text:
    Marion Chapman v. W. Woodward, Tutor, et al.
    Where the extra-judicial declarations of a party were offered in evidence against him, and it appeared that they were not necessarily called for when made, that they were in some instances made when in an inebriated condition and always boastfully — Held : that if admissive at all in a suit relating to his succession, they should be entitled to no weight whatever, unless strongly fortified by other and independent corroborating evidence.
    Where a man* married for the second time, purchases property belonging to the community which existed between himself and first wife at a sale to effect a partition between himself and tbe heirs of his wife — such property, unless he explain himself differently at the time of the purchase, will fall into the community then existing between himself and second wife.
    The neat proceeds of a crop growing, but ungathored at the time of the death of one of the spouses, belongs to the community.
    The heirs of a deceased spouse are entitled to receive one-half of the fruits and revenues of the community property from the survivor, when such survivor is not entitled to the usufruct.
    The charge for such fruits and revenues accruing before a second marriage is against the separate estate of the survivor ; but that accruing after a second marriage is against the community arising from such second marriage.
    In actions of partition involving a settlement of claims or accounts, no prescription is applicable except that which is a bar to the partition itself.
    Appeal from tbe District Court of tbe Parish of East Feliciana, Ratliff, J.

      John & Charles McVea, for plaintiff. J. B. & J. J. Smith, for defendants and appellants.
   Ddffel, J.

Thomas Chapman, Sr., tbe ancestor of tbe parties to this suit, died on the 9th of January, 1859. He was twice married. Tbe defendants are the descendants of his first marriage with Nancy Anderson, who died in 1827, and the plaintiff is the only issue of his second marriage with Mathilda Caroline Rouck who died on the 14th of May, 1854.

The present litigation relates principally to the settlement of the community which existed between Thomas Chapman, Sr., and his second wife.

I. The plaintiff charges: that at the death of his mother, his father had $15,000 for which he failed to account, and which should be credited to the community.

II. That the following property, to wit, the slaves Terriby and Melinda, and two tracts of land, the “ Home place ” and the adjoining one, also form part of said community, and are not the separate property of Thomas Chapman, Sr.

III. That the crop of 1854 also forms part of the community.

First point. In order to establish the claim of $15,000, the plaintiff introduced in evidence the proces-verbal of the inventory made after' the death of Thomas Chapman, Sr., showing, in ready money, promissory notes, and a judgment against Powers, $17,575 90, and produced five witnesses who swore to the extrajudicial declarations of Thomas Chapman, Sr., made at various times, before and after the demise of his wife and out of the presence of the parties in interest, from which it would appear that he had from $8,000 to $15,000. • The District Judge, on this evidence, awarded $12,500.

Those declarations were not necessarily called for — were, in some instances, made when in an inebriated state, always boastingly, and consequently, if admissible at all in a matter of this kind, should be entitled to no weight whatever, unless strongly fortified by other and independent corroborating evidence. Hennen’s Dig. vol. 1, p. 503, No. 7.

We do not deem it necessary to express any opinion, as to the admissibility of those extra-judicial declarations in evidence, as by giving them effect, they stand alone and uncorroborated, and we may add, disproved; for the defendants, in order to rebut those loose declarations, introduced proof, oral and written, showing that in 1849 and 1850, Thomas Chapman, Sr., was in embarrassed circumstances, and borrowed from Oakey & Hawkins $1,000 ; that suits were instituted against him for debts as surety; that from 1850 to 1854 he paid, without being sued, $2,345, as surety of his pre-deceased son, Thomas Chapman, Jr.; that he bought slaves at the succession sale of Saunders and paid for them, and that, shortly after the death of his wife, he denied, in the most emphatic language, that he had any money.

The deceased was present at the taking of the inventory made shortly after the ■demise of his wife, and yet did not acknowledge any cash and promissory notes, as it was his duty to do, did any notes exist.

Now, by taking the neat proceeds of the crop of 1854, $4,574 66, in the absence of any other evidence, as the basis of the crops of 1855,1856 and 1857, we have for the four years $19,306 66, from which deduct the debts of the community paid after the death of Mathilda Chapman, say $3,012 50, we have a balance of $16,294 16, or $1,281 74 less than the amount represented in cash, promissory notes and the judgment against Powers. This excess of $1,281 74 maybe very readily accounted for, if we compute the interests which must have been realized on the money lent; and we may, beside, fairly infer that a part of the crop of 1858 had been sold before the death of Thomas Chapman, Sr.

■ We are, therefore, of opinion that the plaintiff has failed to make out this branch of the case.

On the second point. The evidence shows that the slave Melinda was the property of John Chapman, the brother of Thomas, and that the title of the latter was acquired by inheritance. Our judgment, in this respect, will be an affirmance of the decree of the District Judge.

The evidence also shows that the Bostwick tract forms a part of the community of the second marriage, and the defendants do not in fact contest the point.

It, however, appears that the slave Terriby and the Homestead tract belonged, originally, to the community which existed between Thomas Chapman, Sr., and his first wife, and were adjudicated to the former on the 9th of January, 1841, during the existence of the second community, for $3,400, in order to effect a partition between said Chapman and his children, at his own suit. The question-which suggests itself is, do the above land and slave belong to the second community, for the whole, for the undivided half, or remain the separate property of Thomas Chapman, Sr. Tested by the article 2371 of the Civil Code, the entire property would fall into the community.

There is, between the husband and the wife, so to speak, a moral being, having-distinct interests from those of the spouses respectively; this fictitious being is the community created by law, and having the husband as its recognized head or mandatory. C. 0. 2369, 2373; Duranton on Mar. Cont. vol. 14, No. 96 ; Mareadé on Mar. Cont. vol. 5, art. 1403, par. 1.

The French Code, Art. 883, says : Each co-heir is presumed to have succeeded alone and immediately, to all the effects comprised in his lot, or to him adjudicated on a licitation, and never to have had the ownership of the other effects of the succession.” And Duranton, vol. 7, No. 513, tit. Suco., p. 709, commenting on this article, remarks : “ Une importante dérogation apportée par notre jurisprudence frau9aise a la legislation romaine, et que le code a consaerée, c’est que, chez nous, le portage est simplement déclaraiif du droit de propriété dans la main de chaqué copartageant, quant a la totalité des objets tombés h son lot, tandis que, chez les Eomains, il opérait un échang-e; il était par eonséquent translatif de la propriété, réciproquement.”

The Code Napoleon, Art. 1408, provides specially that an acquisition made during the marriage, by cant or otherwise, of a portion of an immovable of which one of the spouses held an undivided interest, does not form an acquest. And it is because of this article that the undivided interest acquired during the marriage is excluded from the community. “ En efffet Pattribution de la qualité de propre a un immeuble acquis pendant le mariage est, en définitif, une exception au prin-cipe général de Particle 1401, no. 3. Si c’est une exception, elle ne peut done étre admise que par l’effet d’une disposition formelle, ou d’une cause qui l’entrame forcément aprés elle.” Mareadé, Cont. Mar., art. 1408, vol. 5, p. 477, sec. vii.

Our present Civil Code contains no such provisions, although the Code of 1808, p. 207, art. 249, considers the heir to have been seized of the property allotted to him from the opening of the succession.

The Civil Code, Art. 1420, provides: “ Partition is a sort of exchange, which the co-heirs make among themselves, one giving .up his right in the thing which he abandons, for the right of the other in the thing he takes ;” thus adopting, with regard at least to partitions in kind, the Roman laws. Domat," Civil Law, Book 1 of Succ., tit. 4, sec. I, par. II.

In a partition in kind, the spouse who is an heir, appears as an heir, and shares as such; but in a partition by cant or licitation, it is not necessarily the case; the heir, unless he explains himself, bids as any other person; and it is that moral being who is presumed to bid, and to buy the property which was in common between one of the individual partners of the community and other persons; and thus the whole property becomes an acquest of the community. It was, by implication, so held in the case of Haché v. Ayraud, 14 An. 178, and more recently in the District of Opelousas,-in a case to the point, reported in 15 An. 588, Azélie Breaux, widow, et al., v. Emilien Carmouche. We are not disposed to disturb those decisions, which will greatly facilitate and simplify the settlement of estates hereafter, without doing violence to any provisions of the Oode.

On the third point. The net proceeds of the crop of 1854, which, from the evidence, we are satisfied amounted to $4,574 66, forms part of the community. C. C. 2376; Harrell v. Harrell, 12 An. 549.

The defendants in their answer reconvene and claim as heirs of their mother, from the community estate of their father and second wife, hire for the slave Ter-riby and for the Homestead tract, from 1st January, 1826, to 1st January, 1854. This slave and this tract of land were, as before stated, property of the first community ; and the legal right of the heirs of the deceased spouse, to recover one-half of the fruits and revenues of the community property, from the survivor, when not entitled to the usufruct, is well settled. Petrie v. Wofford, 3 An. 562; Broussard v. Bernard, 7 L. 217; Griffin v. Waters, 1 R. 149; Stewart v. Pickard, 10 R. 18. So far as this claim accrued before the second marriage, it is a charge upon the separate estate of the father; and so far as it accrued after the second marriage, it is properly a charge upon the community. And as the second marriage was contracted in 1829, and dissolved on the 14th of May, 1854, the claim, as a community debt, must be computed from the date of the marriage, say 1st January, 1830, to the date of the probate sale, say 9th January, 1847.

The evidence shows that the services of the slave Terrihy were worth at the rate of $75 per annum, and that the use of the land was worth the yearly rent of $120 : thus making in the whole, for seventeen years, a grand total of $3,315, for one-half of which, say $1,657 50, the second community is liable to the children of the first marriage.

The plea of prescription of one, two, three, five and ten years, opposed by the plaintiff, does not bar the demand; because in actions of partition involving a settlement of claims, or accounts, no prescription is applicable, except that which is a bar to the partition itself. Widow and Heirs of King v. Wartelle, 14 An. 740. The defendants also claim hire for the slave Melinda, but they, as heirs of their mother, had no title to this slave, and it does not satisfactorily appear that they had any, prior to the death of their father.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be avoided and reversed ; and it is now ordered, adjudged and decreed, that the claim of the plaintiff for fifteen thousand dollars be rejected, as also his claim to the slave Melinda as community property.

It is further ordered, adjudged and decreed, that the slave Terrihy, the “ Homestead tract ” and the Bostwick tract, be declared community property of the second marriage of Thomas Chapman, Sr., and Mathilda C. Rouck.

It is further ordered, adjudged and decreed, that the estate of Thomas Chapman, Sr., account in partition to the estate of his wife, Mathilda Caroline Rouck, for one-half of the neat proceeds of the crop of 1854, which half amounts to two thousand two hundred and eighty-seven dollars and thirty-three cents ($2,287 33).

It is further ordered, adjudged and decreed, that the estate of Thomas Chapman, Sr., take, in the partition, from the community between said Chapman and Ma-thilda C. Rouck, the sum of seventeen hundred dollars, being the one-half of the price of the slave Terriby and of the “ Homestead tract ” accruing to the said Thomas Chapman, as per the proces-verbal of the sale of the 9th January, 1847, made to effect a partition with the children of the first marriage.

It is further ordered, adjudged and decreed, that the community estate of Thomas Chapman, Sr., and Mathilda C. Rouck, account and pay in partition, to the defendants, the sum of sixteen hundred and fifty-seven dollars and fifty cents ($1,657 50), being the one-half of the hire and rent of the slave Terriby and the Homestead tract, from January 1st, 1830, to January 9th, 1847.

And as the District Judge allowed the following debts of the community between Thomas Chapman, Sr., and Mathilda C. Rouck, paid by the former after the death of his wife, (the same not being contested in this Court,) to wit, $2,433 paid as one of the sureties of John W. Hays; $279 paid P. Pond, Jr.; also $300 to be paid to J. B. Smith; also $300 paid to W. D. Winter, making in all $3,312 : It is, therefore, ordered, adjudged and decreed, that the estate of Mathilda C. Rouck pay in partition, to the estate of Thomas Chapman, Sr., the sum of sixteen hundred and fifty-six dollars, being the one-half of the abeve enumerated items.

It is further ordered and decreed, that the three children of Mary Chapman and William Woodward, now both deceased, viz., Elizabeth Woodward, wile of J. P. Monnahagan, and the said Monnahagan, as dative tutor of the minors Susan Ann Woodward and William T. Woodward, account together for the sum of sixty-eight dollars in the partition of the estate of Thomas Chapman, Sr., this amount being an excess over the portion coming to them in the estate of Nancy Anderson.

And it appearing, further, that the slave Melinda has been sold by consent, and the proceeds divided by the judgment of the lower Court, which, in this respect, is not complained of in this Court: It is, therefore, further ordered and decreed, that the proceeds of the sale of said slave Melinda be divided among the parties to this suit as follows, to wit, to Thomas Brashier, three hundred and filty-six dollars and twenty-five cents ; a like amount to be divided equally between the above named three children of Mary Chapman, deceased, wife of the late William Woodward; and to Marion Chapman one hundred and eighty-seven dollars and fifty cents.

And it is further ordered and decreed, that the notary to whom the parties have been referred to make a partition of the estates of Thomas Chapman, Sr., and Mathilda Caroline Rouck, proceed therein, in accordance with this judgment, as to the rights of the heirs herein settled, and that the plaintiff and appellee pay the costs of the appeal.

Mereick, C. J. On the facts of the case, from a personal knowledge of the witnesses, I concur in the conclusions of the District Judge.

On the questions of law I concur in the opinion read.

Land, J., took no part in the decision of this case.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    White et al. v. Steamer Kate Dale, Captain and Owners.
    "Whore by a contract, a common carrier undertook to deliver certain merchandize at a particular point, for a certain price, and it appeared that the goods were only carried a part of the distance and that the shipper was obliged to pay, in addition to the full freight paid the carrier, a freight to other carriers for transporting the goods the remainder of the distance carried by the original contract — Held: that the extra charge, thus incurred, was apparently a damage incurred by the • failure of the first carrier to comply with his contract, and, as such, fell within the article 3204 Civil Code — giving the shipper a privilege on the vessel in which the goods were shipped and a right to the writ of sequestration.
    A PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      H. M. Spojfori, for plaintiff. Bonford, Singleton & Clack, for defendants and appellants.
   Buchanan, J.

Plaintiffs shipped goods from New Orleans to be carried to Shreveport, for a certain rate of freight. There were three bills of lading, two of which contained the clause “ with privilege of re-shipping,” and the third the clause “ water permitting.”

At Alexandria, the Kate Dale not being able to get up any higher, owipg to the stage of water, the freight was stored in a warehouse with Culbertson, the keeper of the same, the special agent of the steamboat for forwarding the freight. After some time elapsed, without any efforts on the part of. defendants or their agent, Culbertson, to forward the goods, the plaintiffs made engagements with other boats of lighter draft than the Kate Dale, and plying above the Falls, to bring the goods on to Shreveport. Their agent made demand for the same of Culbertson, who refused to deliver them, unless the full freight to Shreveport and charges for warehousing were paid to him, which plaintiffs’ agent did under protest ; and plaintiffs sue defendants for the additional expenses beyond the stipulated freight, to which they were put for getting their goods to Shreveport. Plaintiffs had judgment; and defendants appeal.

. The first question presented for our consideration by the argument of the counsel for appellants, is, the legality of the sequestration sued out by the plaintiffs.

It is contended, that the demand of plaintiffs does not come within the scope of paragraph 11 of article 3204 of the Civil Code, which reads as follows':

“ The amount of damage due to freighters for the failure in delivering goods •which they have shipped, or for the reimbursement of damage sustained by the goods through the fault of the captain and crew."

The contract between plaintiffs and defendants was, for the delivery of certain merchandise at Shreveport, for a certain price. 12 An. 183 ; 11 An. 43 ; 14 An. 514. If, as alleged, those goods were carried only a part of • the distance to Shreveport; and if the plaintiffs were obliged to pay (in addition to the full freight paid to defendants) a freight to other carriers for transporting the goods from the place to which defendants had taken them, to Shreveport; this extra charge, thus incurred, was apparently, a damage, incurred by the failure of defendants to comply with their contract, and as such, fell within the article of the Code above quoted.

On the merits, it is argued for defendants, that the plaintiffs put an end to the original contracts of affreightment, by voluntarily receiving their goods at Alexandria. And in support of this, argument, the following statement of a witness examined for plaintiffs, is relied upon :

“ White, Smith & Baldwin gave affiant an order for goods, based upon a letter purporting to bave been written by the clerk of the steamer Kate Dale, offering to deliver the freight at the Falls at Alexandria, at four bits for dry, and six bits for wet barrels. Upon the arrival of affiant at the Falls, the warehouse keeper refused to deliver the freight, unless the full amount of freight from New Orleans to Shreveport was paid. Affiant paid the warehouse keeper the charges demanded, under protest.”

This testimony does not support the position of appellants’ counsel. It shows a proposition made by defendants and accepted by plaintiffs, to receive delivery of the goods at Alexandria to the discharge of the defendants, on payment of about one-half of the freight stipulated in the bills of lading, for carrying the goods to Shreveport. But this agreement to put an end to the original contract, was defeated by the agent of defendants at Alexandria, who, acting upon instructions from defendants, as is proved by the testimony of said agent, examined for defendants, refused to deliver the goods at Alexandria unless full freight to Shreveport was paid.

Appellees have filed an answer to the appeal, praying damages as for a frivolous appeal; but we do not think this a case for the infliction of such damages.

Judgment affirmed, with costs. .


author: Merrick, O. J.

text:
    Marcellin Landry v. Theodore Blanchard, Sheriff, et al.
    Paragraph 2d of article 3184 of the Civil Code giving a privilege on movables to a workman or laborer for the price of his labor on the movable which he has repaired or made, if the thing continues in his possession, applies only to him who has contracted to do the work, and not to journeymen and other mechanics whom he has employed to work under him.
    Privileges are stridi 'Juris (C. C. 3152) and the party claiming them must point to the express law which gives him such right of preference on account of the nature of the debt.
    Appeal from the District Oourt of the Parish of Iberville; Avery, J.

      Zenon Lahauve, for plaintiff and appellant. Marcot <& Beblieux for defendants.
   Merrick, O. J.

The plaintiff injoined the sale of a raft of timber seized by the defendants as the property of one Patrick Gleason, against whom the defendant, Léandre Bescuir, had obtained judgment decreeing him a privilege upon the raft for the sum of $519.

On the trial in the lower Oourt, the injunction was dissolved with eight per cent, interest and $50 special damages; and plaintiff appeals.

The facts of the case are, in substance, as follows :

The plaintiff is the owner of a saw-mill. Gleason, among other employment, delivers timber in rafts. In 1859, he contracted to deliver to the plaintiff, on Grand river, a raft to contain three hundred “ trees." At the same time he contracted to deliver another party, named Henry Sellier, four hundred trees, He caused the timber to be cut and arranged into “ cribs ” of nine trees each to form the raft. He marked the three hundred trees to be delivered Landry with the letter L. He employed the defendant, Bescuir, to “ run ” the rafts out of Bayou Pigeon, where they lay, and deliver three hundred trees to plaintiff and four hundred to Sellier, and contracted to pay him seventy-five cents a “ tree.” He instructed him to deliver the raft of three hundred trees to Landry first. In a conversation, Gleason told Descuir, contrary to the fact, that Landry had not paid him a cent on the raft.

Descuir divided the cribs and connected the portions thus separated into rafts, and brought the raft designed for Landry to land at a point designated by the latter above his saw-mill. He refused to deliver it entirely into the hands of Landry, unless the latter would pay him not only for the trees delivered him, but also for the trees delivered Settier. Landry offered to pay him seventy-five cents a tree for the two-hundred and ninety-five trees delivered him, but declined to pay for those delivered Sellier. Descuir refused to receive the amount offered, “ as he looked,” (as he says) “ to Gleason for his pay,” and •' he wanted to be paid the whole amount.”

Descuir consented, however, to allow the plaintiff to put hands and ropes and a chain upon the raft, more effectually to secure it, but he kept some of his own hands upon it. The raft was measured by Landry and Gleason, and found to contain the two hundred and ninety-five trees. Landry advanced Gleason $1851 22, $485 of which was expressly upon the raft. Descuir instituted a suit by sequestration against Gleason, and obtained a judgment for the above-mentioned sum of $519, with a privilege upon said timber for the same, and issued thereon the execution which has occasioned the injunction. Landry was, however, no party to the suit.

The case presents the question, whether the defendant, Descuir, has a privilege for his labor upon the raft. His counsel contend that he lashed and spliced the cribs together and constructed the rafts ; that he propelled the same by “ hauling and poling,” and that he repaired the rafts until he brought them to the places agreed upon. He contends that this clearly brings his case within the application of paragraph 2 of Art. 3184 of the Oivil Code. The paragraph is under the head, “ Debts which are privileged on certain movables,” and is in these words : “ 2d. The debt of a workman or artisan for the price of his labor on the movable which he had repaired or made, if the thing continues in his possession.”

The article does not appear to us to be applicable to the case. The contract was between Gleason and Landry, and it was the former who sold the trees to the latter. Landry did not enter into any contract with Descuir, and the latter was only the employee of Gleason, engaged at certain wages under a. contract at best subsidiary to the original contract between Gleason and Landry. If the article of the Code cited gives the artisan a privilege, it must be understood as applying to him who has contracted to do the work, and not the journeymen and other mechanics whom he has employed to work under him.

Again : the object of the contract between Gleason and Landry was the delivery of logs as such. They had been formed from standing trees by Gleason himself, who had arranged them into cribs of nine trees each. Descuir arranged them into a raft for his own convenience in floating them to their destination. Landry had no use for a raft merely as such in any business which he conducted, and it was not on his own account that the raft was repaired while running.

The only advantage to him in having one raft instead of many, was, it might perhaps be more easily secured on its arrival. But the things which he needed and used were the logs which he sawed into lumber, and which Gleason had contracted to deliver. But suppose he could be considered the artisan who had manufactured a raft for the plaintiff, and that he had therefore a privilege for constructing the same; how much was this work worth ? The record does not in- ’ the privilege could exist., would it interfere with the vendor’s privilege in favor of Gleason ?

Privilege0 'being stricti juris, as declared by article 3152 of the Civil Code, the party claiming a privilege must point to the express law which gives him such right of preference on account of the nature of the debt.

The contract between Gleason and Descuir possesses some analogy to that for the delivery of freight; yet it is distinguishable in this, Descuir was not a common carrier’, and he was not the owner of the logs or of a craft which transported the merchandise.

It has also some analogy to that of the seaman who has a privilege under the maritime law for his wages. But it is evident that the contract between Descuir and Gleason cannot be classed with any one of these contracts, and we are not aware of any law, neither has any been cited, which confers upon him a privilege for his wages.. See IV L. R. 161; 1 Rob. 558.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be avoided and reversed, and that the defendants be perpetually injoined from selling said raft of cypress trees described in the plaintiff’s petition, and that the possession thereof be restored to the plaintiff; and it is further ordered, that the defendants pay the costs of both Courts.


author: Duffel, J.

text:
    In the Matter of the Tutorship of Ellen Wilson Upton—On Opposition of Wm. M. Wilson.
    A party permitted by an Act of the Legi-lature to adopt a minor, cannot appoint a testamentary tutor to such adopted minor to the exclusion of the natural father.
    Appeal from the District Court of the Parish of Tensas, Farrar, J.

      T. P. Farrar, for appellant. Snyder & Lewis, for appellees.
   Duffel, J.

This case presents but one point of law, which is: can an adopter appoint a testamentary tutor to the adopted minor, to the exclusion of the natural father ?

The facts are briefly as follows: By an Act of the Legislature, approved March 15th 1852, John Upton, and his wife, Mary Ballingat Upton, were authorized to adopt by public act, the minor, Ellen Wilson. John Upton died shortly after without having passed the act, and afterward his widow executed the act of adoption, and became the tutrix of Ellen by the consent of the father. Mary Ballingat and William M. Wilson, the father of the minor, Ellen, subsequently intermarried, and were, after the marriage, separated in property by judgment. The mother by adoption, having made her will in favor of her adopted daughter, and' named Samuel W. Dorsey testamentary tutor, died. The natural father of Ellen Wilson Upton, now resists the application of S. W. Dorsey, for the tutorship under the will, of his child Ellen, and claims the same as surviving father.

The District Judge conferred the tutorship on the testamentary tutor, and the opponent appealed.

We are not called upon to decide if a father can, in any case, be excused from jhe tutorship of his child ; for whatever may have been the legal effect of the renunciation made by tbe opponent, in favor of tlie mother by adoption, and her appointment as tutrix in consequence of said renunciation, the /death of the latter, to say the least, has reinstated the former in all his rights. iflence his_ex-clusion now from the tutorship, will depend either, on the true intent of the above stated Act of the Legislature, or on the absolute right of an adopter to appoint, by will, a tutor to the adopted ; as under the code, the tutorship of a minor child belongs of right to the surviving mother or father, Art. 268, and the right of appointing a tutor by will, belongs exclusively to the surviving father or mother, Arts. 275 and 281.

It can not be said that the act of the Legislature authorising the adoption in this case, took away, or diminished, in expressed terms or by implication, any of the paternal prerogatives conferred by the Civil Code, Art. 234, 239, 268, 327.

Adoption is of the oldest antiquity; it was known among the. Hebrews, the Assyrians, and the Egyptians; and formed a part of the Roman laws. It was introduced in Louisiana by Spain, but was expressly abolished by the Code of 1808, p. ■ 50, Art. 35, and the Code of 1825, Art. 232. — Both under the Roman and the Spanish laws, the child given in adoption by a father, to any other person than a descendant, remained, nevertheless, under the power of the natural father; and did not pass under the private dominion of the adopter.

Cooper’s Justinian Lib. I. Tit. XI, Sect. 2.

Febrero Adicionado, part L, Tom. 3. Cap. XV. Sect. 1.

The Napoleon Code does not recognize the adoption of minors, Art. 346, but it has introduced, preparatory to an adoption, what is termed me tutelle offi-cieuse, Arts. 345, 361, 368. This officious tutorship does not, as a general rule, affect the power of the natural father over the person and property of the minor. Duranton Vol. 3, Tit VII, No. 339.

We therefore conclude that the testatrix was without power to name a tutor to the minor.

The evidence introduced, as an attempt to show the bad conduct of the opponent and his unfaithful administration, is wholly insufficient to exclude the opponent from the tutorship. •

It is therefore ordered adjudged and decreed, that the judgment of the District Court be avoided and reversed. It is further ordered, adjudged and decreed, that the application of Saml. W. Dorsey be rejected at his costs in both courts. And it is further ordered, adjudged and decreed, that the opponent, William, M. Wilson be, and he is hereby confirmed in the natural tutorship of his minor child, Ellen Wilson Upton, and that letters of tutorship issue in his favor on his taking the oath required by law.


author: Voorhies, J.

text:
    H. H. Wallis v. A. Bourg, Sheriff, et als.
    Á Sheriff must make a return of the writ on. the return day, but he may rotain a copy in order to carry out his execution. Act of 1855, No. 199.
    Appeal from the District Court of the Parish of Terrebonne, Simon, J.

      Rightor & Goode, for Wallis. Louis Bush, for Patterson & Co., appellants.
   Voorhies, J.

The plaintiff assigns two grounds for the injunction, which he has sued out against his creditors, R. Patterson & Co., defendants in this cause. The first is that the property advertised for sale, has never been legally seized, nor that notice of seizure has ever been served ; and the second, that the sale is advertised to be made on the plantation, although this has not been required by the debtor.

I. This is the second injunction sued out against the seizing creditors ; and the plaintiff now contends that, at the dissolution of the first injunction, the return day having expired, the Sheriff should have proceeded as if no seizure had been made.

The statute regulates this matter otherwise. It authorizes the officer to proceed in the same manner as though the original writ was in his hands.” Sess. Acts 1855, p. 253, sec. 3.

II. There is no evidence that the plaintiff ever protested against the course pursued by the Sheriff, in advertising the sale to be made on the plantation ; and the party’s forthcoming bond states that he (shff.) will advertise said property for sale on the plantation, etc.” This circumstance, at least when unexplained, fortifies the presumption that the officer was doing his duty in the premises. O. P. 664.

This view of the case disposes substantially of the plaintiff’s bills of exceptions.

The judgment creditors are entitled to damages for the wrongful issuance of this injunction. The District Judge dissolved the injunction, but disallowed the damages; in this respect the judgment must be amended.

It is, therefore, ordered and decreed, that the judgment of the District Court be so amended as to allow the defendants the sum of five hundred dollars, for damages incurred; and that in other respects the same be affirmed, the plaintiff and appellee paying the costs of appeal.


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    James B. Johnson v. His Creditors.
    In a contest between the creditors of an insolvent the notes or obligations of the insolvent do not make in themselves conclusive proof of the debts apparently due them. They must be supported by such additional evidence of the claim as will satisfy the Judge of its fairness. (Affirming the decisions in 6 Martin N. S. 585, and 4 An. 451.)
    Errors of calculation in the judgment must be corrected in the court a quo — this court cannot correct them.
    Appeal from the District Court of the Parish of Point Coupee, Roman, J.

      T. J. & W. H. Cooley & Roy, for syndic. P. A. Roy, Wm. Beatty and John Yoist, for the creditors. A. Provosty, for opponents.
   Buchanan, J.

The syndic placed Bellocq, Noblom & Co. as first mortgage creditors for the sum of $3520 84, on his tableau of distribution. They filed an opposition claiming to be creditors for a larger sum than the tableau declares, namely, the amount of two acceptances for the accommodation of the insolvent, of different dates, and secured by two distinct mortgages, duly recorded. Both drafts bear interest; and the opposition admits-a credit, applicable to the earlier in date of the two drafts.

On the trial of the opposition the opponents offered in evidouce the two drafts of the insolvent, and the two acts of mortgage granted by him to the opposing creditors for the security of the same. Certain other creditors, who are appellants, opposed the admission of those documents in evidence, on the ground that they áre mere,admissions of the insolvent, not binding upon his creditors. In support of this objection, the counsel of appellants refer? us to a number of decisions of this court, collected in Hennen’s Digest, page 741, verbo Insolvency XII (b) of which the earliest is Menendez v. Lavionda, 3d Martin — and the latest, Warren’s Succession, 4th Annual.

We do not find that any of these decision's declare the inadmissibility of such evidence as is here offered. The doctrine merely goes to its effect, and may be summed up in the words of Sabatier v. Creditors, 6 Mart. N. S. 585, repeated in the Succession of Warren, 4 An. 451; The court says : “ In a contest between the creditors of an insolvent, the notes or obligations of the insolvent do not make in themselves conclusive proof of the debts apparently due them. They must be supported by such additional evidence of the claim, as will satisfy the Judge of its fairness.” Now the opponent’s case does not rest solely upon written admissions of the insolvent. The tableau recognizes,'as we have seen, the opponents to be creditors, with first mortgage, although for a less sum than is claimed in the opposition ; and no other creditor has opposed this item of the tableau. Again the insolvent himself was put upon the stand as a witness, by the appellants, against the appellees. And the evidence of this witness corroborates the declarations of the mortgagees, as to the consideration of the drafts and,acceptances. Appellants complain that the judgment does not allow the credit upon the earlier draft, which is admitted in the opposition of appellees ; and the counsel of appellees admit in argument that this credit was improperly omitted. But he contends that the omission was the fault of the counsel of syndic, appellant, who wrote up the judgment; and that appellees ought not to be mulcted in cost of the appeal, by reason of such omission. It is very evident that we cannot enter into the consideration here presented. It is a matter out of the record. The judgment appealed from, is the act of the officer who signed it.

It was the business of the parties to see that it was properly entered ; and if any error of calculation had inadvertently crept into the decree, to address themselves to the Judge for its correction. Or the appellees might have corrected this error, by a remittitur of the difference between the decree and their claim.

It was attempted to be shown by the testimony of the insolvent, offered on trial of the opposition by the syndic and the creditors appellant, that the later of the two drafts held by appellees, which draft was dated March 21st 1857, and matured March 15th 1858, was given in settlement of all previous debts, and particularly of the earlier of the drafts, which is dated November 19th 1855, and matured the 1st January 1857. But the witness does not establish this fact. He states, in his examination in chief, that he thought the ,last draft was in settlement of all his indebtedness to Bellocq, Noblom & Co., and that the earlier draft was given by him to L. J. Maxent & Co. But in his cross-examination the witness corrects himself; and states that the first draft was given to Mr. Gran-gard; and that the last draft was given to Mr. Maxent in settlement of an account with him; that witness drew on Bellocq, Noblom & Co., to pay that amount.

Appellees have answered the appeal, and claim an amendment of the. judgment, by allowing them five per cent for attorney’s fees, as claimed in their opposition.

The later of the two mortgages held by appellees, contains the following clause: “ It is agreed that in case said Bellocq, Noblom & Co. should institute legal proceedings for,the recovery of moneys due them in pursuance of this act, then all fees of attorney employed by them to recover the amount due, together with all costs whatsoever incidental thereto, shall be borne and satisfied by him, the said Johnson, and covered and secured by the present mortgage, said attorney’s fees, however, to be fixed at five per -cent on the amount due to, and sued for, by said Bellocq, Noblom & Co.

This clause is legal. Indeed, no argument has been offered against it by the counsel of appellants. The opposition filed herein, was an institution of legal proceedings for the recovery of money due in pursuance of the act.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, by crediting the draft due the 13th January 1857, with the snm of six hundred and thirty-two dollars and sixty-seven cents; that- it be further amended by allowing appellees one hundred and ninety-one dollars and fifty-four ■cents, for attorney’s fees, being five per cent, on the amount of the draft due 15-18 March 1858, in capital and interest, according to the account current annexed to their opposition; that in other respects, the judgment of the District Court be affirmed, and that appellees pay costs of appeal.

Yoorhies, J. recused himself on the ground of relationship to one of the parties.


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    Hugh McCall v. Simon Witkouski.
    When a party endorses a note after its maturity ho is hound only on the same condition of demand of payment and notice of non-payment as any other endorser.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow & Montgomery, for plaintiff and appellant. Short & Parham, for defendant.
   Duffel, J.

This suit is instituted against the defendant, as guarantor, on the following note: “ $486 00, Ashton, December 17th 1858. Three months after date, I promise to pay to the order of myself, four hundred and eighty-six dollars, value received, (signed) N. G. Goffe (endorsed) N. G. Gqffe — Pay to Simon WitlcousM (signed) G. Witkouski (endorsed) Simon Witkouski.”

The whole evidence offered on the trial of the case is, “Admitted that the note was transferred after maturity. The signatures and endorsements admitted, to the note.”

The District Judge rejected the demand.

The defendant is not a guarantor, but a special endorsee. Story on Promissory Notes, sect. 133.

The defendant cannot, under the allegations of the petition and the evidence, be held responsible as endorser. Although a noté remains negotiable after it has been dishonored, still in one sense the indorsement and transfer of a note over-due is a renewal of the instrument, which is then declared by law payable within a reasonable time, upon demand; and the endorser is bound only upon the same condition of demand upon the drawer and notice of non-payment, as any other indorsement.” Edwards on Bills and Promissory Notes p. 261.

The defendant, 'if viewed as a transferrer of a debt, only warranted the existence of the debt at the time of the transfer. C. C. 2616 and 2617. Rippey v. Dromgoole 8 M. 709. Martin v. McMaster 14 L. R. 420.

Judgment affirmed.


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    Richard Aldigé & Co. v. Knox & Pugh et als.
    Where the allegations of tlie petition were insufficient to admit proof of the agency with the right of the agent to stand in judgment and receive citation for his principal, the case will be remanded for a new trial.
    Where the domicil of the defendant is known, citation must he addressed to him there. C. P. 178, 381,187.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      M. DuBose, for plaintiffs. Sparrow & Montgomery, for defendants and appellants.
   Duffel, J.

The appellant, Hugh B. Knox, assigns as error of law apparent on the face of the record : 1st. “ That he has never been served with any citation. 2d. That the citation which issued was served on one G. W. Wallace, who was styled the agent of the appellant, but who was not his agent; and 3d, That the defendant and appellant did not appear in the lower court, but judgment was rendered against him on default without proof of said agency.”

The allegations of the petition were insufficient to admit proof of the agency with the right in the agent, to stand in judgment and receive citation for his principal, who is declared to be a resident of the city of New Orleans.

The citation was addressed to George C. Wallace, agent of the parish of Carroll and served on said agent, when, under the law, it should have been addressed to the appellant, and served at his usual domicil in New Orleans. C. P. 178, 181,187.

As the appellant did not voluntarily appear and answer to the merits, he has a right to a service of citation as directed by law.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed. It is further ordered, adjudged and decreed, that this cause be remanded back for a new trial, after citation on the appellant, according to law, and that the appellees have leave to amend their pleadings in order to conform with our above expressed views, the appellees paying the costs thus far incurred in both courts.


author: Land, J.

text:
    Peter Homerich v. R. A. Hunter et al.
    Decision in the case of Zeiyler tfi limey v. É. A, Hunter et al. (pres, vol.) affirmed.
    Appeal from the District Court of the Pnrish of E. Baton Rouge, Avery, J.

      Dunn <& Herron, for plaintiff and appellant. Phillips, Goode, Tucker, Davidson and Burgess, for defendants.
   Land, J.

This case is identical with the one of Zeigler & Marcy against the same defendants just decided; and the defendants and appellees have moved to dismiss the appeal on the same ground.

For the reasons assigned in that case, it is ordered, adjudged and decreed, that the appeal taken in this case be dismissed at the costs of plaintiffs and appellants.


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    Samuel Stewart v. Thomas B. Harper.
    Objections to the ruling of the Judge a quo cannot be made on appeal,, if not made in the Court below, and excepted thereto.
    When the debt, which the dafendant offers in compensation of that which the plaintiff claims, is of a less amount than the one demanded, compensation only takes place for that amount, and judgment must be given in favor of the plaintiff for the surplus ; the defendant must pay the costs, unless he shows that he ha* made a real tender of such overplus, at the time and in the manner provided by law. C. P. 369 ; C. C. 2203.
    Compensation is of three kinds ; legal or by operation of law ; compensation by way of exception ; and by reconvention.
    Appeal from the District Court of the Parish of St. Tammany, Wilson, J.
    J. R. Jones, for plaintiff. A. Hennen, for defendant and appellant.
   Land, J.

This suit is on a promissory note for $959 80, subject to two small credits admitted by the plaintiff in his petition.

The defendant’s answer is a general denial joined with the plea of payment and two separate reconventional demands; one for the balance of an account after allowing the plaintiff credit for the amount of the note sued on ; and the other for damages for the alleged non-execution of an act of sale of a slave by the plaintiff to the defendant.

The judgment of the lower court was in favor of the plaintiff for the sum of $138 Al’ with interest, and the defendant has appealed.

It is contended in. this court that the Judge a quo erred in striking out a part of the answer of the defendant to interrogatories on facts and articles propounded by the plaintiff, which part of the answers was to the effect that the note in suit had been paid in full by the defendant.

It does not appear that the defendant objected to the ruling of the Judge in the court below, and it is too late to make such objection for the first time on appeal in this court. If the defendant intended to object to the ruling of the Judge, ordering a part of the answers to be stricken out, he should have done so at the time and made his objection appear on the face of the record by a bill of exceptions.

It is further contended that the judgment is erroneous and must be reversed, because it did not pass expressly on the defendant’s reconventional demands. The account pleaded in reconvention was intended to conpensate the note, and the defendant prayed for a judgment against the plaintiff for the alleged balance. The District Judge considered the reconventional demand as a plea in compensation, as it had been pleaded, and after allowing the defendant all the items of the account proved, which amounted to less than the sum due on the note, rendered judgment in favor of the plaintiff for the surplus. This was a final disposition of the claim in reconvention considered as a plea in compensation, and the judgment was in pursuance of Article 369 of the Code of Practice, which declares that when the debt, which the defendant offers in compensation of that which the plaintiff claims, is of a less amount than the one demanded, compensation only takes place for that amount, and judgment must be given in favor of the plaintiff for the surplus. Compensation is of three kinds, legal or by operation of law ; compensation by way of exception ; and by reconvention ; and a judgment for the surplus in favor of the plaintiff,^when his claim exceeds that of the defendant, is all that is required.

As to the claim for damages for not passing the act of sale, which was likewise pleaded in reconvention, it is only necessary to observe, that the defendant discontinued his demand for the damages in the court below, before the case had been tried and the judgment had been rendered from which he prosecutes this appeal.

We have discovered no error in the judgment to the prejudice of the defendant.

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


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    Police Jury of Ascension v. John L. Manning, Tutor, et al.
    Tlio proceedings for the expropriation of property of an individual for the public use, (0. C. 2608) are summary in their nature : but the statute does not require that the District Judge shall sit in vacation for hearing them. The article 756 C. P. gives to the Court a discretion in relation to the trial of summary cases, with which the appellate Court will not interfere.
    Appeal from the District Court of the Parish of Ascension, Lawes, J.

      H. L. Duffel and Messrs. Nicholls, for plaintiff and appellant. C. A. Johnson, J. II. Ilsley, and Mills & LeBlanc for defendants.
   Buchanan, J.

The Police Jury of Ascension, having laid out a public road in said parish, applied to the District Judge by petition, for the convocation of a jury of twelve freeholders, in accordance'with article 2608 of the Civil Code, to assess the damages which might be sustained by the parties, over whose lands the road will pass. The District Judge made an order upon the petition, directing a special jury to be convoked at the Court House in Donaldsonville, within eight days (the court being then in vacation) and that the proprietors of the land to be expropriated, should be summoned to answer and defend their rights before the said jury.

John L. Manning, tutor, one of the defendants in this proceeding, appeared, and filed an exception to the trial of the cause in vacation. The court after hearing, sustained the exception, and ordered that no further proceedings be had in the premises until the regular term of the court. Plaintiffs appealed from this order, and an affidavit of .the President of the Police Jury is filed in this court, that the amounf involved in this controversy is more than three hundred dollars ; and that the parish has suffered already, and will hereafter suffer more than three hundred dollars by the refusal of the Judge to try the cause at the time fixed by his first order.

The proceedings for the expropriation of property of an individual for the public use, under article 2608 of the Code, are summary in their nature ; but the statute does not require in express terms that the District Judge shall sit in vacation for hearing them. The article 756 of the Code of Practice gives to the court a discretion in relation to the trial of summary cases, with which the appellate court will not interfere.

Judgment affirmed, with costs.


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    Abat & Générès v. W. H. Harris.
    Where a motion f ;r continuance, affidavit and bill of exception have been lost, and the record is, consequently ck-\ '-ve, the case will be remanded for a new trial.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Goodrich & DeFrance, for plaintiffs. Wiley <& Selby, for defendant and appellant.
   Duffel, J.

The appellant having, by inspection, found a diminution in the transcript of appeal, which, from the certificate of the clerk, appeared complete, applied, in due form, for a writ of certiorari in February 1860.

The counsels of the appellees thereupon admitted “ that when the cause was called for trial in the court below, the defendant and appellant made a motion of continuance, supported by affidavit, and the said motion having been overruled by the court, the defendant took a bill of exception, and that the said motion, affidavit and bill of exception, are not included in the transcript on file, but were lost or mislaid, as stated by the clerk of the court below, in his certificate of the 9th February 1860.”

The clerk of the District Court certified again, on the 2nd of February 1861, that he has been unable, notwithstanding diligent searches, to find the missing documents.

Upon the above facts, and the parties not having agreed to a statement of facts, we cannot say that the appellant was guilty of any laches. The cause must'therefore be remanded for a new trial. Evin v. Murphy & al., 11 R. 477; Lyon v. Andrews. 5 An. 602; Barrow v. Landry 12 An. 83.

It is therefore ordered and decreed, that the judgment of the lower court be reversed, that the cause be remanded for a new trial, and that the appellees pay the costs of the appeal.


author: Merrick, C. J.

text:
    The State oe Louisiana v. John Karn.
    An indictment concluding “ contrary to the form of the statute in such cases made and provided ” must he intended to mean the statute of the State of Louisiana. The criminal statutes of no other government are cognizable, properly speaking, by our courts.
    An error in spelling the word 11 foreman ” 11 four man ” is not importar t, as the pronunciation of the same is not thereby changed — .Idem sonans.

    Appeal from the District Court of the Parish of East Feliciana, McVea, J.

      W. J. Hamilton and £>. B. Sanford, for appellant. W. S. Vaughan, District Attorney, for the State.
   Merrick, C. J.

The defendant having been tried and convicted of the offence of selling spirituous and intoxicating liquor to a slave without the written consent of the owner, appeals from the judgment imposing a fine of $301, and one month’s imprisonment.

The bill of exception to the refusal of the Judge to continue the cause on account of the absence of a witness, cannot be examined by us, as it rests upon a fact found by the District Judge against the accused.

The indictment charges that the defendant on &c., at &c., “ a certain quantity of spirituous and intoxicating liquor did sell to a certain slave named Ben, without having any written permission from the owner or employer of said slave for so doing, contrary to the form of the statute in such case made and provided, and in contempt of the authority of the State, and against the peace and dignity of the same.” .

The indorsement of the finding of the Grand Jury is as follows : “ A true bill, Richard Draher, fourman”

The appellant makes through counsel the following points, viz :

1st. The indictment is defective because it does not conclude against the statute of the Slate of Louisiana, and because the offence is not charged in the words of the statute (viz.) that said spirituous liquor was sold “ without the consent in writing of the owner,” &c.

2d. The Act of 19th March 1857, entitled, An Act to prevent the buying from, selling or giving to slaves without the consent in writing of their owner or employer,” is unconstitutional in this : It has more than one.object, and the different objects are not embraced in the title; it defines the offence ; it denounces the penalty ; it disposes of the fine ; it prescribes the form of the indictment; it establishes a new rule of evidence ; it declares what proof shall be sufficient, and what shall be a valid plea.

3d. The bill of exception shows that the State failed to show that the selling charged in the indictment was done without the consent in writing of the owner, overseer or employer of said slave.

I. The indictment appears to us to be sufficient. The conclusion “ contrary to the form of the statute in such case made and provided ” must be intended to mean the statute of the State of Louisiana. The criminal statutes of no other government are cognizable, properly speaking, by our courts.

The term “ without the written permission of the owner,” &c., seems to us to be synonymous with the term without the consent in writing ’ of the owner,” &c. The owner could not give his written permission, without giving his consent in writing, neither could he give his consent in writing without giving his written permission. The terms appear to be convertible in relation to the subject matter, and we think the offence is sufficiently charged under the statute. See 1 Chitty, Crim. Law, 281. State v. Smith, 5 An. 341; State v. Hood, 6 An. 180. The error in spelling the word foreman is not important, as the pronunciation of the same is not thereby changed.

II. On the question of the constitutionality of the act of the 19th March 1857, we have to say that the object of the act is to prevent the dealing or traf-ficting with slaves without the consent of the owner or employer in writing. All the different sections of the statute tend to the same end, and hence the general scope of the various enactments is embraced in the title. Under the authority of the case of the State v. Henry, a slave, 15 An. 297, we cannot say that the act in question is unconstitutional.

Counsel ask whether the disposition of the fine, or the holding A responsible for the misdemeanors of B, have the effect of preventing the trafficking with slaves 1 "We can answer that it seems to us that these provisions were intended by the Legislature to have that effect. One half of the fine is given to the informer to induce vigilance in the prosecution of this dangerous class of offences. If the owner is made responsible for the act of his employee, it is to make him careful in the selection of his agents, and watchful to prevent a violation of the law.

III. We concur with our.learned brother of the District Bench that the statute imposes upon the defendant the burden of showing that he had the owner’s consent in writing.

It was enough for the State to prove that the defendant sold the spirituous liquor to the slave. This proof made out a'case prima 'facie against the defendant, and it was for him to rebut the presumption arising from the facts by thé production of the consent in writing of the owner or employer, or the proof of its loss.

Judgment affirmed.


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    The State, on the relation of Joseph G. Logan praying for a mandamus v. The Third District Court of New Orleans.
    A mandamus will not lio against a Judge a qi¿o to compel him. to allow an appeal on a judgment refusing a mandamus to compel a Justice of the Peace to issue a commission to take testimony. The remedy is hy appeal to the District Court, and ultimately to this Court, when the amount gives such appellate jurisdiction.
    When a Court usurps jurisdiction the proper remedy is hy the writ of prohibition.

      ON the relation of Joseph G. Logan, praying for a mandamus.

      B. Egan and L. M. Day, for relator.
   Merrick, C. J.

The petition avers that suit was brought against the relator in the Court of the Fourth Justice of the Peace of this City, for the possession of the second, third and fourth stories of the store No. 57, St. Charles street, which the relator had leased from Schmidt & Co., in liquidation, for. $1,000 per annum ; that A. Richard, one of the former members of said firm, alleged himself in the petition to be acting under and by virtue of a power of attorney from the partner Wm. Schmidt in bringing the suit to eject the relator; that immediately after said suit had been brought, and before a judgment by default had been taken, relator filed an exception to said suit on the ground that the Justice of the Peace had no jurisdiction, and the petition set forth no cause of action; that A. Richard had no authority to bring the suit; that relator, having filed interrogatories, applied for a commission to take the testimony of Wm. Schmidt to establish his defence, which was refused him by said Justice of the Peace; that relator then applied by petition to the Hon. Third District Court for a mandamus to compel the Justice of the Peace to grant the request; that the Third District Court dismissed relator’s petition, the judgment being signed on the 13th day of December, 1860 ; that relator applied for and obtained a suspensive appeal to' this Court, returnable on the second Monday of January, 1861, on condition of giving bond in the sum of $100; and that the next day, viz., the 14th day of December, the Third District Court, without any motion or previous notice, rescinded the order granting the appeal. He prays for a peremptory mandamus, commanding the District Judge to annul the last mentioned order, and grant relator an appeal from the said decree dismissing the petition.

The District J udge has answered the rule nisi issued on the application of relator.

The amount in controversy before the Third Justice of the Peace being a contract of lease involving oyer three hundred dollars, is within the final appellate jurisdiction of this Court, and this Court would not be deprived of ultimate appellate jurisdiction under the Constitution, in the event of an appeal in the first instance to the Third District Court of New Orleans.

But the present proceeding, whether considered in reference to the matter before the District Court, or this Court, is not by way of appeal, but a mandamus. Now it is, well settled that appellate courts will issue the writ oí mandamus only in aid of their appellate jurisdiction, and will not try in this manner questions which may be examined on appeal.

It appears, that the Justice of the Peace had jurisdiction of the cause, for the complaint made before the District Court was not that the Justice of the Peace was usurping jurisdiction, which, in a proper case, would have authorized the writ of prohibition ; but it was that he had refused to issue a commission to take the testimony of a witness. Phillips’s Dig. p. 288, sec. 71; p. 304, sec. 24.

The object of the application was not therefore in aid of the appellate jurisdiction of the District Court nor of this Court, but to revise an interlocutory order of the Justice of the Peace before he had finally decided the cause. It has been settled by repeated decisions that the appellate tribunal, as just intimated, is without power to revise the orders of the inferior court except by appeal, and that the'determination of every case must be left, in the first instance, to the decision of the magistrate seized of original jurisdiction, and he must decide according to his own convictions of right and justice in whatever judgment he shall pronounce in a cause of which he has jurisdiction. If he errs,, we repeat, the remedy is by appeal.

Inasmuch as the order applied for in the Distrigt Court was not necessary to its appellate jurisdiction, and no complaint was there made that the magistrate was exceeding the jurisdiction granted him by law; and inasmuch as the order of the District Judge did not work any injury-to the relator, whose right of appeal was still in reserve, we are of the opinion that no appeal lies from such order of the District Court to this Court. This case,'it will be perceived, differs from the case of The State on the relation of Rutherford v. The Third Justice of the Peace of New Orleans, lately decided by us.

It is, therefore, ordered, that the rule granted in this case be discharged, at the costs of the relator.


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    John R. Holley v. Euclid Borland.
    In a suit on a quantum meruit the lowest sum, that the evidence will justify, does not necessarily mean the lowest that has been mentioned by any of the witnesses. It is the evidence, taken as a whole, which is submitted to the consideration of the Judge.
    Appeal from the District Court of the Parish of Plaquemines, Foulhouze, J.

      J. B. Grayson, for plaintiff and appellee. George L. Bright, for appellant.
   Buchanan, J.

Plaintiff sues for a year’s wages as overseer of the plantation of defendant. He alleges that he was hired for a year, and was discharged at the end of nine months, without cause.

He claims fifteen hundred dollars as quantum meruit. Defendant denies that he lived plaintiff by the year; and that he discharged plaintiff without cause; alleges that he has paid plaintiff two hundred'and seventy dollars on account; and claims for feeding an extra horse for plaintiff nine' mohths, at fifteen dollars per month. ^ "

Plaintiff has not proved any contract for the hire of his services by the year. A letter of plaintiff given in evidence negatives such an agreement.

The value of plaintiff’s services is differently estimated by the witesses — from five hundred to fifteen hundred dollars per annum.

The District Judge has allowed at the rate of one thousand dollars per annum for the time (nine months) that plaintiff actually served. He allows the payments on account, as proved; and disallows the keeping of the horse. Defendant appeals ; and appellee prays an amendment of the judgment.

In this Court, the defendant and appellant relies mainly upon the decision in Garcia v. Garcia, 7 An. 525, in which the Court said : “ When the overseer does not take the ordinary course of engaging for a fixed salary, we think courts should reduce the claim to the lowest sum which the evidence will justify.”

We find, on consulting the reasons for judgment of the District Judge, that he adopts the doctrine of the case of Garcia v. Garcia as the rule of his decision in the present case. And we cannot say that he has erred. The lowest sum that the evidence will justify, does not necessarily mean the lowest sum that has been mentioned by any of the witnesses. It is the evidence taken as a whole, which is submitted to the consideration of the Judge. And, without going into details, as the District Judge has done, we remark that the conclusion at which he has arrived, appears to us justified by the premises. On the other questions , of law and of fact in the cause, we also agree with the District Judge.

Judgment affirmed, with eosts.


author: Merbick, C. J.

text:
    Mrs. M. E. Boissac v. R. C. Downs.
    Ono who assumes to pay a mortgage debt by notarial act. is not, properly speaking, a third possessor who can discharge himself by abandoning the property.
    A tacit mortgage exists without any record in the office of the Register of Mortgages, and it binds the real property of the tutor in every parish in the State.
    Appeal from the District Court of the Parish of Iberville, Avery, J.

      Edward Phillips, for plaintiff. A. T. Steele, for defendant and appellant.
   Merbick, C. J.

The present is an appeal from an order of seizure and sale.

On the 24th day of July, 1856, the plaintiff, Mrs. M. E. Boissac (now Mrs. Kirke) sold a tract of land in the Parish of Iberville to Andrew J. Johns for the sum of $12,000, with eight per cent, interest, payable in all the month of March, 1858, with this proviso : “ which note is not to be paid at maturity unless the tacit mortgage mentioned in the act of sale and mortgage be canceled, and to be paid after maturity on the canceling of said mortgage.” A mortgage was reserved in the act of sale in authentic form to secure the price.

On the 10th day of August, 1851, Andrew J. Johns sold by notarial act the same property to tlie defendant, R. C. Downs, and E. W. Robertson, and they assumed to pay in certain proportions the debt due by Johns to the plaintiff. On the 3d of December, 1859, Robertson also, by notarial act, sold to the defendant, R. C. Downs, his interest in the tract of land, and Downs, in the same act, assumed the payment of the residue of the debt to plaintiff.

The note given by Johns to the plaintiff, and thus assunltd by defendant, was protested on the 3d of April, 1858.

A decree canceling the judicial mortgage was rendered on the 21st day of April, 1859, by the District Court in the Parish of Avoyelles, but it does not appear that the decree was produced to the Recorder of Mortgages in Iberville, and the formal entry made on the mortgage records of that Parish to that effect.

The documents produced before the District Judge who granted the order of seizure and sale, were the three notarial acts above referred to : the protest of the note ; the certified copy of petition for the cancellation of the tacit mortgage; and the decree rendered by the Judge of the Thirteenth Judicial District; and also an act of sale by Downs to Joseph D. Hamilton, of a part of the tract of land. The order of seizure and sale issued for the portion of the property remaining in Downs’s possession.

The appellant has made various assignments of error, but we shall notice only those on which he relies in argument and in his brief for a reversal of the decree in the lower Court.

He contends that this suit is against a third possessor, and therefore the thirty days’ demand and the ten days’ previous notice ought to have been given as required by the decision in the case of Gentis v. Blasco. 15 An. 104. This case differs from the case cited in this, that Downs, by notarial act promised to pay this very debt. It is therefore his debt, and he is not, properly speaking, a third possessor, who can discharge himself by abandoning the property. See Duncan v. Elam, 1 Rob. 135.

It is objected that the judicial mortgage has not been canceled; that it has not been shown that the proper parties were before the Court when the decree was rendered, and there is no proof that any special mortgage was executed; and it does not appear that the mortgage was actually.eanceled on the mortgage records.

To this it is a sufficient reply to state, that the plaintiff was only bound to produce before the District Court, in order to obtain the order of seizure and sale, evidence which made a prima facie case. The decree of the proper tribunal canceling the tacit mortgage, must be presumed to have been rendered upon the production of the proces-verbal of the family meeting and other proceedings therein recited, and that those proceedings were regular, and that the District Judge did his duty. If the fact were otherwise, the remedy of the appellant was by injunction.

A tacit mortgage exists without any record in the office of the Register of Mortgages; and it binds the real property and slaves of the tutor, in every Parish in the State. It is therefore properly canceled, when the judge of the domicil has decreed its cancellation. As it does not appear upon the mortgage records, except where the tutor’s bond is recorded, so also it requires no special entry on the records to evidence the fact that it is canceled.

The appellee has by answer prayed that damages be allowed the plaintiff as for a frivolous appeal. We do not think they should be allowed.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be affirmed, and that the defendant pay the costs of the appeal.


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    Emile O. Webre v. Raymond P. Gaillard.
    Where the incompetency and negligence of an overseer is put at issue in the pleadings on a suit for •wages, evidence must be admitted to establish that fact.
    Appeal from the District Court of the Parish of Lafourche, Roman, J.

      Bush, Beatty & Attain, for plaintiff. Harang é Boché, for defendant and appellant.
   Buchanan, J.

This is a suit for the wages of the overseer on a sugar plantation. Plaintiff remained in defendant’s service about thirteen months. He claims for two years’- salary, on the ground that he was discharged without cause, after the commencement of the second year. Defendant denies that he employed plaintiff by the year; and if he did, pleads that he had good cause for discharging him, to wit, incompetency and negligence. The cause was tried by a jury, who found for plaintiff; and defendant appeals.

On the trial, defendant offered witnesses to prove the manner in which the planting on his plantation had been conducted ; but plaintiff having objected to such evidence, as inadmissible under the pleadings, the Court sustained the objection, and a bill of exceptions was reserved.

Defendant refers us to the eighth paragraph of his answer, which reads as follows : That after the rolling of 1859 was over, and the planting commenced, defendant did discover that the said Webre was altogether incompetent to take care of his, respondent’s plantation, and oversee and manage the same in a proper and skillful and trustworthy manner,” &c.

This appears in the answer, as one of the specifications of incompetency and negligence, alleged as constituting good and sufficient causes of plaintiff’s discharge, And we feel constrained to view the ruling of the District Judge as erroneous on this point. The averment is, that plaintiff was incompetent to take care of the plantation and to oversee and manage the same; and that such incompetency was discovered after the planting of the crop had commenced.

The evidence offered to sustain this averment was, evidence of the manner in. which the planting was conducted. If, as we do not understand to be disputed in argument, and as the answer substantially avers, it is the duty of the overseer of a plantation to conduct and superintend the planting of the crop, it seems that evidence of the manner in which the planting was conducted, would have a direct bearing upon the issue here presented.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed and annulled, and that this cause be remanded for further proceedings according to law; and that appellee pay costs of this appeal.


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    George W. Smith v. Hezekiah R. Harrell.
    The fact that a party in an original action against the signers of a promissory note in which a judgment of non-suit had been rendered, had,sued them all as makers., does not estop him in a subsequent action against one of them from alleging that he had signed as surety on the note for the others.
    Whore a party by bis .original petition claims judgment in solido against several makers of a promissory note which in its form is merely a joint obligation, may by au amendmen1 allege that one of the signers intended to biQil himself as surety at the time of affixing his signature.
    Appeal from the District Court of the Parish of East'Feliciana, McVea, J.

      Euqua <& Kilbourne, for plaintiff. P. Pond,for defendant and appellant.
   Buchanan, J.

Plaintiff sues defendant Upon the following note :

“ Amite County, July 1st, 1856.
“ $1260 33. Twelve months after date, for value received, we promise to pay G. W. Smith, or order, twelve hundred and sixty dollars and thirty-three cents, With eight per cent, interest from date until paid.
Mills, Cleveland <& Co.
“II. R. HarrellP

TheJpetition alleges that defendant signed the note as surety for thfe othei1 signers, Mills, Cleveland <& Co., and that he is therefore bound to plaintiff in solido for its payment. -

Plaintiff had judgment; and defendant presents the case to us, by appeal, upon the single point made by a peremptory exception filed by him in the Court below, “ that plaintiff is estopped by the allegations Of his former original petition in the suit of G. W. Smith v. Hawkins et al. from alleging in his present suit that .this defendant is bound as security on the note sued on.” 1 Tt .appears from the evidence that plaintiff had previously sued defendaht and another’ party, upon this same note, in another action, which terminated by a non--'suit. In the-petition filed in that action, plaintiff did not specially allege, as he h'as dohe.in the present case, that defendant signed the note as surety of the other signer ; ¿but simply declared upon the note as signed by defendant and Mills, "Cleveland & Có.;; and due by the signers in-solido.

TÜéáe- allegations of the petition in the first suit are not a bar of the present demand?, That suit is at an end, by a judgment (nonsuit) which left the parties in the same relative position in'which they were before it was instituted. But-supposing even that the present petition was before us in the form of an amendment of the first petition, and in thesame suit, it would present no such inconsistency of pleading as would exclude it. The first petition claimed judgment in solido against several makers of a note, which in its form was merely a joint obligation. But the amendment would have come in aid of the relief sought in the original petition (to wit, a judgment in solido against Harrell) by pleading an intention to that effect, on the part of Harrell, at the time of affixing his signature. Indeed, the counsel of the defendant admits in his argument before this Court, that a party, whose name appears as a maker, may be sued as a surety, and that plaintiff may explain the face of the note by parol proof to- show that the party who is prima fade a maker, is in reality a surety.

Judgment affirmed, with costs.


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    Peter Alexander v. School Directors of 9th School District.
    All agreements relative to personal property, and all contracts for the payment of money, where the value does rot exceed $500, which are not reduced', to 'writing,*., may be proved by any competent evidence ; such contracts or agreements above $500 in value, must be proved at least by one credible witness, and other corroborating circumstances. C. C. 2257.
    Appeal from the District Court of the Parish of Madison, Farrar, 3.

      T. P, Farrar, for plaintiff and appellant. Short & Parham, for defendants.
   Voorhies, J.

The plaintiff’s claim is on a quantum meruit for professional services rendered -in the cases of Wm. Bright v. School Directors, See., and of School Directors, Sc., v. N.. D. Coleman.,

This demand is resisted on the ground, as alleged, that there was a contract between the parties, and that the amount stipulated has-been paid.

This.defenee is supported by the testimony of a single witness, uncorroborated; and the amount in question exceeds the sum of five hundred dollars. C. 0.2257. So far from there being corroborating- circumstances, the reverse is the case: upon the face of the draft, to which our attention is called, it appears that the amount •in question was paid for services rendered in the case of W. H. Bright v. School Directors, &c. The defence has, therefore, proven to‘be a failure.

The question is now narrowed down to fixing the value of the services in the other case, that is, School Directors, &c., v. N. D. Coleman. The proof will justify an award for the sum of five hundred dollars.

It is, therefore, ordered and decreed, that the judgment of the District Court be., avoided and reversed, and that the plaintiff do have judgment against the-defend- ., ants in the sum of five hundred dollars, with legal interest from the sixteehthf cfay of November, A. D. eighteen hundred and fifty-eight, with costs iwbotlp Courts.-


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    Mr. & Mrs. Francis Alleman v. Mr. & Mrs. Jean Bergeron.
    An administrator to a succession will not be appointed when there is no absolute necessity for it.
    Appeal from the District Court of the Parish of Ascension, Lames, 3.

      J. H. -UlsleiL’for’plaintifF. L. D. S F, J. Nicholls, for defendants and appel lants.
   Merrick, C. J.

The controversy in this case arises out of an opposition made by the plaintiffs to the claim of defendants for letters of administration upon the succession of Mrs. Joseph Hidalgo, deceased.

It appears that the deceased died, leaving a number of heirs and a husband surviving. It does not appear that there were any debts due by her. The property of the succession was sold to effect a partition, and with the exception of a small portion, was bought by the heirs and surviving husband. Since then Joseph Hi-dalgo has died and his property was sold, the plaintiff, AJ.lm.an, having been appointed administrator. The heirs of both successions are the same.

After tlie sale of the property of Mrs. Hidalgo’s succession had been made to effect a partition, the defendant, Bergeron and his wife, as heir, applied for letters of administration upon her succession. It was opposed on the grounds, that a partition of the property had been decreed, and the property soid accordingly; that there were no debts or charges, and an administration would entail an unnecessary and useless expense, and that the opponents had a better right to letters of administration than the applicants.

The Judge being of the opinion that letters of administration were unnecessary, sustained the opposition; and Bergeron and wife appeal.

The necessity of the appointment is argued from the fact that some of the heirs reside in remote parishes and have only a small interest in the estate, and that it is inconvenient to procure their presence at the partition. It is difficult to perceive in what manner the appointment of an administrator would facilitate the partition in this particular. An administrator cannot properly make a partition for the heirs in his account, and where property is sold to effect a partition, the heir who is a purchaser cannot be compelled to pay the purchase money until a liquidation is had, by which it is ascertained what balance there is against him. 0. C. 2603,1265 ; Succession of Carraby, 3 Rob. 352; Succession of Harrell, 14 An. 337. We therefore conc.ur with the District Court in the conclusion, that there was no necessity for the appointment of an administrator, and the application was properly rejected.

Judgment affirmed.


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    Mrs. F. Perilliat v. A. Fernandez.
    The right of deciding into the sufficiency of the surety on an appeal bond, and of deciding whether the appeal shall be suspensive or devolutive, is exclusively within the province of the court from which the appeal is taken.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      E. Bermudez, for plaintiff. E. Filleul, for defendant and appellant.
   On a motion to dismiss the appeal as suspensive :

Buchanan, J.

This motion is founded upon the insufficiency of the amount of the bond for a suspensive appeal.

Its amount was fixed by the order of the Court below. ,It is therefore good for a devolutive, even if not for a suspensive, appeal; on which last point we do not express an opinion.

It is not the practice, of this Court to decree a qualified dismissal of an appeal, such as this rule calls for. Such a decree would be tantamount to an order that execution issue, notwithstanding and pending the appeal. It is well settled, that an application for an order of that sort must be addressed to the Court which has rendered the judgment, and not to the appellate Court. 2 Robinson, 551.

Indeed the rule states, and the record shows that an application for execution by rule to show cause was made to tlie Court below, after this appeal was taken ; upon which application there was a judgment. From that judgment there was no appeal taken ; and we cannot review it,“under the appeal previously granted. 9 La. R. 579.

Rule discharged.


author: Vooehies, J.

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    Joseph Lallande v. Conrad P. McRae, Intervenor.—Hall, Rodd & Putnam et als., Third Opponents.
    if a debt be contracted by one of tbe partners of an ordinary partnership, who is not authorized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefited by the transaction. Each is bound in proportion to the number of partners, without any attention to the proportion of the stock or profits each is entitled to. But where the recourse of the creditor is had on account of the benefit conferred by the partnership, by a contract not its own, the rule is different, and each partner’s share is to be fixed in proportion to the interest which he has in the concern and to the benefit which in consequence he has derived.
    The right of the creditor does not arise under the contract, which, as such is not binding on the partnership : his action against each partner has for its basis the benefit conferred. But to such a right springing from equity cannot attach a mortgage which is itself a matter of strict right. n
    Partnership creditors are not entitled to a mortgage on the partnership property, nor can a special mortgagee be compelled to seek payment on one rather than another part or portion of the property mortgaged. The right attaches to all the property.
    This Court is only seized of jurisdiction to amend the judgment as between appellant and appellee : not as between the appellees.
    Appeal from the District Court of the Parish of Poitite Coupee, Ratliffe, J.

      A. Provosty, for plaintiff. H. M. Spofford and T. J. & W. H. Cooley for defendant and intervenor. Lacey <& Spearing, Clarke & Bayne, for third opponents.
   Vooehies, J.

The appellants, Hall, Rodd <& Putnam, claim to be mortgage creditors of the ordinary partnership of R. W. <& C. F. McRae. They contend that there is a two-fold error in the judgment of the District Court, — in the first place in failing to recognize them as such, and in depriving them of the privilege which they claim ; — and secondly in awarding to several mortgage creditors a rank and an amount, which the nature of their claims does not authorize. •

R. W. McRae was the sole owner of the Glenmary plantation, and a part owner, with C. F. McRae, of the Crescent Park plantation. Advances were made by Hall, Rodd & Puinam to R. W. McRae, and the first question presented is whether the partnership is not indebted for the amounts thus advanced.

The account is kept in the name of R. W. McRae; and when suit was instituted on it against this party, the appellants averred in their pleadings that this was an individual indebtedness, contracted for his individual benefit, and that of the Glenmary plantation, his individual property. A consent judgment was entered, and, in accordance with the written authorization of the defendant, the decree ordered the seizure and sale of the Glenmary and Crescent Park plantations, under the mortgage of the 26th of February 1857.

This mortgage had been executed by R. W. McRae, acting in his own name, and in the name of his brother and co-partner, C. F. McRae, and was subsequently ratified by the latter. Its object was to secure Hall, Rodd & Putnam, for advances made and to be made for the use, benefit and accommodation of R. W. & C. F. McRae, “ or of any other obligation, into which they may enter by virtue of this Act, and also to secure the said Hall, Rodd & Puinam, the full reimbursement of all and every sum or sums of money which they have already advanced or paid for the said Robert R. & Conrad F. McRae, or may hereafter advance and pay for their account,” etc.

The question of fact here involved is whether advances were made to R. W. McRae, individually, or to the partnership of R. W. & C. F. McRae ; but it is contended that the appellants are precluded by their judicial admissions from denying' that it was not a partnership debt. The latter’s counsel admit the force of this objection, but reply that the allegations were made in error of fact and are therefore revocable.

The evidence adduced hardly makes out a case of error on the part of Hall, Rodd <& Putnam. The supplies were for the Glenmary plantation, which they wel’ knew to be the property of R. W. McRae. The advances purport to be for the individual benefit of the latter ; and the former made the entries accordingly on their books. It is true that a large amount of these advances were subsequently used by R. W. McRae to the extinguishment of partnership liabilities ; but, in this matter, the appellants exercised no agency whatever. Nor is it pretended that the advances made were intended -for the purpose to which they were applied. In point of fact, they were really made to R. W. McRae, individually, and not to the partnership.

It is not important to determine whether the judicial admissions in question amount to an estoppel, or whether they must be viewed only as evidence open to explanation. The facts ascertained leave no doubt as to the nature of the transaction ; and the appellants’ recourse must, at all events, be governed by the provisions of article 2845 of the Oivil Code.

The article reads : “ If a debt be contracted by one of the partners of an ordinary partnership, who is not authorized, either in his own name or that of the partnership, the other partners will be bound, each for his share, provided it be proved that the partnership was benefitted by the transaction.”

By the previous article the rule, as-to each partner’s liability in general, is, that each is bound “ in proportion to the number of partners, without any attention to the proportion of the stock or profits each is entitled to.” Art. 2844. But where the recourse of the creditor is had on account of the benefit conferred on the partnership, by a contract not its own, it is obvious that the rule is different, and that each partner’s share is to be fixed in proportion to the interest which he has in the concern, and to the benefit which in consequence lie has derived. Gilbert, notes to articles 1862 and 1864, N. 0. The right of the creditor does not arise under the contract, which as such is not binding on the partnership : his action against each partner is in the nature of the civil law action de in rem verso, having for its basis the benefit conferred. The article of the Code recognizes this equitable right of recourse for indemnification. But to such a right, springing from equity, cannot attach a mortgage, which is itself a matter of strict right.

Under this view oí the law it follows that, notwithstanding the appellants’ equitable action under the provisions of 0. 0. 2845, their mortgage of the 26th February, .1857, does not cover the advances made to R. W. McRae. Their claim, as regards the partnership, is an ordinary one.

Yiewed as the creditors of R. W. McRae, individually, or as ordinary creditors of each partner, they are to be paid only in as much as there should be something left after satisfying the mortgage creditors. 0. 0. 2794. They hqve no interest in contesting merely the rank of the mortgages ; but they might have in reducing the amounts claimed, so as to increase their own proportion in the distribution of the assets. The copartnership, however, is hopelessly insolvent; nor would the reduction of the mortgage claims, as asked by the appellants, be of any benefit to them. Indeed, their only complaint, as well on their briefs as upon the oral arguments, was as to the refusal of the court below to recognize them as partnership creditors with priority of mortgage.

The mortgage of Zenon Porche is not questioned so far as the amount allowed is concerned ; but the appellants contend : “ That this was an individual debt of R. W. McRae, and the Glenmary plantation and slaves, for the payment of which C. F. & R. W. McRae and Crescent Park plantation and slaves became the security ; that, for the reimbursement of the same, Zenon Porche is amply secured by the proceeds of the sale of Glenmary plantation and slaves, the property of the principal obligee, R. W. McRae, in the hands of the syndic of his insolvency; and, consequently, Hall, Rodd & Put/iam, who are creditors of C. F. & R. W. McRae, with a mortgage on Crescent Park plantation and slaves, have a right to force Z. Porche to look to the fund in the hands .of the syndic.”

, This position is based on the assumption that the appellants, as partnership creditors, are entitled to a mortgage on the partnership property. But this matter has already been determined adversely to their pretensions. Nor can it be admitted that a creditor holding a special mortgage, could be compelled to seek payment on one rather than another part or portion of the property mortgaged. The right attaches to all the property. C. P. 683 ; C. C. 3360.

We have not considered the motions filed by several of the appellees to emend the judgment of the District Court. “ This Court is only seized of jurisdiction to amend the judgment as between appellant and appellee: not as between the ap-pellees.” Converse Kennett & Co. v. St. Lucy Robinson, 15 An. 433.

Judgment affirmed.


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    Succession of P. E. Schexnaydre.
    The widow is only the usufructuary of tho homestead conferred under the Act of 1852 • the naked ownership is in her children ; and, therefore, no debt due by the widow to the succession of her husband, can be offeetted against the homestead, so as to diminish the capital of the same.
    Where the succession is less than one thousand dollars a special mortgagee cannot oppose the allowance of a homestead to the children.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      E. F. Filleul, for opponent. H. R. Qrandmont, for defendant.
   Buchanan, J.

The- deceased Pierre Edmond Schexnaydre left a* widow and three minor children. The succession consisted of a small house in which Ms family lived, and of some household furniture.

The whole of this property was sold, by order of Court, for seven hundred and eighty-four dollars and fifty cents, exactly the amount of the inventory.

This family is in necessitous circumstances. The widow supports herself and her children by her needle, and has no separate property. The children have no other property than their interest in the estate of their father.

In her account of administration, the widow charges the estate with one thousand dollars, as a homestead for her minor children, under the Act of 1852.

She also charges herself with rent of the house from the death of her husband to the day of sale.

Bertrand Saloy, a creditor of the succession with special mortgage, opposes the item allowing a homestead to the children.

The judgment of the District Court upon this opposition decrees a homestead of one thousand dollars to the widow; and deducts therefrom the rent of the house.

Mrs. Schexnaydre appeals from this judgment, in her capacity of tutrix, on behalf of her minor children.

The statute of 17th March, 1852, creating a homestead, enacts that whenever the widow and minor children of a deceased person are left in necessitous circumstances, and do not possess, in their own right, property to the amount of one thousand dollars, the said widow or children shall be entitled to demand of the succession of the deceased father or husband, a sum which, added to the amount of property owned by them or either of them in their own right, will make up the sum of one thousand dollars, and which sum shall be paid in preference to all the debts, except those for the vendor’s privilege, and expenses incurred in selling the property.

The statute goes on to declare, that the sum thus received from the succession of the deceased husband and father shall be held in usufruct by the surviving widow during her widowhood; and shall afterwards vest in, and belong to, the children or other descendants of said deceased.

It results clearly from the terms of this statute, that when, as in the present case, the deceased has left, both a widow and children, the widow is only usufruc-tuary of the homestead. The naked ownership is in her children ; and, therefore, no debt due by the widow to the succession of her husband, can be offsetted against the homestead, so as to diminish the capital of the same. C. C. 2203; Succession of Tassin, 12 An. 885 ; Succession of Yarborough, 13 An. 378.

It is, therefore, adjudged and decreed, that the judgment of the District Oourt be reversed; that the opposition of Bertrand Saloy to the account of administration herein, be dismissed, at his costs in both Courts; and that said account of administration be homologated.


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    Cornelia A. Williams, Executrix, v. C. G. McHatton.
    When the intent of the.partics is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.
    Appeal from the District Court of the Parish of E. Baton Rouge, Avery, J.

      Bunn <6 Herron, for plaintiff. Thomas G. Morgan, for defendant and appellant.
   Land, J.

The plaintiff is the testamentary executrix of the estate of Barnett Willtams, deceased, who was an heir at law oí Merritt Williams, who resided and died in the State of Kentucky. And for the purpose of collecting the distributive share or portion due to the estate of Barnett Williams in Louisiana, she gave to the defendant an order on the administrator of the estate of Merritt Williams. in Kentucky, in the following words, to wit: “Please pay to Charles G. McHatton, or order, any amount that may be due the estate of Barnett Williams, deceased, as heir to the succession of his deceased father, Merritt Williams, including also the payment to fall due in the month of March, 1858.”

On this order the defendant collected from the administrator in Kentucky the sum of three thousand six hundred and ten dollars and fifty-nine cents ($3,610 59). And the question to be decided in the case is, whether this order was given to the defendant for the purpose of paying a debt which the succession of Barnett Williams owed to him, or whether it was given as a letter of procuration, constituting him the agent of the plaintiff for the collection of the money due from the estate in Kentucky.

It appears that, in the liquidation of the debt due from the estate of Barnett Williams to the defendant, the sum of nine hundred and thirty-one dollars and eighteen cents ($93118) of the moneys received from the administrator in the State of Kentucky was accounted for to the plaintiff and credited on the claim ; but the other sums received by the defendant, amounting to $2,675 45, were not accounted for to the plaintiff, although received prior to the liquidation, and are consequently still due.

The fact that the defendant did not account to the plaintiff for the sums above mentioned in the liquidation of his claim against the estate of Barnett Williams, is a strong presumption that they were not received in payment under the order, especially as- the liquidation was effected by a Judgment rendered contradictorily between the parties, which judgment remains in full force and effect against the estate.

The defendant does not pretend that there was any error in the judgment liquidating his claims against the succession of Barnett Williams ; and having.by Ms acts placed a construction upon the order as a mandate or letter of attorney for the collection of the moneys received and not accounted for, he is concluded thereby from claiming said sums in payment of his debt against the estate. Civil Code, 1951.

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