author: Merrick, C. J.

text:
    Henry Bradley v. J. A. Trousdale et als.
    A surety on a tutor’s bond 1ms a right to demand tho cancellation of tho bond, when, without bis consent, any of his co-sureties are released by a judgment homologating tho proceedings of a furnity meeting which consented to tho erasure of tho mime of tho co-surety from the bond.
    In an action brought by tho surety for tho cancellation of tho bond under such circumstances, both the tutor and under-tutor should be made parties to tho suit.
    A judgment cannot bo rendered on a petition of intervention which has been filed without leave of the court, and has not been served or put at issue.
    APPEAL from the District Court of the Parish of E. Baton Rouge, Beale, J.

      Thomas Gibbes Morgan and A. M. Bunn, for plaintiff and appellant. J. Duncan Stewart and J. P. Greeves, for defendants.
   Merrick, C. J.

Tho principal facts in this case arc stated by the District Jndg'o as follows, viz :

Mary C. Randolph, widow of Adam Kleinpeter, and natural tutrix to the children .issue of her marriage with said Kleinpeter, being about to intermarry with defendant, J. A. Trousdale, caused a family meeting to be called to decide whether she should be continued in the said trust. A family meeting was duly called, and after deliberating upon the subject, decided to retain the tutrix with her intended husband as co-tutor, upon tho condition that they furnished bond conditioned for the faithful performance of thoir duties. The required bond rvas presented to the Clerk to be accepted. That officer did not think the bond sufficient, and rejected it without filing. Trousdale then took the bond, and afterwards returned with the names of Iienry Bradley, Telesphore Landry, David Robbins, (all of the parish of St. Mary,) and A. Como. Before it was the second time presented for acceptance, J. A. Trousdale erased therefrom the name of David Robbins, who died soon after the bond was signed by him and before his name had been presented for acceptance. A family meeting was called to decide whether said bond should bo accepted. Said family meeting accepted the bond as sufficient, and consented that the name of Telesphore Landry be erased from the bond, and said proceedings were duly homologated.”

The tutrix at this time resided in the parish of East Baton Rouge. She and her intended husband being unable to give security in East Baton Rouge, it seems Trousdale went to the parish of St. Mary, and there obtained the names of David Robbins, his uncle, Henry Bradley and Telesphore Landry, three planters in good circumstances.

Henry Bradley sues to have the bond declared null, on the ground that when ho signed tho bond, the names of Robbins and Landry were also attached thereto as sureties, they being men of means, and responsible for their portions should the sureties be called upon to pay it; and that the erasure of their names was a fraudulent act which rendered the bond void as to the plaintiff.

The tutor and tutrix, the under-tutor and co-sureties are made parlies to the suit. The co-sureties answer, and also pray that the bond may bo cancelled. There was a judgment of nonsuit, and plaintiff appeals.

As the law stood when this bond was signed, the obligation of the surety on such bond was very onerous, and it may well bo supposed that each surety on so large a bond as this, $30.787, signed with reference to the number and solvency of.his co-sureties.

The sureties on the bond do not stand as sureties for each other in the order in which they sign the bond, but they are cosureties, and any one of them, if compelled to pay the debt, has his remedy against the others for their proportions of the debt. O. 0. 3021. Now, when the names of David Robbins and Telesphore Landry were erased, a new instrument was made, to which Henry Bradley never made himself a party, by which his responsibility was made more onerous. On general principles, therefore, the bond was avoided by an alteration in a material part. 2 La. 290, 2 An. 836, 1 N. S. 592,15 La. 431. It is suggested to us that the bond given in this case is for the protection of minors, and we are reminded that this court has said that it is our duty to see that the formalities which the law has created for their protection should not bo used as a means to sanction the waste and destruction of their property. 1 N. S. 62. This is quite true; but it would bo a great departure from law and justice to permit frauds to be committed by persons representing minors, to the prejudice of innocent third persons. It is with great difficulty that sureties to tutors’ bonds can be obtained under any circumstances, and it would not facilitate this object, to hold that their right of indemnity might be essentially diminished in their absence by striking from the bond the names of their co-sureties, on the faith of whom they have been willing to share the responsibility.

It is also urged, that neither the tutor nor the family meeting had the right to release one of the sureties to the bond, and that the bond must be considered as having all the parties to it which it had originally. This is not an open question in this case, for the action of the family meeting releasing Landry was approved by the Judge, and the bond accepted and filed in that form.

The plaintiff had the right to demand that his bond should be cancelled so soon as he was informed of the alteration which had been made in it to his prejudice, and the under-tutor (as well as the tutor and tutrix) was properly made a party to the suit.

The intervention of the co-sureties contained in their answers not having been filed by leave of the court, or served, or put at issue, will uot authorize a judgment in their favor.

It will bo the duty of the under-tutor, on the rendition of judgment in this case, to take the necessary steps to secure the minors from loss, by calling upon the tutor and tutrix, before the proper tribunal, to give a new bond and security.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court bo avoided and reversed; and it is now ordered, adjudged and decreed, that said tutor’s bond bearing date the seventeenth day of December, 1855, signed by said Mary C, Trousdale and others, be declared null and void as to the said plaintiff, Henry Bradley, and that his signature upon the same be cancelled ; and it is further ordered that the demand in intervention be dismissed as in case of nonsuit, and that said tutors pay the costs of both courts.

Land, J., absent.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    Mayor and Board of Selectmen of the City of Baton Rouge v. G. W. Dearing.
    The statute oí' 185(5, conferring judicial functions upon the Mayor of Batou Rouge, is not unconslilulional.
    APPEAL from the Mayor’s Court of the City of Baton Rouge, Elam, J.

      J. W. Burgess, for plaintiffs.

      F. R. Brunoi, for defendant and appellant.
   Voorhies, J.

This is an appeal from the Mayor’s Court of the town of Baton Rouge. The only question submitted to our consideration is, whether or not the statute giving judicial functions to the Mayor bo constitutional.

If this statute wore tested under the provisions of the Constitution of 1845, the decision in the case of Lafon v. Dufrocq et als., 9 An. 350, would be conclusive upon this question; and we would not hesitate to declare the Act unconstitutional. But there is a wide difference between the Constitutions of 1845 and of 1852, in the organization of the Judiciary. The former vested the judicial power in a Supreme Court, in District Courts and in Justices of the Peace; whilst the latter provides that, “ The Judiciary Power shall be vested in a Supreme Court, in such inferior courts as the legislature may, from time to time, order and establish, and injustices of the Peace.” (Const. 1845, Art. 62; Const. 1852, Art. 61.)

There are, therefore, two classes of Judges or Courts, — those created by the organic law itself, to-wit, the Supreme Court and Justices of the Peace, — and those created by the Legislature, under the express sanction of the Constitution, to-wit, District and other inferior courts.

The Legislature has the undoubted right to create a Mayor’s Court for the town of Baton Rouge, and, as a consequence, to give it such jurisdiction as is deemed proper, so as, however, not to contravene any provision in the fundamental law.

The 82d Article of the Constitution makes it the duty of the Legislature to fix the time for holding elections for all Judges at a time which shall be different from that fixed for all other elections. The moaning of this is not, dial all Judges shall bo elected on the same day ; but simply, that the Judges’election shall not come off on the day of general elections.

In this respect, the statute of 1856 complies with the constitutional injunction : the Mayor’s election takes place on the second Monday of April of each year. (Act of 1856, to provide for the government of the City of Baton Rouge, and the administration of the affairs thereof, p. 90.)

It must be remarked in this connection, that the District Judges are elected on the first Monday of April, 1857, and every four years thereafter ; whilst Justices of the Peace are elected in the city of New Orleans at every general election for Clerics of the District Courts, and in the Slate at large, on the first Monday of November, 1855, and every two years thereafter. By a special legislation for the parish of St. Martin, Justices of the Peace arc elected on the same day as District Judges, — that is, at every other election. (Acts 1855, pp. 479, 497, 27, 315, 491; Acts 1857, p. 24.)

The Mayor of the town of Baton Rouge is a Judge, whose election takes place on a day apart from the general elections. His court is created by the Legislature under the provisions of Article 61 of the Constitution. The statute in question is therefore constitutional.

The other question raised as to the constitutional requirement of uniformity in taxation, does not come up properly in the present case. The contribution imposed upon the defendant, as one of the property owners of the town of Baton Rouge, to repair the side-walks, is not a tax. See the case of Lafayette v. Orphan Asylum, 4 An. 2; Yeatman v. Crandell, 11 An. 220.

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

Buchanan, J., took no part in this decision, having dissented in Yeatman v. Crandell.


text:
    Succession of Dr. Henry Skipwith.
    The probate of a will does not estop a legal heir from disputing any of its dispositions, or demanding of the courts an interpretation of the same.
    The will of H. S. contained the following dispositions, to*wit: “ Item 1$£. — I give and bequeath my entire estate, of all and every description, to my children and their representatives, it being my wish that the same should be divided among them in the manner pointed out by law, subject to and under the conditions hereinafter expressedu Item-2d. — It is my will and xoish that my entire estate, in the event of my wife, Margaret S. Skipwith, surviving me, shall be kept and worked together, as it now is, and managed and controlled by her ; and that no partition of the same be made among my heirs xmtil the youngest of my children, I shall leave surviving me, shall have arrived at the age of majority, or become emancipated by marnage, unless my wife should die previously thereto; in which event the partition may take place at her death: my said xoife to enjoy the usufruct of my share of the community during her life, as is provided by law; and the net revenues of my separate estate during the time the same shall remain together and undivided, to be divided equally among my said children and heirs.” And it is shown at the death of the testator that he had no separate property — Held: That the true construction of the will is to consider it as leaving the usufruct given by the Act of 1844 undisturbed, and as keeping the property in a state of indivisión for the longest period allowed by law, viz, for five years. Held also : That the right conferred by the will, of keeping the property together and working the same, implies an accountability on the part of the widow and executrix for the crops only.
    An heir will not be relieved from the obligation of collating a debt due by him to his ancestor, on the ground of prescription acquired after tho opening of the succession.
    ARPEAL from the District Court of the Parish of E. Feliciana, Ratliff, J.

      R. G. Bowman, for plaintiff.

      Muse & Hardee and Fuqua & IGlbourne, for opponent and appellant.
   Merrick, C. J.

The questions for our decision in this court arise under the following clauses in the will of the late Dr. Henry Skipwith of the parish of East Feliciana:

“ Item 1st. I give and bequeath my entire estate, of all and every description, to my children and their representatives, it being my wish that the same should be divided among them in the manner pointed out by law, subject to and under the conditions hereinafter expressed.”
“ Item 2d. It is my will and wish that my entire estate, in the event of my wife, Margaret S. Skipwith, surviving me, shall be kept and worked together, as it now is, and managed and controlled by her ; and that no partition of the same be made among my heirs until the youngest of my children I shall leave surviving me, shall have arrived at the age of majority, or become emancipated by marriage, unless my wife should die previously thereto ; in which event the partition may take place at her death : my said wife to enjoy the usufruct of my share of the community during her life, as is provided by law; and the net revenues of my separate estate during the time the same shall remain together and undivided, to be divided equally among' my said children and heirs.”

The third clause of the will appointed Mrs. Skipwith, the appellee, executrix. She has filed her account. This litigation arises out of an opposition to the same. The parties are agreed in this court, as to all matters, except the refusal of the executrix to account for the revenues or crops'; her proposition to retain the entire estate in usufruct, and also to this statement in her account, to-wit:

“ Executrix further represents that there is an act of indebtedness and mortgage of Henry Skipwith, Jr., in favor of I-lenry Skipwith, Sr., passed before H. Hanford, Notary, on the 31st of May, 1847, for nine hundred and five dollars, with five per cent, interest from date; that the said Henry, Jr., being an heir of said testator, the executrix has left said mortgage to be collected by said Henry at the partition of the estate of the said testator.”

To the above statement the opponent pleads a denial of indebtedness aud the pleas of prescription of five and ten years.

The other grounds of opposition are : “ That, as a forced heir of said deceased, by a former marriage, he opposes the proposition of the executrix not to charge herself with the rents and revenues of said property from the date of the death of said deceased until the present time, and he also opposes the proposition to retain said property in her possession. That, notwithstanding the last will of said deceased provides that his property shall be kept together until the happening' of a certain condition, before any partition shall take place among his heirs, that more than five years have elapsed without the happening of said condition-; and your opposer and petitioner now has a right, under the law, to claim a final partition of said estate between himself, said executrix, and his co-heirs.”

The appellee’s counsel has discussed the case under the following questions, to-wit:

1st. Does the will contain a fidei commissum ?

2d. Is the executrix entitled, under the will, to the usufruct of the community property ?

The view which we have taken of the case, will not render it necessary to follow him in the discussion of these questions.

The probate of the will does not prevent the appellant from disputing any of its dispositions, or demanding' of the court an interpretation of the same, i The proof shows that the testator had no separate property. The first inquiry then is, what interest was given by the clause “ my said wife to enjoy the usufruct of my share of the community during- her life, as provided by law." This must be construed so as to give it effect, if possible, and not to avoid the same.

By Article 1745 of the Civil Code, the testator was prohibited from giving to the executrix, his second wife, children of the former marriage still living, more than the least child’s portion in usufruct. Neely v. Stokes, 13 An. 143; Succession of Swayze, ibid, 244. See also Clarkson v. Clarkson, 13 An. 422.

The Act of 1844 gave the usufruct of all or a part of the community to the survivor, provided the pre-deceased husband or wife had not disposed by last will and testament of his or her share in the community. Now, by the first clause of the will, the testator had disposed of his entire estate, including the community, in favor of his children and their representatives. The bequest of the usufruct to tlie wife “ as is provided by law,’’ became therefore important, in order to secure to her the benefit of the statute of 1844, which gave her in usufruct during her life or widowhood, such share of the deceased in the community as the children of the second marriage might inherit. Phillips’ Dig. 104, sec. 3.

Comparing the will with Article 1745 0. C. already cited, makes it apparent that this is all or nearly all the testator could give his wife, he having no separate estate. The portion of the children of the first marriage, in -the community, has not, therefore, been taken away by the will; for if their portions could be diminished at all, it would only be for the usufruct of one-ninth of such portions, and the one-ninth thereof would be taken under and by the will, and not as provided by law, as the testator had directed.

The will also provides, that no partition shall be made until the youngest surviving child of the testator should arrive at the age of majority, or become emancipated by marriage, unless his wife should die previously thereto. Whether the age of majority, or emancipation by marriage of the youngest child will defeat the usufruct, does not interest the opponent to inquire ; for the testator could not prevent a partition of his estate for a longer period than five years, and that has already elapsed. 0. 0. 1222, 1223 ; 8 An. 249 ; 13 An. 162.

It seems therefore to us quite clear, that the true construction of the will is, to consider it as leaving the usufruct given by the Act of 1844 undisturbed, and as keeping the property in a state of indivisión for the longest period allowed by law.

The will so construed confers upon the executrix some advantages, for she has the administration, without giving security, and the management of the entire estate for five years.

The executrix must account, for the benefit of the opponent, for one-eighth of the net proceeds of the crops since the death of the testator. The right to keep the property together and work the same, implies an accountability for the crops only.

In regard to the debt evidenced by the notarial act of 1847, it was not prescribed at the date of the opening of the succession. The opponent is as much bound, therefore, to account for whatever he owed at that time, as he would be for a movable or slave which he had received or taken possession of, belonging to the succession. If prescription of debts previous to the death of the ancestor can relieve the heir (the debtor) from collating, (upon which we express no opinion,) it cannot have that effect after the succession has once been opened. See Aiken v. Ogilvie, 12 An. 353, and King v. Wartelle, 14 An.

As the parties are agreed as to the manner in which the account should be stated after the decision of the questions presented us on the appeal, we will merely reverse the judgment and remand the cause, in order that the proper decree may be rendered in the District Court.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded for a new trial and further proceedings according to law, the appellee paying the costs of the appeal.


text:
    Hill & Markam v. Emmeline J. Penny et al.
    Where a contractor delivers and puts up defective machinery as good, and loss is occasioned by such defect, it must be viewed as an active violation of the contract, and damages may bo recovered without a formal putting in default.
    APPEAL from the District Court of the Parish of E. Baton Rouge, Beale, J.

      Geo. S. Lacy, for plaintiffs.

      Thos. G. Morgan, for defendants and appellants.
   Merrick, C. J.

This suit is brought to recover the price of a steam engine and sugar mill. The defendant reconvenes for damages occasioned by the loss of the crop through the defective machinery.

There is some conflict in the testimony of the witnesses. The District Judge partially discredited the testimony of two of the principal witnesses of the plaintiff, and on a careful analysis of the testimony, concluded that defendant had suffered loss to the amount of eighteen and one-half hogsheads of sugar, one-fourth of the crop, estimated at $1,129 33.

The plaintiffs had attempted to remedy the defect in the machinery, but failed. The District Judge was of the opinion, that the defendant had been informed or might have known the defect in the machinery, and that after this period, he ought not to be permitted to recover for the loss of cane juice. It is quite evident that the loss was occasioned by the defective manner in which the sugar mill was constructed. We do not see any evidence which can prevent the defendant from recovering for this loss. In an estimate in this case, we think, however, the lowest figures as to the price of sugar and the weight of the hogsheads should be taken. Making the calculation on this basis, and deducting the cost of making the sugar, the loss will be $740.

We do not perceive any proof of the quantity of molasses supposed to be lost, nor the value of the same.

We adhere to the opinion, that where a contractor sets up and delivers to the employer defective machinery as good, and a loss is occasioned by reason of such defect, it may be viewed as in the nature of an active violation of the contract, and damages may be recovered without a formal putting in default. The subject appears to have been well considered in the case of Lobdell v. Parker, 3 La. 329. It is true, Article 1925 O. 0. does not seem to have been cited in that case. The case was placed upon Art. 2740 as having special relation to the contract of letting and hiring. See also Art. 2733 C. 0.

The plaintiffs have prayed for an amendment of the judgment in their favor, and we are of the opinion that interest must be allowed from the 5th day of December, 1857, instead of the maturity of the notes which defendant contracted to give.

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 by the court, that the plaintiffs do recover and have judgment against the defendant for the sum of four thousand dollars, with eight per cent, interest thereon, from the fifth day of December, 1857, until paid, subject to a credit of seven hundred and forty dollars which we find due upon the reeonventional demand as of the date of June 1st, 1838 ; and it is further ordered, adjudged and decreed, that the plaintiffs recover against the defendants the further sum of one hundred and 'fifty-seven dollars and eighty-six cents, with legal interest thereon from the judicial demand ; the plaintiffs paying the costs of the appeal, and the defendants the costs of the lower court.


author: Duffel, J.

text:
    Joseph Landis & Co. v. A. W. Walker.
    A party who has sold all or his property in the parish where he resided, and removed from there permanently, may be sued in the parish to which he has removed, and it will be considered his domicil, even though he has made no permanent establishment there. ■
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford & Fmney, for plaintiffs.

      Hunton <ft Miller and A. W. Walker in pro. per., for defendant and appellant.
   Duffel, J.

The plaintiffs claim from the defendant $2,663 23, with interest. The action was resisted on a plea to the jurisdiction of the court, the defendant claiming Ms domicil in the parish of St. Charles; and this plea having been overruled, the defendant pleaded the general issue, and set up a claim in reconvention and compensation for a larger amount, asking judgment for the excess in his favor. The reconventional demand is based on the allegation, that plaintiffs undertook in 1854 to dispose of a portion of the crop of molasses of the defendant, which they directed to be shipped to the commercial firm of Taylor & Brother in Cincinnati, who were required to sell the same; that accordingly, various shipments were made, and that the defendant instructed the plaintiffs and the house of Taylor c6 Brother, to dispose of the molasses promptly, but that they disregarded Ms injunction, kept his molasses from market, and at last sold it at a sacrifice; and that by reason of said acts, and by their, negligence, over-charges, leakage, &c., &c., he sustained the loss now offered in compensation. The District Court gave judgment in favor of the plaintiffs for the amount claimed, and rejected the reconventional demand, from which judgment the defendant appealed.

And first, as to the question of commorancy: it appears from the evidence, that the plaintiffs, in Juno 1856, brought suit for the same cause of action in the Fourth District Court of Now Orleans, which, on the 7th of February, 1857, they discontinued in consequence of a similar exception. The suit was renewed in the parish of St. Charles, but service of petition and citation could not be made by the Sheriff, because the defendant, before the filing of the petition, had sold all his property in the parish of St. Charles, and had left the parish permanently ; this sale was made on the 18th of April, 1857. The present suit was again, on the 27th of May, 1857, filed in the said Fourth District Court, and the defendant, on the 28th of September of the same year, purchased a plantation in the parish of St. Bernard, where he has since resided. The evidence clearly shows, that for cause of sickness, the defendant’s wife moved to New Orleans, taking her children with her, some time before the sale of the 18th of April, 1857, and resided in a house of a relation ; that the wife died subsequently to the sale, in said house ; that from the 18th of April, 1857, to the 28th of September following, the defendant made said house his home, and had no other known home. During' the whole of that time, and in fact, during the preceding' four or five years, he kept an office in St. Charles Street. The service of the petition and citation was, on the 27th day of May, 1857, made personally on the defendant. The exception, under this state of facts, was properly overruled. Rippey v. Dromgoole, 8 Martin, 709.

The plea of compensation, or offset, being a virtual admission of the correctness of the plaintiff’s claim, we will now examine the evidence adduced in support of that branch of the case.

The evidence shows that the plaintiffs were employed by Taylor S Brother simply to procure consignments, for which they wore paid a return commission of one-third; that the plaintiffs made to defendant occasional advances on his consignments of molasses; that all the shipments were made by the defendant to Taylor & Brother, between whom there existed a regular correspondence. We find nothing in the evidence to sustain the averments contained in the reconvcntional demand, or to fix, in any manner, the liability of the plaintiffs, or tending to show that they acted as agents or factors of the defendant as charged.

The appellees ask in their answer the confirmation of the judgment with ten per cent, damages. We do not think that this is a case where damages should be allowed.

It is, therefore, ordered, that the judgment of the District Court be affirmed, with costs in both courts.

Land, J., absent.


author: Buchanan, J.

text:
    M. D. Cooper & Co. v. Joseph A. Cotton.
    The regular mode of ascertaining the extent of the personal liability of an executor for acts of mal* administration, is by opposition to the account of administration when rendered, and a personal action by the creditor against the executor, cannot be carried on so long as an opposition to the account on the same grounds remains undisposed of.
    APPEAL from the District Court of the Parish of West Feliciana, Beale, J.

      E. Phillips and Collins <& Leake, for plaintiffs.

      A. M. Dunn, for defendant.
   Buchanan, J.

This is a personal action by a creditor of the Succession of Joseph Colton, deceased, against the son and testamentary executor of said Cotton, for the amount due plaintiffs by the succession ; on the ground that the defendant has fraudulently converted the assets of the succession, to his own use.

This defendant has excepted to this action, that at the time of its institution, there was pending and undecided, an opposition by plaintiffs to a final account of administration as executor, filed by defendant in the court where the succession was opened ; which opposition contains identically the same matters alleged by plaintiffs in the present action.

This exception should have been sustained. An executor is personally liable to the creditors of the succession which he administers, when he has been guilty of mal-administration ; but the regular mode of ascertaining' the extent of such personal liability, is upon an account of administration showing the deficiency of assets to pay creditors.

We. are not to be understood as saying, that an executor can never be held personally liable to creditors, unless upon an account rendered and approved. It may be, that the executor will fail or refuse to render an account. Or peculiar circumstances may render such a mode of ascertaining' the executor’s delinquency superfluous. But in the present case, there was an account of executorship rendered — and that, upon a judgment of the District Court, affirmed by this court, ordering the executor to account. The said account was opposed by this same creditor, and upon the same grounds substantially, which are alleged in the petition in this case. It is clear that this personal action is premature, so long as the opposition is undisposed of.

It is, therefore, adjudged and decreed, that the judgment of the District Court, from which this appeal is taken, be reversed; and that there he judgment herein, against plaintiffs and appellees, as in case of nonsuit, with costs in both courts.


text:
    The Mayor and Board of Selectmen of Baton Rouge v. James Malverhill.
    ■\Vhevo tlui amount ui controversy is less than three hundred dollars, the Supreme Court cannot look into the facts, to seo whether the lower court has, or has not made a false application of a legal ordinance or a constitutional law ; all they can do in such a case, is to examine the legality or consti tutionality of the ordinance, or the constitutionality of the statute under which a tax or impost, or municipal fine has hecn imposed.

      APPEAL from the Mayor’s Court of the City of Baton Rouge, Elam, J'.

      J. W. Burgess, for plaintiff.

      A. S. Herron, for defendant and appellant.
   Merrick, C. J.

The defendant has been fined fifty dollars by the Mayor of said city, “ for selling and retailing liquors without a license.”

The defendant excepted to the jurisdiction of the Mayor’s court on the ground, that he could only be prosecuted by indictment or information, and that’he is entitled to a trial by jury, and that all Acts of the Legislature vesting the May- or’s court with jurisdiction in such cases, are in violation of Art. 103 of the Constitution of the State of Louisiana.

There is also a bill of exception to the ruling of the Mayor’s court in admiting in evidence a judgement in another suit vacating the defendant’s license.

The case in this court has been argued on the question, whether the Mayor had power to try the accused without the intervention of a jury.

It has been settled, by repeated decisions, that where a case involves less than three hundred dollars in controversy, this court cannot look into the facts in order to decide whether the lower court has, or has not, made a false application of a legal ordinance or a constitutional law. That all this court can do in such case, is to examine the legality or constitutionality of the ordinance, or the constitutionality of the statute under which the tax, toll, or impost or municipal fine, forfeiture or penalty, has been imposed, See Board of Health v. Pooley, Nicol & Co., 11 An. 743; Police Jury v. Villaviabo, 12 An. 788; State v. Third Justice of the Peace, 12 An. 789.

Looking to the record for our guide as to the question decided by the lower court, we find the only question raised in this case, is in regard to the constitutionality of the Act of 18th of March, 1856, as affected by Article 103 of the Constitution, and when we come to consider the Act of the Legislature in connection with the Article of the Constitution, which it is alleged it violates, we find that it raised only a question of jurisdiction and practice. The matter in dispute being under three hundred dollars, is not within our jurisdiction. Art. Const. 62 ; Acts of 1856, p. 90.

It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, at the costs of the appellant.

Land, J., absent.


text:
    Mrs. M. C. Decuir v. Ovide Lejeune-In the matter of James A. Morgan, Sheriff.
    When au appeal has been taken from a judgment rendered in the District Court, ponding the appeal, the Sheriff cannot, by an exparle motion, obtain judgment and issuo execution for his costs against the party cast; he should toko a rulo and notify the party before having his compensation fixed.
    APPEAL from the District Court of the Parish of Pointc Coupee, Haralson, J.

      James D. Augustin, for plaintiff and appellant.

      A. Provosty, for Sheriff.
   Merrick, C. J.

In April, 1858, a judgment was pronounced on the main action in the above entitled case, adverse to the pretensions of the plaintiff. She moved for an appeal on the 2áth, and perfected the same by giving bond on the 28th of April, 1858.

Afterwards, on the 9th of June, 1858, on the ex parte motion of the counsel for the Sheriff, it was ordered that execution issue against the plaintiff for $1088 Sheriff’s costs.

Although we observe some unusual charges in the cost bill, we suppose it was intended to be charged in conformity to the statute, except the item of $1,000 for placing a keeper on the plantation, and slaves sequestered for one hundred days. This was made the subject of proof before the District Judge at the time he made the order.

So soon as notice of the execution issued, the plaintiff appealed.

She contends that the execution for costs must, under sections six and seven of the Act of 1855, (Phillip’s Dig. p. 124,) be preceded by a detailed bill of costs, and that a rule must be notified to the party of whom the costs are claimed, in every case.

Without expressing an opinion upon the first point, we think the last objection well taken in this case. The District Court had been vested of jurisdiction over the principal action, by the appeal. The parties were not before that court from term to term, as previously, and bound to take notice of the proceedings in the cause. Hence, when it became necessary to fix the compensation to be allowed the Sheriff for placing a keeper over the property, the proceeding was no longer a motion in a cause pending before the court, but was an independant proceeding of which the party sought to be charged, was entitled to notice, in order that she might also be heard and introduce her proof, especially upon those items which were subject to the discretion of the court.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, ordering said execution to issue against the plaintiff for costs, be avoided and reversed, and that there be judgment in iavor of the said Mrs. M. C. Decuir thereon, as in case of nonsuit; and that the appellee pay the costs of this proceeding in both courts.

Land, J., absent.


author: Merrick, C. J. Land, J.,

text:
    Caballero & Basualdo, for use, &c., v. Home Mutual Insurance Co.
    It is the proximate, and not the remote cause of the loss, which is to be regarded in order to ascertain whether the loss is covered by a policy of insurance.
    Where a fire occurs upon the premises insured, by which an explosion of gun-powder takes place, the insurer is responsible for the loss which is the direct consequence of the combustion.
    Whore the fire did not happen at the premises insured, but broke out in a building about two hundred feet distant, causing the explosion of gun-powder, which by the concussion of the air injured the building insured against fire — Reid: That such a loss could not have been within the reasonable intendment of the parties, and was not covered by the policy.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      C. Bufour, for plaintiffs.

      Bonforcl, Singleton & Clack, for defendants and appellants.
   Merrick, C. J.

The defendant covenanted in a fire policy to make good to the plaintiffs all such loss or damage as should happen by fire to a two story brick slated store on Elizabeth Street, in Brownsville, Texas, during the period of one year.

A fire broke out in a building about one hundred and eighty or two hundred feet distant, which contained a quantity of gun-powder. In about thirty minutes, the gun-powder exploded. The explosion of the gun-powder produced such a concussion of the air and earth as to crack the walls of the building and brick arches, drive in the windows and blinds, loosen the plastering and slates, and in fine, injure the building to the amount of nine hundred and fifty dollars.

The fire continued in Brownsville for forty-eight hours, but did not reach the building in question, the same being entirely unharmed, except from said concussion.

The case, therefore, presents one of those difficult questions to solve, arising from the maxim that it is the proximate, and not the remote cause of the loss, which is to be regarded, in order to ascertain whether the loss is covered by the policy.

It seems to be well settled, that where a fire occurs upon the premises insured, by which an explosion of gun-powder takes place, the insurer is responsible, on the ground that the loss is the direct consequence of the combustion. See Scripture v. Lowell Mutual Ins. Company, 10 Cushing’s Rep., 356; 11 Peters, 225. Parsons’ Mercantile Law, 527.

Bo where a building has been blown up, or goods are injured by water, in order to prevent the spread of the conflagration, the insured is held responsible if they would otherwise have been destroyed by the fire.

So too, where the policy compels the assured to labor for the protection of the goods, and they are injured or stolen in their removal to avoid the fire. 1 Bouvier Inst., 503.

But these cases are not entirely analogous. For in each case, the property was in the immediate danger of the fire, aud would have been lost had not means been taken to arrest the flames, or avoid their effects.

In the case at bar, the store was not in any danger from the fire, and the instant the concussion of the air took place, all danger was over.

If now the question were to be asked any one unacquainted with the law of insurance, whether an injury could be considered as occasioned by fire, where it had only been effected by the air put in motion by an explosion of gun-powder and the fire itself had not touched the building? We think the answer would be, no ; because the insurance company only bound itself to answer for damage done by the element of fire, and not for injury done by any other element.

But it is replied by the jurist, that the law looks upon the question in a different light. It seeks for the first efficient cause of the loss, and that is the causa próxima, however many other agencies may have intervened.

Here, there would have been no concussion of the air, without the explosion of gun-powder, and the gun-powder would not have exploded without taking fire and producing instantaneous combustion by which gases were evolved and expanded which set the air in motion.

But the question might then be put, was the policy really intended to cover a loss by this sort of combustion which does not consume the building, and leaves scarcely a trace of the element of fire, and produces its effect by the action of gaseous matter and the agency of another element, viz, that of air ?

If so, would not an accident like that which happened in Delaware some years since render the fire insurance companies liable ?

There, a dray load of gun-powder, from some unknown cause, perhaps the cigar of the drayman, exploded in the street or highway, producing a prodigious concussion of the air, and doing great injury to the buildings in the neighborhood. Would this be a loss within any policy of fire insurance?

Suppose a loaded cannon should accidentally ignite and explode in the neighborhood of buildings, and do injury both by a concussion of the air and the fragments which were hurled from it: would the insurance company be responsible ? For hero again is combustion by fire as in the other cases of explosion of gunpowder.

These examples show how difficult it is to make a satisfactory application of the best rules which courts of justice have been able to devise on the subject of insurance.

Perhaps, after all, it might bo safe here, as in other contracts, to inquire whether the loss was within the reasonable intendment of the parties when they made the contract. Did they intend, by an insurance against fire, to cover losses arising from the concnssion of the air produced by the explosion of gun-powder on the premises of other persons than the insured ?

We think such an extraordinary result could not have been contemplated by the parties. We do not think insurance companies can be considered responsible for the cousequences of the combustion of gun-powder, unless that combustion has happened in the premises insured, or the gun-powder is itself, with other merchandize, covered by the policy.

Judgment reversed, and rendered in favor of defendant, with costs of both courts.

Land, J.,

dissenting. Mr. Phillips, in his work on Insurance, in treating of the question, “ whether the underwriters are liable for loss by fire, where the loss is occasioned or the subject is destroyed thereby, without its being actually burnt,” says:

“ The maxim carna próxima spectatur, affords no help in these cases, but is in fact fallacious; for if two causes conspire, and one must be chosen, the more scientific inquiry seems to be, whether one is not the efficient cause, and the other merely instrumental, or merely incidental, and not which is nearest in place, or time, to the consummation of the catastrophe.” g1097.

He further says : “ The common place maxim, that in cases of doubt to which of two or more perils the loss is to be assigned, causa próxima non remota spectatnr, has been not nnfrequently resorted to, by which was meant, originally at least, that a loss is to be attributed to the peril in activity at the time of the ultimate catastrophe, when the loss is consummated. But much of the jurisprudence is contradictory to the maxim taken in this sense, and it seems to have served rather to divert attention from the proper inquiry, and to becloud instead of elucidating the subject. 1 understand the result of the jurisprudence to be, that, in case of the concurrence of different causes, to one of which it is necessary to attribute the loss, it is to bo attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster.” $1132.

Upon the principle above stated, it has been held that underwriters are liable for damage by water thrown upon goods to extinguish a fire, and for loss by plunder of goods removed away from the fire, and for the loss of a building blown up by gun-powder and demolished to arrest the spread of a conflagration, which would soon have destroyed it. In these cases, the “water," the “plunder," and the “ explosion,” were, in point of fact, the proximate causes of the loss, but were held to be merely incidental to the fire. And upon the principle of these cases, I think, the underwriters are liable; for the explosion of the gun-powder was but an incident to the fire, which was the efficient predominating cause of the loss, and it was so held by the Supreme Court of the United States in the case of Waters v. Merchants’ Louisville Ins. Co., 11 Peters, 213.

The fire in question was a conflagration, and was a peril insured against in the sense of the policy, which contains no stipulation that the fire should be upon the premises of the assured, as a condition precedent, to the liability of the underwriters, for the loss. And to hold that the liability does not attach, because the fire was not upon the premises, is in effect to make a new contract for the parties.

If the assured has sustained a loss by a peril insured against, the particular locality of the peril is in principle immaterial; for the peril and the loss entered directly into the consideration of the parties at the time of making the contract of indemnity, and the consequences are the same to the assured, whether the peril was in activity on his own premises, or on those of his neighbor, and they should be the same to the underwriters, in the absence of a stipulation to the contrary.

In my opinion, the judgment of the lower court should be affirmed.

Buchanan, J., concurred in the above opinion.


text:
    Kentgen & Co. v. C. D. Jordan.
    The evidence of one witness, who simply declares that an account sued on, and over five hundred dollars, is correct, without giving his reasons for this assertion, is not sufficient to authorize the confirmation of a default.
    I PPEAL from the Fifth District Court of New Orleans, Eggleston. J.

      G. & C. E. Schmidt, for plaintiffs.

      J. <& E. Bermudez, for defendant and appellant.
   Duffel, J.

The defendant is appellant from a judgment by default made final.

The default was confirmed on the presumption created by Article 3G0 of the Code of Practice, corroborated by the following- testimony : “ J. M. Wagner, for plaintiff, sworn, says : “ the account sued upon is correct.” Another witness was examined; but his testimony not having any reference to the account sued on, does not affect the decision of the cause.

The simple declaration, “ the account sued upon is correct,” was, in our opinion, insufficient to authorize the confirmation of the default; the witness should have given the reasons of his conclusion.

We will not, however, under the circumstances of the case, nonsuit the plaintiff, but we will remand the cause, in order to give him the benefit of his default.

It is, therefore, ordered, that the judgment of the District Courjxbe reversed, and that the suit be remanded to the Court a qua,, to bo proceeded in according to law; the appellee to pay the costs of the appeal.


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    James McClure v. Robert King.
    Where a party, on the trial of a cause before a .jury, is taken by surprise by tlie loss of evidence, his remedy is either a continuance or postponement of the trial on a proper showing, and he should not be permitted to take the chances of a verdict in his favor, and afterwards claim the benefit of a new trial.
    A party who has violated his contract to erect buildings for another is not entitled to exact a specific performance, but can only claim the value of his work and materials.
    APPEAL from the District Court of the Parish of Tensas, Farrar, J.

      H. B. Shaw, for plaintiff.

      T. P. Farrar and Reeves & Alexander, for defendant and appellant.
   Voorhies, J.

This is a suit on a contract for building ten double cabins for the stipulated sum of $5000. The plaintiff, who is the contractor, claims also the sum of $1045, for extra work and lumber.

The answer sets up a plea of payment to the amount of $2,937 63, and concludes by a reconventional demand for the sum of $G,GG8 63 for damages incurred through the non-compliance of the plaintiff with the terms of the contract.

The case being tried by a jury, resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,062 37. It was brought up on appeal to this court, and the judgment was reversed, the cause being remanded for a new trial. (13 An. 141.)

On the second trial, the jury brought in a verdict for the defendant. The plaintiff moved for a new trial, alleging- that the statement of facts taken down on the former trial, and which contained important evidence, had been mislaid, and that the plaintiff had discovered the loss of this document at the time of closing his evidence on the second trial.

On this showing-, the court granted a new trial, quashing the verdict of the imT-

This mode of proceeding- met the objection of defendant’s counsel, who took a bill of exceptions to the ruling. It is evident that, if the plaintiff was taken by surprise by the loss of the statement of facts in question, his complaint should have been heard at the time that he was made aware of the fact. His remedy was either a continuance or postponement of the trial, a proper showing being made At all events, he should, at the time, have applied for relief, and not have taken the chances of a verdict, and then claimed the benefit of a new trial.

Be this as it may, the view which we have taken of the cause, as presented on the third trial had before another jury, dispenses us from interfering with the ruling of the District Judge, in allowing- a new trial to the plaintiff.

The evidence is somewhat conflicting in many respects; but on the whole, we conclude that the plaintiff has not only failed to comply with his contract, but has violated its stipulations in several particulars; that he is not entitled to exact of the defendant the specific performance of this contract, but only to recover the value of his work and of the materials which he has furnished ; and, finally, that the payments made to the plaintiff by the defendant are a full compensation for these services and materials.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and it is further adjudged, that the plaintiff’s demand and the defendant’s l-cconventional claim be rejected; the plaintiff paying the costs of both courts.


author: Land, J.

text:
    North, Smedes & Co. v. J. L. Gordon & Co.
    Whore a promissory note or a judgmont has "been transferred to a third person, for the purpose of defeating the legal pursuits of creditors, and the transfer is a simulation, a creditor may disregard such transfer and attach them, without resorting to the revocatory action and making the transfer-roe a party to the suit.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiffs.

      B. D. & A. W. Roberts, for defendants and appellants.
   Land, J.

This suit was commenced by attachment for the recovery of the amount of two promissory notes, and the balance of account alleged to be due by the defendants to the plaintiffs.

Under the writs of attachment, certain judgments which had been rendered in favor of one John Gordon, the transferree of the defendants, were seized as the property of the latter, and certain promissory notes were also seized as the property of the defendants, in the hands of B. J). <& A. W. Roberts, who were made garnishees to the action.

The evidence sufficiently establishes the fact, that the promissory notes, and the judgments seized under the writs of attachment, belonged to the defendants, and had been transferred by them to John Gordon, for the purpose of defeating the legal pursuits of their creditors; and it further sufficiently establishes the fact, that the transfer to John Gordon, was in itself a pure simulation.

Under these circumstances, the plaintiffs had the right to disregard the transfer, and to attach the judgments and promissory notes as the property of the defendants, without instituting the revocatory action and making John Gordon a party to the suit. The transferree, therefore, has no right to complain on the appeal, that he was not legally cited, or represented in the suit in the District Court.

Por the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court bo affirmed, with costs.


text:
    Louis Folse v. E. E. Kittridge.
    A party cannot succeocl in a redhibitory action, when lie fails to establish clearly that the disease of which the slave died, existed at the time of the sale, and when it appears that ho had not resorted to medical aid for some months after the sale.
    A deposition of a witness residing out of the State, taken under commission, which was issued without the necessary affidavit, should not be received in evidence.
    APPEAL from the District Court of the Parish of Assumption, Roman, J.

      A. Gentile, for plaintiff.

      J. H. Ilsley, for defendant and appellant.
   Buchanan, J.

The defendant being sued for the price of two slaves sold to him by the plaintiffs, pleads redhibition as to one of the slaves ; alleging- that said slave was affected, at and previous to the sale, with an incurable redhibitory disease, which was the cause of his death, to wit, a complicated affection of the thoracic and abdominal viscera.

The slave Adam was sold by plaintiff to defendant on the 1st of April, 1857. lie died on the 22d of February, 1858. A post mortem examination, by dissection, was made by a physician, who proves that the heart and kidneys wore found in a diseased condition. His opinion is, that the cause of the death of the slave was disease of the heart. He thinks it was chronic — that it may have existed for several months before the death.

Defendant has failed to make the proof required to succeed in a redhibitory action. The testimony does not establish that the disease of which the slave Adam died, existed at the time of the sale.

Besides, it is not proved that the slave received any medical treatment, while in defendant’s possession, until November, 1857, which was eight months after the sale. 1 Rob. 412 ; 15 La. 509 ; 12 An. 408.

There is a bill of exceptions to the rejection of a deposition taken under commission in the State of Georgia. The commission was directed to any Justice of the Peace of any county of the State of Georgia. The objections were, that no affidavit had been made when the commission was applied for, as required by. Article 436 of the Code of Practice ; and that the capacity of the Magistrate who executed the commission, was not authenticated according to the Act of Congress. But these objections appear well taken. The counsel of defendant urges in this court, that the first objection should have been made before the commission issued. He has cited no authority for this doctrine. Plaintiff did not cross the interrogatories, which might have been considered a waiver of the affidavit. Neither did defendant take a rule to show cause preliminary to the trial, why the return of the commission should not be received in evidence.

The appellee’s counsel, in his brief, asks that the judgment be amended by decreeing him the vendor’s privilege upon the surviving slave. This application is not in the form required by Articles 888 and 889 of the Code of Practice.

Judgment affirmed, with costs.


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    W. H. Avery v. The Police Jury of Iberville.
    It is ouly when the terms of a judgment are of doubtful construction, that resort may be had to tho pleadings or to the reasoning for judgment adduced by the court m obedience to the Constitution.
    A judgment in these words,11 that the dam, erected, by plaintiff across iheprong of the Bayou Paul) be torn doion, and the prong be replaced in a state of nature f is not ambiguous.
    . A distringas against the plaintiff is not tho proper mode of executing such a judgment ; as no other person is ordered by the judgment to do the work, it must be done by tho Sheriff, as executivo 0Í11-oer of the court.
    APPEAL from the District Court of the Parish of Iberville, Avery, J.

      George S. Lacy and H. M. Spofford, for plaintiff and appellant.

      R. & H. Marr, for defendants.
   Buchanan, J.

The question submitted to us on this appeal, is, whether tho defendants are entitled to a writ of distringas against the plaintiff, as the proper mode of executing the final judgment rendered in the cause by this court, reported in the 12th Annual, 554.

The suit commenced by injunction. The petition concluded by a prayer that the Police Jury of Iberville he restrained from enforcing an ordinance to establish a common drain through the point opposite the town of Plaquemine, called Manchac Point; that the commissioners appointed by said ordinance be also restrained from exercising any of the powers upon them conferred by said ordinance or any part of the same ; that they be specially enjoined and forbidden to widen, deepen, or in any manner enlarge Bayou Paul, at any point above tho lands of petitioner, William H. Avery.

The answer of the Police Jury concluded by a prayer, that the injunction bo dissolved ; that the plaintiff be ordered 1o remove all obstructions by him placed in Bayou Paul, and specially, that he be ordered to remove the said dam erected by him across the left fork of said bayou.

The judgment of the District Court upon these conflicting demands, was as follows :

It is ordered, adjudged and decreed, that the injunction sued out in this case, bo dissolved, and that the dam erected by plaintiff on his plantation, across the prong of Bayou Paul, be torn down, and the same prong be replaced in a state of nature, and that the Police jury ordinance have full force and effect, and the work, as ordained by them, be made in accordance therewith, and that the plaintiff pay all costs.”

This judgment was affirmed by this court.

The object of a writ of distringas is stated in Article 636 of the Code of Practice. It is a mode of executing a judgment which orders that something shall be done, or that something shall not bo done. This writ issues against the party who is condemned by the judgment to do, or to refrain from doing, something specified in the judgment, says the Article.

In the present case, it is not perceived by this court, that tho judgment which has been rendered, has condemned (in the language of Article 636) Mr. Avery to do, or to refrain from doing, any thing.

The judgment certainly orders a dam, erected by Mr. Avery, to be torn down ; but it does not order Mr. Avery to tear it down. And this is the more remarkable, inasmuch as the defendants prayed, in their answer, that Mr. Avery should be ordered to remove this dam. We feel bound to conclude, from the sileuee of the decree, (which is the judgment,) that this prayer of the answer was rejected by the court.

We agree with the District Judge, that where the terms of the judgment are of doubtful construction, resort may be had to the pleadings, and even to the reasons for judgment, which, by Article 72 of the Constitution, all courts are bound to adduce. 14 La. 446.

But here we find no ambiguity in the judgment. It is decreed “ that the dam erected by plaintiff across the prong of the Bayou Paul be torn down, and the same prong be replaced in a state of nature.” As no other person is ordered by the judgment to do this work, it necessarily follows that it must be done by the ordinary executive officer of the court, the Sheriff. C. P. 760.

It is, therefore, adjudged and decreed, that tho judgment of the District Court be reversed. And it is further decreed, that the rule for a distringas be dismissed, and that all costs incurred upon said rule, and upon this appeal, in both courts, be defrayed by the defendants and appellees.

Land, J., absent.


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    Elmina Deblanc v. Octave Leblanc.
    The declaration of blio Judge in the judgment confirming a default, that two judicial days had elapsed from the date of tho default, does not make proof of the fact when the contrary appears from the minutes of the court.
    APPEAL from the District Court of the Parish of West Baton Rouge, Bede, J'.

      G. S. Rousseau aud E. Bermudez, for plaintiff.

      Barrow & Pope, for defendant and appellant.
   Duffel, J.

A default was entered in this case on the 5th of April, 1859, when the court adjourned to the 7th of April, 1859. The default was confirmed on the 8th of April, 1859.

The declaration of the Judge, in the judgment of confirmation, that two judicial days had elapsed, does not, of itself, make full proof the fact, and the contrary appears from the minutes of the court.

It is, therefore, ordered, that the judgment of the District Court be reversed, and that the cause be remanded back for further proceedings according to law, and with direction to place it on the docket of the lower court, in the position in which it stood on the 8th of June, 1859, before tho judgment; the plaintiff paying the costs of the appeal.


author: Merrick, C. «T.

text:
    Michie et al. v. John H. Armat et al.
    The father ant! mother cannot borrow money in the name of their minor children, nor can they bind them by confessing judgment in a court. Umt has no jurisdiction over their donneil.
    Consent judgments decirle nothing.
    PPBAL from the District Court of the Parish of Tensas, Farrar, J.

      A. Snyder, for plaintiffs.

      II B. Shaw, for Michie, defendant. T. P-. Farrar and A. N. Ogden, for defendants and appellants.
   Merrick, C. «T.

This case presents the question, whether the father and mother can borrow money in the name of the minor children, without the authority of the court, and bind them by confessing- judgment in a court having- no jurisdiction over the domicil?

In 1840, a tract of land containing- three hundred and eighteen acres, was entered at Monroe, in the names of Frances, Fenton, David, George, Ellen, Robert, and William Michie, minor children of David C. and Anne Michie.

Three other children of the same marriage were born after the purchase, but before August, 1845, and one after that date. George and Robert died in August, 1845.

In 1851, the father and mother of the minors, executed in favor of the defendant, the follow instrument, viz :

Tensas Parish, Louisiana, 18 July, 1851.
“ We do hereby acknowledge to have received of John II. Armat, the sum of eight hundred dollars, being- a loan granted to oar minor children, Frances Michie, Ellen Michie, Fenton Michie, David Michie, and William Michie, for one-seventh of which said loan, we do hereby acknowledge ourselves personally responsible, and do hereby agree in satisfaction of one-sevonth of said loan, to make a title to said Armat. of one undivided seventh part of the South half of section thirteen, of township twelve, range ten East, situated in the parish of Tensas, Louisiana.
(Signed) David C. Michie,
H. IS. Michie.”

In 1852, John II. Armat brought suit upon the obligation against Michie and wife, as the representative of their children, alleging “ that said loan was granted and obtained for the sole benefit of said minor children, to be employed in their support and education.” He further alleges, “ that said Michie and wife, with said minor children, reside at this time in the State of Mississippi,” and that they, said Michie and wife, have consented to have a smallltraot of land situated in said parish, sold by process of law, to pay and satisfy petitioner’s demand and costs.

Michie and wife accepted service of the petition. They also signed an answer admitting all the allegations of plaintiffs’ petition. The judgment purports to be rendered against the minors named in the supposed obligation, for the sum of money demanded.

An execution issued, and the interest of the minors was sold, December, 1852, 1.0 Armat, for $640, being- two-thirds of the appraisement. Ho notice, under the execution, appears to have been given to the minors, or Michie and wife.

The one-seventh of the property inherited by Michie and wife, from their deceased children, George and Robert, had been previously conveyed to Armat.

David C. Michie and Frances Michie, having arrived at the age of majority, (the latter prior to the judgment in 1852.) and disregarding- the judgment and execution, bring suit against Armat, and their father and mother, for a partition of the tract of land.

Armat sets up the decree and sale under the execution, and five years prescription, in bar of plaintiffs’ action.

The right of Frances Michie is admitted, it being conceded that the judgment could not bind her.

Judgment in this case was rendered in favor of Armat.

David C. and Ellen Michie severally, and the father and mother of the other children, prosecute the appeal.

It has not been urged, that the pretended loan or the judgment on the same, was legal when rendered, but it is insisted that the judgment has acquired the force of the thing adjudged.

This conclusion is predicated upon Article 251 of the Civil Code, which reads thus:

Fathers and mothers owe protection to their children, and of course they may, as long as the children are under their authority, appear for them in court, in every kind of civil suit in which they may be interested, and they may likewise accept any donation made to them.”

But it will be observed, that the power here given is for the purpose of protection, and not spoliation ; it is because parents owe protection to their children, that they are to appear for them and protect their interests in courts of justice.

They are without power, at least without the previous authorization of the courts of the domicil, to borrow money on account of their minor children. See 2 Marcadé, p. 181, X; see Acts of 1855, p. 444, sec. 17.

They are entitled to the usufruct of the property of their children, and “ by the very act of marrying, they contract together the obligation of supporting, maintaining, and educating their children.” C. C. 239, 240, 243.

The obligation, therefore, of Michie and wife in favor of Armat, so far as it attempted to affect the rights of the minors, was null.

Michie and wife having their domicil in the State of Mississippi, were without power upon a purely fictitious cause of action, to bring the minors within the jurisdiction of the courts of Louisiana, by their mere consent and confession. The minors were not “ interested” in the cause of action, because it was, as to them, absolutely null and void.

This, then, appears to us, a case where we can safely apply the rule laid down in the cases of the Union Bank v. Marin, 3 An. 35, and Lecarpentier v. Lecarpentier, 5 An. 499, that consent judgments decide nothing.

The plaintiffs were not obliged to bring a direct action to annul the judgment, and might urge whatever objections they had to make to the same, whenever it was opposed to them, for they had not been legally made parties to the same. Sloan v. Menard, 5 An. 218.

If it were law, that parents could go into an adjoining State or parish, and confess judgment against their minor children, and thus bind them for any sum of money, and that this judgment, if not appealed from or annulled within the delay allowed by law, would acquire the force of the thing adjudged, against the children, there would be but little security for the children of improvident and thoughtless parents.

Ignorance of the acts done to their prejudice, would not extend the law’s delay for the appeal, and those most needing the protection of the law', would become the victims of its rigid rules. A worthy son might find, on attaining his majority, that his future life was blighted by a debt contracted without his knowledge, by an improvident father, and the merits of children, and the promising hopes of youth, like the Egyptian’s dead, would be pledged to the exacting creditor, to procure drink and rainment for profligate parents.

The case is different in regard to tutors and curators. They receive their authority to act from courts of justice. The rights of the minors are protected by the legal mortgage and by the bond given by the tutor. The tutor is obliged to render his account in courts of justice, and as the Judge of the domicil alone has jurisdiction, the minor is at once advised that courts of justice have acted in his behalf, and he is notified that it is his interest to inquire what has been decided to his advantage or prejudice.

We are of the opinion, that the judgment and sale relied upon by the defendant, John H. Armat, cannot avail him as a defence to the action of partition , and we shall reverse the judgment and remand the case for a partition according to law.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court, to be proceeded in according to law, and the views herein expressed ; the costs of the appeal to be paid by said John H. Arrnat.


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    Leandre Bordelon v. Clara Dumartrait.
    In a petitory action brought by the administrator of the husband’s estate against the widow, for slaves which she has in her possession and claims, as her paraphernal property, parol evidence is admissible to prove that she possessed the slaves prior to her marriage, as owner.
    APPEAL from the District Court of the Parish of Avoyelles, Cullom, J.

      Hitchborn & Barbin, for plaintiff.

      Cannon & Irion, and O. N. Ogden, for defendant and appellant.
   Merrick, C. J.

This is a petitory action brought to recover certain slaves which the defendant claims as her paraphernal property.

There is a bill of exception to the admission in evidence of the depositions of two witnesses, to prove that the defendant possessed the slaves prior to her marriage with L. Bordelon, as owner, and the declarations of Adrien Dumartrait and Louis Bordelon, in reference to the same.

A majority of the court is of the opinion that the testimony was admissible for that purpose.

The plaintiff claims through Adrien Dumartrait and Louis Bordelon, and then-declarations were admissible to show the nature of defendant’s possession.

Under Article 906 of the Code of Practice, we think this a proper case to be remanded, in order to enable the plaintiff and defendant to introduce further evidence.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed ; and that this case be remanded for a new trial; the plaintiff paying the costs of the appeal.

Buchanan, J., absent.

Voorhies, J., recused.


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    L. W. Cathey v. J. D. Kerr, Administrator, et al.
    An account of an administrator is rendered to the creditors .and heirs of the estate which he administers, aud one who claims property mentioned ns belonging to himself, and not to tho succession administered, will not bo permitted to assert such claim by way of opposition to the administrator’s account.
    ^PPEAL from the District Court of the Parish of Carroll, Farrar, J.
   Buchanan, J.

John Cathey died in 1837. lie left a will, which was admitted to probate. By his will, his wife Rebecca, was instituted universal legatee. She was married again to a man named Murray, who died before her. Mrs. Murray died in 1853. She seems to have taken possession of Cathey’s estate, which consisted altogether of his interest in community property, and to have enjoyed it, during her life, without interruption. She died without children, and intestate. James D. Kerr, the husband of one of her neicos, took out letters of administration of Mrs. Murray’s succession.

On the 7th of January, 1856, Kerr filed his account of administration, showing the assets in hand and debts paid; and prayed that the same might be duly advertised and homologated, and for his discharge as administrator.

On the 14th of February, 1856, Lafayette W. Cathey filed, what he called, an opposition to this account of administration ; in which ho alleges, that all the property inventoried as belonging' to the Succession of Mrs. Rebecca Murry, in truth belongs to the succession of her first husband, John Cathey, who died intestate, and of whom the petitioner is nephew and one of the heirs.

Tho petition opposes the discharge of the administrator from his official bond, until the rights of petitioner in the estate be adjudicated upon, and the amount to which petitioner is entitled, be paid over to him by the administrator.

Several other persons claiming to be heirs of John Cathey, intervened by petition, and pray to be allowed to join the opponent, Lafayette Cathey, in claiming the estate in the hands of the administrator.

The administrator excepted to the right of the opponent to oppose in this manner, the homologation cf the account of administration.

This exception was properly taken. The account of an administrator is rendered to the creditors and heirs of the estate which he administers. But the opponent and appellant, Lafmjetle W. Cathey, docs not make any claim in cither of those capacities. lie claims the property which is administered, as belonging to himself, and not to the succession of the intestate. An action of revendieation is instituted in tho disguise of an opposition to an administrator’s account.

It is, therefore, adjudged and decreed, that tho judgement of the District Court, dismissing the appellant’s opposition to the account of administration of ihe appellee, be affirmed, at the costs of the appellant.


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    Simon & Frank v. Charles Goldenberg.—C. M. Conrad, Intervenor.
    The goods or eilects of tho sub-lcssco, found on premises that arc leased, arc only subject to the privilege of the lessor to the extent of tho sub-lessoe’s indebtedness to the principal lessee ; but when such goods arc seized by the lessor for rent duo him, and the sub-lessee does not disclose the title under which he occupies tho premises, the privilege of tho lessor will cover the goods for tho whole amount of rent due.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      J. B. Colton, for plaintiffs and appellants.

      A. W. Jourdan, for defendant.
   Duffel, J.

The plaintiffs having obtained a judgment against Charles Goldenberg for $834 96, with five per cent, interest from the 1st January, 1858, till paid, and costs of suit, sued out’ a ji. fa., under which the Sheriff seized, on the 20th of April, 1858, the contents of a store situated on New Levee, near Josephine street, and sold the same, as the property of said Goldenberg, on the 8th of May, 1858. This sale produced in cash $352 40.

After the seizure, to-wit, on the 26th of April, 1858, Charles M. Conrad filed his third opposition, and obtained a provisional seizure of the above goods, claiming to be paid by preference out of the proceeds of the sale $355, due him, as the lessor of the house in which said goods had been found and seized. It appears that the third opponent had leased to one Frederick Leopold a two-story house for 14 months, from the 15th of September, 1857, at the rate of $30 per month, up to the 15th of May, 1858, and at the rate of $35 per month for the last six months, subject to a credit of $95, thus leaving a balance of $145 due on the 15th of May, 1858, and $210 for the unexpired lease, in all $355.

The plaintiffs and defendant in the original suit, as also the original lessee, were all made parties to these proceedings; the two last accepted service as follows : “ Frederick Leopold waives notice and citation, and admits indebtedness as alleged, and confesses judgment, reserving all his rights for damages against the plaintiffs for their illegal seizure. (Signed) F. Leopold." “ Service accepted, and allegations admitted as alleged. (Signed) Charles Goldenberg." There is no doubt in our mind that the defendant, Goldenberg, occupied at the time the whole house leased as aforesaid by the third opponent to Leopold, and that the goods seized belonged to him; in fact, a portion of said goods had by him been purchased from the plaintiffs. The defendant, no doubt, for the purpose of defeating the claim of the plaintiffs, did not see fit to disclose the title under which he occupied the premises, for had it been as sub-lessee, the property seized would only have been subject to the privilege of the lessor to the extent of his indebtedness to the principal lessee, O. O. 2676 ; whereas, under the interpretation given to the Articles 2675 and 2677 of the Code, the privilege covers all the movables seized to the full amount of the rent. 11 La. 499 ; 6 R. 293. The principal lessee is not before us in a more favorable light; for, having failed to show ownership in himself, ho nevertheless suffered the proceeds of the sale to go to the extinguishment of liis own debt. The peculiar circumstances of this case are such, that we will make a reservation in favor of the plaintiffs in our decree. As to the third opponent, he has exercised his legal rights, and is entitled to judgment. The privilege was not lost when he intervened, O. C. 2679, and he must, therefore, be paid by preference, after deducting the charges of the sale. C. 0. 3223.

There is, however, error in the judgment of the District Court; the plaintiffs should not have been condemned to pay the whole amount of the debt, which even exceeds the gross proceeds of the sale.

It is, therefore, ordered, that the judgment of the District Court be reversed. It is further adjudged and decreed, that the third opponent have judgment against the plaintiffs, Simon é Frank, in the sum of three hundred and fifty-two dollars and forty cents, less sixty-three dollars and sixty-five cents, amount of costs incurred under the fi. fa., with legal interest on one hundred and forty-five dollars, from the 8th of May, 1858, till paid, and with a like interest on the balance, to be computed by equation from the 15th of August, 1858, till paid, and with privilege on the proceeds of the sale in the hands of the Sheriff'; the costs of the lower court to be paid by the appellants, and those of the appeal by the third opponent.

It is further decreed, that the rights of action of the plaintiffs, Simon i& Frank, if any they have, to recover back the amount of the above judgment from Frederick Leopold, be reserved.


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    Charles Dean v. John H. Wade, Administrator.
    Where the consideration of an obligation was the sale of improvements on public lands, and it appeared that the vendor, at tbo timo of the sale, was m a situation to avail himself of the benefit of the preemption Acts of Congress — Held: That the consideration was a good and valid one.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Short <£’ Parham, for plaintiff.

      F. F. Montgomery, for defendant and appellant.
   Land, J.

This suit is for the recovery of six hundred and fifty dollars, with eight per cent, per annum interest, from the 3d of March, 1853.

The consideration of the obligation sued on, as stated in the contract, was the sale of a claim and improvement, on public land, by the plaintiff to J. H. Wade, deceased; and the defence is that the consideration was illicit and vitiates the contract.

The defendant propounded interrogatories to the plaintiff on facts and articles, and his answers show that the consideration of the obligation, was not the sale of an inchoate preemption right, but the sale of improvements on public land ; and his answers further show, that he was in a condition, at the time of the sale, to avail himself of the benefit of the preemption Acts of Congress, granting preemption rights to actual settlers upon the public lands. In short, his answers show a legal and sufficient consideration for the obligation within the previous decisions of this court, and that his vendee has acquired a title to the land on which the improvements were made. See Price v. Curran, 5 An. 686.

The removal of the plaintiff from this State after the sale, and his subsequent compromise with his vendee, by which the original price urns reduced to the sum claimed in this suit, did not affect the consideration of the obligation, nor impair the plaintiffs right of action on it.

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

Buchanan, J., absent.


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    State v. James G. Parker.
    The 94th section of the Act of 1S55, relative to crimes and offences, which punishes by lino and imprisonment the selling by retail of spirituous liquors without a license, is not repealed by the Act of 1855 relative to drinking houses, but is still in force.
    APPEAL from the District Court of the Parish of St. Helena, Wilson, J.

      T. J. Semmes, Attorney General, for State.

      Pond, Taylor <6 Marlin, for defendant and appellant.
   Merrick, C. J.

The accused was indicted for retailing spirituous liquors without obtaining a license, and sentenced to pay a fine of $400, and in default of payment, to be imprisoned for four mouths.

He contends on his appeal to this court, that the statute under which he has been prosecuted has been repealed. The prosecution is based upon the 94th section of Act No. 120 (the Act of 14th March) 1855, relative to crimes and offences. The section is in these words :

“ Sec. 94. Be it enacted, &c., That whoever shall keep a grog or tipling shop, or retail spirituous liquors, without previously obtaining' a license from the Police Jury, town or city authorities, on conviction, shall be fined not less than one hundred, nor more than five hundred dollars, and in default of payment, shall be imprisoned not less than fifteen days, nor more than .four months.”

This is a substantial reenactment of the 7th section of the Act of April 2d, 1852, p. 166.

The Act relative to crimes and offences of 1855 contains the usual repealing clause,which has occasioned so much perplexity in interpreting' the Acts of that year.

At the same session, another Act was passed entitled An Act relative to drinking houses,” which was approved the same day (March 14th, 1855,) with the Act relative to crimes and offences, and bears a later number, viz, No, 126. The Act relative to drinking houses confers upon the Police Juries, &c., “ the exclusive power to make such lavs and such regulations for the sale or prohibition of the sale of intoxicating liquors, as they may deem advisable,” &c. This Act also repeals all laws contrary to the provisions of the same, and all laws on the same subject-matter, except what is contained in the Civil Code and Code of Practice.

At the same session of the Legislature, the Act to provide a revenue was passed, being- No. 346, and approved the 15th of March, 1855. This Act fixed the State Tax on bar-rooms, grog-shops, and retailers of spirituous liquors in quantities less than one gallon, at one hundred dollars. The fourth section of the same Act makes it unlawful to follow any trade or profession enumerated subject to taxation, before paying the taxdeviecl thereon, and imposes a penalty of not less than $250, nor more than $1000, for a contravention of that Act. This Act is also accompanied by the same repealing clause.

Act No. 120 was promulgated March 18th, No. 126 April 27, and No. 346 July 8,1855.

The Act relative to the revenue may be disposed of by a single remark. It is not on the same subject-matter as section 94 above recited. It imposes a penalty for not paying the tax; sec. 94 imposes a penalty for not obtaining a license.

As it respects the two Acts of 14th March, it is argued, that that relative to drinking houses has conferred exclusive power upon the Police Juries, &c., to regulate the sale and prohibit the sale of spirituous liquors; that if the power be ex-* elusive, it cannot exist elsewhere, and therefore, there cannot bo any law in force prohibiting the sale of spirituous liquors, until the Police Jury have acted, have themselves prohibited the sale; that the sale of spirituous liquors is not malum in se, and therefore, any one may sell until prohibited by those having exclusive power to prohibit, viz, the Police Jury, in the case at bar.

Nothing' decisive can be argued from the repealing clauses of the statutes, because it would involve an examination of the minutes of the two Houses of the Legislature, to ascertain which Act was introduced pricr in time, or which was passed last in either house. And so far as it respects the signature of the Governor, nothing could be known ; for it would be unsafe to infer that he had signed the Acts in the order in which they are numbered. An Act is perfect in itself so soon as signed by the Governor ; all citizens are bound to obey it, so soon as promulgated. The promulgation of a repealed or unconstitutional statute cannot infuse vitality into the same. If not, the promulgation of a law has no influence on the question of its repeal.

The two statutes, then, must be construed together, without reference to the repealing clause, and more particularly, because it is well known that the Legislature was revising the former legislation of the State, preparatory to incorporating the same into a Code, and it may be supposed that the one Act was as much the object of its care as the other. See Smith’s Com., p. 755, No. G41; Acts 1854, p. 57, Preamble.

It is true, a general power to regulate the sale of spirituous liquors might imply a power to prescribe penalties for a violation of the regulations so made, and possibly the Act may be so understood as to all general matters on which the State has not itself prescribed special penalties. The first clause of the Act relative to drinking houses first passed in 1854, (see p. 154,) and reenacted in 1855, is much more general than the 94th section of the law relative to crimes. It confers upon the Police Juries the exclusive power to regulate and prohibit the sale of spirituous liquors generally, viz, in all quantities.

The second clause, connected with the preceding by the conjunction ‘‘ and,” is in harmony with, and the counterpart of sec. 94 of the Act relating to crimes and offences. It declares that the Police Jury shall have exclusive power to grant or withhold licenses from drinking houses and drinking shops; thus implying that this special power was not intended to be included in the preceding general delegation of power ; and this is the more evident by reference to the second section of the Act, which relinquishes the right of the State to grant licenses, reserving to the same, the right only to collect the taxes on such drinking houses, or shops, as may be licensed.

It is thus quite evident, that the Act relative to drinking houses was not intended to authorize the Police Juries, &c., by any regulation, to authorize the sale of liquor by the glass in tippling' houses without a license. The license was to continue a sine qrn'non, as before.

This restriction, implied by the Act itself, leaves in full operation the special provisions of section 94, relative to crimes and offences. The two statutes may be thus construed together, and the special provisions of one are not necessarily repealed by the general delegation of power to an inferior jurisdiction by the other. Lex generalis non derogat speciali. We think, therefore, the section 9-1 of the Act relative to crimes and offences still in force, and that the conviction was legal. Bee also State v. Pratts, 10 An. 785.

Judgment affirmed.


author: Merrick, O. J.

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    Mayor and Council of the Town of Bayou Sara v. J. B. Harper & Son.
    Where money raisodby contributions to relieve tho sufferers from a destructive fire was loaned out by tho committee to the sufferers without interest, for a certain period, they giving their notes payable to the holder — Held: That the makers of the notes having made a special contract with the committee, could not plead want of consideration , and not being owners of the fund themselves, were precluded from inquiring how the committee obtained the raonej7-.
    APPEAL from the District Oonrt of the Parish of W. Feliciana, Haralson, J.

      Collins & Leake, for plaintiffs and appellants.

      S. J. Powell, for defendants.
   Merrick, O. J.

This suit is upon three promissory notes dated July 12th, 1855, for $1G6 66-f each, payable, in one, two and three years respectively, at the office of the Treasurer of the town of Bayou Sara, and making tho aggregate of $500.

Tho answer of defendants denies the consideration of the notes, and sets out the circumstances under which they were given, and further alleges, that if there were a consideration, it is unlawful, contrary to public and good order, and of no binding effect in law whatever.

The judgment of the lower court was in favor of the defendants.

The principal facts of the case are these : A destructive fire occurred in tho town of Bayou Sara, by which many of the inhabitants sustained severe losses. Among others, C. C. S. Farrar, of the vicinity of Bayou Sara, interested himself on behalf of the sufferers. He visited this city, and through his own agency and some commercial houses of New Orleans, he collected about six thousand dollars for the relief of those who had sustained losses by the fire. The money was delivered to Mr. Farrar by tho donors and those who had aided in procuring donations, without any instructions as to the mauner of its distribution. Some of tho donors state that their intention was to give whatever they subscribed unconditionally to those needing assistance. Doubtless, this was the intention ol' all.

Some funds were also forwarded to li. Mumford, who distributed the same unconditionally.

Oil C. C. S. Farrar's return to Bayou Sara, there was some discussion as to the plan of distribution among' those needing assistance. It seems from his testimony, that many of the sufferers would not receive aid in this manner. Some proposed, as tho most equitable mode of distribution, to pay off the debts of the town. Mr. Farrar determined to send the money back to New Orleans to the donors; but finally it was determined by the committee associated with him, and of which he was chairman, to loan out the fund to those most in need in sums large enough to be of some service to them, the maximum being fixed at $500. The recipients were to make their notes payable to their own order at the office of the corporation, in three annual instalments. "When the notes should be collected, the money was in the same manner from year to year to be loaned to other sufferers, until all who desired it had received relief. It would also seem from the testimony, that a plan of final distribution of the fund was agreed upon by the committee. What that plan was, is not disclosed by the testimony.

The defendants were druggists in Bayou Sara, and lost by the fire a frame drug store, with a considerable portion of their merchandize.

It does not appear, whether they were or were not insured. They now occupy a brick slate roof drug store on the same ground occupied by their former store, and have a valuable stock of drugs and medicines in the same.

The committee determined, after they had made the collections, to aid the defendants by a loan (in accordance with their plan) of $500.

It seems by the testimony, that the plan was explained to the defendants, and that they agreed to’ the same without Objection. Thereupon, the money was paid over to them, and they gave their three promissory notes above described, it being understood that the notes would be collected when they matured by the corporation, to which they were to be delivered.

Considering money as commanding eight per cent, interest, the contract as made was equivalent to a gift of eighty dollars to defendants. Probably, under the peculiar circumstances, it was more beneficial than a donation of eighty dollars would, have been.

None of the persons receiving aid in this way have paid their notes, and this appears to be a test case to determine whether they are liable.

The case must be determined by legal principles, and not by any supposed natural equity arising from the beneficent intentions of a part or the whole of the subscribers to the fund. The money was given to be distributed through the agency of the committee, to the sufferers by the fire. No particular individual was in the mind of any of the donors, nor was any sum set apart to any one of the sufferers. When, therefore, JI4r. Farrar arrived at Bayou Sara, there were no persons who had any legal claims on him, or the committee, for any part of the money. There could have been no stipulation pour autrui, because no one was named, and it could not be known what would be equitable even, until it had been ascertained how much money had been collected, and how many persons there were to share the bounty. When, therefore, the committee proposed to tend Messrs. Harper & Son $500, they were not legally bound to them in the sum of $500, nor any other sum. Neither did they undertake to pay a natural obligation. They merely loaned to them a sum of money ; and because they received the gratuity of the iuterest in this loan, it by no means follows that they were entitled to the whole loan, principal as well as interest. Although the loss of Messrs. Harper <& Son was considerable, there is nothing to show that in foro conscientioc the defendants were entitled to anything more than the interest which they were to receive. There is no reason, therefore, to hold that the defendants, who have received five hundred dollars, gave their notes for that sum without consideration.

But it might be said, if Harper & Son had no legal right to the fund in the hands of the committee, that neither the committee nor the town of Bayou Sara have any interest in the notes which they attempt to collect, for the money was placed in their hands by others to be given away absolutely, and not conditionally. The reply is, the defendants, who had no legal right to the fund, have bound themselves absolutely, by their promissory notes, to pay the same to the holder of the notes. They cannot say, therefore, that they are not legally, bound.

If the defendants did not intend to pay the notes, they ought not to have subscribed the same and delivered them to the committee. Having made a special contract with the committee, and not being owners of the fund themselves, they are precluded from inquiring how the committee obtained the money. See also Urquhart v. Taylor, 5 M. R. 202; Gilman v. Horsley, 5 N. S. 662; Clampett v. Newport, 8 An. 124; Banks v. Easton, 3 N. S. 291, and Shaw v. Thompson, ibid 392.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed ; and it is here ordered, adjudged and decreed, that the plaintiff do recover and have judgment against the defendants, Harper <& Son, in solido, for the sum of five hundred dollars, with legal interest thereon (by equation) from the fifteenth day of July, 1851, until paid ; and it is further ordered, that the defendants pay the costs of both courts.

Land, J., absent.