text:
    No. 4526.
    William Walsh v. Charles Lallande.
    "Where parties claim title to lauds acquired from the United States, after the General Government has parted with its title, the courts will decide tlieir rights under the law, without reference to the action of the officers of the land office.
    A citizen, in its largest sense, is any native born or naturalized person, who is entitled to full protection in the exorcise and enjoyment of the so called private rights.
    By the laws of Louisiana native born free persons of color were in the lull enjoyment of those rights in 1844.
    By the treaty whereby Louisiana was acquired, the free colored inhabitants of Louisiana were admitted to a citizenship of the United States;
    Therefore, a free colored person who was born in Louisiana, who had always lived there,, and whose ancestors for two generations before him had been free and had lived in Louisiana, was a citizen of that State in 1860, at the epoch when the commissioner of the general land office, in an ex parte proceeding, canceled an entry made by said person under the pre-emption laws of 1841, on the thirty-first day of December, 1844, on the ground that said person, being a free negro, was not a citizen of the United States, although he had remained in possession of the land since the entry and had complied with all the requirements of the laws of the United States to entitle him to enter the land by preemption.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Butler, J.

      Haralson & Olaiborne, for plaintiff and appellee. Edward Phillips, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Wyly, Morgan.
   Ludeling, C. J.

This is a petitory action for a tract of land situated in the parish of Pointe Coupée. The plaintiff claims under a patent from the State of Louisiana, dated on the twenty-first of February, 1861.

The defendant claims under an entry made under the pre-emption laws of 1841, on the thirty-first day of December, 1844. The defendant has been in quiet possession of the property since his settlement in 1844 until 1866.

It appears that in an ex parte proceeding the commissioner of the general land office ordered the cancellation of Lallande’s entry on the fourteenth of November, 1860, on the ground that he was a free negrot and tile plaintiff was permitted to locate a school warrant on the land, •which has been approved by the Secretary of the Interior. Thus it ■appears that the United States has parted with its title. Where parties claim title to lands acquired from the United States after the general government has parted with its title, the courts will decide their ■rights under the law, without reference to the action of the officers of the land office. 20 An. 435; 20 How. 7, Garland v. Winn; 1 Peters 212, Comegys v. Vosse; 14 How. Cunningham v. Ashley; 14 An. 134. The legal question, upon which the commissioner seems to have predicated his decision, is, whether Lallande, the defendant, was a citizen of the United States, and he held that he was nob, because he was a free negro.

The agreed statement of facts in this record shows that Charles Lallande was born of free parents, in this State, and he is of mixed blood. His grandfather was a white man, a Spaniard; his grandmother was ■an Indian. Their issue was the father of the defendant, the defend-■am,’s mother was a mulattress. All were born free and were inhabitants of Louisiana. The other facts agreed to show that Lallande ■complied with the requirements of the laws of the United States to ■entitle him to enter the land by pre-emption; was a free colored person, who was born in Louisiana, who had always lived there, and whose ancestors for two generations before him had been free and had lived in Louisiana, a citizen of Louisiana? A citizen in its largest sense is any native born or naturalized person who is entitled to full protection in the exercise and enjoyment of the so called private rights.

By the laws of Louisiana native born free persons of color were in ■the full enjoyment of those rights in 1844. All free native born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the ■other necessary qualifications possessed the franchise of electors, on •equal terms with other citizens. Opinion of Justice Curtis in Dred Scott.

By the treaty whereby Louisiana was acquired, the free colored inhabitants of Louisiana were admitted to citizenship of the United ■States.

In the case of the State v. Manuel (4 Dev. and Bat. 20), Judge Gas-ton, as the organ of the court, said: “According to the laws of this State, all human beings within it, who are not slaves, fall within one ■of two classes. Whatever distinctions may have existed in the Roman daws between citizens and free inhabitants, they are unknown to our •institutions. Before our revolution, all free persons born within the ■dominions of the king of Great Britain, whatever their color or complexion, were native born British subjects; those born out of his allegiance were aliens. Slavery did not exist in England, but it did in. the colonies. Slaves were not, in legal parlance, persons, but property. The moment the incapacity, the disqualification of slavery, was-removed, they became persons, and were then either British subjects or not British subjects, according as they were or were not born within-the allegiance of the British king. Upon the revolution, no change took place in the laws of North Carolina than was consequent on the-transition from a colony dependent on a European king, to a free and' sovereign State. Slaves remained slaves — British subjects in North Carolina became freemen. Foreigners, until made members of a State, remained aliens. Slaves, manumitted here, became freemen, and-therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise,, until it was taken from free men of color a few years since by our amended constitution.”

The reásoning in that case is a projoos in this.

The judge a quo referred to the decision of the Supreme Court in the Dred Scott case. That case is inapplicable. In that case the opinion, announced was that "a negro of African descent, whose ancestors were of pure African blood, and were brought into this country and-sold as negro slaves, was not a citizen.” At any rate, it is but a single case and does not settle the question. We think the facts of this case justify us in saying that Lallande was a citizen of Louisiana at the-time he acquired the laud in question; that he had the capacity to acquire it, and he has the better right to the land.

It is therefore ordered and adjudged that the judgment of the lower? court be avoided and reversed, and that there be judgment in favor of the defendant, decreeing him to be the owner of the lands in dispute, and rejecting the plaintiff’s demand with costs of both courts.


source: Caselaw Access Project

author: Taliaferro, J. Wyly, J.,

license: Public Domain

text:
    No. 4343.
    State of Louisiana v. John Garvey and Charles Earle.
    Tlie statements under oath, in a judicial proceeding, made as a party accused and not as a witness, are not lo bo held as voluntary, and therefore are not admissible as evidence on the trial of said accused party.
    "Where it was objected to the admission as evidence of a declaration in writing purporting to-be a voluntary confession of the accused, on the ground that such a declaration was not voluntary, because it appeared on the trial of the case that it was doubtful whether or not inducements by the Superintendent of the Metropolitan Police had not been offered to the accused to make said declaration, and because under such circumstances, the accused was entitled to the benefit of the doubt;
    Held — That the court below erred in overruling the objection.
    APPEAL from the First District Court, parish of Orleans. Abell, J. Criminal case. Trial by jury.

      A. A. Atocha, for appellants.

      Simeon Belden, tor the State.
    Justices concurring: Ludeling, Taliaferro, Morgan.
   Taliaferro, J.

The defendants in this case have appealed from a judgment of the First District Court of New Orleans, sentencing them to bard labor in the penitentiary for life, on the verdict of a j ury finding them guilty of the crime of murder without capital punishment.

The case comes before this court on two bills of exceptions. The first is to the admission in evidence against the accused, of a declaration in writing purporting to be a voluntary confession by Earle, one of the accused, of the commission of the crime wherewith the parties were charged. The objection is that this declaration was made under oath, Earle being at the time under arrest, and brought before the coroner at the time of holding the inquest over the body of the deceased, by the request of Earle himself to make the said declaration. That the declarations and statements of Earle were given as a party accused and under oalli and were not admissible at all.

A clear and well marked distinction is made between the effect of statements made by a party under oath as a witness in a criminal proceeding and the statements under oath by an accused party. In the first case, whatever the witness may state tending to criminate himself in regard to the accusation about which he testifies may be introduced as evidence against him in a subsequent prosecution of himself for the same offense. But it seems to be well settled that the declarations under oath of an accused party are not to be held voluntary and consequently are not admissible in evidence.

Mr. Greenleaf in his treatise on the law of evidence, vol. 1, section 225, in laying down the rule that a party accused must not be sworn, says: “ It may at first view appear unreasonable to refuse evidence of confession merely because it was made under oath, thus having in favor of its truth one of the highest sanctions kuown to the law. But 'it is to be observed that none but voluntary confessions are admissible; and that if to the perplexities and embarrassments of the prisoner’s situation, are added the danger of perjury, and the dread of additional penalties, the confession can scarcely be regarded as voluntary; but on ■the contrary, it seems to be made under the very influences which the ■law is particularly solicitous to avoid.” This doctrine appears to be maintained generally by the standard authorities, McNally on Evidence, .Roscoe on Criminal Evidence, Russel on Crimes, and others.

In the case of the People v. Hendrickson, the subject underwent a very thorough consideration by the Supreme Court of the State of New ‘York and afterwards by the Court of Appeals of that State. Parker’s «Criminal Reports, vols. 1 and 2. A review was taken of all the leading English cases, and the few American cases that had then (1852) ■been reported. Mr. Justice Wright remarked, vol. 1, p. 414: “From ithis review, I think it must be apparent that it is only when a party •accused has been examined on oath that his statements are to be ■rejected when offered in evidence against him.” In passing on Hen■drickson’s case the Court of Appeals said : “ Where the evidence offered ■has been rejected on the ground that the statement was made when the prisoner was in custody charged with crime, as in Wheeley’s case ..and Owen’s case, it seems to me clear that it was properly excluded, because these were cases of the examination of a prisoner not of a 'witness. In such cases it is a judicial examination, and it should not be on oath and certain precautions, for the pi otection of the accused .are always observed.” Vol. 1, p. 420.

In the case of the People v. McMahon, before the same court a few ■years afterwards, the court remarked: “This subject has been so recently and so fully examined in the case of the People v. Hendrickson, 1 Parker Crim. R. 416, that nothing now can be gleaned from a further review of the authorities. Upon principle there can be no good reason for the exclusion of this evidence. It is only upon a judicial examination, where the prisoner-is brought before a magistrate •charged with crime, that the accused is to bo informed by the magistrate that he is at liberty to refuse to answer any question that may be put to him. He is to be examined but not under oath; and his answers ■may be subsequently used as evidence against him. That is the ex-•aminatiou of a party and not of a witness.” * * * * “Under ■such circumstances McMahon was not before the coroner as a prisoner but as a witness. It does not appear that any person knew of his .arrest but Squyres. In regard to the coroner’s proceeding, he stood in no respect in the relation of one arrested or even accused. He was there only in the capacity of a witness and it is as such and not as a .party that his legal rights are to be determined.” 2 vol. Par. Crim. R. pp. 670 and 671.

In the case now before this court the judge a quo, we apprehend, ■overlooked the distinction so clearly drawn in the New York cases we have adverted to. Earle was before the coroner as a party accused ■and not as a witness. He was there in custody as such, a fact within the knowledge of the coroner.

The second bill of exceptions was taken to the admission of the ■declaration in writing, purporting to be a voluntary confession by Earle, on the ground that such declaration was not voluntary, because the Superintendent of Metropolitan Police, when testifying in the case, ■said he could not swear that he had not offered inducements to Earle •to make the declaration, thereby leaving it in doubt whether or not inducements were offered to Earle to make the declaration, and that ■the accused was entitled to the benefit of the doubt.

We think the court below erred in overruling the objections made to the admission of the written declaration of Earle as a voluntary confession.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled and reversed. It is further ordered that this case be remanded to the court of the first instance for a new trial.

Wyly, J.,

being absent, took no part in this decree.


author: Wyly, J.

text:
    No. 2887.
    Elizabeth Sommers v. Gustave Schmidt.
    *Wliere tlie husband, has not appeared with his wife, in the suit instituted by her, the latter must show his authorization. Her own averments, or those of her counsel as to that fact are not sufficient.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Muse & Phillips, for plaintiff and appellant. Gustave Schmidt, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

This suit must be dismissed, because it was brought by the plaintiff, a married woman, without the authorization of her husband.

Where the husband has not appeared with his wife, the latter must show his authorization otherwise than in her own averments, or those of her counsel. Succession of Pomroy and authorities there cited. 21 An. 576.

It is therefore ordered that this suit be dismissed at plaintiff’s •costs.


text:
    No. 4565.
    Jefferson Wells, Curator, v. J. M. Wells, Executor.
    A mortgage creditor lias no right lo injoin the sale of his debtor’s proporfcy for want of notice of the application for the order, when the sale was ordered to pay creditors having a higher rank, or a preference over him.
    Where creditors, who were by judgment en ifcled to be paid by preference, intervened, and joining in the defense made by the executor of an estate against the injunction issued at the prayer of a creditor of an inferior rank, asked that the judgment be so amended as to allow them twenty per cent, damages on their claims ;

    Held — That they were not entitled to any increase of the amounts allowed them respectively on the executor’s tableau. No act of one creditor, however illegal, can be the basis ior enlarging the claims of other creditors against the common debtor, the succession. But the plaintiff who, by injoining, has illegally obstructed the sale provoked by the executor, • is liable to the succession for damages, and the prayer of the executor for an amendment of the judgment should be granted.
    APPEAL from the Parish Court, parish of Rapides. Daigre, J.

      W. A. Seay, for plaintiff and appellant. Maiming, Ryan & White, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

The plaintiff appeals from the judgment dissolving the injunction sued out by him as a mortgage creditor, to restrain the sale of the property of the succession represented by the defendant, to satisfy the creditors mentioned on the tableau. The grounds for the injunction were:

First — There is movable property out of which the creditors should be paid, and until it is exhausto 1 the immovable property should not be sold, as was attempted by the defendant.

Second — The plaintiff, a mortgage creditor, has not been notified of the application for the order of sale.

The first point is not sustained by the evidence. In answer to the second it is sufficient to say, that a mortgage creditor has no right to injoin the sale for want of notice of the application therefor, when the sale was ordered to pay creditors having a higher rank, or a preference over that mortgage creditor. In this succession it has been decided by this court that the debts for the services of attorneys, $2500,. and the commissions of the executor, $1361 63, being debts of the succession, should be paid by preference over the debts of the deceased. 24 An., Succession of Thomas J. Wells.

When, therefore, the court ordered the sale of property to pay these creditors, whose rights had been determined by this tribunal, the plaintiff was wholly without right to injoin it. These creditors intervened and joined in the defense; and they pray that the judgment be amended so as to allow them twenty per cent, damages on their claims. They are not entitled to any increase of the amounts allowed them respectively on the tableau. No act of one creditor, however illegal, can be the basis for enlarging the claims of other creditors against the common debtor, the succession. It is not the fault of the succession that they have not been paid, even if such a delinquency could be the basis for enlarging their pretensions. But the plaintiff, who has illegally obstructed xhe sale, provoked by the executor, is liable to the succession for damages, and the prayer of the executor for an amendment of the judgment in that respect should be granted.

It is therefore ordered that the judgment appealed from be affirmed with costs; and it is further ordered that the defendant recover judgment, in solido, against the plaintiff and his sureties on the injunction bond, for twenty per cent, damages on twenty-five hundred dollars, and like per cent, on thirteen hundred and sixty-one dollars and sixty-three cents.


author: Wxly, J.

text:
    No. 4554.
    Ball, Hutchings & Co. v. Estate of Sharpley Owen.
    Tbe vendee evicted of tbe property by tbe foreclosure of a prior mortgage containing the pact do non alienmido is not bound to defend tbe executory proceeding or to give notice thereof to tbe vendor. Tbe undertaking of tbe purchaser is to pay tbe price; that of tbe vendor is to maintain tbe title and tbe possession.
    APPEAL from the Thirteenth Judicial District Court, parish. of Carroll. Sough, J.
    F. T. Montgomery and Charles M. Pileher, for plaintiffs and appellants. Sparrow & Montgomery, for defendant and appellee.
    Justices concurring, Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wxly, J.

The plaintiffs appeal from the judgment rejecting their demand against the defendant on two promissory notes for $6000 each.

The defense is failure of consideration hy reason of the eviction of the defendant of the land, the purchase price of which the notes in part represent.

It appears that in 1862 Reuben M. Hargreve sold the land described in the petition to Sharpley Owen for $6000 in cash, and the two notes in suit. The title was warranted free of encumbrance.

It appears that the land was encumbered, however, by a note with vendor’s privilege and mortgage, executed by W. T. Oliver, the vendor of Hargreve, and under this mortgage, which contained the non-alienation clause, the property was sold to J. P. Vinson on the fourth of January, 1868.

In reply to this defense of eviction and failure of consideration the plaintiffs insist that being holders before maturity, equities of this kind can not he opposed to them. The proof, however, shows that the notes remained till past due in the hands of the payee, R. M. Hargreve. Consequently the plaintiffs, the transferrees after maturity, occupy no better position than tlie payee would occupy in reference to the defense pleaded.

At the time of the foreclosure of the mortgage and the sale to Vinson, Sharpley Owen was dead, and his widow, the defendant, represented the succession. She testifies that she never heard of the sale until one year thereafter. No fraud is alleged or proved.

It is well settled that the vendee evicted of the property by the foreclosure of a prior mortgage, containing the pact de non alienando, is not bound to defend the executory proceeding or to give notice thereof to the vendor. The undertaking' of the purchaser is to pay the price; that of the vendor is to maintain the titlo and the possession. It was the duty of Hargreve to remove the encumbranee existing on tbe property at the time of the sale, or to protect his vendee from eviction by reason thereof.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Howell, J. Morgan, J.,

text:
    No. 4573.
    E. J. Gay v. R. O. Hebert, Tax Collector.
    Where the resistance to the payment of State taxes was founded on the ground that the clerk, sheriff and recorder, before proceeding to make the assessment on which the tax is levied, gave no notice in the official journal of the parish, as required by section forty of the Revenue law, acts of 1871,116;
    Hold — That the plaintiff’s objection rested merely on technical grounds, inasmuch as he had paid voluntarily his parish taxes, which were levied under the same law, by the same parties, upon the same assessment, at the same time and in the same manner in every respect as the State taxes, and had several times promised to pay said taxes; and inasmuch also as he had made in this proceeding no complaint of any error, injury, or injustice in the assessment and levying of the taxes.
    The object of section forty of the Revenue law of 1871 is to give the taxpayer notice, that he may have an opportunity to have errors corrected and a just assessment made. Where it is proved that ho had such notice, he has no cause to complain.
    There is no prohibition in the constitution against the sale of property for taxes in lots of from ten to fifty acres, or any other quantity. Tbe fact that the constitution directs that all lands sold in pursuance of decrees of courts shall he divided into tracts of from ten to fifty acres, does not inhibit the legislature from directing lands sold under other process to he similarly divided.
    The impracticability of the proceeding prescribed bylaw and the imposing of the cost thereof upon the purchaser . f lands sold for taxes, are not good grounds for an injimetion on the part of tbe taxpayer. The consequences referred to will rest with the State and the purchaser.
    from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Barrow c6 Pope, for plaintiff and appellant. A. & JS. B. lalbot, for defendant and appellee.
    Justices concurring: Ludeliug, Taliaferro, Howell.
   Howell, J.

The plaintiff has appealed from a judgment dissolving an injunction sued out by him to restrain the defendant, as tax collector, irorn selling property to pay his State taxes.

Only two grounds are urged in this court to sustain the injunction, to wit:

First — That the clerk, sheriff and recorder, before proceeding to make the assessment on which the tax is levied, gave no notice in the official journal of the parish, as required by section forty of the Revenue law of 1871.” Acts 1871, 116.

Said section is in the following words :

“That the property described in the description rolls of the tax collectors, shall be assessed by the clerk of the district court, the recorder and sheriff of the parish, who are hereby charged with such assessment, in addition to their other duties. Eor this purpose they shall give notice in the official journal of the parish to all taxpayers, and where there is no official paper, they will post on the courthouse door of the parish such notice, that they will assess the property of the parish for one month, commencing on the first day of August and ending on the first day of September.”

It seems that there were three weekly papers published at the time, in the parish of Iberville, one of which was selected under the State law, as the official journal, another selected by the police jury as the official journal for the parish, and the other without any pretension to an official capacity; that the notice required by the above section was not published in the State official journal, but was published in the other two; that the agent of the plaintiff appeared before the board of assessors to procure the reduction of the assessment; that the plaintiff paid his parish taxes, which were levied under the same law, by the same parties, upon the same assessment, at the same time and in the same manner in every respect, as the State taxes; that he promised several times to pay the State taxes, and that he is making no complaint in this proceeding of any error, injury or injustice in the assessment and laying of the taxes, but is simply objecting on technical grounds to paying State taxes, having paid his parish taxes.

Why the notice and assessment should be good and sufficient as to one, and illegal and insufficient as to the other, we are at a loss to comprehend.

The object of the law is to give the taxpayer notice, that he may have an opportunity to have errors corrected, and a just assessment made. This the plaintiff had, and we can perceive no reasonable ground for the complaint he is urging, and particularly as lie shows no injury to him by the assessment and levying of his tax.

8eeond — The sale could not be made in ten and fifty acre lots; first, because there is no constitutional authority; and secondly, the provision of section sixty-three of the Revenue law is inoperative — no modus being' provided in the act.

The said section is as follows:

“ That all lands sold in pursuance of this act shall be divided in accordance with article one hundred and thirty-two of the constitution, and the cost of the survey for the purpose of division shall be borne by the party purchasing.”

There is no prohibition in the constitution against the sale of property for taxes in lots of from ten to fifty acres, or any other quantity. The fact that the constitution directs that all lands sold in pursuance of decrees of courts should be divided into tracts of from ten to fifty acres, does not inhibit the legislature from directing lands sold under other process to be similarily divided.

The impracticability of the proceeding and the imposing of the cost thereof upon the purchaser, are not good grounds for an injunction on the part of the taxpayer. He can avoid all trouble on the subject by paying his taxes, and if he fails to do so, the consequences referred to will rest with the State and the purchaser.

Judgment affirmed.

Morgan, J.,

dissenting. I can not agree with the majority of the court in the decree which has just been rendered.

1 think that where a man’s property is seized under execution, it is his right to see that all the formalities required by the law have been complied with.

In the present case it is contended that the clerk, sheriff and recorder, before proceeding to make the assessment on which the tax is levied, gave no notice in the official journal of the parish as required by section forty of the revenue law of 1871.

It is admitted that there were three newspapers published in the parish where the property seized is situated. Now it appears that the only paper in which notice of assessment should have been published is precisely the only one in which it was not published.

Where no advertisement has been made the tax can not be recovered, and there is no legal advertisement except when made in the legal manner and published in the paper designated by law.

It is no answer to say that plaintiff paid his parish taxes, which were advertised in the same paper. Admitting that he waived his rights in one instance, he is not precluded from asserting them in another.

Besides there is nothing to show that he did waive any of his rights except that Butler, acting for him, appeared before the board and endeavored to make arrangements with reference to the taxes. He had the right in ease the demands he made were not complied with, to insist, in his turn, upon the non-compliance with the requirements of the law being a sufficient ground for refusing to comply with terms which he considered unreasonable.

It is not contended that the plaintiff ever saw the notice, and Butler, who says he represented him before the board, says he did not represent him with reference to one piece of property at least, worth $25,000. Under any circumstances, the judgment of the lower court is erroneous as to this plantation, and I think the decree should be reversed.
      Note. — It has been deemed unnecessary to report the oases of Carmelite Pioou, Charles A. Slack, Emily Woolforket al., and Andrew H. Gay, against the same collector, because the reasons assigned for judgment in those suits are the identical ones given in this case. — Retoetee.


author: Morgan, J.

text:
    No. 4531.
    Franklin A. Robert v. Lucien D. Coco.
    "This court can go behind the judgment of the court a qua to see when the obligations sued on arose between the parties.
    'The homestead law, exempting certain property from seizure on a judgment enforcing a mere ordinary debt is not unconstitutional. The rights of the creditor, and not Ms security, unless the security forms part of Ms contract, must be invaded before he can invoice the constitutional privilege on which he relies. The law, in this case, does not affect Ms vested rights, but only impairs his security for the payment of Ms claim.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Sutler, J.

      Henderson Taylor, for plaintiff and appellee.
    _A. Harbin, for defendant and appellant.
    Justices concurring: Ludeling, Morgan, Howell.
   Morgan, J.

In May 1869, Coco obtained judgment against Robert for $633 73. In March 1872 he issued execution, and seized thereunder a certain parcel of land belonging to his judgment debtor.

Robert injoins the sale on the ground that the land seized is all the property he owns; that the tract contains nearly one hundred and sixty acres; that it is his homestead; that it is not worth $2000; and that it is exempt under what is known as the homestead law from seizure, for the payment of the judgment obtained against him, which was based upon a mere ordinary debt.

There was judgment in his favor perpetuating the injunction, and the defendant has appealed.

The grounds upon which appellant claims a reversal of the decree .against him are:

First — That we can go behind the judgment to see when the obligations sued on arose between the parties, and

Second — -Because the obligations upon which Coco’s judgment was .rendered, having been contracted anterior to the passage of the homestead law, it is retroactive, ex post faeto, and unconstitutional.

The first proposition is correct; the second is erroneous. We can examine as to when an obligation sued on was contracted, but it does-not follow that the act of the legislature in question is null and void. He stands or falls upon the constitutionality or unconstitutionality of the law. Is it unconstitutional ?

Appellant claims that “no ex post facto or retroactive law, nor any law, impairing the obligation of contracts shall be passed, nor vested' rights be divested, unless for purposes of public utility and for adequate compensation made.” True, this is the language of the constitution, but we do not see that the law of which he complains impairs-the obligation of his contract, or divests him of any of his vested rights; his obligor is as much bound now, his vested rights in and to-the property which he has acquired, are as perfect now as they were-when he acquired them. His security for the payment of the debt may have been impaired by the law, with reference to a certain piece-of property, but his rights under the obligations he holds have noir been interfered with. It is his rights, not his security, unless the-security forms part of his contract, which is not the case here, which must be invaded before he can invoke the constitutional privilege upon which he relies.

The notes sued on were ordinary obligations. The judgment rendered upon them was never recorded. Suppose, between the rendition of the judgment and the issuing of th&fi.fa. another and a subsequent creditor had taken a mortgage upon the property and had caused it to be recorded, would this have interfered with the defendant’s vested rights, or impaired the obligation of his contract? We imagine not.

There is no error in the judgment. It is therefore affirmed with-cost.


text:
    No. 4530.
    Ellen Edwards v. Fielding Edwards.
    ‘Where the plaintiff excepted to the evidence of the defendant, who testified that be never-received the money declared in the marriage contract to be the property of the mother of the plaintiff, nor did ever receive any property from her, or for her account, nor ever-made the donation propter nuptias mentioned in the marriage contract;
    Held — That the objection should have been sustained, because the notarial act could not be contradicted by parol testimony.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Butler, J.

      Barbin & Bordelon, for plaintiff and appellant.. A. B. Irion, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan-
   Wyly, J.

The plaintiff appeals from the judgment rejecting her demand against her father and natural tutor for $2038, the separate property of her mother, and for one hundred and eighty-seven dollars- and thirty-eight cents which he collected from her grandfather after-the death of her mother.

The claim for one hundred, and eighty-seven dollars and thirty-eight, cents is not disputed.

The demand for the $2038 is based on the marriage contract executed on the day of the marriage, which declares that the property of the future wife consists of nine hundred and eight dollars, the result of' her individual gains and savings, and also one thousand dollars and certain movables estimated at one hundred and thirty dollars denoted propter miptias, by the defendant.

It is admitted that the mother of the plaintiff died in 1847, and the-defendant, the natural tutor, caused no inventory of the property to be made.

The plaintiff excepted to the evidence of the defendant, who testified : that he never received the money declared in the marriage contract to be the property of the mother of the plaintiff, “nor did he ever receive any property from her, or for her account, nor did he ever donate the sum of one thousand dollars, as detailed in the marriage contract.” The objection should have been sustained because-the notarial act could not be contradicted by parol testimony.

The nine hundred and eight dollars, dotal property, the defendant alone could administer during the marriage; and the donation,propter miptias, made by himself, if ever delivered, still remained under his control, because it is not shown that the wife of the defendant ever administered her paraphernal property during the marriage. In the face of the marriage contract in which he acknowledged nine hundred and eight dollars as dotal property, and in which he agreed to donate,. propter nuptias, one thousand dollars and certain movables estimated at one hundred and thirty dollars, the defendant, who has never caused an inventory to be made and whose possession of this property since the day of the marriage has not been disturbed, “denies that he-ever received anything from his said wife; whatever she may have had, either by the gilt of respondent, or by the result of her own labor, was reserved by her, and disposed of by herself.”

The defense is wholly without foundation. Payment or compensation is not established, because it is not shown that the plaintiff accepted the few articles given her by her father, as a discharge in. part of his indebtedness to her.

It is therefore ordered that the judgment herein be annulled, and it is now decreed that the plaintiff recover of the defendant $2038, with five per cent, per annum interest thereon from the tenth day of October, 1847, and also the further sum of one hundred and eighty-seven dollars and eighty-three cents, with five per cent, per annum interest thereon 1rom first June, 1859, and that the mortgage accorded by law in favor of minors be recognized and enforced from said respective dates against the property of the defendant, and that he pay costs of both courts.


text:
    No. 4560.
    Succession of A. G. Payne.
    Where the husband joins tli© wife in her petition, this is sufficient authorization to her to sue.
    Where the motion was for a suspensive appeal, and the one granted was merely devolutive, if the appellant submits to this modification of his demand, the appellee, not being injured by it, can not complain.
    Where the motion to appeal was made in the name of the husband and the wife, the authorization to appeal is sufficiently established, and the appeal bond can not be objected to, when made out in the name of the husband and the wife and is signed by both.
    Where plaintiff was not an heir; Held — That she had no right to attack a will in so far as it related to the disposal made by the testator of his property, but that she might sue to annul it in so far as it interfered with her rights to have the tutorship of her grand children.
    It is unnecessary to decide the question raised whether a testament is valid as a will by nuncupative public act, when it is good as a nuncupative will under private signature.
    Where the objection to the validity of such a will was, that the person who wrote and read, it was not designated the: ein as a witness, but as a notary;
    Held — That there is no law which declares that a man, because he is a notary public, is not a good witness to a will; and there can be seen no reason why he should not be.
    A will can be set aside only when the law itself pronounces it to be null on accouut of the want of compliance with those formalities which are declared to be sacramental.
    Where A was appointed by will tutor to minors, and at the same timo the testator declared that the care, management and raising of his children should be left in the hands of Miss B:
    Held — That this was not appointing her tutrix; that this was merely giving her the personal care of the children, whilst the legal control of the persons and property of the minors was vested in A, who could as tutor, when he chose, remove them from her care.
    APPEAL from the Probate Court, parish of East Feliciana. Pipián, J.

      W. F. Kerncm and C. F¡. Schmidt, for appellants. K. A. Cross and F. J). Brame, Hace, Foster á Merriclc for appellees.
    Justices concurr.ng: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Morgan, J.

Appellee moves to dismiss this appeal on several grounds, which we will consider in the order in which they are presented.

First — That there is no testimony in the record showing that the plaintiff was authorized to institute and prosecute this suit.

The husband joins the wife in the petition; this is sufficient authorization.

Second — That the appeal granted from the main action was a devolutive appeal, while the motion was for a suspensive appeal.

The fact is as stated ; but if the appellant submits to this modification of his demand, the appellee, not being injured by it, can not ■complain.

Third — The testimony does not show that plaintiff was authorized by her husband either to institute the suit or to take the appeal.

We have already said that he authorized her to sue by joining her in ■the suit, and as the motion for appeal was made in the name of the ■husband and the wife, we consider the authorization to appeal sufficiently established.

Fourth — -That the order of court does not fix the amount of the •appeal bond in the injunction suit if suspensive.

The order of appeal does fix the amount of the bond. It is fixed at ■ one hundred and fifty dollars, and the bond is made out in the name of vthe husband and the wife, and is signed by them both.

The motion to dismiss is therefore overruled.

On the Merits.

This is a suit instituted by the maternal grandmother of the minors ¡Bayne, issue of the marriage between A. G-. Payne and plaintiffs’ daughter, both deceased, to annul the last will of A. G-. Payne, and to ■cause herself to be appointed tutrix to the children.

The will which is sought' to be revoked is alleged to be a nuncupative will by public act passed before a notary public and five witnesses on the thirtieth March, 1872. It gives to his two children all the property of which he dies possessed, but burdens the one-third •thereof with a usufruct in favor of Miss Annie Byrne, which is to last •during her life, or until she marries; appoints D. C. Hardee his executor, giving him seizin of his estate; constitutes him tutor to his ■children, but gives the care of them to Miss Byrne. After the will was made, and two days before his death, he married Miss Byrne.

The grounds upon which the will is sought to be aunulled are :

First — That it does not furnish proof that it was written by the 'notary in the presence of the testator; nor in the presence of the testa'tor and of the witnesses, as required by law; nor can that fact be necessarily implied from any expression contained in the will.

Second — That it does not express that it was ever signed by the witnesses named therein, nor by any witnesses whatever, nor in whose presence it was signed; that the will, to be valid, should state expressly that the witnesses signed the same in the presence of the notary and of the testator; and that these facts can not be necessarily implied from any expressions contained in the will.

They allege further that the will is not valid as a nuncupative will by private act, because it was not read by one of the witnesses to the testator in presence of the other witnesses, as required by law.

Defendants excepted to the petition upon the ground that plaintiff had no right of action, she being in no sense an heir of the testator, or related to him by blood.

This exception was maintained as to plaintiffs’ right to sue for a revocation of the will, except as regards her right to claim the tutorship of her grand children. From a judgment rendered against her the plaintiff has appealed, both upon the exception and the merits.

The ruling of the judge on the exception was correct. Not being an heir, she had no right to attack the will in so far as it relates to the disposal made by the testator of his property. But she is entitled to-the tutorship of her grand children, unless she has been legally deprived thereof. The will does deprive her of it. It is an obstacle-to the assertion of her legal rights, and she is authorized to remove it,, if she can. If the will is null, the appointment of the tutor falls, and' the tutorship, by law, will come to her. She may, therefore, sue to-annul it, in so far as it interferes with her rights.

We do not find it necessary to decide whether the will is valid as a. will by nuncupative public act. Assuming it not to be — upon which point however we express no opinion whatever — we are all of opinion-that it is good as a nuncupative will under private signature.

The will is as follows :

Be it remembered, that on the thirty-first day of March, 1872, at the-residence of the Rev. Alexander Galbreath Payne, a resident of the Parish" of East Feliciana, I, notary, repaired to his residence in said-parish, for the purpose of receiving his last will and testament, when and where, I, Henry Hawford, Notary Public in and for said parish,, duly commissioned and sworn, with George W. Munday, George H. Paekwood, William A. Knapp, James G. D’Armond and William Y. Broadway, five competent witnesses, males, of the full age of majority, residents of said parish of East Feliciana, came personally into the presence of said Rev. Alexander Galbreath Payne, and he dictated tome his last will and testament in the presence of the above named witnesses, and I received his dispositions in his own words in presence of said witnesses as follows:

Item First — I give to my children, William S. and Alexander G. Payne, all of the property of which I may die possessed, with the exception of one-third, which one third I give and devise to Miss Annie Byrne, in usufruct during her lifetime, unless she should marry after my death, in which case the usufruct shaU expire.

Item Second — I hereby appoint Colonel David C. Hardee as executor of my last will and testament, and give him full seizin of my estate; and I also appoint him tutor of my children. The care and management, and raising of my said children, I leave in the hands of Miss-Annie Byrne. And it is my last will and wish that they be entrusted to her care and personal supervision.

And I, the said notary, received the foregoing testamentary disposition as dictated to me by said testator, in the presence and hearing of said five witnesses, residing in said parish and State. And I, the said notary, wrote the same as they were dictated by the testator in the presence of said five witnesses. And I then read the same in a loud tone of voice, in the presence of said five named witnesses, and in their hearing to said testator, Rev. Alexander Galbreath Payne, who declared the same to be his last will and testament, to me, notary, and to said five witnesses, and in the presence of said witnesses (five), and in presence of me, notary, signed the same with his own proper ■signature.

All of which formalities were had and observed at one time, without interruption and without turning aside to other acts, on the day and date aforesaid, at the residence of the Rev. A. C. Payne, in Clinton, •said parish. It is signed by the notary twice and by the witnesses therein named.

“A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or •even by one of the witnesses, in presence of five witnesses residing in •the place where the will is received, or of seven witnesses residing out •of that place.” C. C. 1574.

, “The testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator. It must be signed by the witnesses, or at lea*t by two of them, in ease the ■others knew not how to sign.” C. C. 1575.

This will was written by Henry Hawford, from the dictation of the testator, in presence of five witnesses other than Hawford. It was read by Hawford to the rest in presence of the testator. It was signed by the testator and by the witnesses.

It is objected that it was not written or read to the testator by a witness to the will. The objection is that Hawford, who wrote and •read it was not a witness, but a notary. He is so designated in the will. But we know of no law which declares that a man, because he is a notary public, is not a just witness to a will, and we see no reason why he should not be. He was certainly a witness to everything which took place with regard to the making of the will, and all the law requires is that he should be a witness. The formalities required by the law are indispensable, it is true, to the proper making of testaments, but they are not snares and pitfalls by which the testator is to be caught, and into which he must necessarily fall when he attempts to do with his property what the law authorizes him to do with it. We are to sustain the will which legally disposes of a testator’s property, if we can, and not to pick it to pieces by criticisms, to which almost every composition is subject; we think we can only destroy it when the law itself pronounces it to be null, and for the want of compliance with those formalities which are declared to be sacramental. In the present case we see nothing to indicate that the requirements of the law were not complied with. On ti.e contrary, we think they were. It is further contended that the will is null because it, in point of fact, appoints a woman tutrix to the testator’s children. That the law does not permit a woman to be tutrix except where they are the mothers or grandmothers of the children. But in this case a woman was not appointed. D. C. Hardee was named. It is true the testator declared that the care and management and raising-of his children should be left in the hands of Miss Byrne. This, however, is not appointing her tutrix; it is merely giving the children to her charge and management. Hardee testifies that when asked to-assume the responsibility of tutor he declined, upon til© ground that his own family was large and that he could not, in justice to his own,, add to his duties. To obviate this objection the personal care of the-children was given to another. We do not see in this the appointment of a tutrix. We look upon it as a mere designation of a person who-would be competent to care for and manage them. It was the testator’s last will and wish that they should be intrusted to Miss Byrne’scare and personal supervision, but we do not consider this will and wish as differing in any manner from an expressed desire that they should be educated at a particular institution of learning. The test is, we believe, who has the legal control of the persons and property of the minors? The answer is, the tutor. Who is the tutor? D. C.. Hardee. So long'as ho chooses to allow them to remain under the charge of Miss Byrne he may do so, but we imagine that if he wished to remove them from her care he could not be successfully opposed^ On the contrary, we think he has the clear right to do so whenever he sees fit.

Another test would be this : Could Miss Byrne bind the minors in any manner? If she were to die, would the minors be without a tutor?.' These questions we think answer themselves in the negative, and dispose of the objections to the will on this point.

The judgment is affirmed.

Rehearing refused.


author: Howell, J.

text:
    No. 4559.
    H. M. Fowler, James S. Morgan and als. v. Ellen Morgan Individually and as Tutrix.
    "WTiere it was contended that a donation inter vivos, made in 1858, by a white father to his two * daughters who were born of a black woman, then a slave, but who, with their mother,, were entitled to claim their liberty at a future time (statu, liber ce) was in violation of law and therefore null and void;
    Held — That the rights of the parties must be decided undei? the provisions of article 193 of the Code of 1825, and that under the circumstances of the case, the donation must be sustained, whatever may be the moral view of the question.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Fuqua & Callihan, for plaintiffs and appellees..

      Herron <& Gallagher, for defendants and appellants.
    Justices concurring: Ludeling, Howell, Taliaferro.
   Howell, J.

The plaintiffs, as forced heirs of James S. Morgan, deceased, claim to be the owners, by inheritance, of a certain lot and the improvements thereon, in the town of Baton Rouge, and sue the defendant, individually and as tutrix, to recover the same and the-rents thereof, alleging that the defendant pretends to hold it by virtue of a donation, dated twentieth .September, 1858, to her two minor-children the issue of her alleged marriage with said Morgan, which marriage they say was prohibited by law, the said defendant being then a slave, and the said minors, if the children of said Morgan, were-bastards and incapable of receiving from him by donation or otherwise. The defendant pleads the general denial, admits possession of the property and avers that it belongs to her two minor children, who became the lawful owners thereof by act of donation from J. S. Morgan on the above date, which is duly recorded, and pleads the prescription of five and ten years. Prom a judgment in favor of the plaintiffs the defendant appeals.

The material facts as presented in the record are, that on twentieth September, 1858, the said J. S. Morgan, then a widower, by act of donation inter vivos before the recorder of the parish gave the property in controversy to the said two minors, acknowledging them in the act to be his daughters, and estimating the property at $5000, H. Y. Babin accepting the donation in behalf of said minors and signing-the act with said donor, which was duly recorded; that the said minors and their mother, the defendant, were then stain liberes ; that Morgan, the donor, died in 1860, and his succession was duly opened in 1861, J. H. New being appointed administrator, who caused the said property to be in ventoried as belonging to the succession, and in 1867 filed his final account, in which he represented said property and a small sum in cash as constituting the assets of the succession, to-which the plaintiffs herein, residing in Ohio and Massachusetts, were entiled as the sole legitimate heirs, and judgment was rendered contradictorily with the attorney for absent heirs homologating the account, authorizing the administrator to turn over to the said heirs, the property, rights, etc., set forth in the account, canceling his bond and releasing him and his sureties from liability; and that on the seventh-September, 1864, the defendant was appointed and confirmed as-natural tutrix of the said minors.

It is contended, on behalf of plaintiffs, that the donation is null, because the donees, being illegitimate colored children, can receive only what is necessary to procure their sustenance or an occupation or-profession, under the provisions of article 1470 of the Code of 1825,. and that the donation being one of real estate in fee simple is not susceptible of redonation as contemplated by the second clause of said article, and is therefore not a settlement of the alimony, but is in violation of the letter and spirit of the said article and absolutely null.

Whether this proposition be correct in law or not, it is unnecessary •now to determine, as the rights of the parties must be settled under the provisions of article 193 of the Code of 1825, which is in the following words: “The slave who has acquired the right of being free at a future time, is from that time capable of receiving by testament or donation. Property given or devised to him must be preserved for him, in order to be delivered to him in kind, when his emancipation shall take place. In the mean time it must be administered by a curator.”

As the donees had at the date of the donation acquired the right of being free at a future time, and H. Y. Babin accepted the donation for them, and the defendant as their tutrix is in possession and enjoyment of the property donated, and the donees have long since become free, we must presume that the said property has been preserved for them, and that the donation has been perfected.

We can see no circumstances in this case which have defeated the rights of tlie children of the defendant, whatever may be the moral view of the question.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant as natural tutrix of • of the minors Alice and Ella Morgan, and against plaintiffs with costs •in both courts.


text:
    No. 4525.
    Rosena Michel v. Benjamin Wiel.
    "Where the defendant objected to the refusal of tbe judge a quo to charge the jury that actions for divorce are governed exclusively by section 1192, Revis ed Statutes 5 Held — That the judge committed no error, and the action is instituted under article 138 O. C., amended by act Ho. 76, Statutes of 1870.
    Where plaintiff was authorized to institute the suit, it followed that she was empowered to take a writ of sequestration or such other conservatory steps as were necessary to secure her rights.
    APPEAL from the Seventh Judicial District Court, parisli of Pointe Coupée. Butler, J.

      Edward Phillips and John Yoist, for plaintiff and appellant.

      Earalson & Olaiborne, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Morgan. Howell.
   Morgan, J.

Defendant objected to the refusal of the judge to charge the jury that actions for divorce are governed exclusively by section 1192, Revised Statutes. The action is instituted under article 138 C. C., amended by article No. 76 Statutes 1870. Upon this point •there was no error in the charge of the court.

He further objected to the introduction of any testimony which would tend to show any intemperate habits on the part of the defendant prior to the fifteenth March, 1871, on the ground that plaintiff’s petition discloses the fact that on or about said fifteenth March, there .was what lie called a condonation by the wife of all the past offenses of the.husband.

We find nothing in the petition upon which such an allegation can rest. There was, therefore, no error in the ruling of the judge on this point.

The parties were married on the twelfth December 1870. This suit, for divorce, was instituted on tiie fifteenth of May, 1871, on the ground ■of excesses, cruel treatment, and habitual drunkenness on the part of the husband Plaintiff also claims restitution of her dotal property and judgment against her husband for $6650, to secure which she applied for and obtained, a suit of sequestration upon the movables alleged to be in her husband’s possession, the most of which were brought into marriage, which sequestration was subsequently set aside on the ground that the judge had not been authorized to sign the sequestration bond by the judge.

The defendant denies the allegations in the petition, but, in case the divorce prayed for is granted, he asks for a judgment for twenty-five hundred dollars, amount of goods alleged to have been brought by him into the marriage, or so much thereof as may be found due him on settlement of their respective rights.

The case was submitted to a jury, who found the following verdict: “We, the jury, find for the plaintiff in the divorce, but for the defendant on the moneyed demand.” Upon which the judge rendered judgment in favor of the plaintiff, granting to her the divorce prayed for, and restoring to her possession certain property which she claimed, and gave a judgment in favor of defendant for twenty-five hundred dollars. The plaintiff has appealed.

There is no evidence in the record upon which to support the verdict •and judgment condemning plaintiff to pay defendant any sum of money.

The marriage took place under the dotal system. By the marriage ■contract entered into between them the husband was recognized to have brought into the marriage property amounting to $4410, consisting of goods valued at $2000; accounts agaiust various parties valued .at $2000; two hundred dollars in cash; two carts valued at one hundred and fifty dollars, and a watch valued at sixty dollars.

The wife brought $14,907, all of which were movables, and all of which the future husband acknowledged possession of in the marriage contract which was executed on the twelfth December, 1870, and re•corde 1 on the same day. There is no evidence that any portion oí this property, except three notes amounting to $5529, ever went out of his possession, or from under his control, except that plaintiff seems to liave managed the business which was carried on in his name — which he could hare assumed at any moment. There is no evidence that plaintiff owes to the defendant anything.

There was error in the judgment dissolving the sequestration. If plaintiff was authorized to institute the suit, which is not denied, she-was empowered to take such conservatory steps as were necessary to-secure her rights.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court iu so fai' as it awards a judgment against the plaintiff for twenty-five hundred dollars be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the judgment in favor of the plaintiff and against the defendant for the sum of six thousand six hundred and fifty dollars, and that the sequestration of the movables of the defendant be reinstated. It is further ordered, adjudged and decreed, that in all other respects the judgment of the lower court be affirmed, appellee to pay the costs.

The words: Jury trial, omitted by error in the appeal paragraph above.


author: Taliaferro, J.

text:
    No. 3804.
    Succession of Celia Waterer—Opposition of E. K. Brumfield to final account of Administrator.
    Where the transcript is certified lo be “atrae oop.y of all the proceedings had and of all the testimony taken on tlie trial,” it is sufficient.
    Boffire the passage of the aot of March 18, 1852, by which the community of acquets was extended, in favor of non-resident married persons, to property in this State thereafter? acquired, no such community existed. The property acquired after their residence here, alone fell into the partnership.
    Where the surviving husband, administrator of his wife’s estate, brought with him to this State, as his personal property, more stock of every kind than he had at the decease of bis wife:
    Held_That, at the dissolution of the community, he has the right to take in kind, if still existing, what he brought in marriage, and from the cattle remaining a number of head, equal to that brought by him in marriago.
    APPEAL from the Parish Court, parish of Washington. Slocum, J.

      1. & J. Filis, for administrator and appellee. John Wadsworth, fcr appellants.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

The appellee moves to dismiss this appeal.

First — Because the certificate is defective in not reciting that the-transcript contains “all the documents filed in the suit,’’ and that it contains “all the testimony adduced.”

Second — That the transcript is signed by the deputy clerk.

Third, — That the record of appeal was not brought up within tlieproper time after the order for a certiorari was issued.

Fourth — That appellant is without interest in the suit.

The transcript is certified to be “a true copy of all the proceedings had and of all the testimony taken on the trial,” etc. This suffices. 12 La. 476 ; 9 An. 95. The other grounds are without force. Motion overruled.

On the Merits.

William Lewis administrator of the succession of his deceased wife having filed an account, it was opposed by Mrs. Brumfield, claiming the succession under an assignment from the heirs of the decedent who died intestate, leaving no heirs in the ascending or descending line. The administrator had placed upon the inventory as community property a tract of land, and claimed a credit of seven hundred dollars, the purchase price of the land, which he alleged he paid out of his separate funds. After the trial had commenced the administrator asked to amend his account, so as to claim the tract of land as his separate property, alleging error of fact in treating it as community property. The amendment was admitted. The opponent denied the payment for the land being made out of the separate funds of the administrator, and alleged that he failed to account for community property of various kinds to the amount of $1995, and prayed that the account be rejected. The judgment of the court a qua decreed the tract of land to be the separate property of the administrator, and overruled the opposition, alleging there was community property of the value of $1995 unaccounted for. The opponent appealed. We have to inquire, was the land the separate property of the administrator or community property? Did the community at the time of its dissolution own property to the amount of $1995? Lewis, the administrator, bought the land in question on the twenty-third of September, 1846, being then a citizen of and residing in Mississippi, from whence, late in the fall of that year, he removed to Louisiana. This occurred before the passage of the act of March 18, 1852, by which the community of acquets was extended in favor of non-resident married persons to property in this State thereafter acquired. Prior to that act, no community existed in property acquired here in favor of married persons resident abroad; that acquired after their residence here, alone fell into the partnership. C. C. 2369, 2370 ; 9 Rob. 438; 5 An. 158; 9 An. 289; 10 An. 440.

The tract of land, therefore, was the separate property of the administrator. It was clearly an error of placing it on the inventory as community property, and he had the right to make the correction. 13 An. 369 and 370.

The property of the community consisted chiefly of stock, such as horses, cattle, sheep, etc. It appears that the administrator brought with him from Mississippi more stock of every kind than he had at the decease of Ms wife. At tlie dissolution of the community he had the right to take in kind, if still existing, what he brought in marriage; and from the cattle remaining a number of bead equal to that brought by him in marriage. C. C. 586, 587; 11 An. 278; 10 Rob. 46. After making this adjustment, it would seem that the residue, if any, would be very small.

On the part of the administrator objection was made to two written instruments offered in evidence by the opponent, to show the assignment and transfer to her of the rights of the heirs of Celia Waterer. The objections were overruled and a bill of exceptions reserved. These instruments contain merely the recitals oí the persons signing them, that they are the heirs of Mrs. Waterer. They are unsworn statements not making proof of the facts recited; 11 An. 503; 14 An. 15. One of these acts was executed in the State of Mississippi. It contains an acknowledgment of the act before the clerk of the court without the attestation of the presiding judge, aud is in that respect inadmissible. 6 N. S. 621. The other act was executed in Louisiana under private signature, and is without registry or authentication of any kind

The exception was well taken; but the court in its final judgment reserved to the opponent the right to prove her iuterest and establish her claim at the proper time. The administrator in this case is entitled to the usufruct of the wife’s half of the community property during his life. His age is over four score years, and for any residuary right the opponent may have in that property, she will not, in the course of nature, be kept waiting long.

It is ordered that the judgment of the parish court be affirmed with costs.


text:
    No. 4562.
    Seymour Taylor v. A. M. Woodward and als.
    A judgment by default, to become executory, must be notified to the defendant, and the delays from which the right to appeal begin to run must date irom the day on which the defendant was notified of the judgment.
    ■Where the plea of prescription is filed in this court, justice requires that the ease shall be remanded, at the prayer of the plaintiff, in order that he may have an. opportunity of introducing evidenoe to interrupt the prescription.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.

      Gross & Pardee, for plaintiff and appellee.

      T. B. Lyons, for defendants and appellants.
    Justices concurring: Ludeling, Howell, Morgan.
   Morgan, J.

A motion to dismiss this appeal has been made on the ground that the appeal was not asked for within the time prescribed by law.

The suit was instituted on the first February, 1866. Petition and citation were served personally on the defendant on the third and fourth of the same month. Exceptions were filed to the proceedings, which were overruled. Default was rendered on the twenty-ninth May, 1866, and confirmed on the twenty-third October, 1869.

Petition of appeal was filed twenty-fifth January, 1873. More than one year had elapsed from the rendition of the judgment to the date of the application for appeal. No notice of judgment was served on the appellant.

The 575th article of the Code of Practice provides that “ whenever an answer has been filed in a suit in which the defendant has had personal service made upon him to appear and file his answer, or when a judgment has been rendered in a case after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment, by the fact of its being signed by the judge.”

From which it would appear that a judgment by default, to become executory, must be notified to the defendant. From this it results that the delays from which the right to appeal begin to run, must date from the day upon which the defendant was notified of the judgment. The judgment by default in this case not having been notified to defendant, the appeal was properly allowed.

The motion to dismiss must be refused.

On the merits, the principal defense is the prescription of three, five and ten years. As this plea was filed in this court, we think justice requires that the case should be remanded, in order that plaintiff may have an opportunity of introducing evidence to interrupt the prescription. The party has prayed to have it remanded.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the case be remanded, to be proceeded in according to law, appellees to pay the costs of appeal.


text:
    No. 4540.
    H. A. Morse, Administrator, v. Mrs. E. Griffith.
    The exhibition of a decree of the court in which the succession was opened, authorizing plaintiff to administer the same according to law in his capacity of public administrator, and, as such, an officer of the parish as well as of the court, must be held as at least a pi'inna, facie showing of capacity and authority to sue and stand in judgment in another parish.
    from the Thirteenth Judicial District Court, parish of Madison.

      Sough, 3. S. P. Wells, for plaintiff and appellant. F. F. & F. S. Farrar, for defendant and appellee.

      Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Howell, J.

H. A. Morse, as public administrator for tbe parish of Franklin, duly appointed, as alleged, by the Governor and qualified according to law, sues the defendant in the parish of Madison to recover certain property as belonging to the succession of J. R. Cole, deceased, which he (plaintiff) is administering.

The defendant excepts that the plaintiff has no legal capacity to stand in judgment, and is not the administrator of the said succession of Cole, and, therefore, he has no legal authority to prosecute this suit.

On the trial of this exception plaintiff introduced in evidence a copy of a judgment in the suit of H. A. Morse, public administrator, v. Mrs. E. A. Cole, in the parish court of Franklin, removing the said Mrs. Cole as administratrix of the succession of J. R. Cole, ordering her to render an account of her administration, and appointing and confirming H. A. Morse, public administrator of the parish of Franklin, admiuistator of the said succession of J. R. Cole, deceased, and authorizing him to administer the same according to law. Upon this evidence the judge a quo sustained the exception and dismissed the suit. The plaintiff has appealed. We think the court erred. There was, to say the least, a prvnia facie showing of capacity and authority to sue and stand in judgment. The plaintiff exhibited his authority from the court in which the succession was opened, to administer the same according to law in his capacity of public administrator, an officer of the parish as well as of the court, and his identity is not questioned. The presumptions are in his favor.

It is therefore ordered that the judgment appealed from be reversed and the exceptions overruled, and that this case be remanded to be proceeded in according to law. Defendant and appellee to pay costs of this proceeding in both courts.


author: .Morgan, J.

text:
    No. 4555.
    Victor Moreau v. Celestin Moreau, Jr., Tutor, T. F. Thienman, Intervenor.

      An intervention can not be sustained where the demand is not incidental to the main action and where the intervenor neither joins the plaintiff in claiming the same thing, or anything connected with it, nor unites with the defendant in resisting the claim of the plaintiff, nor claims a privilege on the proceeds of any thing which has been sold, or pretends to he the owner of the thing which has been seized.
    The creditors of a succession have no right to intervene in proceedings by the heirs to compel an administrator to render his accounts.
    Whore the demand of an intervenor does not grow out of the principal action and is not specially permitted by law, it must be dismissed.
    Where the rights of the plaintiff had neither been ascertained, nor could be ascertained until a settlement of his mother’s succession had been had, he must prove this settlement, and then sue for a partition.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Butler, J.

      Henderson Taylor, for plaintiff and appellant.
      Irion and Thorpe, for defendant and appellee. Edwards & Eucote, for intervenor.
    Justices concurring: Ludeling, Howell, Morgan.
   .Morgan, J.

This is an action on the part of one of the major heirs of Mrs. Helena Bordelon against his minor co-heirs, represented by their father as tutor, to recover his interest in his mother’s succession, -which he alleges to be of the value of $670 67.

The tutor pleads the general issue as to indebtedness.

Thienman, a merchant, intervenes, and claims $2518 53 with interest, for supplies and provisions, mules, etc., furnished by him to MoTeau, to enable him to cultivate his plantation. He avers that part of this debt, say $1800, was contracted and became due during the lifetime of Mrs. Moreau (Helena Bordelon), and is a community debt due by said estate, over which the said Moreau has the administration -as natural tutor.

'From this statement of the case it is evident that we can not' do justice between the parties under the proceedings they have seen fit to institute.

In the first place, as to the intervenor, he can not be heard. His •demand is not incidental to the main action. C. P. 364. He does not join the plaintiff in claiming the same thing, or any thingjconnected with it, nor does he unite with the defendant in resisting the claim of the plaintiff. C. P. 389. Neither does he claim a privilege on the ■proceeds of any thing which has been sold, or pretend to bo the owner •of the thing which has been seized. C. P. 396. And these are the ■only circumstances under which, we believe, that interventions are ^allowed. If he has any claim at all it is against the succession of Mrs. Bordelon Moreau, for her share of a community debt. The creditors •of a succession have no right to intervene in proceedings by the heirs to compel an administrator to render his accounts. 12 R. 215. Where the demand of an intervenor does not grow out of the principal action, and is not specially permitted by law, it must be dismissed. 2 An. 463.

As to the plaintiff, his rights have never been ascertained, and they ■can not be ascertained until a settlement of his mother’s succession has been had. He must first provoke this settlement, and then sue for a partition.

It is therefore ordered, adjudged and decreed that the judgment of -the district court be avoided annulled and reversed, without prejudice to the rights of the parties to vindicate their rights in a proper action, the costs to be paid by appellee.


text:
    No. 4597.
    Meyer & Bro. v. R. L. Dupree and al.
    Where an appeal was asked to be dismissed on the ground that all the parties in interest wore nof'parties to the appeal, the intervenor in the suit not having given an appeal bond, and not having appealed:
    Held — That the ground is not a good one. Because the intervenor does not choose to appeal, it does not follow that the defendant may not.
    Where the rocord was incomplete, the clerk of the district court certifying that a part of the evidence used in the court below was missing at the time the record was made out, this is a good ground to remand the case, but not to dismiss the appeal.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Posey, J. Trial by jury.

      Kernan & Lyons, for plaintiffs and appellees. K. A. Gross and P. B. Forman, for defendants and intervenor.
    Justices concurring : Ludeling, Howell, and Morgan.
   Morgan, J.

We are asked to dismiss this appeal on the grounds:

First — That all the parties in interest are not parties to the appeal, Mrs. G-aulden, the intervenor, not having given any appeal bond, and not having appealed, and

Second — That the record is incomplete, the clerk of the district court certifying that part of the evidence used in the court below was-missing at the time the record was made out.

The first ground is not a good one. Because the intervenor does not choose to appeal, it does not follow that the defendant may not.

The second ground may, and is a good one to remand the case, hut is no reason for dismissing the appeal. 5 An. 602; 12 An. 83.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; that the case he remanded to he proceeded in according to law. Plaintiffs to pay the costs of appeal.


text:
    No. 4583.
    Succession of Walter O. Winn—On application of O. K. Hawley, Public Administrator.
    Construing the statute of twenty-eighth February, 1870, in connection with section 3990 of' the Revised Statutes, the sense resulting from both is, that section 3990 of the Revised Statutes does not include within its general sweep the acts of the General Assembly during the session of 1870. On the contrary, the acts and joint resolutions of the General Assembly passed during the session of 1870 should take precedence of the act adopting the Revised Statutes, and bo held as repealing in whole or in part any of those revised statutes that might be found to be in opposition or in conflict with the enactments or joint resolutions of the session of 1870.
    APPEAL from the Parish Court, parish of Bapides. Baic/re,. J.?-

      Bowman for appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

The executrix of Walter O. Winn, resident in the State of Kentucky, and regardless of her duties as executrix of the estate of her deceased husband, the court, at the instance of one of the creditors of the estate, ordered that suit be instituted to divest her of the office, when O. K. Hawley, representing himself to. be public ad - ministrator of the parish of Rapides, filed a petition on the twelfth of September, 1871, setting forth the non-residence of the executrix, and her neglect of duty, and praying that the order to institute the suit to divest her of office be addressed to him as public administrator of the parish; that she be dismissed from office, and that he be recognized as dative testamentary executor in pursuance of the provisions of an act of the Legislature “providing for the appointment of public administrators, and defining the duties of the same,” approved March 5, i 870. Thereupon the executrix, by her attorney, filed an account, which was opposed by Hawley as public administrator. An exception was filed on the part of the executrix to the authority and right of' Hawley to appear in the capacity he assumed, the ground being that the office of public administrator was abolished, and that no such office was then known to the law.

The exception was sustained, and Hawley, as public administrator,, appealed.

The ground upon which the court a qua placed its judgment is, that the act of March 5, 1870, does not appear in the Revised Statutes adopted on the fourteenth March, J 870 j that the last section of the Revised Statutes 3990 repeals all laws contrary to or in conflict with the provisions of the act adopting the Revised Statutes, and that the-provisions of the Civil Code, Code of Practice and Revised Statutes,, in regard to the appointment of administrators of estates and curators of vacant successions, are in direct antagonism to the act of March 5, 1870, establishing public administrators, etc., and that the adopting clause necessarily also repealed the repugnant act of twenty-eighth February, 1870.

We think the court erred. The purpose of the lawmaker expressed by the act No. 50, approved February 28, 1870, seems to have been to-avoid the very difficulties that have arisen in this case, and which might have arisen in many other instances had they not been guarded against by the special statute of twenty-eighth February, 1870. Construing that statute in connection with section 3990 of the Revised Statutes, the sense resulting from both is that section 3990 of the Revised Statutes does not include within its general sweep the acts of the General Assembly passed during the session of 1870. On the contrary, that tile acts and joint resolutions of the General Assembly passed during the session of 1870, should take precedence of the act adopting the Revised Statutes, and be held as repealing in whole or in part, any of those revised statutes that might be found to be in oppo■•sition to or in conflict with the enactments or joint resolutions of the • session of 1870.

It is therefore ordered that the judgment of the parish court be annulled and reversed. It is further ordered that this case be reimanded to the court of the first instance for further proceedings ac“Cording to law, the appellee paying costs of appeal.

Wyly, J., being absent, took no part in this decision.


author: Wyxy, J.

text:
    No. 2862.
    Robert D. Urquhart v. M. Carvin.
    ' A release in a case of provisional seizure can not be considered as an ordinary conventional obligation to which may be applied the principle that: As one binds himself, so shall be be bound. It is no valid commutative contract between the plaintiff and the surety, defendant on the bond. As a public officer,' the sheriff has not the authority, nor is it bis duty, to mate a contract of this character in which there can exist no reciprocal obligation.
    from the Sixth District Court, parish of Orleans. Cooley, J.

      C. M. Conrad & Son, for plaintiff and appellant. JS. IP". Hun■'tington, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyxy, J.

The plaintiff, who sued the defendant, the surety on a release bond in his case of provisional seizure against Mary L. Green, appeals from the judgment rejecting his demand.

The defense is that at the time the bond was given, there was no law authorizing the release on bond of furniture provisionally seized.

This is conceded. But the plaintiff contends that the bond is at least an ordinary conventional obligation, and on the principle as one binds himself so shall he be bound, he is entitled to recover against the defendant. The difficulty of this theory is, the doubt whether the instrument can be regarded as an ordinary conventional obligation. How can the plaintiff demand the enforcement of a conventional con-4ract to which he was not a party? Where is the aggregatio mentmm between the plaintiff and the defendant?

It is not pretended that he gave the sheriff a power of attorney to •contract for him; and as a public officer the sheriff was wholly without authority to make contracts of this character; it was no part of his duty to make an ordinary contract for the plaintiff. Without ■authority to bind the plaintiff, how can it be pretended that the sheriff could consent for him, or in his behalf make a valid commutative •contract with the defendant or the party for whom the defendant was (Security.

Viewing the bond as merely a commutative contract, we are of ■opinion that the plaintiff can not recover upon it, because not being a party thereto it was not binding on him; there was no reciprocal obligation on his part. Incurring no obligation himself, there existed no ■commutative contract between him and the party for whom the ■defendant is security. Revised Code 1765, 1766, 1768, 1770, 1797.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 4561.
    F. Chilly v. Sheriff and als.
    The property' exempted from seizure and sale by section 16D1, Revised Statutes of 1870, is predial and not urban.
    'The general rule is, that the property of the debtor is the common pledge of his creditors. Exemption laws create exceptions to this general rule which are not to be extended beyond the express terms of the lawgiver.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.

      Kilbourn & McVea, for defendants and appellees.

      Wedge & Gross, for plaintiff and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

This is an injunction suit to prevent the sale of a house and lots in the cify of Jackson, Louisiana, under an order of seizure and sale, on the grounds that the property is not worth more than two thousand dollars; that it is his homestead, and that he has a child dependent on him.

The evidence shows that the property seized is worth more than two thousand dollars.

There was judgment in favor of the defendants, dissolving the injunction. Section 1691 of the Revised Statutes of 1870, provides that il in addition to the property and effects now exempted from seizure' and sale under execution, one hundred and sixty acres of ground, and the buildings and improvements thereon, occupied as a residence, and .bona fide owned by the debtor, having a family, or mother, or father, nr person or persons dependent on him for support; also, one work horse, one wagon or cart, one j oke of oxen, two cows and calves, twenty-ñve head of hogs, or one thousand pounds of bacon, or equivalent in pork, and, if a farmer, the necessary quantity of corn or fodder for the current year; provided that the property herein declared to be exempt from seizure and sale does not exceed in value two thousand dollars,” etc. And the plaintiff in injunction relies upon this provision of the law to justify his action.

We think the property exempted from seizure and sale in the foregoing law is predial, and not urban property. It exempts one hundred and sixty acres of land, and the improvements and buildings thereon, and such other property as is usually attached to a farm to-contribute to the support of the farmer and his family.

The general rule is that the property of the debtor is the common pledge of his creditors; exemption laws create exceptions to the general rule, and they are not to be extended beyond the express terms of the law.

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


text:
    No. 4580.
    J. V. Sevier and als v. George Sargent and als.
    Where some of the api>eUanfcs have not given bond and perfected the appeal, and some have, it is no ground for a motion to dismiss the appeal because of the want of proper parties ,- and where the bond is in favor of the cleric and the order of appeal was granted in open court, all parties not appellants are appellees.
    Where the heirs were put in possession of the property of their ancestor, if the partition between them be defective as a judicial partition, it is certainly valid as a conventional; one, all being of age and signing the act.
    By the express terms of article 1671 of the Revised Code, the heirs can at any time take the seizin from the testamentary executor on offering him a sum sufficient to pay the movable-legacies, and on complying with the requirements of article 1012.
    Where the heirs went into possesssion and partitioned the property, the succession was wound up, because it ceased to exist. A creditor of the deceased became the creditor of his heirs, each being bound to him for his share of their ancestor’s debt. If some of the heirs are not solvent, and the creditor may lose part of his claim, the fault is attributable-to himself; he might have required security from the heirs before they obtained actual delivery of the inherited property.
    Whether the executor be discharged or not, the remedy of a creditor is not against him, but against the heirs who have been put in possession of the property of which they have become the owners and who are bound to pay the debts of the deceased, each his virile share.
    APPEAL from the Parish Court, parish of Teusas. Oordill, J.

      Farrar & Sieves, for plaintiffs and appellees. Drains, Garrett & Spencer,. for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Wyly, Morgan.
   Wyly, J.

The motion to dismiss this appeal for want of proper parties, is denied; because if all of the appellants have not given bond and perfected the appeal, some have; and as the bond is in favor of the clerk and the order of appeal was granted in open court, all parties not appellants are appellees.

The plaintiff, a creditor of the deceased, sues to set aside the order putting the heirs in possession of the property belonging to the succession of J. G. Gordon and homologating the partition thereof. He also sues to annul the judgment homologating the final account of' the dative executor and canceling his bond. He charges fraud and collusion between the executor and the heirs. He alleges that the judgment homologating the account and discharging the executor is-void for want of proper parties, and that it is not sustained by sufficient legal evidence; that it was obtained in fraud of the law and in violation of that provision thereof, which declares that, “ executors shall continue in office until the estate is finally wound up.”

He also complains of irregularities in the judicial partition, and charges that the possession of the heirs is an illegal possession.

The court annulled and set aside the judgment homologating the final account of the executor and discharging him, declared the partition of the succession an absolute nullity, and ordered Sargent, the •executor, to resume the possession and administration of the property heretofore held by him as the executor of J. G. Gordon. From this judgment the defendants appeal.

Many interesting questions have been discussed in the elaborate briefs filed in this case, but upon which it is not necessary to pass.

As a matter of fact the heirs were put in possession of the property of their ancestor; and if the partition between them be defective as a judicial partition, it is certainly valid as a conventional one, all being of age and signing the act. No fraud is proved, and indeed it would be difficult to conceive how' there could be fraud in the exercise of an undoubted legal right by the heirs, to wit: The right to take possession of the property of their ancestor, there being no movable'legacies, there being no demand for the separation of patrimony, and the creditors not demanding security.

By the express terms of article 1671 of the Revised Code, “the heirs can at any time take the seizin from the testamentary executor on offering him a sum sufficient to pay the movable legacies, and on complying with the requirements of article 1012,” which declares that they shall not have actual delivery of the property, unless they give bond “ with good and sufficient security, if the plaintiffs in such suits require it.”

In the case of Fowler against this same succession, 24 An. 270; the precise question was considered by this court and it was held that, “the heirs had the right to demand the seizin from the executor, and he had no right to refuse it.”

When the heirs went into possession and partitioned the property the succession was wound up, because it ceased to exist. The plaintiff ceased to be a creditor of the deceased and became the creditor of the heirs, each being bound to him for his share ol their ancestor’s debt. If some of the heirs are not solvent and the plaintiff may lose part of his claim, the fault is attributable to himself; he might have required security from the heirs, but failed to do so. The final account of the executor, containing all the necessary formalities, was duly homologated, and he was discharged after thirty days notice being duly published. This publication was sufficient notice to the plaintiff.

But whether the executor be discharged or not, the remedy of the-plaintiff, a creditor, is not against him, but against the heirs, who are-the owners of the property of their ancestor, and who are bound to-pay his debts, each his virile share.

It is therefore ordered that the judgment appealed from be annulled and reversed, and it is ordered that plaintiffs’ demand be rejected,, with costs of both courts.


text:
    No. 4511.
    Maria J. Dupre, Tutrix, v. Thomas F. Swafford and al.
    An injunction-will not be set aside for irregularities when it appears from the face of the* papers that another would be issued.
    Where it was pleaded that an injunction ought to be dissolved, beeauso iho party applying for it as tutrix set forth in her petition grounds which could have been urged in the* defense to a petitory action against her individuality;

    Held — That the plea is not valid. On the plea that a tutrix can not authorise another person to bind the minors on an injunction bond:
    Held — That it is the duty of a tutrix to protect the rights of her wards, and if, in the accomplishment of that duty, it becomes necessary to execute a judicial bond, she has the right to do so.
    from the Ninth Judicial District Court, parish of Grant. Orsborn, J.

      W. JO. JRiohardson and A. Oazabat, for plaintiff and appellant. J2. J. JBowman, for defendants and appellees.
    Justices concurring: Ludeling, Howell, Morgan.
   Ludeling, C. J.

The defendant, Swafford, having obtained a judgment against Maria J. Dupré in her individual -capacity, was proceeding to have the property in controversy placed in his possession, when the plaintiff, as tutrix of her minor children, injoined the sheriff. The defendants filed a motion to dissolve the injunction on the following grounds: That the said Maria J. Dupré is nob tutrix; if she is at present, she was not at the time the injunction was sued out; that the grounds set forth in her petition of injunction could have been urged' in the defense to the petitory action against Maria J. Dupré, and can not now be made the grounds for an injunction ; that a tutrix can not’, authorize another to bind the minors on an injunction bond.

To the first objection, it is a sufficient answer to state that an injunction will not be set aside for irregularities, when it appears from the face of the papers that another would be issued. To the second objection the answer is, that Maria J. Dupré, tutrix, was not a party to thepetitory action between Swafford and M. J. Dupré, individually. To-the third objection it is sufficient to say that it is the duty of the tutrix, to protect the rights of her wards, and if to do that it becomes necessary to execute a judicial bond, she has the right to do so. This is too-clear to require farther notice.

It is therefore ordered and adjudged, that the judgment of the lower court be set aside, and that the case be remanded to be proceeded with, according to law.