text:
    Broussard v. Nolan.
    At any time before a verdict is rendered the jury may withdraw it, under leave of the court/ in order to make it more explicit.

      from District Court of West Baton Rouge, Burk, J.

      Bobertson, for the plaintiff.

      Lobdell, for the appellant.
   The of the court was pronounced by

Rost, J.

This is a petitory action, in which the plaintiff also claims damages. There was judgment in his favor for the land, and for $128 as damages. The defendant appealed.

The errors assigned on the appeal are as follows: 1st. The judge of the District Court erred in allowing the jury to retire, after they had given in their general verdict, to make it more special,, as there was no defect of form to be corrected, 2d. The jury erred in finding damages for the plaintiff.

It appears from the record that the jury brought into court the following verdict: “We the jury find for the plaintiff, $128 damages.” The verdict was read by the clerk, but, before it was recorded, the jury intimated their desire to reform it, and were permitted to retire to the jury room for that purpose. To this proceeding the defendant took a bill of exceptions. Shortly after the jury returned with the verdict upon which the judgment was rendered. It is in these words: “ We the jury find a verdict in favor of the plaintiff; the line to be defined agreeably to the survey of Thomas Mullet; $128 damages.”

We are of opinion the judge did not err. Before the verdict is recorded the jury are at liberty to withdraw it, under leave of the court, in-order to make it more explicit.

The second ground turns upon the evidence. Nothing in the record would autherize us to disturb the verdict of the jury.

Judgment affirmed.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Willey v. Carter.
    An act of sale of real estate acquired by a partnership, must be executed by all of the part.nors. If signed by two only, it will convey only their interest.
    A partition cannot be decreed where one of the co-proprietors has not been represented in the action.
    APPEAL from the District Court of Jefferson, Clarke, J. “ The title of the plaintiffs”, says the judge a quo, in assigning the reasons for his judgment, “is derived from a sale of Joseph Cockayne and L. G. Bobbins to Newton Wüley f of one undivided half of three lots. The moiety thus sold belonged to the commercial firm of Cockayne, Waits fy Co., which was composed of three persons, Cockayne, Walts and Bobbins; the deed of sale was signed by two of the partners only. The sale conveys the interest of Cockayne and Bobbins only, the Supreme Court having decided that real estate acquired by a partnership is uot partnership property.”

      Stockton and Steele, for the appellant.

      Nickerson, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

Under the authority of several decisions cited by the district judge, he properly decreed the ownership of two-sixths of the land to be in the plaintiffs.

The court below properly refused to decree a partition, because-all the proprietors were not represented in the cause. If the share of Watts has been divested and has passed to the plaintiff, the fact should have been shown. The testimony is loose and unsatisfactory on the subject of rent. That matter will be open to examination when the parties come to a partition.

Judgment affirmed j


author: King, J.

text:
    Blanchard v. Dixon.
    The provisions of sec. 33 of the stat. of 7 June, 1S06, relative to the police of slaves, must be strictly construed, and the authority it confers upon a freeholder cannot he extended to-any other person, and where one not a freeholder, in attempting to exercise the authority conferred by that section, shoots and injures a slave, he will be responsible to his master in damages for any permanent diminution of the value of the slave, for the loss of his labor, and the expense of surgical treatment.
    from the District Court of W'esI Baton Kougc, Penn, J.

      BennetU for the appellant.
    for the defendant.
   The judgment of the court was pronounced by

King, J.

This is an action instituted to recover damages for injuries done to a slave of the plaintiff, Who was shot by the defendant, as it is alleged, without provocation. The cause was tried by a jury, who returned a verdict for the defendant, and the plaintiff has appealed.

The facts are uncontradicted, andaré derived principally from a statement of the circumstances connected with the occurrence, made by the defendant himself. They are as follows: The defendant is the ovex-seer of Nolan Stewart. On Sunday, the 21st of Mai'ch, 1847, he met the slave in question in the high road, opposite to Stewart’s plantation, which is in sight of the plaintiff’s residence, and asked him if he had a pass. The answer of the slave was in french, and was not understood by the defendant, but the latter, judging fi’om the tone of the slave, conceived it to be disrespectful. The slave was ordered to stop; but instead of submitting, he fled and passed into the field of Stewart. The defendant returned into his house, ai’med himself with a rifle, mounted a horse, pursued and shot the slave, who wras in Stewart’s field, at a distance of about six acres, fracturing his knee. Witnesses who have known the slave for several years, state that he is of good character, quiet, and submissive in his disposition.

The defendant contends, that the slave having been found absent from the plantation of his owner, without a written' permission, and unaccompanied by a white person, and having refused to submit himself to examination, and attempted to escape, he was justified in shooting him; and relies upon sections 30 and 32 of the act of the 7th Juné, 1806. B. & C’s. Dig. pp. 53, 54.

The first section relied on provides that, persons residing in the country shall not allow slaves under their control' to go out of the plantation to which they belong, without a written permission; and if a slave be found beyond the limits of the plantation to which he belongs without such written permission, and unaccompanied by a white person, he shall be punished in the manner directed by the act, and sent back to his master. The 32d section of the act is in the following words:

“ If any slave shall be found absent from the house or dwelling, or where hie usual place of working or residence is, without some white person accompanying him, and shall refuse to submit himself to the examination of any freeholder, the said freeholder shall be permitted to seize and correct the said slave, as aforesaid ; and if the said slave should resist, or attempt to make his escape, the said inhabitant is hereby authorized to make use of arms, but at all events, to avoid the killing of said slave ; but should the said slave assault and strike the said inhabitant, he is lawfully authorized to kill him.”

We deem it unnecessary to enquire whether a freeholder, under the circumstances of this case, would have been justified in resorting to the violent means used by the defendant to arrest a slave, in the day time, on the highway, on a day of rest, suspected of no crime, who is guilty of no assault, and who merely endeavors, by Sight, to escape from an examination—more particularly in the absence of proof that he could not have been overtaken by further pursuit, or that the arrest could not have been otherwise safely effected. See Allain v. Young, 9 Mart. 221.

The provisions of the sections under consideration are departures from the general law, and must be strictly construed. In the absence of this express legislation, no citizen could legally assume to interfere with the property of his neighbor in the manner authorized by the statqte. The extraordinary powers-which it confers in relation to- slaves have been confided to a certain specified class of citizens, to whose prudence and discretion the legislature supposed' they could be safely entrusted. Freeholders alone are authorized by the law invoked, to seize and correct slaves who are found absent from their homes without a written permission, and unaccompanied by a white person, and to us© arms in the event of resistance, or of. an attempt to escape. This authority cannot be extended beyend the express terms of the statute.

The defendant could only have availed himself of the prolection of the statute on which he relies, by bringing himself within its provisions, and showing himself to be a freeholder. This he has neither alleged nor proved ; and, under the evidence, we think that he is answerable for the damages which the plaintiff has sustained.

Having the testimony before us in relation to the extent of the injury caused to the plaintiff, we will not remand the cause, but put an end to the litigation by rendering a final decree.

The slave was confined for a year with the wound. His knee has become stiff. At the date of the trial he walked with difficulty, and was compelled to use a crutch. The physician says that he may be able, in a year or two, to walk without the aid of a crutch; that the injury is permanent, but that with time, the use of the limb will be measurably restored.

The witnesses all concur in stating that the slave was worth $1,000 at the date of the injury, and that his value has been lessened by at least two thirds, in consequence of the wound. The plaintiff has also been subjected toacharge of $50 for medical services. Under the evidence, we think that $700 is a fair estimate of the damages.

The judgment of the District Court is, therefore, reversed ; and it is decreed that the plaintiff recover of the defendant $700 as damages, with interest from the date of this decree, and that the defendant pay the costs of both courts.


author: Kino, J.

text:
    The State v. Hays.
    Decisions in Stater. Iieberl, 10 Rob. 41, and Stater. Hooper, 3 An. 59S, affirmed.
    from the District Court of Terrebonne, Randall, J.

      Cole, District for the State.
    No counsel appeared-for the defendant.
   The judgment of the court was pronounced by

Kino, J.

Flays was arrested and taken before a justice of the peace, on an affidavit made that he had killed onAinsworth. The justice considered that the evidence established the commission of the crime of murder, notwithstanding which he admitted the accused to bail, in the sum of $5,000.

An indictment for murder was subsequently found against the accused, who failed to appear and answer to the charge. The district attorney thereupon ■moved for a judgment against the surely on the-bond, which motion was opposed on the ground that the justice was without authority to admit the accused to trial. The objection was sustained, and the State has appealed.

In the case ef the State v. Hooper, 3 An. R. 598, we had occasion to examine into the powers of justices of the peace to admit parties to bail; aud held, -in conformity with the decision in the case of the State v. Hebert, 10 Rob. 41, that they were incompetent to grant bail when the offence was punishable with death or imprisonment at hard labor for seven years or -more, and that bonds taken by them inSrch cases for the appearance of parties accused were void, being in contravention of a prohibitive law. See Act of 3d May, 1805; Bul. & Cur. Dig. 529. Act of 31st March, 1807; Bui. & Cur. Dig, 530. Sess. Acts, p. 448, § 43. Judgment affirmed.


author: Rost, J.

text:
    Lejeune v. Hebert.
    'One who purchases land, assuming to pay, as part of the price, a balance due by his vendor to the original owner who purchased with fall knowledge of the existence of a servitude on the property, cannot withhold any part of the amount assumed, on tho ground of a con. cealment by his immediate vendor of the existence of the servitude. There is no privity between the original vendor and the last purchaser; the latter must look to his immediate vendor.
    from the District Court of West Baton Rouge, Penn, J-

      Orecves, for the plaintiff.
    IT. E. Edwards, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This is the second appeal in this case; the.first is reported in 2 An. p. 45. The evidence, for the admission of which it was remanded, is in the record, and the only question now before us is, whether the defendant is entitled to claim from the plaintiff a diminution of the price stipulated to be paid by him, on account of the alleged servitudo. It was determined against the defendant in the first instance, and he appealed.

The act of the plaintiff and others, making a dedication for a public road which was to pass over the land now held by the defendant, is under private .signature, and bears date 5th September, 1840. The plaintiff sold the land to the widow Leray on the 9th of November, 1840, and,on the 5th of June, 1841, Mrs. Leray became a party to the act of dedication, and agreed to take the place of her vendor, relativement an chemin quz fut ábandonné par luz pour l’usage du public, le 5 Septembre, 1840. From this statement it is manifest that there was no concealment by the plaintiff from his immediate vendee, and that he is entitled, against her, to the price stipulated in the sale. The record further shows that the act of dedication was recorded on the 2d day of September, 1842, and that, on the 6th of October, 1842, Mrs. Leray sold to the ■defendant, who assumed to pay, as part of the price, the sum remaining due to the plaintiff, and now claimed by him, under that stipulation in his behalf. The act of sale is silent as to the servitude.

If there was any concealment, it was by the last vendor, and she js alone re■sponsible. There is no privity between the plaintiff and the defendant, and the latter has no just cause to withhold any portion of the sum claimed of her.

Judgment affirmed.


text:
    Gremillon v. Bonaventure.
    When the .cause of aeiion is not stated in the petition with sufficient precision, and the effect lias been to surpise the defendant and prevent her from setting up the proper defence, the case will he remanded, with leave to amend.
    from the District Court of Points Coupee, Farrar, J.

      Laeoste, for the appellant.

      Provosty, for the defendant.
   The judgment of the court was prounced by

Rost, J.

The plaintiff instituted a petitory action for a tract of land in ■possession of the defendant. The defence setup was a general denial, a valid title, and the prescription of ten, twenty, and thirty years. At the trial, the defendant produced a regular chain .of titles, .ascending beyond the longest pre scription. But in argument, the plaintiff’s counsel placed his claim upon art.-'2337 of the Civil Code, which declares dotal property inalienable during marriage, and upon arts. 3490, 2343, of the same Code, which make it imprescriptible during the same time. It was shown that the property had been given in marriage to .the plaintiff by her father, in 1811.

The defendant contends that to have the benefit of the articles of the Code .on which the plaintiff relies, she should have resorted .to the remedy pointed ,out by art. 2342, and should have brought an action to set aside the sale. Her counsel has alleged in this court that the form of action selected by the plaintiff.has operated a surprise upon her, and prevented him from making the proper defence.

We are of opinion that .the cause of action was not stated with sufficient precision in the pleadings, and that this omission was well calculated to produce surprise. Justice requires that the case should be remanded.

It is, therefore, ordered that the judgment in favor of the defendant be reversed, .and the case remanded for further proceedings, with leave to both parties to amend; the defendant and appellee paying the costs of this appeal.


text:
    Fuselier, Administrator, v. Robin.
    The power to represent a principal in the defence of actions, is not one of administration. Such a power can result only from the express terms of an instrument, or from an implication so clear as to be irresistible.
    A mandate which authorizes the agent “ poursuivre le recouvrement de toutes créanses, par toutes voies da droit—á ce iaire, paraitre en justice tant en demandant qu’en defendant,” empowers the agent where an action has been legally instituted against the principal, as by attachment, &c., to appear and accomplish the purpose of the mandate—the collection of idebts due the principal, by pleading in compensation or reconvention; but it confers no such general authority to defend actions as will render service of citation on the agent sufficient.
    When a principal is domiciled in siforeign country, having an agent here, an action against the former must be instituted before the court of tbe agent’s domicil.
    from the District Court of Pointe Coupée, Farrar, J.

      Cooley, for the

      Lacoste, for the appeliant.
   The judgment of the court was pronounced by

Slidell, J.

The first question to be considered in this case is, whether the power of attorney given to Delamare was sufficient to authorize a service of citation upon him, in a suit for a sum of money brought against his principal, a resident of a foreign country. The power so to represent the principa! .as defendant, is certainly not one of administration. If a judgment be obtained against the principal, it involves grave consequences. Its registry would create a judicial mortgage upon his real estate, and its execution would effect the alienation of his property. Such a power ought not to be lightly recognized. It should result from the express terms of the instrument, or at least by an •implication so clear as to be irresistible. In the present case the instrument contains a restricted power to sell tbe principal’s property situate in Pointe 'Coupée, “Suvoant qiiilpourra entire avisé ultérieurement.” Again, itexpressly ■authorizes the attorney to appear in court as plaintiff, to collect debts due to the constituent. But it is said the power contemplated the defence of suits. This is true; but the power was qualified, and must be restricted to the cases •specially enumerated “poursuivre le recouvrement de toutes créances par •toutes voies >de droit—á ce fain paraitre en justice tant en demandant qu’en •defendant.” Under this power if a shit were legally instituted against the .principal in Pointe Coupée, as it might have been by attachment &c., Delamare would have been authorized to appear and accomplish the purpose of the mandate, the collection of debts due to his principal, by pleading in compensation or reconvention. This interpretation satisfies the words of the power, and gives them effect.

In the interpretation of this power it is not improper to notice the difference of its language from that contained in another power, (which the plaintiff has offered in evidence,) given by Robin to Landnaux, by public act, a few days after the power to Delamare. This power, while more comprehensive in other respects, is also broader with regard to the defence of suits. Its language is unqualified—“paraitre en justice tant en demandant qu’en defendant.” We are, therefore, of opinion that Robin could not be made a party defendant in this action by the service of a citation upon Delamare.

A citation was also served upon Landreaux. This suit was brought in the District Court at Pointe Coupée. Landreaux was domiciled in New Orleans, and his principal was domiciled in a foreign country. Landreaux appeared and pleaded the exception of domicil, contending that the suit should have been brought in a court at New Orleans. This exception should have been sustained. Our Code has adopted as the general rule the maxim of the civil law, •actor sequitur forum rei. The rule is' founded upon the consideration that the party attacked will thus have the greatest facility in making his defence ; and the spirit of the rule seems to us to apply with equal force to the attorney of a parly domiciled abroad.

It is, therefore, decreed that the judgment of the District Court be reversed, and that the petition be dismissed as in case of non-suit; the plaintiff paying costs in both courts.


author: Rost, 3,

text:
    Knox v. The Police Jury of West Baton Rouge.
    , One who has constructed,’ a levée on tile lands of an absentee, under an adjudication mads by the police jury, which has been acceptedby the inspector, in case of the lands not selling for the amount of the adjudication and of there being no other property of the absentee within the parish, rapy recover the balance from the police jury.
    from the District Court of West Banton Rouge, Nickolls, .1.

      Elam, for the appellant.

      Brunot and Bennett, for the defendants.
   The judgment of the court was pronounced by

Rost, 3,

The police jury of West Baton Rouge caused to be sold to the lowest bidder, the making of a new levée and road, in front of a tract of land belonging to L. Dupuy, an absentee. Edward Brady and William McGrovan became the contractors, for 53000, and gave bond and security, to the satisfaction of the inspector of roads and levées. for the faithful performance of the contract. The work was completed in due time, and accepted by the inspector. Dupuy having failed to pay, an order of seizure was issued against the land, which was sold for 515. The plaintiff having subsequently purchased the claim of the contractors, called upon the police jury to pay it, and, and on their refusal to do so, this suit was instituted. The defence is a general denial and a special plea that the defendants are not legally bound to pay for making the lovee, as it is not only erected for the good and protection of the parish of West Baton Rouge, but also to protect a groat extent of territory, within the Stato, and beyond the limits of the parish. The case was tried before a jury, and a verdict obtained by the plaintiff for 5700 and interest. He has appealed.

The authority of the inspector is not denied in the answer. The allegations of the defendants that they, erected the levée not only for the good and protection of the parish of West Baton Rouge, but also to protect a much greater extent of territory, is inconsistent with the other facts of the answer. The adjudication is proved as alleged. It is in evideuce that the land was sold judicially for the sum of 515. It is admitted that Dupuy is an absentee, and there is no evidence that he has other property in the parish. Under the decisions of this court in the cases of Morgan v. Police Jury of Pointe Coupée, 11 La. p. 157, O’Brien v. Police Jury of Concordia, 2d An. 355, and Michel v. Police Jury of West Baton Rouge, 3d An. 123, the defendants are bound to pay the price of the adjudication.

It is, therefore, ordered that the judgment in this case be reversed, and that there be judgment in favor of the plaintiff for $2,985, with legal interest from the 6th of October, 1845, and costs in both courts.


author: Eustis, C. J.

text:
    Holmes et al. v. Barclay et al.
    An action will lie in ibis State for damages done to the property of the plaintiff by a steamer in another State, though by the laws of the latter the action would beheld tobe local. Such an action, under our laws, is a personal action.
    An attachment will not lie in an action ior damages ex delicto.

    fi'om the Fifth District Court of New Orleans, Buchanan, J.

      C. M. Randall, for the plaintiffs.

      Benjamin and Micou, for the defendants.
   judment court was pronounced

Eustis, C. J.

This is an action against the defendants for damages caused ’ by their steamer, the Belle Air, during the high flood of the Mississipdi, in June, 1844, in running into and destroying a brick warehouse and injuring a steam mill belonging to the plaintiffs, in the town of Chester, State of Illinois. The District Court gave judgment for the plaintiff for the sum of $3,509, with interest, and the defendants have appealed. '

That the damages to thé plaintiffs’ property was occasioned by the fault of those who had charge of the steamer, we think, with,the district judge, clearly results from the evidence; but we are notable to concur with him in his opinion as to the amount which the defendants are bound to reimburse the plaintiffs. We have, on several occasions, expressed our opinion bn the unsatisfactory character of all general estimates of damage resulting fi'om-the destruction of buildings and other works, without the details being given, which would enable us to test their accuracy. In this case the mill has been since repaired, but we have no evidence of the amount expended for the repairs, and have nothing before , us but declarations of the amount of the damage. This is certainly not the best evidence which it was in the power of the plaintiffs to produce of the amount of the damage sustained by them, and we feel bound to receive it with great reserve. The brick building was demolished, and we have evidence before us which will enable us to fix its value at the .time of the accident, in the summer of 1844.

As we consider the plaintiffs not liable fórremete damages, we think the sum of $1,600 isall they are entitled to recover, under the evidence.

The exception taken by the defendants that the plaintiffs’ action could not be maintained in this State, because under the common law, which prvailes in Illinois, it would be held to be local, and the plaintiffs’ remedy be confined to the county in which the cause of action originated, was properly overruled by the District Court. The present action is, under our laws, a personal action, and is not distinguished from any ordinary civil action as to the place or tribunal in which it may be brought.

This suit was commenced by attachment, and the judgment of this court i» asked upon a decision of the district judge discharging a rule taken by the defendants in order to have the attachment set aside. We have held that an attachment will not lie in an action for damages ex delicto, and the defendants, on their simple motion, could have had the attachment in this case set aside. But' the application was made upon certain specific grounds, other than this, as is contended by the counsel for the plaintiffs. One of them was, that the affidavit was insufficient to justify the attachment. At the time of the application the plaintiffs’ petition had been filed, which disclosed their cause of action, from which it resulted that no attachment could issue in the cause.

The affidavit was in the words of the statute of 1839 (Acts of 1839, p. 168, § 16) ipsissimis verbis. But the cause of action being one upon which no attachment could by law issue, the affidavit cannot be tested by that standard, which regulates cases in which attachments can issue. The cause of action being insufficient to maintain the attachment, the insufficiency of the affidavit to justify the attachment follows of course. The objection is not one of form, but is to the basis of the action. We, therefore, think the court ought not to have discharged the rule, but to have dissolved the attachment.

The defendants having, however, appeared and pleaded to the action, judgment must be rendered against them.

The judgment of the District Courtis, therefore, reversed, and it is ordered that the plaintiffs recover from the defendants, in solido, the sum of $1,600, with interest thereon from the 28th of March, 1845, at five percent; that the attachment be dissolved at the cost of the plaintiffs ; and that the plaintiffs pay the costs of this appeal, and the defendants the ordinary costs, exclusive of the attachment costs, in the District Court.


author: Siidell, J.

text:
    Same Case—On an Application for a Re-hearing.
    In an action in this State for damages for an offence or quasi-offence committed' in another State, hy the laws of which a jury might have allowed interest on the amount of damages assessed, the plaintiffs may recover interest from judicial demand on the estimation of the damage, where such interest is allowed as a part of the damages.
   ON an application for a re-hearing in this case, the judgment of the court was pronounced by

Siidell, J.

The interest in this case having been allowed by the District Court, we confirmed that portion of the judgment, because we considered it as part of the damages, and allowed as such. In Illinois, where the cause of action accrued, it would have been competent for a jury to "have allowed interest in making up the estimate of damages, and we thought the plaintiffs entitled to the same indemnity here.

Re-hearing refused.


author: Siideli., J.

text:
    Hayden v. Nutt et ux.
    In principle; no1 distinction can be made between a conventional transfer of property by alms'» band to bis wife for the payment of her dotal or paraphernal’ rights, and one made- under’ the form of judical proceedings. Per Curiam: Where there has been an amicable suit in which the wife charges, and the husband confesses,, a debt, and the judgment thus rendered! ifl executed by the sheriff, the parties, so far as creditors are concerned, stand subtantially in no better position than if they had merely clothed! their contract with- the form of &> notarial act.
    The law of the place where the- parties* intend, at the time of their marriage, to fix their domicil, when-there is no marriage contract or one without any provision in this respect,- and when that intention is unequivocally ascertained, and supported by a- subsequent removal to the place contemplated, governs the rights resulting from the marriage.
    Where a marriage is contracted in a State in which the husband was domiciled at the tirae,- and" there was no change of domicil, nor any absolute and clear intention to change1 it, bev fore the receipt by the husband of the- property of the wife-, the law off the place of the-marriage must control the rights of the wife.
    By the laws of Virginia and Mississippi money and’bank-stock bequeathed to a woman sub»ject to the condition of being returned to the estate of the testator in case of her dying, without issue living at her death, will become the property of her husband, by her marriage- and the reduction of it into possession by the husband. His obligation to return the amount to the estate of the testator in case of the wife’s death without issue Irving at the time; cannot prevent his acquiring the ownership of her interest, which is personalty.
    A husband cannot abandon, in favor of his wife; a claim due to- him, to the detriment of his creditors.
    Where money andbank-sto<% were bequeathed by one whoresided and died in the State-of Virginia, on the condition of its being returned to his estate in- case of the death of the legatee without issue living at the time of her death, and the legatee removes to1 this State and dies here without issue bequeathing the whole of the property to a third person, the bequest made in Virginia, beingvalid* by the laws of that State, it would* be to strain the policy of our laws to an unreasonable extent to refuse-to enforce it here, in a contest be*tween the executors of the first testator and the legatee] under the will made in this State.
    As a general rule,, husband and wife are incapable of contracting with each other. The only exceptions to this rule are those enumerated in art. 2421 C. C. Attempted contracts between husband and wife not included' in these exceptions, are nullities.
    Actions to annul contracts made- between husband and wife, not enumerated in the exceptions contained in art. 2421 G. C., are not prescribed by one year under arts.. 1982, 1989* C. C., the nullity in such cases resulting from the incapacity of the parties to contract. That prescription applies where the transfer takes place between parties capable of contracting.
    An act executed in another State in favor of a vendor by one who had purchased a- tract of land in this State, which recites that “for the consideration of one dollar, and the further consideration of securing to the vendor the payment of certain notes” executed for the price, he sells and conveys the property to his vendor, the act stipulating that if he should pay the said notes “then these presents and the estate hereby granted shall become utterly void” &c., duly recorded in the mortgage office of the-parish in which the land is situaated, will have the effect of a- mortgage in this State. C. C. 3257. Nor will the benefit of the mortgage he restricted to- the mortgagee ; the transferees- of the debts intended to be secured are entitled to the benefit of the accessory obligation. C. C. 2615.
    A mortgage duly registered in the mortgage office of tbe parish in which the land lies, will not be effected by the subsequent division of the 'parish, and the establishment of a separate parish embracing the land mortgaged.

      APPEAL from the District Court of Madison, Selby, J. This appeal was taken by the plaintiff from a judgment rendered on the verdict of a jury, in favor of the defendants.

      Stockton and Steele, for the appellant.

      Short, Thomas and Snyder, for the defendants.
   The judgment of the court was pronounced by

Siideli., J.

The plaintiff is a creditor of Nutt, and instituted this suit for the purpose of setting aside a judgment rendered in favor of Mrs. Nutt against her husband, and a judicial sale of lands, slaves, cattle and other property made to her in block, under execution, for a total price of $16,600. The plaintiff charged that the judicial proceedings between the husband and wife were collusive and fraudulent, and that the alleged indebtedness of the husband to her never existed.

A branch of this case, upon the appeal of another creditor, has been before us. See Dennistoun v. Nutt, 2 Annual, 483. We then expressed the opinion that, in principle, no distinction was to be made between a conventional transfer of property made by the husband to the wife for the payment of her dotal or paraphernal rights, and one made under the form and by the instrumentality of judicial proceedings, upon confession. To this opinion we adhere. Where there has been an amicable suit, in which the wife charges, and the husband confesses, an indebtedness, and the judgment thus rendered is executed through the sheriff, the parties, so far as creditors are concerned, stand substantially in no better position than if they had merely clothed their contract with the form of a notarial act.

We shall therefore examine the questions presented in this case as though, in August, 1844, the date of the sheriff’s deed, Nutt had executed in favor of his wife a sale of the lands, slaves and other property, at the price of $16,600, and in partial satisfaction of an admitted indebtedness to her of $26,883 70, for so much money, her paraphernal property, received by him.

The petition in that cause stated two sources of the wife’s claims, one was her interest in the estate of her father, from whom she alleged that she inherited, in the year 1839, in her own right, the sum of $10,441 85. The other was, as the universal legatee of her sister Susan E. Blake; who, it was alleged, died in 1839, leaving an estate to an amount of $16,441 85, the whole of which the husband received, and appropriated to his own use.

With regard to the first claim, the material facts are as follows: Adeline Blake, the wife of Nutt, was a native of Virginia. Her father resided in that State, and died there in 1831. By his will he gave his daughters, Susan, Catharine, and Adeline, thirty-five shares each of Virginia bank stock, to be held in trust by trustees named in the will, until each of them should arrive at the age of twenty-one years or marry; and, in the event of either of them dying without leaving a child or children living at the time of their death, the said bank stock so given to them was to return back, and be considered as the testator’s estate, and be divided equally among his other children. After making other legacies the testator directed that the residue of his estate should be' divided among his six children, Frances Brockenbrough, Susan, Catharine, Adeline, Benjamin and Jane; “the portion given to the last fiye named to be held in trust by my trustee hereinafter named, upon the same conditions and limitations as is directed and made with respect to the other devises to them in this my will,” Brockenbrough was named executor, and also trustee of Susan and Adeline.

, Nutt, who had been a resident of Virgieia, came to Mississippi, in the fall of 1832. He had been there previously for two or three years. Adeline came to Mississippi, in 1832. They remained at Vicksburg, in that State, until March, 1833, when they were married there. Witnesses acquainted with them, at that time, say that it was stated by both parties in conversation before their mrrriage, that they intended to live at New Orleans. On the morning of the marriage they left Vicksbui’g, and went to New .Orleans. Nutt was a physician, and perhaps contemplaited the practice of his profession there, as he had done at Vicksburg. They remained however, but two weeks in New Orleans, when they returned to Mississippi. Awíí.Ieft his wife at a watering place in Mississippi, went to Virginia, received a part of his wife’s, estate from Brockenbrough, and returned to Vicksburg, where he kept house, and resided with his wife until the year 1837. He bought lands in Louisiana in 1834, and occasionally visited them. In 1835, he had some negotiation with a party with, regard to erecting a dwelling house on his land ; and told this person that he intended to remove thither and reside. But this intention was not carried out until 1837, when he took up his residence upon the lands in the parish of Madison, and has lived there, with his wife, ever since. In May, 1833, when Nutt receipted to Brockenbrough in Virginia, he described himself in the receipt as of New Orleans. In another receipt, in 1834, he describes himself as of Mississippi. In deeds executed by him in 1834 and 1835 he described himself ns of the town of Vicksburg. The bank stock was received by him from Brockenbrough in Virginia, in 1833. His amount was $3,500; and it was transferred to Nutt personally. In 1834, he received in money, from Brockenbrough, in Virginia, about $5,000. The only other payment from the estate on his wife’s account was a nett sum of $610 41, received by Nutt, in 1839.

It may bo conceded that the defendants’ counsel is correct in assuming that the marital rights of those parties must be regulated by the laws of their matrimonial domicil. What then was the matrimonial domicil at the time when the husband received the $5,000 and the stock from Brockenbrough? The learned counsel for the defendants agree that they intended Louisiana to be their domicil; that they followed up that intention by an immediate removal; and by even their brief sojourn at New Orleans acquired a domicil there. We do not concur in this view of the facts, nor in the legal conclusion deduced from it. We think the testimony does not authorize the belief that they had formed the absolute determination to establish themselves-at New Orleans; and their subsequent conduct is the safest guide to their real intention. It was, we think, to live at New Orleans, if it suited them. They went there; remained two or three weeks ; it did not suit them; and they returned to Mississippi, where they kept house and were domiciled until 1837.

It is far from our desire to disturb the well settled principle that the law of the place where, at the time of the marriage, the parties intend to fix their domicil, is to govern the rights resulting from that marriage, when that intention is unequivocally ascertained, and supported by a subsequent removal to the place contemplated, within a reasonable time. The doctrine is as ancient as the Pandects, and seems in a remarkable degree to have received the assent of commentators upon the conflict of laws, who are so often found at variance with each other. But the impropriety of applying the doctrine to the present case is perhaps best illustratrated by a brief reference to some of the cases which the counsel for the defence have cited. In Martin v. Ford, the authority of Cujas was cited with approbation. “ Mulier non agit ubi matrimonium ¡contraxit; sod ubi ex .matrimonio migrav.it, vel diver tit, .agit.” And it was said by Martin, J..: “ We think that it may be safely laid down as a principle that .the matrimonial rights of a -wife, who, asín the present case; marries with the intention of an instant removal, for residence in.another sítate, are to be regulated by laws of her intended domicil, where no marriage .contract is made, ■or one without any provision in this respect.” But what were the facts to which the doctrine was applied.? The slaves which formed the subject of controversy were .the property, and ,in the possession, of the wife, .in the State of Mississippi, before her marriage. She was married in Mississippi; but her husband had, at the time, a furnished house andfarm in Louisiana, and had sent .a wagon to remove his wife’s property to Louisiana. The wife had previously .expressed her intention to reside permanently in Louisiana—left Mississippi for Louisiana the day after the .marriage, and lived .there with her husband until ihis death. Before the marriage, .the intended husband executed a deed of ¡settlement for the .slaves, who were conveyed to trustees for her benefit. The .husband was considered, under this state of facts,.as having never acquired any .right .to the slaves.

In South's case, it was held to be the settled doctrine that, if parties contracted marriage with a .bona fide intention of making Louisiana the place of ¡their .matrimonial residence, .and in pursuance of such intention did,. within a reasonable time, become domiciled in this State, the property belonging to the wife before marriage, and received by the husband afterwards, or at the time, remained her separate property. The facts were that South, who married .sometime hetween .the years 1814 and 1820, was, at the time of his marriage, .exercising.and enjoying the rights of a citizen of Louisiana; sometimes acting .as.a member of the .police jury in a parish'of Louisiana; sometimes as a representative in the house of assembly ; frequently as a juror. He also acted, .at the time of the marriage, as overseer of his father’s plantation in Louisiana, .and lived there for some time after his marriage ; .and, although subsequently he had a town house at Natchez, still divided his time between ,the Louisiana and Mississippi residences, .and did not relinquish his Louisiana citizenship. There ■were also other circumstances of a similar import; and the removal of .the wife .to Louisiana was proved to have been in pursuance of a previous .declared intention of .the .parties.

Upon a sound construction .of these authorities, we cannot .consider the law .of Louisiana .as operating upon the rights of ilifs. Nutt, with regal'd to the sum .of $5,000, .and the.stock received by her husband,, and treat them as parapher,nal. At .the time .of the marriage Nutt was domiciled in Mississippi. The .marriage was .contracted there. That domicil was not changed before the receipt .of the .money and stock; nor was there an absolute and clear intention to .change it, the frustration .of which could perhaps be regarded ,as .a fraud upon .the wife. The law of Mississippi must, therefore, control the wife’s rights.

Under that law, we conceive the wife’s pretensions cannot be sustained. Her .personalty, reduced into possession in the years 1833 and 1834, .became his jure .mariii. It cannot now be .treated as her paraphernal estate, because .the parties, .some years subsequently, .chose to .remove to this State—a removal evidently disconnected with their original .views.

We have-considered this .branch of .ihe case with reference to the position .assumed by Mrs. Nutt, that her right as legatee was one of absolute ownership of what was bequeathed to her .by the will of her father. But if, on the other .hand, we take .the legacy as.it really was—a legacy, in terms not constituting it to her separate use, with a right of reversion to the estate of her father, if she should die without issue, does her case stand upon a better footing 1

We have not been informed by 'Counsel what would be the effect, by the laws of -Virginia or Mississippi,’ of the receipt of the money by the husband, or the transfer of the stock to his name, under such circumstances. The result of our examination is, that it does not- place the. wife on more advantageous ground than she would occupy under the hypothesis assumed by herself. The legacy gave her a life interest in the stock and money. That interest passed to him by marriage and.the reduction into his possession. His obligation to return so much to the estate of Blake, if she died without issue, did not prevent his acquiring the ownership of her interest, which was personalty.

It is, therefore, clear that the wife was not, at -the date ef the rendition of the judgment in her favor against her husband, the creditor of her husband, as alleged in her petition, and confessed by him, ■“ for the sum of $10,441 85, inherited from her father Benjamin Blake, deceased, in the year, 1839, in her own right,” “ which her said husband received and appropriated to his own use and -benefit, without her .authority and consent.” The utmost extent to which we could treat her as a creditor on that score, would be for the sum of $610 40, ■received by Nutt in 1839, after the domicil was acquired in this State.

The material facts .with regard to that portion of her claim which she makes -as heir-of her sister Susan, are as follows : Susans share, under her father’s will, was about the same as .that of Mrs. Nutt. She had a legacy of thirty-five -shares of-bank stock, amounting to $3,£00. Whether Nutt. who received the certificate for her, appropriated it to his own use, does not clearly appear. He appears to have collected m cash for Susan Blake from Brockenbrough, about $2,000 or $3,000. He also collected for her a legacy of $5,000 left- to her by J. B. Blake, and a sum of $1,000 from the sale of a slave belonging to her. Susan Blake made -a will in -1838, and died in 1839. She had lived with Nutt's family in Mississippi, and afterwards when they came to reside in Louisiana. By her -will she gave her entire estate to Mrs. Nutt. She states in her will .that her property had been in the hands of Nutt, and that he was not to pay •interest for it. She enumerates a sum of $6,$80 as being in his hands, being the Blake legacy and the price of -the slave; and it is also to be inferred from ■the will -that he was still her debtor for what was received from her father’s •estate. On the other hand, she recognizes him as her creditor for board and medical attendance, pursuant to her agreement with him. This will was probated ; .but there is nothing to show that the succession of Susan Blake was ■ever administered. Although Mrs. Nutt was the universal legatee, she could only take the residue of the succession after payment of its debts. What they were is not ascertained. That Nutt was a creditor appears from the will; and we do not see with what propriety he -could, (as-counsel say he had the right to do,) abandon an important claim, in favor of his wife, and to the detriment .of his creditors. Such, however, was the course pursed ; for Mrs. Nutt claimed the entire amount .of the unadministered succession of Susan Blake, and had judgment upon confession accordingly. Moreover the judgment was fora sum considerably larger than was received by Nutt on Susan Blake's account, during her life time.

But there is another serious objection to Mrs. Nutt's -claim as heir of her sister; and which is quite independent of the facts that the succession was not administered, that an important credit was abandoned, and that the amount claimed was larger than Nutt liad received on Susan Blake’s account during her life time.

By the terms of the will of Benjamin Blake, the legacy to Susan was not absolute, but conditional. In the event of her death, without issue, the amount bequated to her was to return back, be considered ns part of the testator’s es„ late, and be equally divided among the other children. When Nutt, as the agent of the legatee, received her share from Brockenbrougli, he and his principal being then domiciled in Mississippi, a refunding bond was given by him to Brockenbrougli, for the restoration of the amount to the succession of Benjamin Blake, if Susan should die without issue. Upon the faith of that bond, Brockenbrougli paid the money.

No argument has been adduced to show that the condition of the legacy violated any law of the State of Virginia; nor that there was any thing in the laws of Mississippi which would have prevented Brockenbrougli, as the executor of Benjamin Blake, from recovering the amount of the legacy from the succession of Susan Blake, if her succession had been opened there, or from Nutt, upon the bond of indemnity.

But it is said that the property was in this State, when the event happened under which the right of return took effect; that the clause created a substitution; conflicts with a prohibition of our law; and that, consequently, the right of Benjamin Blake’s succession cannot be enforced. The case of Harper v. Stanborough, 2 Annual 337, is cited.

In that case the controversy was with regard to slaves, which our law considers as real estate, and the issue of slaves born in this State; and the contest was between William Harper, the surviving child of the testator, claiming under the limitation of the executory devise, and third persons, who had purchased in good faith at the sale of the succession of Jesse Harper. The court held that it would not violate the policy of our prohibitive laws by aiding William Harper in disturbing the purchasers. The present case is certainly dissimilar. Here the question involves a sum of money. No creditors of Susan Blake are interested in the controversy, nor purchasers from her succession. Waiving the consideration that her succession has not been administered, and that there has been no judicial action by the probate court upon the rights of the legatee under Susan Blake’s^ will, let us strip the case of any technical difficulties, and suppose that the representative of Benjamin Blake’s succession, and Adeline Blake, as the legatee of Susan, were before us, claiming from Susan Blake’s administrator a distirbution of her estate. Adeline Blake would demand the whole estate under the will; and Brockenbrougli, as the executor and trustee of the children of his testator, would demand the restoration of the amount which had been paid to Susan Blake. It seems to us that in such a contest Brockenbrougli would prevail. To the tacit obligation of Susan Blake to respect the condition attached to the bequest was superadded a new and express contract, at the time of receiving the legacy, that the amount should be restored if she died without issue. There is no reason to believe that this conditional contract for the payment of a sum of money at a future time, was invalid under the laws of Virginia or Mississippi: and it wonld be straining the policy of our own laws to an unreasonable extent, to refuse to enforce it here in a contest between the legatee of Susan Blake and the executor of her father’s will. Brockenbrougli, in his testimony, speaks, with some warmth perhaps, hut certainly with reason—“ I never knewanything of the transactions between Susan E. Blake and C. R. Null. They lived in Mississippi; I, in Virginia. But this I know, in justice and equity, four-fifths of Susan's estate left by her father should return to the estate of B. Blake, as designed by his will, and for which I hold a refunding bond.” The claim then of Mrs. Nult'was, we think, unfounded, as to the four-fifths of the amount received by Nult, as agent of Susan Blake, from her father’s estate.

The result of the examination of the two claims is, that the indebtedness of the husband to his wife could not have exceeded the sum of $8000.

But, under the guize of judicial proceedings, conducted amicably aud by confession, and which in law are of no greater force than a conventional transfer, Null has conveyed to his wife a property, which at the standard of a sheri if’s sale was worth $16,600, and which the appraisers at the time estimated at a cash value of $24,884 89. This sale is made by an embarassed debtor, pursued at the time by other creditors, confessing a liability to his wife far beyond what was legally due, and, for ought that appears to the contrary, sweeping away, by a sale in block, his entire estate. We are constrained to say that we cannot reconcile the transaction with a proper sense of duty to his creditors.

The law applicable to the contracts of husband and wife has been explained in the case of Spurlock v. Maincr, 1 Annual, 305, and need not now be considered at large. We then showed that, by the general rule, the husband and wife are incapable of contracting with each other. That the exception is in the three cases enumerated in article 2421 of the Code. That out of these enumerated exceptions attempted contracts between husband and wife are nullities. We are of opinion that the present case does not fall within the exceptions. A large portion of the wife’s claim had no legal existence. The utmost amount due fell far below the price at which a large estate was sold in block to the wife. The circumstances are inconsistent with the belief that the sale was effected for the legitimate purpose of satisfying a debt believed to have a real and legal existence to the extent claimed. We are bound, therefore, to give the creditor of the husband relief, by setting aside the sale.

The prescription applicable to a case of this kind is not that established by articles 1982 and 1989 of the Code. That prescription applies to cases where the transfer takes place between parties capable of contracting. The nullity in this case flows from the .incapacity of the parties to make a contract not legitimately falling within the exceptions enumerated in the 2421st article of the Code.

The plaintiff also asked to be recognized as the holder of a conventional mortgage upon the undivided half of a tract of land, forming part of the property bought by. Mrs. Nutt at the sheriff’s sale. This undivided interest was bought by Nult from Dawson, in 1835; and he executed a deed in the form usual in common law States, by which he declared that, “ for the consideration of one dollar, and the further consideration of securing to said Dawson the payment of four notes, etc.,” (those given for the price of the land,) he sells and conveys, etc., the property in Carroll, etc., describing it, with a proviso that if he should pay the notes, “then these presents, and the estate hereby granted, shall become utterly void and cease and determine.” This deed was recorded in the mortgage book in the parish of Carroll, where the land lay, in 1835. The parish of Madison, subsequently created, comprised these lands, and the instrument was recorded as a mortgage in the latter parish, in 1845.

This contract would certainly be considered a mortgage in the State of Mississippi, where it was executed ; and though it is not expressed in the language in which mortgages aro usually expressed in this State, we think it may be fairly construed as falling under that class of contracts. It is, in its terms, an accessory contract, intended for the assurance of the payment of a principal contract. It is difficult to exclude this instrument, taken in its fair intendment, from the scope of the definition given in our Code—“ the conventional mortgage is a contract by which a person binds- the whole of his property, or a portion of it only, in favor of another, to secure the execution of some engagement, but without divesting himself of the possession." C. C. 3257. Such was the view expressed'by the coai-tin Smoot v. Russell, 1 Mart. N. S. 524, commenting upon a similar instrument with reference to the corresponding article in the Code of 1808. “ It would seem then, ” said the court, “to come almost within the letter of the definition, and there would be little difficulty on our pa-rtin saying that it came completely within it, were it not for a subsequent provision of the same authority, article 6, which declares that there is no conventional mortgage except tliat which is expressly stipulated in the act or writing made-between the partiesit is never understood, and is- not inferred from the nature of the act.” This diffficulty has ceased to exist, for the article thus noticed has been omitted in the new Code.

We see no reason, from the language of the act, to restrict the benefit of the mortgage to Dawson, the mortgagee. Its purpose was to secure the debts named in it; and the transferees of those debts are entitled to the benefit of the accessory. C. C. 2615.

We do not think the right acquired by the inscription of this mortgage in the parish of Carroll, was affected by the subsequent establishment of the parish of Madison, which embraced the lands mortgaged.

It is, therefore, decreed that the judgment of thecourt below be reversed. It is further decreed that the plaintiff, Noah Hayden, be recognized as the conventional mortgagee for thesum of $1097 36, with-interest on said sum from the 4th day of February, 1838, of the following lands, to wit: the lands- described in the indenture,- or deed of mortgage opened in this cause, as the- undivided half of the lots or parcel's of land situate in the parish of Carroll, (now the parish of Madison,) numbered 24, 25, 26, 27, and 28, in township- eighteen, of range thirteen east, in the district of lands north: of Red river, Louisiana, containing in all eight hundred and ten- acres; and- that the said lands be sold to pay the said- mortgagee, the sum and interest aforesaid', and costs of this suit. It is further decreed that the judgment rendered on the 7th May, 1844, by the court of the Ninth Judicial District of Louisiana, sitting in and for the parish Madison, in favor of Adeline Blalce, against her husband, Conway R. Nutt, for the sum of $26,883 70 and interest, with legal mortgage, and also the adjudication made at sheriff sale to the said Adeline Blake, upon execution of said judgment, and the sheriff’s deed in pursuance of said adjudication, of which said judgment, adjudication and sheriff’s deed copies are-on file in iihis-cause, and whereunto reference is now made, be adjudged null and void, so far as they affect (he said Noah Hayden, and that the said Noah Hayden have leave t® seize and sell the said lands, slaves and property in said sheriff’s deed recited, upon fieri facias issuing upon the judgment,, obtained for his use against Conway R. Nutt, on the I7th day of May, 1844, of which judgment a copy is on-file in this cause,- as though said adjudication and sheriff’s deed to the- said Adeline Blake had never Been made.

It is further decreed that.fthe said Adeline Blake, be recognized as a creditor of the said Conway R. Null, with legal mortgage, for the sum of $610 41, and interest from this date, being so much money, her paraphernal property, receiverl by her said husband on 1st July, 1839, and by him converted to his own use, said legal mortgage to date from the first day of July, 1839, and to take precedence of the claim of said Hayden as to all the real estate pnd slaves comprehended in said sheriff’s deed, save only the real estate upon which the said Hayden is herein above recognized as a creditor by convential mortgage.

* It is further decreed that, whatever claims and rights of legal mortgage the said Adeline Blake may have against the said Conway R. Null, by reason of her being the legatee of Su^an Blake, be reserved, with leave to the said Adeline Blake to prosecute the same by way of third opposition or otherwise. And it is further decreed that, the said defendants pay the costs in both courts.


text:
    Mayor etc. of Thibodeaux v. Maggioli.
    'Where judgment is rendered in favor of a municipal corporation in an action for the removal of buildings alleged to be on land reserved by law for a public road, if the jury find that they are in a public place, and do not come under the provisions of art. 858 C. C., no damages can be allowed to the proprietor.
    No silence or length of time can deprive a corporation of its power over public places. Its inaction may give an estate'by sufferances, but notliingmore.
    A question as to the breadth of land which a municipal corporation has a right to require for the construction of a road and levée is, within certain limits, an administrative question, to be left to the discretion of the local authority.
    from the jDistriet Court of Lafourche Interior, Randall, J.

      J. C. Beatty, for the appellants.

      C. A. Johnson, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim the demolition and removal of certain wooden buildings, alleged to be on the land reserved by law for a public road, on the left bank of the bayou Lafourche, and within the limits of their jurisdiction. The defence is a general denial, and a prayer that, should the judgment be in favor of the plaintiffs, the defendant may have judgment for $10,000 damages.

The case was tried before a jury, who returned a verdict in favor of the plaintiffs, and allowing the defendant Maggioli-tvro year’s rent of the building to be removed, at the rate of $17 per month. On this verdict the court decreed that the building be removed, and that the plaintiffs pay Maggioli $408 damages. The plaintiffs appealed.

It is clear that this judgment cannot stand. The jury having found that the buildings were on a public place, and not considering.them as coming under the provisions of art. 858, C. C., no damages should have been allowed. It is contended by the defendant’s counsel that the plaintiffs and the police jury before them, suffered the defendants and others to place the levée nearer to the stream, and to occupy and build upon the ground now claimed without opposition of any kind, and that they are bound by their implied assent and lapse of time. No silence or length of time could deprive the corporation or its predicessors of their powers over public places. Their inaction gave the defendant’s an estate at sufferanoe, and nothing, more.. Mayor et al. v, Magnon, 4 Martin p. 2.

The defendant farther alleges that he has already furnished one road to the public, and that he is not bound to furnish another, without compensation. H© relies in support of that position on the case of Henderson et al. v. Mayor etc. of New Orleans, 5 La. 423. We have doubts as to the correctness of that decision; but it appears to us-that the present case does not necessarily come under it. The pleadings concede that the defendant’s lots are bounded by the public road passing on the bank of the bayou, and the only question is as to the breadth of land which the plaintiffs have the right to require for the road and levée. This, within limits which have not been exceeded in the present case, is an administrative question, left to the discretion of the local authority, with which nothing requires that we should interfere.

The premises considered, it is ordered that the judgment be amended so as to allow the defendant no damages, and that as amended it be affirmed, with COStSv


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    Moore et al. v. Thibodeaux.
    The surety in a tutor's bond cannot be released, for the purpose of testifying in. favor of the tutor in an action against the latter to compel him to account, though other and sufficient security be offered by the tutor.
    Where a wife, after remaining in this State, where her husband wan domiciled, removes to another in conformity with the decree of her husband, on account of superior advantages supposed to be afforded by the latter for rearing and educating their children, and does'not return, property acquired by the husband in this State during the absence of the wife will be community property. Per Curiam: We cannot say that, in discharging, the duties of a mother at the place selected by her husband, she was rendering him no assistance.
    Though a party have no authority to receive the funds of a succession or to pay its debts, yet if the funds of the succession have been applied by him as the law would have applied them, the heir will be bound by such payments, and he will be entitled to credit for tlieir amount in a settlement with the heirs.
    A receipt so»s seing- privé given to an administrator on the payment of an- account, is not evidence that the account was due, if the fact of its being due be disputed.
    from the District Court of Terrebonne, Burk, J.

      W. Hall, for the plaintiffs.

      C, Beatty, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a suit to compel the defendant to account, as tutor of the minor children of Emmor Moore, deceased. The defendant filed an account, which was opposed by the plaintiffs, and upon that opposition a judgment was rendered in their favor for the amount claimed. The plaintiffs and defendant both appealed.

It is in evidence that the succession of Emmor Moore was opened in 1835, and that, shortly after, the defendant was appointed tutor ad Iona to the minor heirs, Jeffries Moore, Emily Moore, Mary Moore and Emmor Moore, who were at the time in the State of Ohio, with their mother, the surviving wife of the deceased'. After the death of Emmor Moore, and before the appointment of the defendant as tutor, James Moore, another minor heir, died. Joseph H. Moore and Mrs. Jeffries, were the only heirs of age. No administrator was appointed'to settle the succession; but, on the application of the defendant, acting as tutor, the property was sold for cash to pay the debts, and the proceeds paid over by him to the heir of age, Joseph H. Moore, who bound himself to apply them to the payment of the debts.

In 1830, Sarah W. Baker, the surviving widow, was appointed guardian of three of the minors, in the State of Ohio, and gave Joseph II. Moore a power of attorney to manage the affairs of the minors in Louisiana. Joseph H. Moore was himself appointed, in the State of Mississippi, guardian of Emily Moore the remaining minor heir. Jeffries Moore, subsequently died, leaving as his heir Ella Moore, who is represented by Evelina Applegate, her mother and tutrix. Mary and Emily subsequently ’married, and with the tutrix of Ella, are the plaintiffs in this suit.

They allege that their father left, at his.death, the undivided half of the plantation and slaves described in their petition as his sole property, .his wife never having resided in Louisiana, and no .community having existed-between them; that the defendant caused said property to he sold, and .received as the price of it §28,847, of which they .claim their portion, as heirs of their father and of their brother James. They pray that the -tutor be made to account and pay over to them their respective shares, with interest. The answer states that the property was in community , that the -succession of Emmor Moore being insolvent, a syndic should have been appointed by the -creditors ; but that instead of 'this, the -defendant and Joseph Ii. Moore, constituted themselves syndics, without opposition from the creditors; that tbe'defendant paid over She amount-of the sale to-Joseph II. Moore, who applied it faithfully to the payment of the debts-of ’the -succession, as-appears by the account annexed to the answer.

The plaintiffs opposed the account -filed on the following grounds; 1st. That Moore had no authority to receive the 'proceeds of the sale from the defendant. 2d. That the claims against the succession placed on the account as having been paid by Joseph II. Moore, were prescribed before such payment, if any there was; and, further, that they were prescribed before they were presented to the heirs. The plaintiffs also asked -proof of the existence of a portion of the debts mentioned in the account as having been paid.

There -were several bills of exceptions taken during the trial, one of which it is necessary to notice.

The witness Jessie Batey was offered ito' prove item no. 4 in the account, aad his testimony having been objected to, on the ground that he was the surety of the tutor in his bond, the defendant applied to have the witness released from his obligations as surety, in order that he might testify in his behalf, and on condition that the said defendant should furnish new and sufficient security, in the amount required bylaw. The court-granted the application, new security was given, and the court ordered that Jessie Batey be released. The counsel for the plaintiffs properly excepted to these proceedings. This is not one of the cases in which courts of justice have power to release a surety for the purpose of removing his disability to testify. The liability of the surety to the heirs for the previous maladministration of the tutor was fixed, and could be neither increased nor diminished by the-act of the court.

The defendant took several bills of exception to the refusal of the judge to admit evidence offered by him. But as this evidence, if received, could not have changed the conclusions to which we have come, it is unnecessary to notice them. ’

On the merits, the first question presented to our consideration is, whether there was a community of acquets and gains between Emmor Moore and his wife. It is not denied that Moore resided in Louisiana; and the evidence shows that his wife came to this State, and, after remaining here a few months,’ went to the State of Ohio with her children, and did not return. It is contended by the plaintiffs’ counsel that the property left in Louisiana by Emmor Moore was acquired by his sole exertions, unassisted by his wife, and belongs exclusively to his heirs. We are of opinion that the law, as well as the facts, ■of the case, aro against that conclusion. Asa general rule, the domicil of the wife is that of her husband, and she can have no other without a legal cause shown.

It is proved that the mother of the plaintiffs removed to Ohio, in conformity with the desire of her husband, on account of the superior advantages which he supposed that location to possess, for rearing and educating his children. We could not say that, in discharging the d uties of a mother at the place selected by her husband, she was rendering him no assistance. The performance of those duties out of the State, cannot be made a pretext for cutting her off from her share in the community.

The claims against the succession were not prescribed, at the time they purport to have been paid by Joseph II. Moore; and, if the payments made by him on account of the succession were valid, the plaintiffs are bound by them. It is urged that those payments are not valid, because Joseph H. Moore had no warrant of law to receive the funds of the succession, or to pay its debts. It is true, he acted without authority; but, having acted, the first question to be •determined now is, whether the funds were applied fay him as the law would have applied them. Many things are forbidden by law to be done, which, when done, become valid and binding. Where courts of justice have any discretion, they will not disregard an illegal act, if they cannot do so without enabling parties to commit a fraud. On that ground married women and minors ■claiming the benefit of restitution for the illegal alienation of their property, must reimburse the sums received for it, when it is proved that those sums have .accrued to -their benefit. C. C. 2226. Without going into any inquiry ns to the manner in which the payments were made, if the debts paid were due by the succession, the defendautmust be .credited with those payments in his settlement with the heirs.

We feel bound to state, however, that the proceedings of the defendant in this succession, have been extremely irregular, and that no credits can be allowed her for payments made, .unless the existence and reality of the debts paid .are placed beyond all reasonable doubt.

Items 5, 6, 7, 8, 9,10, 11 and 12 of the account amount together to the sum <¡>f $1,788 42These debts are not denied, and prescription is the only plea filed in relation to them. Prescription had not accrued when they were paid .by Moore, and we have already said that this plea cannot avail the plaintiffs.

It is proved .that the firm of Hoops Sf Moore was a creditor of the succession for $25,087. This debt is acknowledged ,to have been paid, except a small .balance, for which Moore, one of .the partners, is bound .to account to the firm. Items nos. 1 and 2 of the account were paid by Hoops Sf Moore, and are no ■doubt included in their claim. Item no,. 3 is not proved. A receipt under private signature to an administrator in payment of an account, is not evidence that the account was-due. Item no. 4 is not proved, and the teslimeny of Jessie Batey,.offered in support of it, is inadmissible.

The defendant has proved payments to the amount of $26,875 42. This sum deducted from the price of adjudication leaves a balance of $1951 58, .one half of which belongs to the heirs of Emmor Moore. Out of this half, each of the plaintiff's is entitled to the sum of $156 78, with interest from the 29th June, 1835, till paid, at the rate of five per cent per annum.

It is, therefore, ordered that the judgment in this case be reversed, and that each of the plaintiffs recover of the defendant the, sum of $156 78, with interest at the rate of five per cent per annum, from the 29th June, 1835, tiil paid, and the costs of the District Court; those of this appeal to be paid by the plaintiffs and appellees.


text:
    Succession of Hebert.
    Where a surviving father claims to have the interests of minor children in property forming part of the community of acquets and gains adjudicated to him, and the adjudication is recommended by a family-meeting, the under-tutor alone has a right to oppose it in behalf of the minors. Relations of the minors have no right to interfere in such a case, on their behalf. In the event of a collision of interest between the father and natural tutor and the child, the duty of representing the minor is confided to the under-tutor.
    from the District Court of Assumption, Randall, J.

      Janin and M. Taylor, for the appellant.

      Mathiat, for the opponent.
   The of the court was pronounced by

Eustis, C. J.

This is an appeal taken by Rosemond Simoneau, from a decree of the court of the Fifth Judicial District, by which a new appraisement was ordered of certain property which he owned in common with his minor children, who held in the right of the their deceased mother. The appellant had claimed to have the interest of his children in the property adjudicated to him at the appraisement made in the inventory of the succession of their deceased mother, and a family-meeting had advised the adjudication. The effect of the decision appealed from is to defeat this adjudication, as demanded by the surviving husband at the original appraisement, a new one having been ordered, and another family-meeting being also ordered to deliberate on the interests of the minors touching the adjudication thus demanded by the father. It appears that the application for the adjudication was opposed in the District Court by the maternal uncle of the minor, who has appeared as appellee in this suit. His light to interfere as a party in the proceedings was contested by the appellant, on the ground of want of interest, and that the under-tutor was the only -party competent to appear for -the minors against the father, who was their natural tutor- The district judge however, overruled the objections, and on this opposition proceedings were had and evidence was taken which resulted in the decree of the District Court, from which this appeal was taken.

-We think the opposition ought to have been dismissed, its allegations not having been sustained' We do not undertake to lay down any limit to the discretion of courts in protecting the property of minors from spoliation. The law gives ample powers to courts to effect that object. It supposes that their interests are safe in the hands of the tutor and under-tutor, acting uuder the supervision of courts; and we cannot recognize the right of relations to interfere, on all occasions, in the judicial proceedings between the father and the legal representative of the children. Those who take upon themselves to protect the property of children, ought to bear in Blind that they have other interests besides pecuniary ones; and that their future welfare is depehdant in a great measure on the good repute'and well being of the father. The law in committing the interests of the child to the instinct of parental affection, has made the best provision for their protection; and, in the event of a collision of interest between the father and child, the duty of representing the minor is confided to the under-tutor.

We are led to make these remarks because the father is charged with fraud in the opposition made by the uncle, and because we find no ground for the accusation, and we believe the scandal.of this suit will do great injury to the minors, and, on a deliberate view of their best interests, it were better that they had been left as the law has left them, to the good faith of the father and the supervision of the under-tutor. The adjudication of the common property to the surviving parent is not founded upon the narrow consideration of pecuniary advantage, but, as has been well observed by counsel, in the greatest good of the children. It enables the parent to continue the former business of the community, and secures to the children their home with all its associations.

Notwithstanding this opinion which we entertain, we are called upon to affirm or reverse the decision of the district judge. The judge was of opinion that the family-meeting was not properly composed, and refused to homologate their proceedings. Although the nullity resulting from this informality may not -have been radical, yet, as we cannot say that the judge erred in refusing to act on their deliberations in confirming the adjudication, it is obvious that his decree must stand in this respect. As so much time has elapsed since the •appraisement, which was made on the 1st of February, 1848, there would be no propriety in disturbing the order for a new appraisement at this time.

The judgment of the District Court is, therefore, affirmed, with costs; and it is further ordered that the opposition of Drosin Hebert be dismissed.


text:
    Mourain v. Delamre.
    Although in ordinary partnerships each partner is entitled to interest on all sums advanced by him, he cannot claim conventional interest on those sums without an agreement in writing by the other partners to pay it. The circumstance that conventional interest was charged in the books kept by the party who claims it, and in the accounts rendered by him to the plaintiff from time to time, cannot, in partnerships of this kind, be considered proof of such an agreement.
    from the District Court of Points Coupée, Farrar, J.

      Lacoste for the appellant.

      Provosty and L. Janin, for the defendant.
   The judgment of the com't was pronounced by

Rost, J.

This is an action for the settlement of accounts of an ordinary partnership formerly existing between the parties. The District Court gave judgment in favor of ths defendant for the sum of #2695, with legal ■ interest, and the plaintiff appealed.

The accounts of the parties were, on the application of the plaintiff, referred to an auditor, who discharged his duties with great care, and made a lucid and well considered report. The plaintiff opposed it on various grounds, and upon that opposition the judgment appealed from was rendered. The following grounds alleged in the opposition, are insisted upon on the appeal: 1st. It is urged that the plaintiff was erroneously charged with one half the household expenses incurred by the defendant’s family while she boarded and lived there. The defendant avers that these charges are made in conformity with her stipulations in the verbal contract of partnership existing between them, and that they were included in the accounts rendered by him to the plaintiff from time to time, and received by her without opposition being made to these items. Admitting, as contended by the plaintiff’s counsel, that the first of these facts is not satisfactorily shown, and that there was no contract in relation to the plaintiff’s expenses in the defendant’s family, she was bound to pay her board, and the amount charged to her would certainly not exceed its value.

2d. The plaintiff complains that the defendant has been allowed $887 56, without proof.

This item is made up of two notes of the plaintiff, each for'the sum of $173 50, which the defendant alleges he has paid, and of a variety of articles stated to have been procured by him for her private use. The notes and articles composing this item are found in the accounts rendered to the plaintiff. It is not shown that she ever objected to them, and it is in evidence that the defendant was in the habit of making purchases of that description, and paying debts for her. This acquiescence on her part, and this course of dealing establish, jprima facie, the defendant’s claim..

3d. The plaintiff avers that the judgment erroneously allows the sum of $1133 25, for interest at the rate of ten per cent per annum.

We consider this ground well taken. The partnership existing between the parties was not a commercial partnership, nor were either of the partners merchants; and, although in private partnerships each partner is entitled to interest on all sums advanced by him, he cannot claim conventional interest on those sums without an agreement in writing of the other partners to pay it.

The circumstance that the conventional interest was charged in the books kept by the defendant and in the accounts rendered by him to the plaintiff from time to time, cannot, in partnerships of this kind, be considered as proof of such an agreement. The interest must be reduced from ten to five per cent.

The objection that this, being a suit for the settlement of a partnership, the court cannot inquire into the private accounts existing between the partners, is clearly untenable, and the other errors alleged in argument were not specified in the opposition to the report of the auditor, and cannot be noticed.

It is, therefore, ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant in reconvention, and against the plaintiff, for the sum of $2128 37-¿, with legal interest from the 24th March, 1846, till paid, and the costs of the District Court; those of this appeal to be paid by the defendant and appellee.


author: Existís, C. J.

text:
    Gaulden v. McPhaul.
    In cases unattended with any of those circumstances which give rise to aggravated damages, the direct and immediate, or the natural and proximate, consequences of an act are alone to be considered, in ascertaining the responsibility for the commission of an act unauthorized by law. C. C. 1938 s. 2, 2294, 2304.
    Where a deed was executed in another State, by which certain slaves were conveyed in trust to secure the payment oí a note payable to the creditor or hearer, the slaves remaining: in the possession of the debtor, the trustee cannot, in case of the removal of the slaves to this State, enforce the execution of the trust, nor take possession of the slaves, without proof of the debtor’s being in default by the non-payment of the note. Without such proof the trustee would be responsible for any loss sustained by the debtor from a seizure of the slaves. Per Curiam: We must not be understood as recognizing the right of trustees to execute trusts created on slaves actually within this State, without the intervention of judicial proceedings.
    from the District Court of Point Coupée, Farrar, J.

      Ratliff and Cowgill, for the plaintiff.
    for the
   The judgment of court was pronounced by

Existís, C. J.

This is an action on the part of plaintiff against the defendant, to recover the value of a slave named Albert, alleged to have come to his death in consequence of the illegal, violent, and unwarrantable conduct of the defendant, in attempting, in company with two other men, to seize and carry off the said slave, with several slaves belonging to plaintiff, while engaged at work at a wood-yard near Port Hudson, in the parish of East Feliciana. The petition alleges that said McPhaul, with two other men, went to the wood-yard of the plaintiff and attempted with force and violence to seize and carry away plaintiff’s slaves, and so frightened them that Albert and several others ran off and, in attempting to get home to the residence of petitioner, one of the said negroes died on the roadside, and the others, from the fright and fatigue, were greatly injured.

The defendant pleaded the general issue. In an amended answer the defendant alleged that, he had a right to seize and take possession of said slaves by virtue of a deed of trust, given by said plaintiff to Francis Cooley, of the said slaves, for the use and benefit of defendant, to whom said plaintiff was indebted in a large sum of money, and, by virtue of a power of attorney from said Cooley to defendant, empowering him to carry into effect said deed of trust, which was executed in Wilkinson county, State of Mississippi, on the 6th of November, 1848; that said slaves were removed from the State of Mississiippi to this State, in order to defraud respondent of his just rights thereon, under the impression that they could not be seized under a deed of trust, etc.

There have been two verdicts for the plaintiff, and from the judgment in the last one this appeal is taken by defendant.

It appears that Gaulden, the plaintiff, with his mother, had established a wood-yard near Port Hudson, in the parish of East Feliciana, where he had a number of slaves under the management of James Freeman, who resided with his family on the premises. The residence of Gaulden, the plaintiff, was upwards of thirty miles distant, in the county of Wilkinson, State of Mississippi. On the 12th of March, 1845, the defendant, in company with B. Buller and Wiley Dixon, went to the house of Freeman, during his absence, for the purpose of taking several of the slaves of"Gaulden, for which a deed of trust had been given by Gaulden, under which he was authorized to act, and attempted to take them. The testimony relating to the acts which constitute this attempt is not very definite, inasmuch as we infer from the testimony that the slaves took to flight on hearing that the defendant and his men came to take them. The slaves ran off, abandoned the place, and were next heard of at the residence of the plaintiff, with the exception of the slave Albert, who was found dead on the roadside in the direction of his master’s residence on the day after the appearance of the defendant at the wood-yard. It appears also that three other slaves who had thus lled.were injured from fatigue, so that they were unable to work for several days. The slave Albert was worth $800, was young, healthy, and accustomed to labor. If the facts authorized the verdict, the jury were justified in assessing the damages sustained by the plaintiff, in consequence of his loss, at $80'0.

We have not been abiete discover that the defendant made use of any means of violence, or did any act calculated to produce alarm or terror, but his conduct and that of his attendants on the premises was that of a man attempting to exercise What he conceived to be a legal right.

In relation to the responsibility of the defendant for the loss of the slave' Albert, it is obviousthat the causéis remote from the effect. The mere fatigue of the journey on foot at that season of the year, to a slave of the age and' constitution of Albert, is not a reasonable cause which can be assigned for his death. Nor does the alarm produced by the acts of the defendant, as contended by the counsel for the plaintiff, rest upon anything else but mere conjecture. It was within the power of the plaintiff to have established the cause of the death of his slave beyond any doubt, by a post mortem examination of his body. Those who testify to the death of the slave show that hi's body was examined externally, but no medical man has given any opinion ns to the cause of the death; that of the other witnesses is entirely conjectural and unsatisfactory.

This case we consider unattended With any of those circumstances which give rise to aggravated damages; and, in this class of cases, it is a settled rule' of our jurisprudence to adhere to the principle, that the direct and immediate, or the natural and proximate, consequences of the act are alone to be taken into1 consideration. See the cases of Delery v. Mornet, 11th Martin, p. 10. Civif Code, 1928 § 2, 2294, 2304. 6 Toullier, § 289. In proportion as the consequence of an act is remote the uncertainty of its being the cause is increased infinitely, of Which the present case is a strong illustration. The alarm produced at the wood-yard among the slaves of Gaulden, may well have induced them to flee from those who attempted to take them; but the cause is entirely an inadequate one for their leaving their established working place, and going a distance of thirty miles to their master’s residence. We cannot leave out of view that the cause of this journey may have been in the sense the slaves had of acting in the interest of their master, probably at his prompting, to save his property from the grasp of a determined and vigilant creditor. There is no evidence showing that the slave Albert ever saw the defendant, or those who accompanied him at the wood-yards and we consider the evidence as not’establishing that his death was caused by their acts.

The view that we have taken of the cause of the death of the slave Albert, and the exemption of the defendant from all responsibility in consequence thereof, applies to the right of the plaintiff to claim damages produced by the fatigue of the other slaves in their journey to their master’s residence. But the plaintiff also claims damages for the interruption and disturbance of the labor of the slaves by the acts of the defendant, as heretofore stated. The defendant, as we have seen, alleges that he had a right to seize and take into his possession the slaves of the plaintiff which were at the wood-yard, under a certain deed of trust. The instrument offered in evidence in support of this allegation is a deed, bearing date the 6th day of November, 1843, it purports to have been made by the plaintiff on one part and Francis Cooley on the other part, both of the county of Wilkinson, State of Mississippi, where the deed was executed and recorded. The deed conveyod to Francis Cooley four certain slaves then being in the? county and State aforesaid, for the benefit of the defendant in this suit, who wasthe endorser of the plaintiff’s note for the sura- of $810, which was made at the time of executing the deed, and was payable to the defendant, or bearer, and w*as due on-the 1st of March, 1845'. To secure the payment of this note the deed of trust was executed, and it provided that.- “'in case the said' M. G. Gum We» shall not pay and discharge the said note when it becomes due, then and in that case the said Francis Cooleyis hereby authorized, upon giving three weeks public notice by advertizement in any one of the newspapers in the town of Woodville, to expose to sale, and sell'1 and convey tofche highest bidder, for ready money, the whole, or so many of the aforesaid negro slaves, as will satisfy and pay all the amount due on said note.-” The defendant held a power of attorney from the trustee, in- which he was fully “ empowered to take the said negro slaves wherever they may be found, for the purpose of carrying into effect and due- execution the trusts mentioned in the- deed aforesaid.” It appears that the defendant, in his attempt to take these slaves, acted under the advice of counsel-, who gave it as his opinion that the right to seize the slaves in Louisiana- was identical with the' right to take them in- the State from which they were removed, and in'whichthe deed-'of trust was executed.

The slaves were,-at the time of the-act complained of, in the peacable possession-of the plaintiff. There is no evidence concerning the note, the payment of which the deed of trust was made to- secure, and which was payable- to the defendant, or bearer; nor of its payment by either the defendant, who was the endorser, or the plaintiff, who was the maker; nor of any protest of the note, nor of any amicable demand made on the plaintiff for the amount. Wa have often experienced great difficulty in giving effect under our laws to instruments of this kind made in other States. According to our law, the defendant, in the execution of this- trust, could have no- right to take possession of the slaves, except in the- contingency provided for in the deed-. The plaintiff never having parted with the possession-of the slaves,, the trustee has no right to- take them unless Gaulden placed himself in default by the non-payment of the note when it became due, and he cannot be held to be in that position until after an amicable-demand made upon him. No court in Louisiana would permit the defendant to take the slaves under this- instrument until after the default should have been established. It follows therefore that, whatever the right-of the defendant may have been, he has not made out by evidence a justification of his attempt to take the slaves of the plaintiff, as complained of, on the 12th of March, 1845. Confining therefore our estimate of the injury done-to the plaintiff to the interruption and disturbance of the labor of his slaves at the wood-yard, we do not feel ourselves authorized to assess the damages at a higher sum than $100. In correcting the error into which the juries have fallen, we applaud the intention with, which their verdicts were rendered. It does not appear that the rules which ought to-have guided them in awarding damages were laid before them, and the error into- which they have fallen was in the interest of the public peace, and against the right of any man to take the law into his own hands. We must not be understood as recognizing the right of trustees to execute and carry out the trusts created upon slaves which are in this State, without the intervention of judicial, proceedings, as it is not necessary to examine that question in order to decide this case. We have examined the decisions referred to by counsel concerning the weight to be given to verdicts of juries, and have not come to the conclusion that the verdict in this case cannot stand, without the "most mature consideration.

It is, therefore, ordered-that the j udgment of the District Court be annulled Gavlben and reversed, and that the plaintiff recover from defendant the sum of $100, McPhaul. with interest from this date, and costs of suit in the District Court, and that he pay the costs of this appeal.


author: Etjstis, C. J.

text:
    Mayor, &c. of Donaldsonville v. Richard et al.
    No appeal w-illlie from a ¡judgment rendered by-tlie mayor of a-town, for a sum under three hundred dollars, for an alleged infraction of an ordinance of the corporation, where the only question raised is as to the constitutionality of an act of the legislature vesting judicial power iu .the officer who rendered the judgment.
    from a judgment rendered by the Mayor of Donaldsonville.

      Duffel and Seghers, for the plaintiffs,

      llsley, for the appellants.
   The judgment of the court was pronounced by

Etjstis, C. J.

This is an appeal taken from -a judgment rendered by the mayor of Donaldsonville for the sum of $30, for an alleged infraction of one of the town ordinances. It is brought before -this -court under article 63 of the constitution, as stated -by counsel.

The only question raised in this case is, the constitutionality of an act of the legislature vesting judicial power in the officer who determined it. This question does not give this court jurisdiction .of the cause under that article of the constitution. See Devron v. First Municipality, ante p.

Appeal dismissed.


text:
    Boudreau v. Bergeron.
    Where a party sold to plaintiff a tract of land acquired from a third person, supposed to contain a certain quantity, and plaintiff afterwards re-sold, by public act, to his vendor a certain number of acres of this laud, and the latter sold that quantity to defendant, and it is subsequently ascertained that-the tract originally sold to plaintiff did not contain the quantity it was supposed to do, plaintiff cannot hold all the land that he would be entitled to, if there had been no deficiency. Whatever secret equities may exist between plaintiff and his vendor, the former cannot claim the benefit of‘them against a subsequent purchaser in good faith. Having -placed on the public records the .title on the faith of which defendant purchased, he must hear the consequences of having presented the rights of his vendor in a-false aspect.
    PPEAL from the District Court of Lafourche Interior, Burk, J.

      J, C. Beatty, for the plaintiff.

      W. Hall, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action. Bourgeois conveyed a tract of land to Fart, who sold it to the plaintiff by two separate acts of sale, the first sale being for one arpent front, with the ordinary depth, and the second for the remainder of the land acquired from Bourgeois,supposed to contain one and three-fourths of an arpent front. Afterwards the plaintiff sold by public act to his vendor one and one-fourth of an arpent front of the same land, commencing til the upper line. Part sold this land to the defendant, also by a public act. It bas been ascertained by a survey, that there is not two and three-fourths arpents front in the whole tract, as was supposed by the plaintiff, and he now contends that he is entitled to all he would receive, if there was no deficiency, deducting therefrom one and one-fourth of an arpent retroceded to Pari, and that Pari, or his vendor, can only take the remainder. The defence is a general denial, and an averment of title, under the sale from Part. There was judgment in favor of the plaintiff, and the defendantappealed.

The District Court appears to have considered the case as if the vendor of the plaintiff was himself the defendant in the suit.' This is an error. Whatever secret equities may exist between Part and the plaintiff, the latter cannot’ claim the benefit of them against a subsequent purchaser in good faith. He has created, and placed upon the public records, the title on the faith of which the defendant has acquired. He must bear the consequences of having presented the rights of Part in a false aspect to the public. Richardson v. Hyams, 1 An. 286.

It is, therefore, ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in .both courts.