petrovic, and commissions of advances and interests of eight per cent, charges thereon, as above mentioned.

“ 13. Mr. Petrovic is to be allowed to employ one overseer on said plantation, at a salary not exceeding four hundred dollars.

“ 13th. On that portion of the debt to be repaid to Messrs. Ledoux & Co., known as the two bank debts, no interest is to be paid by Mr. Petrovic, except when advances are made, as is mentioned in article eight of this agreement.

“ 14th. This agreement is dependent upon the banks carrying out their agreement with Messrs. Ledoux & Co., that is, if the banks fail to convey the property to Messrs. Ledoux c6 Co., then this agreement is not binding’ upon either of these parties.

“ 15th. When the whole conveyances shall be completed, then these parties are to enter into a notarial act, of which these articles are to be the basis.

“ 16th. It is understood and agreed, that in the event of overflow or the ravages of the cotton worm, Mr. Petrovic shall fail to make a crop of cotton, and it be thought advisable by Messrs. Ledoux <& Co. to remove the hands, slaves and other appurtenances on the cotton plantation to the sugar region, for the culture of sugar, then Mr. Petrovic is to comply with their request.

“ Signed in duplicate at New Orleans, this 18th day of February, 1847.

(Signed) “ A. Ledoux & Oo.

u P. Petrovic.

“ Attest: George Pollock, D. F. Boysdon.”

Accordingly the Union Bank of Louisiana acquired the title as contemplated, and afterwards, on the 1st of April following, both banks made transfers of the property acquired by them to Messrs. A. Ledoux & Co. The City Bank for $21,000, on the terms agreed, viz, one, two and three years, and the Union Bank for $14,000, payable in 1, 2, 3, 4 and 5 years. On the 6th day of April, Mrs. Petrovic sold seventeen slaves, (mostly children,) sixteen head of mules and horses, nine yoke of oxen, three hundred head of hogs, and twenty-five horned cattle, to A. Ledoux & Co., for a price purporting to be $14,253 16, paid in ready money out of the presence of the notary.

Petrovic took charge of the whole property transferred to A. Ledoux & Co., and managed the same to the time of his death in 1851, Mrs. Petrovic having died some months previously.

It seems that the defendant, Charles A. Petrovic, after the death of his father and mother, wont into the possession of the property, and managed the same until the 9th of April, 1853, when A. Ledoux <& Co., reciting the previous proceedings, but assuming that the contract was made for the benefit of Peter Petro-vic and not his wife, transferred and conveyed to Charles A. Petrovic, as sole heir of Peter Petrovic, the property in controversy.

It is, therefore, evident that the controversy turns upon the construction placed upon and the effect to be given to the contract between A. Ledoux <& Co. and Peter Petrovic, and the proceeding's in execution of the same.

Did that contract and those proceedings under it, have the effect of divesting Mrs. Petrovic of the ownership of the property, and convey the same through the agency of the banks and A. Ledoux <& Co., to Peter Peirovic and his heir ?

The sales to A. Ledoux & Co. were not intended to vest in them the absolute ownership of the property. They, Ledoux & Co., took the title to the property, if at all, as agents, as is quite evident from the perusal of the whole instrument. Are they to be considered as the agents of Peter Petrovic or his wife ?

A consideration of the first six clauses of the contract shows (as has been observed by plaintiff’s counsel) that the parties had already contracted with the Oit.y Bank and the Union Bank, that they would aid these parties in their views, by buying the property and conveying the same on credit as mentioned in the agreement. It is further apparent, from the sixth clause of the agreement, that it was agreed and understood that Mrs. Petrovic should convey to Messrs. A. Le-doux & Co., the whole of the lands and slaves, and the appurtenances belonging to the plantation of Mrs. Petrovic, left unsold by the banks. It would, therefore, seem, that there had been a previous understanding with Mrs. Petrovic, as well as the banks, that the sales should take place, and the banks become the purchasers of the property mortgaged, and that she would perfect such sales as they should make to A. Ledoux & Co., by transferring the residue of the property to them.

When, therefore, she completed the conveyance, “ so that the whole of the slaves, plantation and appurtenances were in the names of A. Ledoux & Co.," did she not conclusively show, that she had ratified a contract to which she had previously given her consent and became a party ?

But if she had signed the contract of the 18th of February, 1841, at the time of its execution, it would have vitiated the same, if considered as a sale to her husband, because as the husband is prohibited from purchasing the property of his wife in a direct sale, he cannot be permitted (for a price fixed beforehand) to acquire indirectly and by the machinery of legal proceedings, what he could not do directly. O. 0.1784.

But suppose it be considered that the contract of the 18th of February, 1847, was entered into without the knowledge of Mrs. Petrovic, and with the intention on the part of Petrovic of acquiring the property for himself. It would then appear that he had entered into a contract by which judicial sales of his wife’s property were to be made, at which it was the interest of the contracting parties that a fair competition among the bidders should be prevented. Not only this, but the wife herself was to be required to make a sale of the residue of her property to the agents of her husband, and thus to the husband himself. The relar-tionship of the husband to the wife, forbids proceedings on his part so prejudicial to her rights. O. 0. 1886, 1889.

But it is said, that in the act of sale from Mrs. Petrovic to A. Ledoux & Co., she was allowed a credit for the whole amount of her indebtedness to them, arising from the Touzin debt.

Whatever consideration may have been named in the act of sale, it is clear that the same was by the agreement of the 18th of February, 184V, to be paid back to Messrs. A. Ledoux & Co., out of the revenues of the wife’s property, her lands, the labor of her negroes and mules, and the care of the overseer.

How can it be said that they, or Petrovic, paid a price for this property, when Ledoux & Co. were to be refunded the whole amount, debt, interest, commissions, and $4,500 besides, out of the revenues of the property ?

Indeed, the whole contract, were it to bo considered as made on behalf of Peter Petrovic and valid, would have the effect of transferring to him the entire property of Mrs. Petrovic, without any equivalent, and without any trouble on his part, save that of passing the revenues through the hands of his agents, Messrs. Ledoux <6 Co.

It does not appear to us that the proceeding can be sanctioned. Messrs. A. Le-doux & Co. must be considered as holding whatever of title they acquired, as the agents of Mrs. Petrovic, the only person for whom they could acquire the title under their contract. Peter Petrovic would not have been permitted to derive any advantage from a transfer made by Ledoux <& Co. to him of the property in controversy. His heir cannot be in a better situation than himself.

But it might perhaps be supposed, that whatever the conclusions of the court should be in regard to the property sold by the Union Bank, after the contract of 18th of February, 184V, and the sale of Mrs. Petrovic to Ledoux & Co., that the title of Mrs. Petrovic having been completely divested to a portion of the property before the date of the contract, Ledoux & Co. acquired a perfect title from the City Bank to such portion of the property, and consequently conveyed the same to the defendant.

There are two answers to this position :

1st. A fair construction of the first clause of the contract shows that the whole City Bank debt was considered (notwithstanding the sale) as due that institution, and by the fourth clause, it was to be reduced and then paid by installments. The actual property in the land was, therefore, in the debtor of the bank, Mrs. Petrovic, and the title was only held by the bank as security.

2. The illegal stipulation in the contract (if it be viewed as a sale to the husband of the other portions of the property,) vitiated the whole contract as such. O. 0. 1886.

The sale, therefore, from A. Ledoux cC Co. must be held to enure to the benefit of the heirs of Mrs. Harriet H. Winter, of whom the defendant is admitted to be one.

It is agreed by counsel, that this court shall only pass upon the title of the parties, leaving all other questions for future adjustment. The decree accordingly will be so pronounced.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed. And we do now order, adjudge and decree, that the property in controversy be declared to belong to the succession of Mrs. Harriet H. Winter, deceased, late wife of Peter Petrovic, deceased, and her heirs; and that the plaintiffs bo recognized as two of said heirs, and each, as well as the defendant. Charles A. Petrovic, entitled to one undivided fourth part of her said property. And it is further ordered, that this suit be remanded, in order that proper parties be made, that an inventory be taken, and that a partition be ordered, and all other needful proceedings be had according to law ; the defendant and appellee paying the costs of the appeal.


author: Vookhies, J.

text:
    E. H. Satterfield et al. v. H. Keller et al.
    Where a promise to sell to two persons jointly, contains the stipulation that such purchasers are to fur* nish a reliable city acceptance by a certain time, or the contract shall be null and void, the tender of the accepted draft of one of the purchasers is not a performance of the stipulation.
    A party seeking to compel the specific performance of a contract of promise to sell, must himself show a specific compliance with his own obligations.
    from the District Court of the Parish of Avoyelles, Cullom, J.

      H. & 8. L. Taylor and W. B. Lewis, for plaintiffs and appellants. Cannon & Irion, O. N. Ogden and A. N. Ogden, for defendants.
   Vookhies, J.

A proper construction of the act containing the promise of sale from the defendants to the plaintiffs, will determine the respective rights of the parties. This instrument reads as follows :

“ State of Louisiana, Parish of Avoyelles.

“ Before me, Aristide Barhin, N otary Public in and for the parish of Avoyelles and State of Louisiana, and in presence of the undersigned competent witnesses, personally came and appeared Messrs. Henry Keller and David C. Keller, both of the parish of St. Landry, and James Keller, of the parish of Avoyelles, of the one part; and Edward H. Satterfield and Edward Smith, of the parish of Avoyelles and State of Louisiana, of the second part; who declared that they have entered into the following agreement, to-wit:

“ I. The said appearers of the first part hereby obligate themselves to sell, transfer and deliver unto the appearers of the second part, Edward H. Satterfield and Edward Smith, the following property, to-wit: 1st, a certain plantation situated, lying and being on the left descending bank of Bayou Bceuf, in this parish, and containing fifteen hundred and thirty-five acres, together with all the buildings and improvements thereunto belonging, or in anywise appertaining thereto ; 2d, eighty-three head of slaves (names omitted); 3d, all the stock and working mules and horses, to-wit, 32 head of mules, 2 mares, 35 head of neat cattle, 2 pair oxen ; 4th, all the farming utensils, without any reserve ; 5th, all the corn, except three thousand bushels, in sacks ; 6th, sixty acres of seed cane, to be mat-lassed by vendors : — -for the price and sum of one hundred and thirty thousand dollars, payable as follows.:

“ Twenty-five thousand dollars, a draft on Messrs. West, Renshaw <& Cammack, or some other responsible house of the city of New Orleans, payable on the 15th of April, eighteen hundred and fifty-nine; and the balance payable in five annual installments, to-wit:

“ On the 15th of April, 1860; on the 15th of April, 1861; on the 15th of April, 1862 ; on the 15th of April, 1863 ; on the 15th of April, 1864, with eight per cent, per annum interest’from maturity till paid, except the last installment, which bears same rate of interest from the 15th of April, 1863, till paid.

“ The vendors are to retain mortgage.

“ It is understood and agreed between the contracting parties, that this act of promise of sale is to be null and void unless the said Satterfield and Smith will furnish to the other party the said city acceptance for the first aforesaid installment, within this date and the first day of January next, eighteen hundred and fifty-nine.

“ The said vendors hereby obligate themselves to keep the said sugar-house insured until the sale hereby promised is passed, or the said plantation delivered, with said sugar-house, at the rate of fifteen thousand dollars. And if the same should be destroyed before said period, the said purchasers are to accept the insurance in lieu of said sugar-house.

“ The vendors hereby obligate themselves to release all liens, privileges and mortgages that may affect said property or any part thereof, on or before the day of sale aforesaid.

“ The said property is to be delivered as soon as the said vendors are able to take off the crops now growing on said plantation.

“ The words ‘ Edward Smith,’ on the first page, ‘ twins ’ on the second, and the 115th of April, 1853, till paid,’ interlined on the 4th page, and the word 122 ’ and date, erased before signing.

“ Thus done and passed, at Marksville, Avoyelles, this fifteenth day of October. eighteen hundred and fifty-eight, in presence of Messrs. F. P. Hitchborn and Ludger Barbin, of lawful age and domiciliated in this parish, who have signed, with the contracting parties, and I, Notary Public, after the reading thereof.

P. P. Hitchborn, L. Barbin, Witnesses.

Henry Keller,

D. 0. Keller,

James Keller,

E. H. Satterfield, Edward Smith.

Ade. Barbin, Not. Pub.”

There is a clause, in this instrument, which declares the nullity of the promise of sale, “ unless the said Satterfield and Smith will furnish to the other party the said city acceptance for the first aforesaid installment, within this date and the 1st day of January, 1859.” Before the expiration of this delay, the plaintiffs could not be called upon to deliver the accepted draft in question : that is certain. And it is no less certain that, under the very terms of the deed, the promise to sell was null and void, unless the plaintiffs furnished this draft within that time. But granting that Satterfield and Smith were effectually bound to furnish the accepted draft, how do they stand now ? They sue for the specific performance of a contract of which they have failed to perform the very stipulation which was a prerequisite to perfecting the deed of sale. They did not even attempt, in proper time, to furnish such a draft as the one the parties contemplated. The draft of Satterfield, although accepted by a responsible firm of the city, was not a compliance with the contract: it should have been the draft of Satterfield and Smith. The purchasers, as well as the vendors, did not imagine that any body’s draft would answer the purpose, however irresponsible the drawer might be. Such seems to have been the understanding of the plaintiffs’ own counsel; for they allege as a grievance, that the District Judge would not, during the trial, allow Smith to sign the draft as drawer or endorser. A party seeking to compel the specific performance of a contract of promise of sale, must himself show a specific compliance with his own obligations, or at least an attempt to that effect. This point we expressly ruled in an analogous case lately decided in New Orleans, (Graugmrd v. Lombard, ante, p. 234.)

But the plaintiffs’ demand is the more unreasonable, as they apply to the courts for the execution of a contract different in many respects from the one which they entered into. Under pretence that there are over seventy thousand dollars mortgages on the property in question, they claim the right to hold in hand the amount of the three first installments, including the sum of $25,000, to be paid by an accepted draft, and that, in the teeth of their own stipulations that the deed of sale should be passed after the delivery of this draft within the specified time, and that the sale should otherwise be null and void.

It was proper for the District Judge to decree the nullity of the contract entered into between the parties litigant; but we are of opinion, that the damages awarded by the amicable compounders ought to have been disallowed under the circumstances. The plaintiffs having failed to make good their demand for the enforcement of the promise of sale, were not entitled to damages of any kind. >

It is, therefore, ordered and decreed, that the judgment of the District Court J be amended, by disallowing the damages allowed therein to the plaintiffs, and } that, in other respects, it be affirmed; the costs of both courts to be borne by the J said plaintiffs. j


author: Buchanan, J.

text:
    W. H. Rembert v. Whitworth & Poag.
    Where a commission to take testimony is specially directed by name to a person in another parish, his authority to administer oaths will be presumed.
    from the District Court of the Parish of DeSoto, Creswell, J.

      Elam & Wemple, for plaintiff. Mundy and Smith <& Nutt, for defendants
   Buchanan, J.

This is an action upon a contract of affreightment for damages done to cotton shipped by plaintiff on board of flatboats of defendants, to be carried from Grand Bayou to New Orleans ; said damage alleged to have been caused by the carelessness, recklessness, and want of skill of defendants and their servants.

The defence is, that the damage was occasioned by the unavoidable accidents of navigation, for which defendants are not responsible.

The jury found a verdict for plaintiff, and defendants appeal.

On the trial, defendants excepted to the introduction of the depositions of Phelps, a witness for plaintiff, examined under a commission directed to William . Payne, as special commissioner in another parish, and of Walmesly, examined under commission directed to Frederick Williams, as special commissioner in / another parish, on the ground that the signatures of said Payne and Williams, unaided, did not suffice to prove their authority to administer oaths.

The Act of 25th of March, 1828, $ 8, amending Article 425 of the Oode of Practice, provides, that commissions to take testimony in another parish, may be directed to any Judge or Justice of the Peace, or to any other person authorized by law to administer oaths. Under this law, if a commission be specially directed by name to a person in another parish, the authority of such special commissioner to administer oaths, wili be presumed. Baine v. Wilson, 18 La. 64.

The defendants also excepted to the introduction of the testimony of J. J. Taylor, a witness introduced by plaintiff to prove declarations of on eBonneau, a witness of defendant, conflicting with the statements made by said Bonneau, when examined under a commission in this cause. But it is unnecessary to pass upon this bill of exceptions, inasmuch as there is evidence enough to sustain the verdict of the jury without the testimony of Taylor.

The questions of fact presented by the issue, appear to have been correctly solved by the verdict.

Judgment affirmed, with costs.


author: Land, .J.

text:
    Estate of T. J. Hickman v. Peter Boggus.
    Whore by an evident clerical error, a different name from that of the defendant in the suit has been inserted in the prayer of the petition, the suit should not he dismissed, hut leave granted to correct the error by an amendment instante)'.

    from the District Court of the Parish of Rapides, Cullom, J.

      Ogden <& Ryan, for plaintiff and appellant. W. B. <& J. C. Lewis, for defendant.
   Land, .J.

This suit was commenced for the recovery of a slave, and was dismissed on an exception to the petition, the nature of which will best appear from the petition itself, and the exception thereto, which are as follows :

“ The petition of Valery Gainnie, a resident of the parish of Natchitoches, and administrator, duly qualified, of the estate of Thomas J. Hickman, deceased, shows that the said Thomas J. Hickman, in his lifetime, possessed as owner a certain negro man slave for life, named Adam., of black complexion, and aged about fifty-five years, which slave was acquired by him by purchase from Jonathan West, on the 28th day of February, 1852, by an authentic act passed before A. L. Bringhurst, Notary Public, and duly of record in the office of the Recorder • of the parish of Rapides. He shows that the estate of the said Thomas J. Hickman has continued in the ownership of the said slave up to the present time, and has had possession of the same up to a recent period, but that the said estate and your petitioner, as administrator thereof, have been disturbed in their said possession, within the last twelve months, by one Peter Boggus, a resident of your parish of Rapides, who has tortiously taken possession of said slave and refused to give him up, although thereto amicably requested. He shows that said slave ran away from petitioner, and that the defendant has taken possession of him, and absolutely refuses to surrender him, notwithstanding that due demand has been made of him by the overseer who had the slave in charge for said estate, and for your petitioner, as administrator. He shows that said estate has sustained damage by the illegal detention of said slave, to the amount of three hundred dollars. He prays that the said Jonathan West be duly cited to answer hereto, and that he be ordered and condemned to deliver up said slave to your petitioner, and that he have judgment against him for the sum of three hundred dollars as damages as aforesaid. Tour petitioner also alleges, that he fears that the defendant will send the said slave out of the jurisdiction of the court during the proceedings of this suit. Wherefore, he prays for a writ of sequestration, on his complying with the requisites of the law, and that the Sheriff of your said parish be commanded to sequester and take into his possession the said slave, in order that he may be restored to the possession of your petitioner, under the judgment to be herein rendered by the court. He prays also for a judgment against the said Peter Boggus, for the costs of this suit and for general relief.”

EXCEPTION.

Estate of T. J. Hickman v. Peter Boggus• — District Court, Parish of Rapides,

No. 6174.

Peter Boggus, who has had a copy of the petition and a citation in the case above named, served upon him, in obedience to the order contained in said citation, comes into court and says, he does not know how he can be made responsible for the costs of a suit in which he is not a defendant. By reference to the prayer of the petition, it will be seen that the plaintiff asks for a citation against Jonathan West, for the possession of a slave alleged to be in the possession of Peter Boggus, and for damages, and concludes by asking a judgment against Peter Boggus for costs. Plaintiff does not ask for citation against Boggus, but only against West, nor does he ask for judgment for possession of a slave and damages against Peter Boggus, but only asks that Peter Boggus pay the costs of a suit against Jonathan West. Now, your respondent says, that he ought not to have had any document or citation served on him, and avers that the whole proceeding is erroneous, and so far as he is concerned, asks the court to dismiss the same with costs. Ho says, no judgment being asked for, none can be rendered against him. He prays for general relief,” &e.

The name of West used in the prayer of the petitioner, is evidently a clerical error, and the judgment of the lower court should have granted to plaintiff leave to correct it, by an amendment instanter.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded for further proceedings according to law,'with leave to plaintiff to correct the clerical error in his petition, and that defendant pay the costs of this appeal.


author: Merrick, 0. J.

text:
    Estate of J. West v. Estate of J. Hickman.
    In a suit by the administrator of an estate to recover property sold by the intestate, parol proof is inadmissible to show that the sale by authentic act was simulated, unless the sale is alleged to have been made in fraud of creditors.
    When the defendant sets up in his answer title by authentic act, to the property sued for, tho plaintifl is entitled to amend his petition, by putting at issue the validity of such title,
    from the District Court of the Parish of Rapides, Cullom, J.

      W. B. <& J. C. Lewis, for plaintiff. T. C. Manning, for defendant and appellant.
   Merrick, 0. J.

“ Plaintiff, as administrator, claims, on behalf of tie estate of J. West, certain slaves, with their increase and hire, since November 1th,1851, from the estate of Thomas J. Hickman. He alleges that these slaves were delivered into Hickman’s possession by virtue of an act sous seing privé, of date of 7th November, 1851, which was a mere simulation, and never intended to be a transfer of ownership. He prays that they be adjudged to be delivered to him as administrator ; further prays for hire since November, 1851, and for costs and general relief.”

“ Defendant’s answer denies any knowledge of the act mentioned in plaintiff’s petition, and sets up title to the slaves, together with three others, by virtue of an authentic act, dated 28th of February, 1852, purporting to be a sale from West to Hickman. He alleges some of these slaves to be in plaintiff’s possession, and sets up claim in reconvention for hire.

After answer filed, and before trial, plaintiff' moved to amend his petitiou, alleging the simulation also of the authentic act, set up in defence, and further claiming other property, delivered by West into Hickman’s possession in the month of November, 1851, on the same ground as that upon which the slaves are claimed.

“ This amendment was objected to, and the court sustained the objection.”

The plaintiff excepted.

On the trial of the case, the plaintiff offered parol proof of the declarations and admissions of the parties to the act, to show simulation, to which the defendant excepted.

From a judgment in favor of the plaintiff, defendant appeals.

The evidence, as it stands, shows, that the sale was undoubtedly a simulation. But from a consideration of the pleadings, it is evident, that so much of the proof as relates to the declarations and admissions of the parties, was inadmissible, and ought to have been excluded. There is no allegation in the petition, that the simulation was in fraud of or to the injury of creditors. "Without such allegation, the administrator cannot be permitted to give parol proof to defeat defendant’s authentic title. Gravier’s Curator v. Carraby’s Executor, 17 La. 118 ; Judson v. Connolly, 4 An. 169 ; Berens v. Dupré et al. 6 An. 494.

The court also erred in refusing the plaintiff leave to amend and attack the authentic title set up against him by the defendant. The proposed amendment did not change the nature of plaintiffs demand, but tended to remove another obstacle in the way of his recovery.

The case must be remanded, in order to allow the plaintiff to amend his pleadings, and put directly at issue the validity of the notarial act set up by defendant. Should the plaintiff decline to amend, (as he may do,) by alleging injury to the creditors of the succession, he may still submit the question, whether the counter-letter was not intended by the parties to apply to the notarial act also.

And this counter-letter may be read by the “ light of surrounding circumstances,” and the plaintiff may, for this purpose, show the acts of the parties independent of their declarations, and even that no consideration was given at the notarial sale.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and that the lower court be instructed to allow the plaintiff to file his said amended petition, and for further proceedings according to law and the views herein expressed; the defendant paying the costs of the appeal.


author: Land, J.

text:
    Executors of Morgan v. C. D. Métayer.
    Tho death or insolvency of one debtor in solido does not release or extinguish the right of solidarity which the creditor has against tho others ; and the acknowledgment of a debt, by placing it on a tableau of distribution made by the syndic of a debtor in solido, who is insolvent, interrupts proscription as to the other debtors bound in solido with him.
    from the District Court of tlie Parish of Natchitoches, Chaplin, J.

      A. H. Pierson, for plaintiff. Kearney & Hamilton, for defendant and appellant.
   Land, J.

The only question in this case is, whether the acknowledgment of a • debt, and placing the same on a tableau of distribution, by the syndic of an insolvent debtor in solido, interrupts prescription as to the other debtors in solido.

It is a general rule that the service of citation upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others, and even their heirs and sureties.

Pothier says, “ There is a great difference between an acknowledgment made after the time of the prescription is accomplished, so as to destroy it, and one made before, which has the effect only of interrupting it; the latter may be made not only by the debtor himself, but also by a tutor, curator, or person having a general procuration; it may be made by the debtor himself, though a minor, without his being entitled to restitution against it.” ITe further says, “ Any act by which the debtor acknowledges the debt interrupts the time of prescription, whether it be passed with the creditor, or without him. For instance, if in the inventory of the effects of the debtor, the debt is included amongst the charges (parmi lepas-sif), such inventory though not made with the concurrence of the creditor, is an act which recognizes the debt, and interrupts the prescription. Pothier on Obligations, Nos. 658, 665.

In this case, the syndic acknowledged the debt before the time of prescription had been accomplished, and in a mode that would have been obligatory on the debtor himself.

It is not disputed that a tutor, curator, or other administrator, under our jurisprudence, may acknowledge a debt so as to interrupt prescription; and consequently, when the debt is in solido, the legal effect of the acknowledgment, under the rule above mentioned, is to interrupt the prescription as to the other debtors in solido, their heirs and sureties. And we perceive no sufficient legal reason to induce us to hold that the syndic of an insolvent debtor in solido has not the same power as his legal representative in all rights of action, and of property, to interrupt prescription by an acknowledgment of the debt. So long as the liability is in solido, the acknowledgment of one debtor, or his legal representative, must have its legal effects, as to the others. The death or insolvency of one debtor in solido does not release or extinguish the right of solidarity which the creditor has against the others. This right can only be released or renounced by the consent or agreement of the creditor. Pothier on Ob., No. 277.

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


text:
    C. V. Ledoux et al. v. Harriet M. Murray et al.
    "Where in a suit to compel tho defendant to render an. account, an order to file the account has "been made, and a judgment by default taken on the petition for want of an answer, the refusal of tho defendant to comply with the order, although a good ground for his arrest and punishment, for contempt of the authority of the court, will not deprive the defendant of tho right to file his account at any time "before the judgment by default is made final.
    PPEAL from the District Court of the Parish of Bapides, Cullom, J.
    XA W. B. Lewis and Hyman & Cazabat, for plaintiffs. J. H. G. Barlow and M. Canjie/d, for defendants and appellants.
   Voorhies, J.

The defendants, Harriet M. Murray, as principal, and S. W. Henarie, as surety, executed a bond for the sum of ¡jp7,567 50 in favor of G. V. Ledoux and the creditors of the firm of J. F. Murray & Co. “ The condition of this obligation (the instrument reads) is such, that, whereas it is necessary for the purpose of collecting the debts due the commercial firm of J. F. Murry & Go., that some one should be appointed to act therein; and now, whereas Mrs. II. M. Murray is willing, with the assent of the said C. V. Ledoux, to take upon herself the duties and responsibilities of such collection; now, if the said Mrs. Murray shall well and faithfully discharge the duties of said trust, then this obligation to be null and void, else to remain in full force and effect.”

C. V. Ledoux, acting in his own name and on behalf of the creditors of the firm of J. F. Murray & Co., sued the parties for a rendition of account, and, in default of their complying with this demand, he prayed for judgment for the amount of the penal obligation.

The defendants waived service of the foregoing petition; and on the 16th day of May, 1857, judgment by default was entered against them. Subsequently, the defendant, Harriet M. Murray, was ordered to file an account; but, this order not having been served upon her, she was again ordered to the same effect, and served with a copy of the order. The case was repeatedly fixed for trial, although no account nor answer had ever been filed ; and on the 23d day of November, the case having been reached and called for trial, the defendants offered to file an account and an answer.

The District Judge refused to let in the account at that stage of the proceedings, because the defendant had had abundant time to comply with the order of court to that effect, but had refused or neglected to do so. This was a good reason why the court should have proceeded, in the meantime, to have the parties arrested for a contempt of its authority, and dealt with accordingly. But it is never too late, before a case is at issue and fixed for trial, for the defendant to file an account in compliance with a previous order of court. The Code of Practice, Art. 463 provides that, “ as soon as the answer has been filed in a suit, the clerk shall set down the cause on the docket of the court, in order that it be called in its turn, and a day fixed for its trial.” In this case, although no answer has ever been filed, the court proceeded to assign a day for trial: the defendant could not be prejudiced by this order. It is true that the plaintiff could, at any time after the lapse of the judicial days, make the judgment by default final on motion; but this is not the course pursued by him in this instance. He could not prevent the defendant, at any time before making the judgment by default final, from putting tlxe case at issue by filing an answer.

This case must be remanded for the purpose of allowing the defendants to file an account and joining issue. With regard to the exception which the District Court would not allow the defendants to file after judgment by default, we express no opinion as to the right of the defendant on its merits. The exception should have been filed, subject to bo afterwards overruled by the court, if the case justified the ruling.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded for further proceedings ; the plaintiffs and appellees paying the costs of appeal.


text:
    Thomas C. Anderson v. C. E. Johett, Clerk, et al.
    A citation issued and signed by the Parish Recorder in bis official capacity, instead of the clerk, will bo fatal to tlie validity of any judgment which may be rendered against the party on whom it was served.
    When a clerk refuses or neglects to issue citation, on the demand of a plaintiff or his attorney, and is specially informed that the cause of action will be barred by proscription within a short period, unless interrupted by service of citation, he renders himself and his sureties liable for tlio debt, or demand, as soon as prescription is accomplished, in consequence of his neglect to perform his official duty.
    In a suit brought against a clerk and his sureties, to render them liable for such neglect, they cannot plead, by way of defence, that the party who had acquired the right to prescription through their neglect will not plead it, the presumption is that he will, and the burden of proof is on them to rebut it.
    from the District Court of tbe Parish of Rapides, Cullom, J.

      W. B. Lewis, for plaintiff. T. C. Manning and J. Osborne, for defendants appellants.
   Land, J.

The plaintiff filed his petition in the District Court of the Parish of Rapides, on the 29th day of October, 1856, on four several promissory notes, each for the sum of one hundred dollars, and due respectively on the first day of January, 1852, bearing interest at the rate of 8 per cent, pgr annum from maturity, and signed in solido by S. A. Anderson, Sr., W. R. Anderson, J. L. Escoffie, and S. A. Anderson, Jr. In the suit on the notes, citations were not placed by the clerk of the court in the hands of the Sheriff until the 10th day of June, 185V.

On the 18th day of April, 185V, the present action was commenced against the clerk and the sureties on his official bond, to recover the amount of the uotes and the interest thereon, upon the ground that the claim of plaintiff against the makers of the notes had been lost by prescription in consequence of the neglect of the clerk to issue citations to the defendants before the time of prescription had been accomplished, that is to §ay, in time for service before the 1st day of January, 185V.

There was judgment for plaintiff, and defendants have appealed.

One of the sureties on the bond, Vestal Gould, assigns as error patent on the face of the record, that judgment has been rendered agaiust him without any legal citation or notice. It appears that the citation served on him was issued and signed by the Parish Recorder, in his official capacity. A citation must be signed by the clerk who delivers it, and express his quality ; it must be sealed with the seal of the court by whoso order it is given. C. P., Art. 1V9, No. V. This error was not cured by the appearance and answer of this defendant, none having been filed, and is, therefore, fatal to the validity of the judgment against this party.

It is objected on the merits, by the clerk and L. A. Stafford, the other surety on the bond, who filed answers to the suit, that the judgment is erroneous, for the reason that the plea of prescription had not been made by any of the defendants ■at the time of the commencement of this suit, and that the same is still pending against two of them, who have not yet pleaded prescription to plaintiff’s demands, and who may never do so; and that, as the court cannot notice or pass upon the plea of prescription, unless specially made, that it does not appear that the plaintiff has, or ever will sustain any loss in consequence of tho neglect of the clerk in issuing citations to the defendants.

There would be, perhaps, much weight in this objection, under ordinary circumstances ; but it is our opinion, that when the clerk of a court, as in this case, refuses to issue citation on the demand of a plaintiff or his attorney, and is specially informed that the cause of action will be barred by prescription within a short period, unless interrupted by service of citation, that he makes himself and his sureties liable for the debt, or demand, as soon as the prescription is accomplished, in consequence of his neglect of official duty. The plaintiff is injured by his nonfeasance, and the defendant is furnished with a plea in bar fatal to the action. It does not lie in the mouth of tho clerk and his sureties to say, that tho defendant will not 2?lead it; the presumption in such a case is, that he will, and the burden of proof is on them to rebut it.

It is, therefore, ordered, adjudged and decreed, that the judgment, as to Vestal Gould, be reversed, and that the suit as to him be remanded for further proceedings according to law; and that the judgment as to C. E. Joiiett, the clerk, and L. A. Stafford, his other surety, be affirmed, with the costs of the lower court, and one-half of the costs of this appeal, and that the other half of the costs of appeal be paid by the plaintiff. And it is further ordered and decreed, that upon the payment of this judgment by said clerk or his sureties, that he or they bo subrogated to the rights of the plaintiff upon said promissory notes.


author: Vooriiies, J.

text:
    J. R. Williams et als. v. William Hawthorn et als.
    Creditors having individualljr tho right to instituto tho revocatory action, they may be joined as plaintiffs to the same suit, to have a fraudulent or simulated conveyance made by their common debtor annulled.
    In a revocatory action, all parsons charged with colluding for the purpose of defrau ling tho plaintill's, may be joined as defendants.
    from the District Court of the Parish of Rapides, Cullom, J.

      Hyman & Cazabat, for plaintiffs and appellants W. B. & J. C. Lewis, for defendants.
   Vooriiies, J.

The motion to dismiss, in this case, has been unadvisedly filed ; it sets forth as a defect, that one of the appellants has not given his bond of appeal, whilst it appears that both of them executed separate bonds.

This action is brought by two creditors of Albert Hawthorn, for the purpose of annulling a sale made by their debtor to William Hawthorn, and a judgment obtained by Martha, Hawthorn against her husband, Albert Hawthorn. The alleged grounds of nullity are fraud and simulation.

Albert Hawthorn, Ms wife Martha Hawthorn, and his brother William Hawthorn, who are made defendants in this matter, exce23ted to the plaintiffs action, on the following grounds, to wit :

1st. A misjoinder of plaintiffs.

2dly. A misjoinder of defendants ; and,

Sdly. An illegal cumulation of causes.

I. The claims of the plaintiffs against their common debtor, are distinct; but the cause of action, when they seek to avoid the effects of a fraudulent or simulated conveyance made by the common debtor to their detriment, is the same. If each and every creditor, irrespective of the origin of his claim, has the right to institute individually the revocatory action, there can be no impropriety in their joining for that purpose in the same action, in order to avoid a multiplicity of actions tending absolutely to the same result.

II. The second ground of objection, that there is no privity between the defendants, is met with the express allegation in the petition, that all the defendants are colluding for the purpose of defrauding the just creditors of one of these parties.

III. The plaintiffs ask the nullity of the sale to William Hawthorn, and of the judgment in favor of Martha Hawthorn, and go on to allege, that the wife has caused the undisposed of property of her husband, to be seized and sold, and that they are entitled to be paid by preference out of the proceeds in the hands of the Sheriff, because they have a judicial mortgage on all the property in question, and the defendant, Martha■ Hawthorn's claims, being fictitious and fraudulent. But the Sheriff is not made a party to these proceedings. The wife has a legal mortgage on the property of her husband; the property conveyed by Albert Hawthorn to William Hawthorn, is encumbered with a mortgage in favor of Martha Hawthorn, if her claim be not fictitious ; and the plaintiffs claim a judicial mortgage on all the property in controversy ; it is, therefore, their interest to have her judgment set aside, at the same time that the sale to William Hawthorn is cancelled, and, to that extent, the right of action against one of the defendants is closely related to the right of action against the other.

If the plaintiffs succeed in their cumulated demands, they can at once, without molestation, proceed to m||$5 their claim out of the whole property of the common debtor ; whilst their remedy would be more circuitous, if they had to proceed against each of the defendants separately. Besides, it is not conceived in what respect the latter may be injured by being called upon collectively to answer the plaintiffs’ demand; their respective rights are to be tested in the same manner, as if separate suits had been instituted.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; that the exception filed by the defendants to the plaintiffs’ action be discharged ; and that this case be remanded for further proceedings ; the appellees paying the costs of appeal. lants.


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    Succession of Robert McAlpin.
    The Articles 985 and 986 of the Code of Practice, prescribe the form in which a debt due by a succession, must bo acknowledged by the administrator — Quere: "Whether such acknowledgment can bo made in any other form, to interrupt prescription.
    PPEAL from the District Court of the parish of Natchitoches, Chaplin, J.

      A. H. Pierson, for plaintiff. J. M. B. Tucker, for opponents and appel-
   Merrick, C. J.

This case is presented by an opposition to an administrator’s account, wherein he had placed the appellee as a creditor for $848 for medical services.

The principal question presented by the case is the plea of prescription of three years.

The services were rendered from 8th of May, 1850, to 6th of June, 1853, the time of the death' of the intestate.

The claim was not noticed at the time of filing the first account in July, 1855.

The second and final account was not filed, until 26th of March, 1859. The opponents maintain that prescription had intervened, and barred the claim between the death of the intestate and the filing of the last account, wherein the claim was acknowledged.

To show an interruption of prescription, the appellee calls our attention to the testimony of the administrator himself. He deposes, that:

“ Dr. Rainer made his claim against the succession of McAlpin, known to witness, who is administrator of the estate, two or three months after McAlpin's death. The claim was not placed on the first tableau, because the account had been given to Mr. Compere, who did not give it to witness in time to put it on the first tableau, and Rainer thought it was already in the hands of the administrator.”

On his cross-examination, he says :

“ The claim of Dr. Rainer was put upon the tableau of witness, as administrator of the estate, because he, Rainer, was entitled to something, and that if too much was allowed, the heirs could oppose the claim. Witness states, that no other medical bill was presented to him but that of Dr. Rainer, and of the physician whom witness, as administrator, had himself employed. Witness, as administrator, has made no written acknowledgment since 1858 of the claim of Dr. Rainer, except by putting it on the rough sketch of a tableau which he kept for Ms own reference as he did with all others. Witness told Dr. Rainer, that he would place his claim on the tableau. Witness has received letters from lawyers and Dr. Rainer, requesting this account to be placed on the tableau. Witness answered none of the letters; but told Dr. Rainer, that he would say nothing of an account which was not in his hands.”

The rough sketch of a tableau, unless communicated to Dr. Rainer or some other person, or filed, could not be considered as the acknowledgment of the debt, and this appears to have been made since 1858.

If it be conceded, (which is a point we do not undertake to decide,) that the administrator can acknowledge a debt in any other form than prespribed by Arts. 985 and 986 of the Code of Practice, still we do not think that there has been that acknowledgment of the debt required to interrupt prescription. Suppose the administrator promised to place the claim on the tableau of distribution when it was presented to him in 1853, by the creditor, and again when it was acknowledged in 1858, or placed on the tableau filed in 1859, the only times at which it appears there were any conversations concerning this claim, the prescription of three years had run between the supposed acknowledgment in 1853, and tho written acknowledgment in 1858. It appears to us that the plea must be maintained.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, so far as it allowed the said Rainer any sum whatever, and that the opposition to tho claim of said Rainer be sustained ; and that said Rainer pay the costs of the appeal, and so much of tho costs of the lower court as are occasioned by the opposition to his said claim against said succession.


author: Merrick, O. J.

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    Celeste Joffrion v. Hyppolite Bordelon et al.
    Tho voluntary separation of husband and wife does not prevent their acquisitions during the period ou-tlie separation, from falling into the community undor Article 2371 of the Civil Code.
    "When the property of the wife described in the marriage contract, is not declared to be given in dower? it remains paraphernal.
    "Where property purchased during the marriage is paid for out of the separate funds of the husband, a charge exists in favor of the separate estate of the husband against the community for tho amount of such purchase.
    from the District Court of the Parish of Avoyelles, Cullom, J.

      Edwards, Barlow & Waddel, for plaintiff and appellant. H. <& 8. L. Taylor, for defendants.
   Merrick, O. J.

The plaintiff, then a widow, being about to marry Valery Bordelon, on the 8th of October, 1840, signed, with him, a marriage contract, wherein it was agreed that there should be a community of acquets and gains between the future spouses. The marriage contract enumerated the paraphernal property of the wife, but did not constitute the same in dower. It also enumerated the separate property of the future husband.

The marriage was solemnized the same day. The parties lived together but a few months and then separated, the wife receiving her paraphernal effects and ever afterwards living upon the same, and managing her affairs without the assistance of the husband.

The husband lived upon property purchased by himself, and made some further acquisitions.

Valery Bordelon died in 1858. The present suit is brought against the administrator and the heirs of the deceased, by the plaintiff, to recover her supposed dotal rights, and also one-half of the community of acquets and gains, and the usufruct of the residue.

The judgment of the lower court having been rendered against the pretensions of the plaintiff, she has appealed.

It is contended, that as it is clear that the acquets were not the product of the reciprocal labor of both the husband mid wife, (inasmuch as the wife had voluntarily abandoned lier husband,) there is no reason to apply the provisions of Art. 2371 of the Civil Code to this case, -where, for a period of nearly eighteen years, the wife contributed nothing to the common fund.

The testimony shows, that the separation of the parties was voluntary. It was in the power of the husband, after he had concluded to reside with his wife on her paraphernal property no longer, to summon her to reside at his house, or any other domicil he had seen fit to establish, and in the event of her refusal, he could have effected, by suit, a separation of property and, ultimately, a divorce. C. C. 151, 2389.

Of this right, he never thought it worth the while to avail himself. Not having done so, but resting entirely upon the voluntary separation, his acquisitions fell into the community under the effect of Articles 2371 and 2401 of the Civil Code. The latter Article declares, that every voluntary seperation of property is null, both as respects third persons and the husband and wife between themselves. See also 6 An. 632.

If there are cases in which the wife, by her conduct, may forfeit her interest in the community, the passive conduct proved in the present instance, does not appear to us to come within such excepted cases. See 12 An. 145.

The property of the wife described in the marriage contract, not having been declared to be given in dower, remained paraphernal. The same having been restored to the wife, at the time of the voluntary separation, and having been administered by her, she has no claim upon the community for what she may have lost, worn out or consumed by use.

In the acts of sale by which the husband purchased the property now claimed as community, there are no clauses by which it can be inferred, that it was intended to be bought as separate property. The sales were in the usual form, and though it may have been the intention of Valery Bordelon to pay for the same out of his separate funds, yet it is not, as we perceive, so expressed in the acts. These purchases made during the existence of the marriage, fell into the com--munity. 5 An. 611; 7 An. 104, Bass v. Larche, tutor.

The proof, although circumstantial, we think, is sufficient to show that the purchases were paid for with the separate funds of the husband. The community should, therefore, be changed in favor of the separate estate of the deceased with the amount of the purchases of the effects of the community.

It appears to be conceded, that the slave Badate belonged to the separate estate of the deceased.

We shaE not undertake to settle the rights of the parties further by this decree, but will remand the case for further proceedings.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that a community of acquets and gains be declared to have existed between the plaintiff and the said Valery Bordelon, deceased; that the separate estate of the said Valery Bordelon be recognized as a creditor for the sums paid for the property and effects belonging to the community; that plaintiff’s demand for and on account of dotal effects, be rejected ; and that this cause be remanded to the lower court, with directions to cause an inventory to be made of the effects of said community, and to proceed to the settlement of the same according to law, and the principles herein announced ; the defendants and appellees paying the costs of the appeal.


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    State of Louisiana v James Adams.
    It is sufficient, in an indictment for an attempt to cany a slave by land out of tlie State, to describo the slave as being “ a negro man, slave for life,” and giving the name of his master, when the name of the slave is not known, to the District Attorney or to the Grand Jury.
    The Act of 1816, making it a crime to carry, or attempt to carry a slave by land out of this State, is not repealed by the general repealing clause of the Act of 1855, relative to crimes and offences, nor by the same clause in the Act of 1857, relative to slaves.
    The general repealing clauses of these Acts do not repeal the formor statutes denouncing crimes and offences, upon which the Acts are silent.
    In a cross-examination ol' a witness for the State, the question was asked the witness il if he was not anxious that the defendant should he convicted.JJ — Held: That the question was a proper one, and might be asked to show bias on the mind of the witness, and that it was competent for the jury to decide from his answer to what extent his credibility may have been affected by it.
    APPEAL from the District Court of the Parish of Rapides, Cullom, J.
    xi. C. N. Hines, District Attorney, for the State. Hyman <& Cazdbat, for defendant.
   Vookhies, J.

This case comes up on two motions to quash, and several bills of exception. The defendant was found guilty of the offence of feloniously and willfully attempting to carry a slave out of the State by land.

The first motion to quash points out as a defect, that the name of the slave is not given. It was sufficient to describe him, in the words of the indictment: “ a certain negro man, slave for life, whose name is to the jurors aforesaid unknown, but who then and there belonged to and was the property of James H. Dawson.” It is not made apparent by bill of exception, that tlie Grand Jury or the State Attorney were at the time aware of the name of the slave; the above must, therefore, be held to be a sufficient compliance with the law in describing the slave in question.

The second motion to quash sets up that the Act upon which this prosecution is based, has been repealed by the Acts of the 14th March, 1855,relative to crimes and offences,” and of the 19th of March, 1851, “ relative to slaves.” It is true that the repealing clauses of these Acts repeal all former Acts on the same subject-matter ; but we have repeatedly held, in giving effect to this clause, that it does not repeal those statutes, denouncing certain crimes and offences, upon which those Acts are silent; or, in other words, that all foregoing statutes punishing crimes and offences are not done away with, unless reference be made to these offences in the above quoted Acts of 1855 and 1857. State v. Slave Jack, ante 385.

This case must, however, be remanded, on account of the ruling ex officio of the District Judge, rejecting the following question propounded on cross-examination by the defendant to a State witness, to-wit: “ if he was not anxious that the defendant should be convicted?” The question was a proper one, as the object of it was to show bias on the part of the witness for the prosecution. In weighing that testimony, it was all-important that the jury should have been made aware of the state of the witness’s mind on the subject; and if really he was anxious that the accused should be convicted, it would then have been the duty of the jury to ascertain to what extent, if at all, his credibility was affected.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reverged, and that this case be remanded for further proceedings.


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    Estate of M. Maillon, f. w. c., v. Henry Boyce.
    Wlion the defendant, in a petitory action, prays for oyer of the title papers under which plaintiff claims, tlio plaintiff is bound to filo tbom on tbe day fixed by the order of the court, undor the ponalty of a dismissal of the suit.
    An order of survey will not withdraw a case from tho consideration of the court during tho delay fixed for the return of the survey, as in case of an order of continuance.
    PPEAL from the District Court of the Parish of Rapides, Cullom, J.
    XA. W. B. & J. C. Lewis, for plaintiff and appellant. J. K. Elgee, for defendant.
   Merrick, O. J.

Tho plaintiff’s counsel states Ms case as follows :

“ The facts on which the decision of this appeal depends are these : In December, 1858, *Lyttleton Bailey, administrator of the estate of Merrique Maillon, brought suit against Henry Boyce, for certain tracts of land confirmed and patented, the one to the legal representatives of Jean Baptiste Vallery, and the other to the legal representatives of Joseph Maritaurus, and through them derived to plaintiff. On the 3d of May, 1859, defendant filed, in open court, a motion praying for oyer of the documents sued on. To this motion the court responded, by ordering the documents to be filed on or before May 9th. On the 12th of May, plaintiff not having filed the documents called for, the court, on motion of defendant's counsel, dismissed the suit.

“ On the 14th of May, plaintiff filed a motion for new trial, on tho following grounds :

1st. That the only legal effect and consequence of his failure to file his title papers on the day fixed by the court, was to relieve the defendant from the necessity of answering, and was no sufficient reason for dismissing the petition, as in case of nonsuit.

“ 2. That subsequently to the order to file documents, to wit, on the 7th May, the court, on motion of plaintiff’s counsel, granted an order of survey, returnable on the first Monday of its next term in November, 1859, and thereby continued the case ; thus placing it beyond its jurisdiction and control, unless by consent of parties.

“ This motion being overruled, plaintiff has found it necessary to seek relief at the hands of this honorable court.”

Article 174 of the Code of Practice requires, that when the action is founded on a notarial or public act, an authenticated copy of it must be annexed to the petition, in order that it may be communicated to the defendant, if he require it.

By Article 175, it was provided, that if the title, on which the demand is founded, be an act under private signature, it must be annexed, in order that the defendant may be enabled to confess or deny his signature. This latter Article was amended by the Act of 1826, so as to dispense the plaintiff from the necessity of filing the original act with his petition, “ provided, that if the defendant pray a view or oyer of the document declared upon, the court shall order the same to be filed within a reasonable delay, and in default of plaintiffs complying with said order, his petition shall he dismissed. Phillips’ Dig. p. 91, sec. 5.

The Article 175, as amended, is in pari materia with Article 174, and by-the well known rules of construction, they must be consider'd together. The consequence of tlie_ refusal to.comply^with the Judge’s order to produce the copies of the authentic titles which the plaintiff ought to have annexed to his petition, must be the same as in [the case of a private, act under the amended Article 174. The penalty for a disobedience of the’ Judge’s order, should be the same in the one case as the other.

The order of survey did not rescind the previous order, and was only obtained on the supposition that the order to produce titlejpapers would be complied with. It did notjiave the effect of Withdrawing the cause from the consideration of the court’during the delay fixed for the return of the survey as a formal order of continuance might have done.

¡í|i The case of Smith’s Heirs v. Blunt, 2 La. 133, relied upon by plaintiff, is not entirely analogous. In that case, there was no order of court requiring the plaintiff to produce the copies of the public acts. Defendant claimed a dismissal of the action, on his exception, because the plaintiff had neglected to file such copies with his’petition. The court very properly held, that it was no ground for dismissing, and intimated that it would be a sufficient protection to the defendant ¡to'allow*him the]right of refusing to answer until the documents on which the action is based, should be filed.

In the present case, the District Judge, exercising the discretion vested in him, fixed a'delay within which the plaintiff was to file the papers forming his title. The reasonable penalty for a disobedience of the order was a dismissal of the suit,'as"prescribed by the statute.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed,"with costs.


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    Succession of John Gurney.
    Irregularities and informalities, [which precede the decree of a Probate Court ordering tho sale of tho property, to pay the debts of tho succession, cannot render the decree of the court and the sale under it null and void. *
    ■When acourt has jurisdiction, its decree protects the purchaser at a probate sale, from all informalities which may have preceded it, in the absence of any charge, or proof of fraud, even though the purchaser be the administrator, or one of the heirs-at-law.
    from the District Oourt of the Parish of Natchitoches, Chaplin, J.

      J. B. Smith, for plaintiff. A. H. Pierson, for opponents and appellants.
   Land, J.

The administrator of this estate, was the brother and one of the heirs at law of the deceased. He filed his final account for homologation, which was opposed by his co-heirs, among other matters, on the ground that the lands belonging to the succession had been illegally sold, and that the sale thereof was null and void.

They also commenced a direct action (which was cumulated with the opposition,) to annul the sale, and to subject the lands to further administration.

The grounds of nullity alleged are as follows :

First. The inventory for the same, was made without any notice to them whatever, and without their being present or represented thereat, and the inventory was far below the real value of the same.

Second. The order for sale was granted without any previous notice or citation to them to show cau.se against the same, and without any showing whatever made for the necessity of the sale.

Third. The sale was consented to by the attorney (.f other heirs that were absent, at a time when he could not be acquainted with the wishes of those he represented, and before the delay allowed by law had expired.

Fourth. The sale was made without sufficent advertisement.

Fifth. It was made at a great sacrifice and loss to your petitioners, and without any opportunity on their part to prevent it, or of furnishing means to satisfy the just debts of the succession.

The three first mentioned causes of nullity preceded the decree of the court ordering the lands to be sold, for the payment of the debts due by the succession, and are insufficient under our jurisprudence as settled in the cases of Mitchell’s heirs v. Michell’s curator, 11 L. 156, and of Lalane’s heirs v. Moreau, 13 L. 431, to annul the sale made by order of the court. They are irregularities which do not render the decree of the court and the sale under it null and void. The court had jurisdiction and ¿is decree protects the purchaser, although he was the administrator and one of the heirs at law, in the absence of any charge or proof of fraud against him.

The two other mentioned causes of nullity followed the order of sale, but they are not as questions of facts sustained by the evidence. The advertisement was sufficient, and it does not appear that the co-heirs sustained any loss in the sale of the lands. The active competition between bidders at the sale, caused the property to sell for more than its appraisement, and to bring its full market value.

The judgment of the lower court annulled the probate sale of the lands, and rejected a claim placed on the tableau, for the sum of $54 90, the cost of advertising and the fees of the Sheriff for making sale of the lands, and is in these particulars erroneous. It is, in all other respects, correct.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed so far as it decrees the judicial sale of the lauds of the succession null and void, and rejects the claim of fifty-four dollars and ninety cents, for advertising and selling the same, and that the demands of the co-heirs in these respects be rejected, with costs. And, it is further ordered and dereced, that the judgment be in all other particulars affirmed, with the costs of the opposition in the lower court, and that the appellees pay the costs of this appeal.