author: Vookhies, J., Buchanan, J.,

text:
    Alphonse Dorvin v. Aimée Wiltz.
    A defendant, in an action for the partition of community property, who demands ip reconvention a judgment for one-hatf of the charges incurred in supporting the slaves in controversy, will be precluded from asserting title to plaintiffs’ interest in the property, as a “ dation enpaiement.”
    Parol evidence of plaintiff’s admission that he promised to abandon the slaves in question to the defendant, although received without opposition, will.not have the effect to entitle defendant to assert such title.
    When a judgment of separation from bed and board is rendered, the husband .ceases to be the head of the community, and one undivided half of the property thereof vests immediately in each of the spouses, who thereby become joint owners ; the wife having in this case continued to posses Qipjnine cominwni, is accountable for the fruits of the property.
    A claim, by the wife, for expenditures prior to the dissolution of the community, is inadmissible. It being neither alledged or proved that those expenditures were made with her separate or para* phernal funds.
    The Supreme Court will give effect to evidence which would have been inadmissible under the pleadings., but to which no ojection was made. Buchanan, J., dissenting.
    The income of the separate estate of one of the spouses belongs to the community. C. C. 2371, Buciianan, J., dissenting.
    A verbal quit claim of slaves, amounting to an informal settlement of a community, will avail as a dation 67i paiement, notwithstanding it was not reduced to writing. Buchanan, J , dissenting.
    Where the wife bore all the chaigcs of the support of the family and the education of the children, she is entitled to claim one-half of the amount from the husband, on a settlement of the community. BucnANAN, J.j dissenting.
    APPEAL from the Thh*d District Qour.t of New Orleans, Kennedy, J.

      St. Paul S Bonny, for plaintiff. Magion% for defendant and appellant
   Vookhies, J.,

(Buciianan, J., dissenting.) This is an action for the partition of property belonging to the community, which formerly existed between the parties. *

The defendant claims the reversal of the judgment rendered against her on several grounds.

#i First. The evidence shows that plaintiff had made a dation en paiement in his half interest in the slaves to the defendant, and lie is bound by the evidence by which it is sought to be sustained.”

The only question which this ground presents is, whether the plaintiff has been divested .of his title to the undivided half of the slaves claimed as community property. We think not. A demand in reconvention is the only plea interposed by the defendant. She alleges in substance, that she was married to the plaintiff in October, 1825, with whom she had two children, Theophile and Emma JDorvin, the former being born on the 30th of October, 1S26, and the latter on the 28th of .February, 1830; that iri June, 3881, she and her children were abandoned by him, without any just cause; that on the eleventh of July, eighteen hundred and thirty-eight, she obtained a judgment against him for separation from bed and board, on the ground of abandonment, in which the right was reserved to establish their respective claims against the community ; that the only property of the community then, consisted of the negro woman named Anais and her two children, Claire and Gecile, the former aged about three years and the latter about twenty months; that the other two children of Anais, Franpois and Carmelite, born subsequently, are now aged, one about twelve and the other thirteen years ; that Anais had nine children, five of whom died quite young; that she had to defray the expenses incident to the birth, burial, &c., of the children of Anais, which amounted to upwards of $150, as a charge against the community ; that she paid $103 for parish and municipal taxes on the slaves, from the year 1842 to that of 1850, inclusive, which was due by the community; that the plaintiff is bound to her for one-half of the expenses for the clothing and support of the slaves of the community, at the average rate of $4 per month, to bo reckoned as follows, to wit, Anais from June, 1831, Claire from July, 1834, Ceeile from September, 1835, Franpois from February, 1838, and Carmelite from February, 1830, until the final settlement of the community ; that when she was abandoned by the plaintiff, her daughter Emma, an infant, was lying dangerously ill, and continued to remain so upwards of twenty months; that the plaintiff, having made no provision either for her support or that of her children and their education, she was compelled to labor in order to procure the necessary means for that purpose; that Emma and Theophile Dorvin, both died of lingering diseases of many months, the former on the 11th of April, 1849, and the latter on the 30th of May, 1851; that the plaintiff, although legally and morally bound, never paid or contributed any thing for the support and education of his children ; that he is bound for the reimbursement of the expenses incurred by her for that purpose, at an average rate of $20 per month for each of them, from June, 1831, to the period of their respective deaths, and also for the sum of $223 50, their funeral expenses; and that she is entitled to a privilege for the reimbursement of her claims, which greatly exceed the interest of the plaintiff in said community property. She concludes, by praying for judgment against the plaintiff, with privilege on Ms half interest in the community property, for the reimbursement of the sums thus claimed by her, &c.

In answer to her reconventional demand, the plaintiff pleaded a general denial, and specially, that the claims set up by her was compensated by the hire of the slaves which remained in her possession; and also claimed as a charge against the community, the sum of $2,790 74, alleged to have been inherited by him from the successions of his father and grandfather, and converted to the use of said community.

We think it is clear, under these pleadings, that the defendant is precluded from asserting title to the plaintiffs’ interest in the property as a dation en paiement. Parol evidence of the plaintiffs’ admission that he promised to abandon the slaves in question to the defendant, although received without objection, is not entitled, in our opinion, to the effect contended for by the appellant’s counsel. The cases on which he relies to sustain his position, do not appear to us to be analogous to the present.

“Second. The court erred in allowing wages for Aliáis from the 11th of July, 1838, date of separation, and for the four children from their fifteenth, year, because wages should have been allowed only from the date of the institution of the present suit.”

We do not think the judgment is erroneous in this respect. The plaintiff ceased, by the effect of the judgment of separation from bed and board, to be the master and head of the community, and one undivided half of the property thereof vested immediately in each of the spouses, who thereby became joint owners. The defendant having continued to possess nomine aommuni, was clearly accountable for the fruits of the property, more especially as she claimed in rcconvention such charges as those sought to be recovered by her.

“ Third. The court erred in deciding that the services of slave children to the ago of fifteen years compensated for the expenses and trouble of raising them. Because there are n.o proofs and -facts which can be taken as the basis for the foundation of such a rule; and because, on a separate examination of the pleadings, the evidence, and a decision of the late Supreme Court, the very reverse of the proposition will be made evident.”

The only question which this ground of defence presents, is one of fact, and, as is usual in such cases, generally founded on speculative opinions. It does not appear to us from the evidence, that the Judge erred to the preiudice of the defendant. Neither do we understand that his decision establishes any rule of compensation in regard to the raising of the children of slaves, as urged by the defendant’s counsel. His conclusion that the defendant would be compensated for the trouble and expense, by charging her with the hire of the slaves only from their fifteenth year, appears to us to be fully sustained by the evidence.

“ Fourth. The court erred in disallowing under the above erroneous principle, the third item of defendant’s claim, being for the food, clothing, &c.,of the four children and of Anais herself, because the claim was admitted by the pleadings to be correct, and was fully sustained both by defendant’s and plaintiff’s evidence.”

We do not think that the plaintiff’s answer to the demand in reconvention contains any such admission.' In adjusting the claim for the hire of the slaves, we infer from the evidence that the Judge must have taken this claim into consideration.

“ Fifth. The court erred in not allowing for the expenses of rearing Theo-phile and Emma, from 1831, date of the abandoment, instead of the 11th of July, 1838, date of dissolution of the marriage; because plaintiff’s plea in compensation admitted their correctness, and because he is as much bound by law for the expenses incurred prior, as for those incurred subsequent to the separation from bed and board; and if not legally, then he is by a natural obligation.”

We do not think, as already observed, that the plaintiff’s answer contains any such admission. Tho defendant’s claim for expenditures fn'ior to the dissolution of the community, is clearly inadmissible. It is neither alleged nor shown by her, that those expenditures were defrayed with her separate or paraphernal funds. O. 0. 2371.

The plaintiff has prayed for an amendment of the judgment in his favor, by allowing him the amount of his alleged inheritance as a claim against the community. We concur in the opinion of tho Judge a quo, that the evidence is insufficient to show that any part of it was ever brought into the community. Nor is it even shown by him that the notes which he received as his share in those estates, have ever been paid-or any part of their proceeds applied to the purchase of Aneéis, as alleged by him.

It is urged, that the affirmance of the judgment will prejudice the appellant, by compelling her, in the event of becoming the purchaser of the property, to deposit the purchase money into court. Wo do not understand that such will be the effect of the judgment. Either party, in becoming the purchaser of the property, will have the right to retain in his or her hands, tho portion of the price coming to him or her, the defendant to retain first the .amount.awarded in her favor as a creditor of the community by this judgment.

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

Buchanan, J.,

(dissenting.) The plaintiff brought suit on the 10th January, 1852, for the settlement of a community of acquets, which was dissolved by a judgment of separation of bed and board, rendered on the lltli July, 1838, or thirteen years and six months previous to the institution of this action.

The following facts were established by evidence, received without objection or the reservation of any bill of exceptions on the trial of the cause in the District Court. Plaintiff and defendant were married in Now Orleans in the year 1825, of which marriage there was issue two children, a son, born in 1826,-and a daughter, born in 1830. In 1831, plaintiff abandoned his wife and his children, without any allegation or pretext of a cause, and lived with a woman who had been his mother’s slave; from the moment of his abandonment never seeing his family nor contributing anything whatever to their support. The whole charge of supporting herself and children devolved upon the defendant, who had no resources save her labor and that of a slave girl Aneéis, purchased in 1828, for the sum of three hundred and fifty dollars cash, and which had been left with her by plaintiff, when he abandoned her. In 1837 defendant sued plaintiff for a separation of bed and board, on the ground of abandonment.

On July 14th, 1838, judgment was rendered in said suit, decreeing a separation of bed and board between the parties: that the plaintiff (defendant herein) recover of the defendant (plaintiff herein) twenty-five dollars monthly, from the 25th July, 1837, to the date of judgment, as alimony, w;ith costs, the court reserving to each party the right of establishing their rights in the community property.

Shortly after this judgment was pronounced, a brother of defendant went to plaintiff on her behalf, and told him that he was going to proceed against him, and sell Aneéis and her two children, Claire, then aged three years, and Geeile, aged two months, (being the whole property of the community at the date of tho judgment,) to effect a partition of the community. Plaintiff told him not to do so; that he had no idea of ever making any claim to those slaves; that he wanted to leave them to his wife and children. This interview terminated with a mutual understanding that plaintiff should make an act before a notary to that effect; but defendant’s brother was never able to see plaintiff after-wards to consummate this settlement, plaintiff having removed to the parish of St. Charles.

The plaintiff often told Mr. Schexnaider that he had abandoned all claims in the slaves to the defendant, because she had raised the children.

After this defendant continued to support plaintiff’s two children until their death, which occurred, that of the daughter in 1849, and that of the son in 1851. She paid the expenses of their sickness and burial. The plaintiff never came near them, nor incurred the slightest expense on their account. The institution of this suit was the first indication of any desire on his part to disturb the arrangements proved by the witnesses, Wiltz and Schexnaider, or to consider the settlemcm of the community as an open question. In the meantime the slave Anais had given birth to two more children, Carmelite and Francois, who are living,- and to five others, 'who are dead. In his petition plaintiff claims that the slave Anais and her children, Claire, Cecils, Carme-lite and Francois, be inventoried as propert)1- of the community, and a partition made of the same between himself and the defendant.

The first position assumed in the argument of the counsel for defendant in this court is, that from the evidence it appears that plaintiff has made to defendant a dation enpaiement of his half interest in the slaves.

The opinion of the majority of the court holds defendant to be estopped from asserting title to the slaves in herself, as resulting from acts and declarations of plaintiff' given in evidence, because such an assertion of title is-inconsistent with her pleadings.

Even were the question of practice at this day an open one, I should doubt much the right of the court to raise a question of estoppel as applied to evidence in the record, received without opposition in the court below, and against which no argument is offered in this court. Both of these features distinguish the present question. The evidence upon which this part of the defendant’s case rests was so far from being opposed by plaintiff in the District Court, that an important portion of it (the testimony of Schexnaider') is the subject of an admission made in the note of evidence on trial. And although defendant’s brief, in which this point is elaborated, was on the files of this court before plaintiff’s brief was filed, the counsel of plaintiff has urged no objection to it, on the score of inconsistency with the pleadings. I can understand that when some great principle of morality is offended, or some'palpable violation of law shown by evidence received without opposition and without comment, the court will, proprio motu, dismiss from its consideration a subject tainted with such radical vices. But it is no part of the duty of a court to originate purely technical objections. Least of all am I disposed to do so in aid of a claim which to me appears both stale and inequitable.

The general principle, sanctioned by many decisions, is that the Supreme Court will give effect to evidence which would have been inadmissible under the pleadings, but to the reception of which no opposition was made in the court of the first instance. “It is a well settled rule,s’says Judge Simon, in delivering the opinion of the court in Powell v. Aiken & Gwinn, 18 L. R. 828, “ that a party who, without opposition, suffers evidence to be adduced, contrary to or beyond the allegations contained .in the pleadings, is bound by its effect.”

- And the same principiéis reiterated with approbation in the case of Gayarré v. Tunnard, 9 An. 254. A leading case upon this point is Bryan and wife v. Moore's heirs, 11 M. 26, where plaintiff claimed as heir of tier husband, but recovered upon another title, upon proof received without opposition, the court observing: “the mistake in the allegations maybe waived or cured by the evidence in the case.” 9 M. R. 317; 6 N. S. 86; 1 L. R. 301.

The doctrine is no less well settled, that a party is bound by parol proof of a title to real estate or slaves, in case he has süffered such proof to be given without objection to its admissibility. 1 N. S. 459; 4 L. R. 22.

Upon this well established rule of practice, I am of opinion that we would be bound to g've effect to the evidence of a quit claim by plaintiff in favor of defendant, of his half interest in the slaves Andis and her children, even if palpably inconsistent with her pleadings. But I do not find such inconsistency. It is true that there is an admission in defendant’s answer that the said slaves belong to the community. But the whole of this answer should be taken together. It is far from acknowledging that plaintiff has anything to recover from the community. It is a demand in reconvention, in which, after stating her charges against the community in detail, the defendant avers that “ the pretensions set up by the said Dorvin to deprive this respondent of his half'of the community property are unworthy of being listened to, but ought, on the contrary, to be frowned down by this honorable court, for said plaintiff knows full well that the charges and expenses, both at the time of the separation from bed and board and up to this period, for raising his children and maintaining the slaves far exceed his half interest in said community property.”

And again : “Further answering, says, that the half interest which plaintiff 'pretends in said slaves as property of the community is bound for all the aforesaid expenses which she has incurred, both for the slaves and the plaintiff’s children, and that said charges far exceed the interest of plaintiff in the slaves above mentioned, and that she has privilege in said slaves for all the expenses aforesaid.”

These allegations are in entire harmony with evidence that plaintiff made an informal settlement of the community immediately after its dissolution, in which he relinquished his half interest in Andis and her two infant children {which interest is proved to have been only worth at that time four hundred dollars) to the defendant, in discharge of a balance justly due by him upon such settlement

It must not be forgotten that he had been living seven years separate from his family, in the country, where the. expenses of living are less than in town, having a good trade (that of carpenter) by which he may be reasonably supposed to have made something more than his expenses, and that the income of his separate estate (consisting of a mortgage of two thousand dollars, undoubtedly bearing interest) also belonged to the community. O. 0. 2371. It is not at all improbable that the supposed dation en paiement was advantageous to the plaintiff.

Upon this evidence plaintiff should go out of court. After thirteen years he should not be allowed to disturb this settlement, however informal. In the case of Hermann v. Theurer, we refused to allow an inventory of the community to be contested after eight years of silence, although the wife was not present at the inventory, neither had it been followed by a partition. The party condemned by a judgment of separation and of divorce in that case, as in the present, sued for the settlement of the community many years after its dissolution, but was held to be concluded. Acquiescence in an informal settlement was presumed from lapse of time.

By the Article 2389 of the Code the defendant was bound to accept the community within thirty days from the separation finally pronounced, in default of which she would have been presumed to have renounced it. She appears to have signified to plaintiff her acceptance, and proposed to have an inventory made, and a regular settlement according to the forms of law. But the plaintiff disclaimed all interest in the slaves, and abandoned them to the defendant, in the words of the admission, “ because she had raised the children.” This verbal quit-claim was an informal settlement of the community, or elation en paiement, which will avail defendant, although not reduced to writing. The case of McNeely v. McNeely, 1 N. S. 646, is in point. See also the cases referred to in that case.

But if the strict rules of pleading prevent us from giving effect to this evidence, the same strictness of practice should apply to plaintiff; who has answered defendant’s petition in reconvention by pleading compensation to the claims set up by her therein.

Compensation is a mode of extinguishing a debt, and takes place, by mere operation of law, where debts equally liquidated and detnandable are reciprocally due. From this definition it follows, and is a long established rule of procedure, that the plea of compensation waives the general issue, and throws the onus upon the party who pleads it of proving that the indebtedness is extinguished. Hennen’s Digest, 1193, No 3, 1209, No. 16, 1212, No. 12,1228.

The party may qualify his plea by acknowledging only a part of his adversary’s claim to he due, and setting up an offset against that portion. But this has not been done in the case at bar. The compensation is pleaded against the recon-ventional claims of defendant generally.

In this state of pleadings the defendant is entitled to judgment, for plaintiff has failed to show that the amount received by him from tile successions of his father and grandfather (two thousand dollars) was ever put into the community as alleged, and allowing him all that he claims for the hire of the slaves, to the date of the filing of the supplemental petition, this would amount upon an accurate calculation to. $5,071 00

Whilst the aggregate amount of the defendant’s claims in recon-vention to the same date is. 13,413 00

The difference of these two sums is. $8,342 00

for one-half of which plaintiff would be the debtor of defendant, upon the supposition that the plea of compensation, without qualification, admits the correctness of defendant’s claims, as I maintain.

But upon the contrary supposition, and considering all the reciprocal claims of the parties as open questions under the pleadings, there is a manifest error in the judgment of the District Court, in not allowing defendant to charge the community with the expense of supporting and educating the children of the marriage from the time of her abandonment by her husband (June, 1831,) to the institution of her suit for separation (July, 1887.)

The husband is obliged to furnish his wife with whatever is required for the conveniences of life, in proportion to bis means and condition. O. C., 122.

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. C. 0., 243.

From the obligations recognized by these Articles of the Code, results a right of action for alimony on the part of the wife and children who shall have been deserted by their husband and father. Alimony is defined in Article 346 of the Code to be what is necessary for the nourishment, lodging and support of the person who claims it. It includes the education, when the person to whom the alimony is due is a minor. Alimony shall be granted in proportion to’ the wants of the person requiring it, and the circumstances of those who owe it. 0. C., 247. In the present case alimony was not sued for, and consequently was not allowed by a judgment for the time of plaintiff’s abandonment of his family, previous to the institution of the suit for separation of bed and hoard against him. Rut his obligation to support his wife and children did not the less exist, and there is no question of his having totally failed to fulfil that obligation during all that period, and that upon the wife devolved the whole charges of the support of the family and the education of the children. For one-half of a reasonable estimation of these charges, therefore, the plaintiff was debtor of the community at the time of its dissolution.

Pothier, Traite de la Communauté, Np. 582, says: “Aprés la dissolution de la communauté on doit liquider les créances que chacun 'des conjoints a contre la communauté, et les dettes, dont chacun des conjoints est dtbiieur envers la com-munauté. Cette liquidation est nccessaire, en cas d’acceptation de la com-munauté par la femme ou ses héritiers, afin que chacun des conjoints puisse, au partage qui se fera des biens de la communauté la reprise de la somme dont il se sera trouvé créancier de la communauté, déduction faite de ce qui lui est dh par la communauté; et que, dans le cas ou l’un ou l’autre des conjoints se serait trouvé debiteur de quelque somme envres la communauté, deduction faite de ce qui lui est dü par la communauté, cette somme dont il s’est trouvé redeva-ble envers la communauté, Ini soit, au partage, précomptée sur sa part.”

And further, (No. 607): “On pent aussi établir, pour principe général, que chacun des conjoints est, lors de la dissolution de la communauté, créancier de tout ce dont il a enriehi la communauté á ses dépens, pendant qu’elle a duré.”

Applying these principles to the case at bar, we find that, as already observed, the plaintiff was in possession of a good trade, the earnings of which belonged to the community; and secondly, that he had a capital of two thousand dollars, “biens propres,” invested in mortgage security of the best kind in the parish of St. Charles. The rate of conventional interest allowed by law at that time was ten per cent., and it is notorious that this was the rate universally paid upon such investments. As no account has been rendered by plaintiff, the legal presumption is that such was the revenue received by him from his separate capital. But the fruits of all estates of which the husband has the administration belong to the community. C. 0. 2371. “ Les fruits des héritages et autres hiens pro-pres de chaeun des conjoints, qui sont pergus, nés, et échus durant la commu-nauté, sont la troisiéme espéce de choses qui composent la communauté légale.” Pothier, Tr. de la Comm., No. 204.

It follows that the defendant has, in the words of Pothier, enriched the community at her expense, during six years of its duration, from 1831 to 1837, to the extent of the expenses defrayed by her, and which should have been defrayed out of the plaintiff’s earnings as a mechanic, and the income of his separate estate. Or rather, to bring these legal propositions into an appreciable form, the wages of a journeyman carpenter in New Orleans have always been two dollars and a half a day. Giving three hundred as the number of working days in the year, plaintiff earned at his trade seven hundred and fifty dollars per annum. Add two hundred for the interest of his separate estate invested in mortgage notes, and we have nine hundred and fifty dollars per annum of com-munityr property received by plaintiff, out of which (upon the footing of the alimony allowed by the court subsequently, pending the suit for separation, without objection from plaintiff.) there would have been twenty-five dollars a month expended had plaintiff fulfilled his legal obligations towards his family. This would make, for the six years of abandonment before suit instituted, a total of eighteen hundred dollars, to which extent the community has been enriched at the expense of the defendant; which is a legitimate claim against the plaintiff, and should be added to the allowances made by the District Court in settlement of the community.

And this is not in the least inconsistent with the principle of the opinion of the majority of the court, as developed in the following passage of that opinion; “ The defendant’s claim for expenditures prior to the dissolution of the community appears to us to be clearly inadmissible. It is neither alleged nor shown that those expenditures were defrayed by the defendant with her separate or paraphernal funds. C. C. 2371.”

The doctrine here enunciated is, that defendant was bound to give her labor and her income to the support of herself and family during the existence of the community, because that labor and that income belonged to the community by the terms of Article 2373 of the Code. But it is not said, nor do I think it was intended to be said, that while the whole common property at the disposition of the wife, was liable for the common charges, the labor and income of the husband, which were also common property, could be lawfully released from contribution to the common charges.

I agree with Mr. Justice Yoorhies, that the form in which the defendant has stated her claim for the period of time during which the community existed, is objectionable. But the error is entirely one of form. The fact is proved that the community, that is to say, the portion of it in the hands of the husband, has been enriched by the wife at her expense, pending the existence of the community, and the only means afforded by the evidence of establishing a just balance, is that adopted by me above, to wit: charging the husband with a contribution equal to the alimony which was allowed by the judgment of separation, and which contribution has been shown to have been reasonable, being less than one-third of his income by the calculation made above.

In the settlement of this community, all the legal and equitable presumptions are against plaintiff. The tie which bound these parties having been many years severed by a dereliction of natural and legal obligations on the part of plaintiff, for which he has offered no apology nor extenuation, he presents himself at this late day, and holds the defendant to the strictest accountability, while he has withheld all information of his own gains during the period of his desertion of his wife and infant family. We are thus put in possession of the fact, that in the six years, which elapsed between his marriage and his desertion of his family, the plaintiff, although he had a family to support, was enabled to buy two slaves, for whom he paid six hundred and fifty dollars cash. But in the six years which elapsed between his desertion of his family and the institution of the suit by his wife for separation, although he had no family to support — at least, no legitimate family— it does not appear that he purchased any property whatever.

For these reasons, 1 am of opinion that there should be judgment against plaintiff and in favor of defendant, aud that defendant should be recognized as owner of the slaves Andis and her children. ►

       See case of Webb v. Deeson, decided Feb. 25, 1855, (Op. Bk., 26,179,) where the court of the first district allowed evidence, against and beyond the pleadings, for the purpose of justice, and this court held that the evidence was properly admitted. See bids of exception in record of that case.

        Lockett v. Toby., decided in May, 1851, and in January, 1852, (Op Bk., 21, p. 192, and 22, p. 28,) 110 Ann. Rep. 718,] where parol title to real estate, received in the absence of the party against whom it was offered, was held to conclude him.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    J. M. Elam, Under Tutor, v. Mrs. Nolan.
    The defendant, a tutrix, made a declaration of her intention to change her domicil from the parish ' of West Baton Rouge to New Orleans. The declaration was filed and recorded, and a copy served on the under tutor, who, in answer, set up various grounds on which he prayed that the tutrix be decreed to he unworthy to retain the tutorship; that the order confirming her as natural tutrix be rescinded, and that if deemed worthy, she be appointed dative tutrix, on giving security, &c., &c. Reid.: that these issues presented to a simple declaration of intention for a change of domicil, which the party had a clear right to make, are utterly inadmissible, and has no parallel in the jurisprudence of this State.
    C. 0. 43, 327, 841, 850,351.
    AL PPEAL from the District Court of West Baton Rouge, Robertson, J.

      M. & H. H. Taylor and Graves, for Mrs. Nolan, «appellant. Elam, under tutor, pro se.

   Voorhies, J.

The defendant, Louisa Jane Russell, widow of John M. Taylor e ontracted a second marriage with John Nolan, in the month of April, 1852. She had by her former marriage two children, Emma L. and Mary F. Taylor, both being still minors. On the 31st of August, 1852, John Nolan died testate, leaving nearly the whole of his large estate to his wife Louisa and her two children. The heirs of the testator brought suit to annul his will on various grounds. James M. Elam was appointed tutor ad litem to represent the minors. That suit terminated in a compromise between the parties, authorized by a family meeting as to the minors, which was homologated on the 24th of December, 1853. On the 10th of December, 1853, the widow was confirmed as natural tutrix of her minor children, and James M. Elam was appointed their under tutor. «

. On the 22d of January, 1854, the Widow Nolan presented to the Judge a quo a declaration in writing of her intention to change her domicil from the parish of West Baton Rouge to the parish and city of New Orleans, praying therein that •the Judge should order the same to be filed and recorded according to law. The Judge ordered the declaration to he filed, and a copy served on James M. Elam, as under tutor of the minors, to show cause why the application should not be granted.

The under tutor filed an answer, in which he recognized the right of the tutrix to remove from the State with her children and their funds, but averred that her children had no guarantee in the faithfulness of her administration of their estate resulting from the mere presumption of natural affection. After setting forth in his answer the grounds urged in the suit for the nullity of the will, and the proceedings which led to the compromise, the under tutor avers that on the trial of his opposition to its homologation, the tutrix offered in evidence the petition in the suit of nullity, and opposed the introduction of evidence to negative the charges therein set forth against her. That if the interest of the mínofs required that such serious charges against her 'should remain uncontra-dicted, then she was unworthy of the trust as their tutrix, and should be removed therefrom. But in case a different opinion should prevail, then he avers that her appointment as natural tutrix is illegal and void; that if retained as tutrix, it should he only as dative, on giving security for the faithful administration of the funds to he received for the minors under the compromise, inasmuch as there is reason to believe that she intends to withdraw from the jurisdiction of the District Court of West Baton Rouge; that her right, which had been forfeited, to he retained as natural tutrix, depended-on a family meeting, which had not been obtained. He concludes by praying that she be decreed to he unworthy to retain the tutorship; that the order confirming her as natural tutrix he rescinded, and that, if deemed worthy, she he appointed as dative tutrix, on giving security. He also prays that Henry W. Allen, William, Nolan and John T. Nolan he enjoined from paying her the amount of their indebtedness to the minors under the compromise.

The injunction was granted as prayed for, and the parties ordered to deposit the amount thus stated in the Branch of the Louisiana State Bank at Baton Rouge, subject to the order of the court.

The widow pleaded her domicil in abatement, and also moved for the dissolution of the injunction, with damages. Both of which having been overruled, she filed an answer to the under tutor’s demand, in which she denies that she ever took a rule on him to change her domicil, as such a proceeding is unknown to the law. She avers that she has been legally confirmed as natural tutrix, and that the judgment homologating the proceedings relative to the compromise has now the force and effect of res judicata; and that in consequence of the illegal proceedings of the under tutor in this case, she has been prevented from receiving the funds of her wards for investment and for their support, &c. She, therefore, prays for the dissolution of the injunction, &c.

The tutrix is appellant from a judgment ordering her to make an investment of the funds of the minors, and rejecting herapplication to change her domicil, &c.

This case has, we believe, no parallel in our jurisprudence. A simple declaration of intention for a change of domicil, which the party had a clear right to make, and against her will, has been converted into a suit involving a number of issues which appear to us to he utterly inadmissible. “A change of domicil is produced by the act of residing in another parish, combined with the intention ©f making one’s principal establishment there.” tí. 0. 43. “ This intention is proved by an express declaration of it before the Judge of the parishes, from which and to which he shall intend to remove. This declaration is made in writing, is signed by the party making it, and registered by the Judge.” 0. C. 44. Under provisions so clear and unambiguous, it is difficult to perceive how proceedings; such as are presented in this case, could possibly have been in-grafted on the appellant’s declaration, made merely for the purpose of proving her intention to change her domicil, the effect of which could in no manner whatever have impaired the rights of the minors.

But admitting, for argument sake, that this anomalous mode of proceeding may be justified, has the under tutor presented such a case as warrants the judgment rendered against the appellant? We think not. It is made the duty of the tutor, whether by nature, by will, by the effect of the law, or by the appointment of the Judge, to administer the estate of his ward as a prudent administrator would do, otherwise to be responsible for damages. C. C. 327. The rules by which he is to be govered are bo be found in section x, title viii of the Civil Code. We are not aware of any provision of law which authorizes the Judge to order the tutor to make an investment of the minor’s funds, under such a state of facts as is presented in this case, or to enjoin the payment of such funds to the tutor. The tutor, it is true, is bound to make an investment of the revenues exceeding the expenses of the minor, whenever such revenues exceed $500. But the only penalty which he ineuvs for the inexecution of the obligation thus imposed upon him, is fixed by the law, i. e. the payment of legal interest on such excess. O. C. 841; Session Acts of 1825, p. 198, § 1. His neglect to make such investment does not, in our opinion, involve the forfeiture of his right of administration on his ward’s estate. The tutor is bound to give an account of his administration only at the expiration of his tutorship. We do not think the Judge has any authority, except in certain cases provided by law, to order an account to be rendered by the tutor previous to the expiration of the tutorship. C. C. 350; 8 N. S. 665; 10 L. R. 319.

It is urged by the under tutor that the lights of the minors are in danger, as he has reasons to apprehend that it is the intention of the appellant to remove from the State. The remedy in such cases is expressly provided for under Art. 851 of the Civil Code.

The appellant has strenuously pressed upon our consideration her claim for damages on the dissolution of the injunction. We do uot think that her claim falls’within the operation of the statutes of 1831 and 1883, Whether her claim for damages, resulting from the harsh proceedings against her in this case be well-founded or not, is a question which will have to be determined in a direct action.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that the injunction in this case be dissolved, reserving the appellant’s right to claim damages in a direct action, the appellee to pay the costs in both courts, without prejudice to his rights for the reimbursement of the same against the estate of the minors if entitled thereto.


author: Lea, J.

text:
    Jeanette Mock v. Kennedy et als.
    A State Court may enjoin the united States Marshall from seizing the property of one person under an execution against another.
    A married womon on proof of the insolvent condition of her husband, and on proof also that she has skill and industry to earn a separate livelihood, has a right to a separation of property, ■whether at the time of marriage she had or had not property.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      G. & C. M Schmidt, for plaintiff. A. G. Semmes, for defendant and appellant.
   Lea, J.

In this ease the plaintiff has proved that the judgment, decreeing a separation of property between her husband and herself, was based upon sufficient considerations in law and fact. It is shown that, at the date of her marriage with Bose, she had a separate industry and a considerable amount of property; that after the marriage Bose took- possession of her effects, and that he afterwards became insolvent, and was sued by several of his creditors. These facts, which have been established by evidence taken contradictorily with the defendants, justified the application for a separation of propeny and the decree .maintaining it. We think, moreover, that the evidence fully establishes the plaintiff’s right of property in the goods seized.

The stock of merchandise appears to have been purchased originally with funds borrowed upon her credit and lent to her individually. The store was not only carried on in her name but was managed by her, and supported by her personal credit, and at her individual resposibility. The evidence in support of these facts was satisfactory to the District Judge, and we are unable to say that his conclusions were erroneous.

This view of the case brings us to the consideration of the exception taken to the jurisdiction of the court, on the ground that a State Court has no right to enjoin the execution of a writ emanating from a Federal tribunal. The question presented is one of title, which is wholly independent of the proceedings in the Federal court. Every court, whether State or Federal, has, as a general rule, an exclusive control over the enforcement of its own process, except so far as it is subject to the revision of an appellate tribunal. This court cannot inquire into the validity of the judgment upon which the execution issued, or the validity of the execution itself. But the plaintiff, without inviting any inquiry into the validity of these proceedings, to which she is not a party,invokes the protection of the court against an illegal seizure of her property, made by the officer charged with the enforcement of the writ of execution against a third person. She tenders an issue of title which has no connection whatever with the proceedings had in the Federal tribunal. This question, we think, the State tribunal may lawfully examine and determine, as it involves no conflict of jurisdiction. The writ, emanating from the Federal court, commands the Marshall to seize property belonging to the defendant in execution. The decree, perpetuating the injunction, commands the Marshall to abstain from the commission of a trespass, by the seizure of property which does not belong to the defendant in execution.

The legal doctrine governing such a case, is concisely expressed in 1st Kent’s Commentaries, page 411. “ If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject matter, then the inquiring into the validity of the seizure belongs exclusively to the Federal courts; but,if there be no jurisdiction in the instance in which it is asserted, as if a Marshall of the United States under an execution in favor of the United States against A, should seize the person or property of B, then the State courts have jurisdiction to protect the person and the property so illegally invaded.”

For a further illustration of this subject, see Slocom v. Mayberry, 2d Wheaton page 1; Bruen v. Ogden, 6th Halsted, 370; Robb v. Wagner, 5th Annual, 111; also Dunn & Wife v. Vail, 7th Martin, p. 436.

We find the evidence too vague and unsatisfactory to constitute a proper and suificient basis for a decree awarding damages, the plaintiff’s right to recover damages should, however, be reserved.

It is ordered that the judgment appealed from be amended so as to read as follows: It is ordered that the injunction herein sued out be maintained and made perpetual; that upon the plaintiff’s claim for damages there be judgment, as in case of non suit. It is further ordered that the costs of suit in the District Court, together with the costs of this appeal, be paid by the defendants and appellants.


author: Lea J.

text:
    Same Case on a Re-hearing.
   Lea J.

In this case the only question is, whether the judgment for a separation of property obtained by the plaintiff against her husband is valid or not. It is to be remarked, that the wife is not Seeking to enforce any moneyed claim upon her husband’s property adversely to his creditors; if this were the case, it would be incumbent upon her to establish affirmatively the validity of such claim. But the question presented is one of title. Does the property seized in execution belong to the plaintiff, as her separate property, or not? If the judgment of separation is valid, it is her property, for it has been acquired by her in her own name and upon her personal credit, since the date of the judgment. Every one of the witnesses who knew the plaintiff prior to her marriage with Bose, testifies to the fact that she had a separate'industry. She kept a clothing store. Now, it matters not whether her husband took possession of this store or not, it is equally immaterial whether she had or had not property at the time of her marriage, so far as this liquidation is concerned, as she is not seeking to enforce a paraphernal claim; it is sufficient for a married woman to prove that she had the skill and industry to earn a separate livelihood, which she had exercised, whether as a seamstress, teacher, milliner, or, (as in the case at bar,) a shopkeeper, is not material: she is entitled, under the humane spirit of our jurisprudence, upon proof of this fact accompanied by proof of the insolvent condition of her husband’s affairs, to call upon the court, by a judgment of separation, to protect the fruits and earpings of her separate industry from being squandered by her husband, or seized by his creditors See Davock v. Darcy, 2 Rob., page 343.

Re-hearing refused.


author: Spot-ford, J.

text:
    Levin K. Person v. C. M. Rutherford.
    Nacfe — under which, acta oí agent were held to bind principal.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      GlarJo & Bayne, for plaintiff and appellant. Olcott & Smith, for defendant.
   Spot-ford, J.

We would not disturb the judgment of non-suit in this case, if we could view the conduct of the defendant’s agents in the same light in which it appears to have been considered by the District Judge.

On the evidence as it stands, we think the defendant ought to be bound by the act of his agents, whom he left in charge of his slave-mart in New Or- and who, on an order given by the plaintiff’s factors in favor of Butherford himself, took the slave in question from the steamboat and again put her on the market for sale.

i\t any rate, when the plaintiff had thus given.notice that he returned the slave on account of a redhibitory vice, and when the defendant’s agents had received her and offered her for sale to others, if the sale was really cancelled, it was the manifest duty of the defendant to have notified the plaintiff’s agents, residing in New Orleans, of her serious illness, to have given her all requisite medical attention and as it could so readily have been procured to have had a postmortem examination.

The conduct of the defendant’s agents in these particulars has shifted the burden of proof from the plaintiff’s shoulders to his own; and, in spite of the obscurity of the evidence as to the malady, we think, under the peculiar state of facts, that the plaintiff should recover.

The girl, was sold at $750, and the plaintiff’s expenses were $25.

It is therefore ordered and decreed that the judgment of the District Court be reversed, and that the plaintiff recover of the defendant the sum of seven hundred and seventy-five dollars with legal interest from judicial demand and costs in both courts.


author: Mbrríck, C. J. Spoitobd J.,

text:
    Charles Clapp v. Henry Seibrecht.
    A surety on a bond given for the release of property sequestered by the vendor to satisfy his privilege is liable to the vendor, notwithstanding the property was seized and sold to satisfy a judgment rendered to inforce the lessor’s privilege for rent of premises in which the property had been stored, and which existed on the property at the time the sequestration was sued out. The obligation of the bond was “ faithfully to present the property to answer the judgment in the case; ” it was no compliance with the condition of the bond to present the property to satisfy the execution of a third party.
    It is a complete answer to a suit upon a bond for the release of the sequestration to show that the plaintiff’s right upon the property has been overridden and extinguished by a superior right existing at the time and prior to the sequestration. — Spofford, J., and Lea, J., dissenting.

      k PPEAL from the Third District Court of New Orleans, Lea, J.

      Bawle, for plaintiff and appellant. Boselius & Lucros, for defendant.
   Mbrríck, C. J.

The plaintiff, a creditor of Lefort with the vendor’s privilege upon certain furniture, obtained a writ of sequestration on the 28th day of June, A. D. 1850. The furniture was in a certain store filled with confectionary etc., belonging to Lefort on which one Blondeau had the lessor’s privilege for rent; seven hundred and fifty dollars of which (for five months) were then due.

The defendant Seibrecht in order to enable Lefort to continue his business signed his bond and thus released the property from plaintiff’s seizure.

Blondeau had in April previous instituted his action for three months rent, but no seizure was made, nor judgment by default taken.

Feeling perfectly secure on account of the property in the store subject to his rent, Blondeau suffered it to run on until it had accumulated to the sum of $1,800, when, in January, 1851, he instituted his second action, wherein, after judgment he seized the remaining of stock of goods in trade and the furniture sold by Glapp to Lefort not paid for, which had been previously sequestered. Glapp obtained judgment against Lefort after answer filed on the 18th February, 1851, decreeing him his privilege on the sequestered property. Blondeau took final judgment by default in both actions on the 7th of February, 1851, and sold the property seized in his second suit, it being insufficient to pay the amount due him. Of course, when Olapp's execution issued there was no furniture to seize and the fi. fa. was returned nulla bona.

This suit is brought against Seibrecht, the surety on the sequestration bond, to compel him to pay the amount of the judgment obtained by the plaintiff against Lefort.

Beibreeht in our opinion is responsible, unless he shows that the principal in the obligation complied with it, or was prevented by overpowering force or a fortuitous event. The latter is not pretended.

Let us examine how far there has.been a compliance. There has not been a literal compliance, because the obligation of the bond was faithfully to present the property to answer the judgment in this ease. Baker v. Morrison, 4 Ann. 373.

It was no compliance therefore with the condition of the bond to present the property to satisfy the execution of some third party.

But it is said there was a substantial compliance, because the property was subject to the. lessor’s privilege at the time the sequestration was issued and was seized by the Sheriff on account of rent. But at the time of the sequestration the “ shelves were full ” and there was doubtless enough to have paid vendor and lessor both: for seven months after, and after the. establishment had been in the hands of managers, creditors of Lefort, of whom Beibreeht was one for three or four months, these managers endeavoring to make their money out of the concern, the effects remaining were sold at Sheriff’s sale for $994.

There is nothing therefore in this record which shows that there was any inducement on the part of the lessor to interfere with plaintiff’s seizure, based as it was upon the strong equity of the vendor, and if he had interfered, it does not appear but there was property sufficient to have paid both privileges.

If the -lessor had suffered the property to remain under seizure fifteen days it would have been freed from the lessor’s privilege. If Beibreeht or some one else had not gone security for Lefort in ten days the plaintiff would have been at liberty to have given his bond for the property. The effect of defendant’s bond therefore was to prevent the vendor from securing the lessor's lien, and to place the property in a situation where the extent of the privilege upon it was increased by the account both of Lefort and himself: 1st. By the sale of the other property subject also to the privilege, and 2nd. By seven or eight months rent in addition.

Now what is the difference, so far as the vendor of movables is concerned, (who is endeavoring to inforce his privilege,) whether the defendant who has bonded the property breaks and destroys it or places it where a lessor’s privilege attaches to it and the proprerty is sold to pay the same ? The one is no more destructive to his rights than the other. If either of these acts prevent the original debtor from presenting the property to the Sheriff, under the execution, the surety is as much responsible in our opinion in the one case as the other.

So in the ease before us the debtor was finally unable either literally or in ’ substance to comply with his bond. But his inability had been occasioned by his own acts and those of his surety and his surely ought to answer for him.

We think the party to whom property is delivered on his bond under a sequestration, is bound not only for his malfeasance but also for his non-feasance.

If the building takes fire or leaks he is bound to remove the goods. If' taxes have become due he is bound to pay them and suffer the goods to be sold.

In like manner we think it is an act of nonfeasance, for which he and his surety is responsible, if he suffers rent to accumulate or does not pay that. which is already due. He might as well, with reference to the vendor, suffer the property to burn or be destroyed by exposure to the rain as to be absorbed by legal claims and rent.

The obligator is not released from his obligation, from his want of skill, ability or means to perform it. C. C. 2028. Had he or his surety paid the rent, the condition of the bond could readily have been complied with. A party cannot bo released from one obligation because he has incurred a more onerous one to some one else.

Again one of the common incidents of personal property is that it is transmissible by delivery and subject to privileges and seizure in the hands of the debtor; and one of the most obvious risks which the surety signing the sequestration bonds runs is from acts of this kind. We think therefore it is very questionable whether under any circumstances the court ought to listen to an excuse arising from these most apparent risks of the bond. See Morgan v. Furst, 4 N. S., 122. But if it be admitted that such defences can be set up by the surety, the burden of proof should be upon him to show that had the seizure continued the plaintiff would equally have lost his debt. So far as this action is concerned, as already observed non constat, that the lessor would have interfered with the seizure, or if he had, that there was not property enough to pay both lessor and vendor. Moreover it is shown that in the interval the stock in the store was repeatedly sold out and replenished.

The equity of the case is also with the plaintiff: the defendant, a creditor of Lefort, was anxious to keep him in business in order to secure his own-debt, and, for three or four months, during whieh this rent was accumulated, Seibrecht and his co-managers were conducting the establishment for the benefit of themselves and other creditors. Instead of paying the rent out of their own pockets', as they ought to have done, this act is made one of the grounds of the release of Seibrecht from his bond to the plaintiff. To release Seibrecht under the circumstances, seems to us, not only in conflict with the letter but the spirit of Art. 280 of the Code of Practice, prescribing the condition of the bond.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed and that the plaintiff Charles Clapp do recover and have judgment against the defendant Henry Seibrecht for the sum of four hundred and seventy dollars and twenty-five cents, with five per cent interest thereon from the 28th day of June, 1850, until paid, and that said defendant and appellee pay the costs of both courts.

Spoitobd J.,

(dissenting.) The object of an attachment is to obtain a security for the payment of a money demand; the object of a sequestration is to preserve the property in dispute, in statu quo, pending the litigation.

An attachment confers a right to be paid by preference out of the property in favor of the attaching creditor; a sequestration does not.

To release an attachment, the defendant must give bond “to satisfy such judgment as may be rendered; ” C. P., 259 ; to release a sequestration, the condition of the bond, prescribed by law and unalterable by the parties or the courts, is, not to send the property sequestered out of the jurisdiction, nor to make an improper use of it, but faithfully to present the same, after judgment, in case there be a decree for its restoration. O. P., 280.

Quo ad the property sequestered — the plaintiff acquires no greater right than he had before, by the process of sequestration. Duclere v. Crebassol, 194, 98. Bank of Alabama v. Hozey, 2 R., 153.

Accordingly, it must be a complete answer to a suit upon a bond for the release of the sequestration to show that the plaintiff’s right upon the property has been overridden and extinguished by a superior right existing at and prior to the moment of sequestration.

I, therefore, concur in the view of this case presented with force and brevity by the following opinion of the District Judge.

“The plaintiff’s sequestration was an invasion of landlord’s superior right. If the property had not been bonded, the sequestration would unquestionably have been thwarted by the vigilance of Mr. Blondeau.

The defendant’s inability to comply with the condition of his bond, was a necessary result of an infirmity in the plaintiff’s title. The defendant cannot be taken to have guarantied against that. ”

For these reasons. I think the judgment appealed from should be affirmed.

Mr. Justice Lea is of this opinion.


author: Merrick, C. J.

text:
    Boykin & Lang v. Holden Wright.
    A duly certified copy of an act under private signature, recorded in the office of conveyances, is admissible in evidence, in lieu of the original, when the latter is lost, and due diligence has been used in searching for it and publishing ’he loss.
    Where the affidavit of the subscribing witness, upon which the act under private signature was admitted to record, stated that the affiant was present when the act was executed, and saw the parties sign the same, it was a substantial compliance with Art. 2250 C. C. It is the recording of the title in the proper office which is notice to third parties, and not the testimony upon which the instrument was admitted to record.
    The fee-dockets of Clerks of Court are official records authorized by Art. 776 of the Code of Practice, and copies from them, duly certified, are admissible in evkence. The fact of their serving as account-books for the fees of the Clerk, does not lessen their authenticity as records of the proceedings had in suits.
    APPEAL from the District Court of Terrebonne, Gole, J.

      O. A. Johnson, for plaintiffs. J. G. & A. Beatty, for defendant and appellant.
   Merrick, C. J.

This is a petitory action. There was the verdict of a jury and judgment of the court in favor of the plaintiffs, and defendant appealed.

Both the plaintiffs and the defendant are claimants of portions of the same original grant, which ivas confirmed by government to Robert Martin, and by him sold to James Bowie. They both claim through mesne conveyances from James Bowie. The original title of the plaintiff is the oldest, but both his location and the title itself, originally and through its various links, is contested.

In order to understand fully the merits of the objections, it is necessary to examine the situation of- the land and the description of it, in the respective titles of the parties.

The upper line of the Robert Martin tract, 202 chains in length, crossed the Bayou Black (probably in. order to adapt it to the large grant of land above,) in such a manner as to form an acute angle on the one side, and an obtuse angle on the other, on a line drawn with the general course of the bayou through ihc Robeit Martin tract. Iu 1826, two years before Bowie sold to Isaao Thomas, the original vendor of plaintiffs, he sold on the left bank of the bayou, out of the David Martin tract, to J. D. Smith, one thousand acres, described as follows: “ to begin at a point where Bayou Duburge makes out of said Bayou Black, and running up and down with equal distances from said point of Bayou Duburge and fronting on Black, so that when the side lines are run out as far as the land of said Bowie extends, the [tract] shall contain one thousand acres; provided these side [lines] shall be run at the usual way of surveying those lands on said bayou.”

The first act of sale from Bowie to Isaao Thompson, was made through the intervention of an agent acting under a power of attorney, and by notarial act passed before the parish Judge of Terrebonne, bearing date the 28th day of January, 1828.

The tract transferred is described as “ one thousand arpents of land situated in said parish, on Bayou Black, to be taken from the upper end of the tract conceded by the Spanish government to Miguel Saturnino, and confirmed by the government of the United States in the name of Robert Martin. * * * * * * The said concession and confirmation .being for fifty arpents front on each side of said Bayou Black with the ordinary depth of 40 arpents * * * * and it is further understood that the land herein conveyed to said Thomas is so to be laid off and set apart as to make his lower line parallel with the upper, and have equal width on each side of the bayou.”

On the 30th day of January, 1828, the agent of Jewries Bowie, by an act under private signature, recorded in the parish Judges’ office, March Ofh, 1828, after reciting the substance of the notarial act of 28th of January, 1828, and the description of the land, proceed to declai'e: “Now if the calls in the said conveyance to said Thomas should interfere with lands previously sold to Dr. J. D. Smith, of Concordia, it is understood and agreed, that said Thomas’ thousand arpents shall be laid off adjoining said Smith’s lower line, agreeably to the principles established and laid down in said Thomas’ conveyance above referred to.”

James Bowie, oil the 17th day of February, 1829, by notarial act, not recorded in the parish where the land lies, ratified the two acts of his agent to Isaao Thomas.

The deed under which the defendant claims bears date April 25th, 1828, and appears to have been recorded the 29th of the same month. This also was passed by an agent of James Bowie. The description of the land conveyed is, “ a certain tract or parcel of land measuring three hundred superficial arpents, situated in the parish of Terrebonne, on the north side of Bayou Black, at about five miles from the Bayou Terrebonne, bounded above by the lauds of John Minor and James Dinsmore, below by other lands of said James Bowie, and back by a line running north sixty-four degrees and sixteen minutes east, and separating the same from vacant or Congress land.”

Taking it for granted for the present, that the acts from Bowie to Thomas, were formal, we will first .consider the question as to the location of the tracts of land under their conveyances. The plaintiff contends that there was not one thousand arpents in that part of the Robert Martin tract, lying above the tract conveyed to J. D. Smith (which last tract takes precedence of both plaintiff and defendant). To this, defendant replies that there is no sufficient proof to show this fact, taking the Smith tract as claimed by the present occupants ; but that the Smith tract, instead of being laid out at right angles with the Bayou Black, should have been laid out, so that the side lines would be parallel with the upper line of the Robert Martin tract; that this location would have diminished the Smith tract nearly one-half of its front and left the 1,000 arpents for the plaintiff’s vendors above.

There is testimony in the record which shows that the J. D. Smith tract of land has been laid out as was usual and customary in that section of the State, that is,' that it was laid out as nearly as practicable at right angles with the bayou. It is shown also by the same witness, who himself had been a surveyor, that there was not one thousand arpents in that part of the Robert Martin tract, lying above the Smith tract, to give the plaintiffs their quantity. But this witness had not measured the land, and only spoke from observation by frequently passing and the maps before him. We cannot say that the jury erred in giving full weight to the testimony of the witness in both of these particulars. The survey at right angles with the bayou would be much more natural and better calculated to give value to the lands, than the one contended for by the defendant, which would divide the tract into inconvenient portions. Eor example, were plaintiffs land laid off, as the defendant contends it should have been, it would be eighty or one hundred arpents in length and ten or twelve in width. The Smith tract, instead of being in a regular shape, would be narrow, and terminate in an acute angle on the bayou, at its lower corner, and in a like angle at the upper corner on the back lino. In regard to the quantity above the Smith tract, an inspection of the surveys would tend to confirm the statement of the witness.

We see, therefore, no error in the conclusions-of the jury, in regard to the place where plaintiffs’ land is found, nor in the manner in which it was to be laid off. What we have here said, applies with equal force as to the manner in which defendant insists that plaintiffs’ tract of land ought to be laid out, if his pretensions to have it set off to him below the Smith tract be admitted.

We will now consider the objections raised to plaintiffs’ title.

I. A copy of the act under private signature, certified by the recorder, was offered in evidence. It is objected, that there was no proper evidence of the loss of the original adduced. We think the search made and the publication of the loss in the newspapers, showed sufficient diligence to discover the original, and that after the lapse of so many years, and the unavailing search made, secondary evidence was properly received.

II. The act under private signature was proven by one of the subscribing witnesses only, before the parish Judge. The witness testified that “ he was present when the said deed was executed, and saw the parties sign the same.” It is objected, that this affidavit does not authenticate the instrument, so as to make proof of it against the defendant, and that it did not authorize the parish Judge to record it, and therefore it can have no effect against third parties.

It is the recording óf the titles in the proper office which is notice to third parties, and not the testimony upon which the parish Judge or Recorder may have admitted the instrument to record. Hampton v. Morgan, 9 Ann. 547.

In the instrument before us, we think the parish Judge had substantially complied with Art. 2250, 0. O., when he admitted this instrument to registry.

A loss of the original act having been shown, we think that after a lapse of more than twent}r-seven years from the execution of the act under private signature and its registry, accompanied by constructive possession lor the whole period, and actual possession for twenty years, of the large portion of the tract of land conveyed, and a former possession of a part of the tract in controversy, that the instrument was admissible in evidence, and the Judge did not err in receiving it.

IV. It is objected, that the recognative act was not registered, and should have been excluded from the jury. As sufficient notice was given to all the world, by the registry of the original act of sale, and the act sous seing privé, no registry of the act of ratification was required.

V. It is further objected, that “ the power of attorney from James Bowie to S. Bowie, authorized him to sell, but did not authorize him to exchange lands or buyback a tract of land already sold, and give in exchange for it another tract of land.”

It will be observed, that the power of attorney to S. Bowie, was not simply to sell one thousand arpents to Isaac Thomas, but to sell to any person any part or all of his, James Bowie's, lands in the parish of Terrebonne. Now, as the authority under the power of attorney did not terminate with the notarial act to Thomas, for he was to sell all the lands, and as it is apparent that this act did not convey to Thomas the one thousand arpents intended, the agent and Thomas were authorized to remove the obstacle in the way of a perfect sale and to correct the description of the land, so as to carry out their original intentions. Until this was done, he had not made a complete sale, and his power over the object had not terminated.

VI. The next objection which we notice is raised by a bill of exception to the introduction of testimony.

It appears that Thomas sold to W. Bogart. Bogart went into forced insolvency in the Commercial Court of New Orleans. Plaintiff alleges that Joseph Fowler, through whom he claims, bought at the syndic’s sale. In support of this averment, he proves that the original insolvent proceedings are lost, with the exception of the schedules and the entries on the minutes of the court, the most diligent search having been made to find the same.

The plaintiff offered in evidence these portions of the record, and also certified copies of other portions which had been used as evidence in other courts, together with a certified copy of the fee docket, showing that such papers had been filed and certain orders made in the insolvent proceedings.

The defendant objected to the introduction of parts of the record, and to the introduction of a copy from the Clerk’s docket, wherein he had entered his fees, because it was not a book which was recognized by law.

The plaintiff had established a basis by his proof for the introduction of secondary evidence. Of secondary evidence, he was obliged to produce the best in his power. The portions of the record extant, were the best evidence of the kind, and their non-production would probably have been fatal to plaintiff’s case. The copy from the Clerk’s fee book was also admissible. The Code of Practice, Art. 776, requires him to keep a book, in which he shall set down in order the titles of all causes depending between the court, mentioning the date of the filing of the petitions and answers, and the names of counsel employed by the parties. The fact, that this book is also commonly used as a fee docket, cannot lessen its authenticity.

An order found on the minutes, recognizing Fowler as the purchaser, together with thoproees verbal of the auctioneer, referring to an order of sale, and an act of sale from the syndic, with the testimony of the witnesses and other portions of the record produced, furnished to the jury sufficient data from which to infer, that an order of sale had been regularly made, particularly as the party now questioning the proceedings, does not pretend to claim under Bogart.

In .conclusion, we remark that the whole m'atter has been submitted to a jury, and we discover no such error in the proceedings of the lower court as to require us to disturb the judgment there rendered.

Judgment affirmed.


author: Spoitokd, J.

text:
    State v. John Melvin.
    The Act of May 29, 1S56, authorizing juries, in capital cases, to qualify their verdicts of guilty by adding “ without capital punishment,” did not change the pre-existing jurisprudence which held it to be good cause of challenge on the part of the State in such cases, that the juror had. conscientious scruples about inflicting capital punishment.
    The following bill of exceptions was taken to the charge of the District Judge. “Be it remembered that on the trial of this cause, the Judge, in his charge to the jury, and at the beginning and in the course of his said charge, stated to the jury that cases of murder were fearfully numerous in this city; that a conviction on a charge of murder had ceased to be a cause of excitement, and had become a common affair of almost daily occurrence*, that confinement in the State penitentiary for life, was no adequate punishment for the crime of murder, and that juries had no right to qualify their verdict unless there were mitigating circumstances; that convicts in the peniten-. tiary seldom served out their term, when confined there for life; that a late Governor of this State had pardoned almost every body, and that convicts were always in the hope that after a few years they would appeal to a clement executive, and that none but capital punishment would put a* stop to the practice now common of man and woman killing; that he, the Judge,, on a late visit to the penitentiary, had been told by parties sentenced by him, inmates of the State prison now. that they hoped in a short time to come out; to which charge the counsel for the defendant objected, &c.” By the Gow't: Tt is obvious that the charge as above detailed embraced several matters of fact within the personal knowledge of the Judge, which would not have been admissable in evidence, had they been offered on the trial, which did not contribute in any way to the elucidation of the law applicable to the case, and which yet had a tendency to influence the finding of the jury by motives extraneous to the cause before them.
    Under the statutes of this State, the Judge should carefully avoid giving the jury any indication of his own opinion touching the facts of the case, or the guilt, or innocence of the prisoner.
    The qualification-of the verdict in capital cases should be left where the law has lpft it, to the sound discretion of the jury, upon the facts of the case, guided by a sense of their solemn responsibility — -which is to do their whole duty to the State as well as to the accused.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      Morse, Attorney General.

      Saucier, for appellant:
    It is contended that, when the prisoner has accepted a juror tendered to him by the State, and the juror is sworn, that juror becomes one of his judges and can not be taken from him. — He is one of a branch of the Court. The State having once waived the right to enquire into the qualifications of a juror, upon the voir-dire examination, before presenting him to the accused, waives with it every objection which it might have urged to the juror. 2 Bay’s Rep. 155. Graham on New Trials. State v. Kennedy, 8 Rob. Rep. 596.
    In the case of the State v. Cummings, 5 Annual Rep. 332, wherein the objection was merely that the State had challenged a juror, after he had been accepted by the accused, but before he was sworn, this court said : “ It seems to us most proper that the State should first exercise the right of challenge, for cause or peremptorily, and present the juror to the accused as a good and lawful juryman; that the accused should then exercise his rights, and that the State should not be allowed to challenge, after the juror has been accepted by the prisoner.

      But the rule for which counsel contends, namely, that the State is not allowed to challenge a juror after he has been sworn, is laid down in all the books. “ The King can not challenge a juror after he is sworn, unless it be for a cause arising after he is sworn.” Trials per Pais, page 190. 1 Chitty, 645 — 546. Hawkin’s PI. of the Cr. v. 2, page 568. Graham on New Trials, ch. 2, under the head, “For irregularity in empannelling' the jury” : — “If a juror be formerly sworn, if he bo challenged, he must shew cause presently, and that cause must rise since he was sworn. 3 Thomas’ Coke, p. 524.” It is indeed useless to cite further authority on this point: it is supported by every work that treats of the trial by jury.”
    The court claims the power, in order to “attain” and “maintain justice,” to order jurors to stand aside, even after they have been sworn, and for a cause that existed before they were sworn. It is submitted that the court has no such power, and that the best way to “attain” and “maintain justice ” is to follow the rules and forms of the law.
    But assuming that the objection to the two jurors, set aside in this case, was not too late, the defendant contends that it is not valid. They were ordered to stand aside, because they were opposed to capital punishment. Now, sentence of death does not necessarily follow conviction on a charge of murder; another punishment is provided by law; namely, confinement at hard labor, in the penitentiary, for life, when the jury return a qualified verdict, i. c. “ Guilty without capital punishment,” which it is lawful for them to do in all cases, where the punishment donounced by law is death. (Acts of 1846, No. 139, p. 118.) The said jurors were then “good for the State,” and should not have been discharged from the consideration ot the case.
    As to the point embodied in bill of exceptions, marked B, that the Judge a quo admitted, in evidence against the accused, the dying declarations of the deceased, when it appeared in evidence that she was not, at the time of declaring, in a condition to realize the sense of impending dissolution, which is supposed in law to supply the place of an oath, it is submitted to this court, on citing Greenleaf on Ev. 156, 157, 158.
    Again, the Judge said to the jury that they had no right to qualify their verdict, unless there were mitigating circumstances in the case. The law says: “That in all cases where the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto “without capital punishment.” Acts of 1846, p. 118. The judge, in an addition to the bill under consideration, says he did not say that the jury had no right to qualify their verdict, unless there were mitigating circumstances in the case, out that he said “ it was not right to qualify their verdict, &c.” Counsel is confident that, on examining the record on this point, this court will take the facts to have been as stated in the body of the bill.
   Spoitokd, J.

xln unqualified verdict of guilty having been found against the prisoner, under an indictment for murder, he was sentenced to death.

Having appealed to this court, he seeks to reverse the sentence and to procure a new trial, for various alleged errors in the proceedings below.

W& are of opinion that the Act of May 29, 1846, authorising juries, in capital'cases, to qualify their verdicts, by adding “ without capital punishment, ” has not changed the pre-existing jurisprudence which held it to be good cause of challenge on the part of the State, in such cases, that the juror had conscientious scruples about inflicting the punishment of death. The State v. Kennedy, 8 Rob. 594. If the Legislature intended to change the law in this respect, such intention should appear by necessary implication from the statute itself.

The statute allows jurors, in a specified class of cases, to render a verdict in two forms; if they have conscientious scruples against either form, they cannot carry into effect the whole law, and therefore do not stand indifferent between the State and the accused.

But, while we do not think the court erred in allowing their challanges for cause, we find error, which may have prejudiced the prisoner, in that portioh of the Judge’s charge to the jury, which is embodied in the following bill of exceptions : “ Be it remembered that on the trial of this cause, the Judge, in his charge to the jury, .and at the beginning and in the course of his said charge, stated to the jury that cases of murder were fearfully numerous in this city; that a conviction on a charge of murder had ceased to be a cause of excitement, and had become a common affair of almost daily occurrence; that confinement in the State Penitentiary for life, was no adequate punishment for the crime of murder, and that juries had no right to qualify their verdict unless there were mitigating circumstances; that convicts, in the penitentiary, seldom served out their term when confined there for life; that a late Governor of this State had pardoned almost every body, and that convicts were always in the hope that, after a few years, they would appeal to a clement executive, and that none but capital punishment would put a stop to the practice now common of man and woman killing; that he, the Judge, on a late visit to the penitentiary had been told, by parties sentenced by him, inmates of the State Prison now, that they hoped in a short time to come out; to iyhich charge the counsel for the defendant objected, &c.”

It is obvious that the charge as above detailed, embraced several matters of tact within the personal knowledge of the Judge, which would not have been admissible in evidence, bad they been offered on the trial, which did not contribute in any way to the elucidation of the law applicable to the case, and which yet had a tendency to influence the finding of the j ury by motives extraneous to the cause before them.

If there could be a doubt under the English common law, with regard to the propriety of such a charge in a criminal ease, the legislative enactments of Louisiana would compel us, however reluctantly, to say that it was erroneous. The Act of April 80, 1853, (Sess. Acts, p. 249,) declares “ that in his charge in criminal cases, the Judge must limit himself to giving the jury a knowledge of the law applicable to the cause submitted to them.” And the Act of May 29, 1846, (Sess. Acts, p. 118,) had previously declared “ that in all cases where the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto “ without capital punishment,” and that whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall only be sentenced to hard labor for life, in the State Penitentiaiy.”

Under these statutes, the Judge should carefully avoid giving the jury any indication of his own opinion, touching the facts of the case, or the guilt or innocence of the prisoner.

And the qualification of the verdict should be left where the law has loft it, to the sound discretion of the jury, upon the facts of the case, guided by a sense of their solemn responsibility, which is to do their whole duty to the State as well as to the accused.

¥e are not insensible to the public evils, deprecated by the District Judge, and which naturally provoked the strong expressions contained in his charge.

But we are sitting as Judges, to apply the laws as they are to a particular controversy, growing out of facts, not as legislators to originate and prescribe general rules for the future. If existing laws are found to work badly, the remedy is to be sought at the hands of the power which enacted them. Whilst they remain upon the statute-book, they must be obeyed by the courts without reference to their expediency.

It is, therefore, ordered that the judgment of the District Court, in the case of the State v. John Melvin, be avoided and reversed, the verdict of the jury set aside, and the said cause remanded for a new tria!, according to law.


author: Buchanan-, J.

text:
    Mooney & Vail v. Brig Hondurino and Owners.
    Privilege for wages of crew is prescribed by sixty days. The rule is the same as to the furnishers of supplies. Such items of both as fall within sixty days are allowed, rateably. 0. 0. 3205.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Mix, for plaintiff and appellant. . G. & O. E. Sahmidt, and Baee & Foster, for defendant.
   Buchanan-, J.

The plaintiffs seized the Brig Hondurino and have a privilege by their seizure which entitles them to be paid first, unless some other creditor has a higher right by the nature of his claim: and such, are the claims for wages. But wages are only privileged for sixty days previous to seizure. See case of Blanchin v. Fashion, 10th Ann. There is no privilege in' favor of the seamen, for their return passage to Omoa. After the wages, the privileges of the appellees Barrois, and Marshall & Coxe, for supplies, (also limited to sixty days,) are to be paid rateably with plaintiffs, according to Art. 3205 of the Civil Code. The claim- of Marshall & Goxe is wholly within sixty days, but that of Barrois is within that time only for about one-half of its amount.

It is therefore decreed, that the judgment of the District Court be amended, and that the proceeds of the Brig Hondurino be distributed according to the annexed schedule, the appellees and appellants, paying each one-half the costs of appeal.

Distribution of proceeds of Brig Hondurino: 1st. Costs of court and Sheriff’s fees.$

2d. Wages — William Smith. 70 00

James Brown. 30 00

James Rooney. 30 00

Ered. Jones. 30 00

Henry Ducknel. 30 00

Pedro Chaburria. 30 00

Reed Green. 30 00

3d. Supplies — V. Barrois. 92 38

Marshall & Coxe.’. 238 29

Mooney & Vail. 1927 27 — $2257 94


author: Lea, J,

text:
    Abraham Levi v. A. G. Penny.
    Certain slaves were sequestered and bonded by intervenors, on tbe written consent of plaintiff’s counsel that the slaves should be delivered to intervenors, “ they having given bond for said ne-groes as co-administrators, the plaintiff being satisfied that the negroes would be forth-coming at the termination of the suit. ” A second writ of sequestration was granted for the reasons set - forth in the first application and on motion it was dismissed. — Held: The second sequestration was properly dismissed — because, by the bond on file which the plaintiff approved, the property sequestered had been released, and no additional grounds had been shown to authorize the subsequent seizure of the same property.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Muse & Hardee, and Me Vea, for plaintiff and appellant. G. 8. Sawyer, for defendant.
   Lea, J,

(Merrick, C. J., recused himself.) In this case the defendant is sued upon certain promissory notes, secured by an act' of mortgage, executed by him and bearing upon several slaves which have been seized under a writ of sequestration issued herein. The suit is brought against the defendant directly, in his own name, for a debt alleged tobe due by him, which the plaintiff seeks to enforce upon property, as the petition sets forth, belonging personally to the defendant.

The defendant, appearing in his capacity of natural tutor of his minor children, moved the court to set aside and dissolve the sequestration on the ground . 1st. That the reasons set forth in the petition are insufficient to create any reasonable apprehension that the defendant intended to remove the said property out of the State ; 2d. On the ground that tbe defendant did not intend to remove the slaves out of the State and that said Levi had no legal mortgage in said negroes, or that, if the samo ever existed, it has been cancelled and annulled by the sale of the negroes at Sheriff’s sale; 3d'. That the negroes sequestered belong to tbe succession of S. A. Penny, the deceased wife of the defendant, and that they are held by the defendant in his capacity of natural tutor of her minor children and that the plaintiff should have proceeded by the hypothecary action.

It is further urged on behalf of the defendant that five of said slaves were the separate paraphernal property of said 8. A. Penny.

The under tutor of the minor heirs of 8, A. Penny, and one of the heirs of age (Mrs. Foster) also intervene and, joining in the motion to dissolve the writ, urge the further ground that there is no legal bond to serve as a basis of the writ, the same not being signed by the plaintiff, nor by any one authorized for him. At a subsequent period of the proceedings Ann L. Foster and her husband, appearing in the capacity of co-administrators of the estate of 8. A. Penny, intervened, alleging title in the succession administered by them to the sequestered slaves and claiming the same. They join in the motion to dissolve and adopt and reiterate the grounds set forth by the defendant and under tutor. In the mean time however, on a motion to be allowed to bond the slaves, made by Mrs. Foster and husband as co-administrators of the succession of Mrs. Penny, the plaintiff’s counsel gave their written consent that the slaves sequestered at plaintiff’s suit should be delivered to Foster and wife, they “ having given bond for said negroes as co-administrators, the plaintiff being satisfied that the íiégí'0'eg wottld be forth-coming at the termination of the suit,” Neither the bond nor a copy of it is on file, we must assume however, that it was such a bond as the Jaw requires on the release of sequestered propertyf the plaintiff having admitted its existence and expressed himself satisfied therewith. Acting upon this consent, the property was released by the Sheriff,

But, subsequently thereto, the plaintiff filed another petition in which he alleges that for the reasons set-forth in his first petition he prays for an alias writ of sequestration, which was accordingly granted. It is unnecessary to recapitulate all the grounds urged by the co-administrators and by the defendant in support of the motion to set aside this second writ of sequestration.

We concur with the District Judge that the written consent of the plaintiff’s counsel furnished a judicial recognition, (at least for all purposes affecting the legal custody of the slaves,) of the capacity of co-administrators and of their rights as third persons in possession, who had been permitted to bond property under sequestration after having furnished bond with satisfactory security as provided by law.

No new fact is set forth in the second petition showing any change in the condition of the parties which would justify a second resort to the conservatory process of the law. It has been urged that the written consent was not acted upon, that the property was not delivered to the co-administrators by the Sheriff, but to the defendant Penny. To meet this argument, it is sufficient to refer to the fact that the intervenors recognize their liability on the bond and claim the property in virtue of their possession under it. It cannot be pretended that they would not be liable upon the bond thus given and thus judicially recognized.

We think there was no sufficient ground for the issuance of the second writ. Under the pleadings and judicial admissions on file the possession of Penny must be considered that of the intervenors. As respects the proceedings had upon the first writ we think no action on the part of this court is required, the second writ alone ivas set aside by the decree of the court. The first writ as we understand the decree is maintained inasmuch as the property is ordered to be delivered up to the possession of the administrators of the succession of S. A. Penny to be held “according to the terms of the written consent of the plaintiff, to be found on file in this suit, of date of the 1st May, 1855, ” and the appellees have not asked for any amendment of the decree in their favor.

We think this fact should however be so embodied in the decree as to relieve the parties from all uncertainty with reference to their respective rights.

It is, therefore, ordered that the decree appealed from be amended so as to read as follows :

It is ordered that the alias writ of sequestration issued herein be set aside and that the property sequestered by the Sheriff be delivered into the possession of J. Foster and wife, co-administrators of the estate of Mrs. Sarah A. Penny, deceased, to be held by them according to the terms of the written consent of the plaintiff on file, dated 1st May, 1855, and that the plaintiff pay all costs of proceedings incident to the said alias writ of sequestration, together with the costs of this appeal.