text:
    John Fletcher v. Catharine Henley, his Wife.
    The statute relative to a change of venue in civil cases (Acts of 1855, p. 808,) does not make such change a matter of right, but leaves it discretionary with the court to grant or refuse the application after hearing evidence.
    Where a seasonable though fruitless effort had been made to examine a witness whose testimony had been taken under commission, in relation to contradictory statements alleged to have been made by him, proof of such contradictory statements was properly received.
    APPEAL from the District Court of the Parish of Concordia, BatUff.| J.

      JS. Sparrow and S. B. Shaw, for plaintiff and appellant.

      J. S. Veazie and A. AT. Ogden & Stansbury, for defendant and appellant.
   Buchanan, J.

The parties reside in the parish of Concordia. The plaintiff sues his wife for a divorce, on the ground of adultry. This petition was filed in June, 1856. Defendant answers by a general denial of the charges of plaintiff, and reconvenes, claiming a separation of bed and board, for defamation and ill treatment. She prays for a jury. The answer and petition in reconvention were filed in November, 1856. The cause was called for trial in November, 1857; at which time, plaintiff moved for a change of venue, on filing his affidavit that there was so strong a prejudice resting in the public mind against him, that he could not get an impartial trial in that parish. The Sheriff and two other citizens were examined, and testified, in substance, that there was a feeling adverse to the plaintiff pretty generally prevalent in the parish, growing principally out of this suit; but that a jury could he empannelled, who would give him a fair and impartial trial. The Judge overruled the motion for change of venue, and the trial proceeded before a jury, each one of whom upon his voir dire had sworn that he had no bias or prejudice for or against either party, and that he had not formed nor expressed an opinion about the merits of the cause.

The statute relative to a change of venue in civil cases (Acts of 1855, page 308), does not make such change a matter of right, but leaves it discretionary with the court to grant or refuse the application, after hearing evidence. And this harmonizes with the theory of trials by jury, which supposes a principal advantage of such mode of trial, to consist in having judges of the vicinage, who know the parties and their witnesses. And this advantage is the more apparent, where, as in the present case, the issue is one of character in the most important of social relations; and where, as here, the credibility of material witnesses is drawn in question. The record satisfies us that the discretion of the District Judge was judiciously exercised in this instance. The application for a change of venue was tardy. Issue had been joined for a year before it was made. The statute allowed the plaintiff to have made the application in vacation, upon ten days notice to the oppiosite party. Instead of availing himself of this provision of the law, the plaintiff delays it until the moment of going to trial. The immediate effect of the application, if granted, would have been to continue the cause. The statute was certainly not intended to delay trials ; and Judges should take heed that it is not perverted to that purpose.

Plaintiff excepted to the mode of completing the jury, after the regular panel had been exhausted. His council offers no argument in support of this bill of exceptions, and it is only necessary to remark that the course adopted is supported by the authority of the case of Barthet v. Estebene, 5 An. 315.

Plaintiff excepted to the reading on the trial, of the evidence given on a rule for alimony. We see no good objection to this evidence. It was taken in the presence of both parties.

Also, to the examination of defendant’s mother as a witness. This objection is untenable. See Act of 1855, No. 307, sec. 2.

Plaintiff also excepted to the reception of testimony of witnesses to prove that B. F. Balcer, a witness for plaintiff examined under commission, had made statements to those witnesses, inconsistent with the statements made by him in his deposition read in the cause. The rule of evidence appears to be settled, that a contradictory statement of this kind can only be proved, after the witness impeached shall have been afforded an opportunity of explaining the contradiction, by being examined in relation to it. Fletcher v. Fletcher, 5 An. 408.

But in this case, a seasonable, though fruitless effort seems to have been made to examine Balcer in relation to his alleged contradictory statements. Balter's deposition was taken, as already said, under a commission at Vicksburg, Warren county, Mississippi, by La&an'us Lindsay, commissioner. After this deposition was returned into court, and before the term of the court at which the cause was tried, another commission was taken out by defendant, and sent to the same commissioner at Vicksburg, who had executed the previous one, with an interrogatory annexed, to Balter, requesting him to state whether he had not made the statements to those persons named, which were testified of afterwards, in open court, by those persons, and are now excepted to. The-return of the commissioner, Lindsay, to the last named commission, shows that Balcer could not be found.

We think that the court did not err in receiving evidence of the contradictory statements of Balcer, under the circumstances. But, even if this were doubtful, we would not feel justified in sending back the cause to the jury on this account; inasmuch as we find the most material statement of Balter's deposition flatly contradicted by the witness John Ivy ; and it was for the jury to -decide, which of the two witnesses, Ivy or Balcer, they would believe.

Upon a careful review of the evidence, we are satisfied that the verdict of the jury has done justice between these parties.

The judgment is, therefore affirmed, with costs.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Benjamin F. Young v. M. Courtney et als.
    In August, 1810, B. by a power of attorney, authorized Vr. S. to collect the purchase money of a tract of land which he had previously sold. A description of the land was given and the attorney was also authorized to ratify the sale. Under his authority, he ratified the sale and collected the unpaid purchase money. Meld: That after so great a length of time, the sale and ratification must be considered as conclusive on those plaintiffs who claim under B.

    In the absence of all proof of fraud, good faith in the transactions of parties will be presumed after great length of time.
    The law generally considers the tax and costs as the only damage which a party sustains by the defence of the suit against him.
    APPEAL from the District Court of the Parish of Pointe Coupee, Ratliff.¡ J.

      J. L. Lobdell & R. JR. Ogden, for plaintiffs and appellants.

      U. B. & E. Phillips, Brewer & Collins, Eugene Janin, Prevosty <& Waffles and Eustis, for defendants.
   Merrick, C. J.

The plaintiffs claim of the defendant a tract of land lying upon Faussé Riviére, in the parish of Pointe Ooupée, being a double concession, containing 1680 arpents. They claimed title in their original petition through Dr. Benjamin Parrar, who died in the year 1790. By their amended petition they allege that the front tract of land was conveyed by Man'garet Qaillan'd and Abraham Ellis, in 1794, to Benjamin, Anne Prancisha and Marga/i'et Parrar, the children and heirs of Dr. Benjamin Parrar, deceased, from whom they claim by inheritance.

The defendant claims title by mesne conveyances from Benjamin and Margaret Farrar, two of the vendees above-named, the said Margaret having married Richard Butler.

It appears that the original tract of land was placed on the inventory of Dr. Benjamin Parrar, in 1791. This seems to have been done in error; for, in 1794, we find the heirs of Dr. Benjamin Parrar acquiring this property from Abraham Ellis and wife, to whom they gave in exchange therefor three negro men.

A formal partition of the effects of the succession of Dr. Benjamin Farrar has been offered in evidence. It does not include the tract of land in controversy, and defendant’s counsel say that they are unable to find any written evidence of its partition. Nevertheless, on the fifth day of January, 1798; Benjamin Farra/i', jr., for want of a Notary Public, sold before Wm. Dupont, the Commandant of the post, and two witnesses, to Charles Cremillion, for $1250, payable in one and two years, eight and one-fourth arpents front, by a depth of forty arpents, described as “une terre en friche,. size dams le TAeu de la Fausse Riviere et dans ce district, de huit arpents et trois-quarts de front, sur la profondeur ordinaire de quarante, attenante d’un cóté á la terre du Sr. Joseph Decuir, et de 1’autre á la demoiselle Parran', laquelle terre appartient au vendeur pour lui étre échue am pcm’tage des Mens de la succession de feu Benjamin Farrar, son pére. Fait en ce poste le sept novembre de mil sept cent quatrevingt-seize.”

On the second day of August, 1810, Benjamin Farrar, by a power of attorney authorizing Wm. Ta/ylor to collect the price of the purchase from the vendee, ratified and confirmed the sale .previously made, and describing the tract of land as being on False River, adjoining the land of Joseph Beeuir, and then in the possession of said Gha/rles GremiUion. His attorney made the ratification and acknowledged to have received the residue of the price, $427, by notarial act passed before the parish judge 30th of August, 1810.

It appears to us that at this late period, this sale and ratification must be considered as conclusive upon such of the plaintiffs as claim to be heirs of Benjamin Farrar, jr. After an adverse possession of fifty-eight years by persons holding under an original purchaser in good faith, we must presume that a supplemental partition was made, and the recital in the act of sale to Gremillion was true, and the heirs of the vendor making this recital cannot be permitted now to gainsay the admission of their ancestor. They are estopped by it.

In the above description of property, made in 1798, Benjamin Farrar sells by boundaries upon lands of Joseph Beeuir on one side and Miss Farrar■ on the other.

On the 26th day of January, 1801, Richard Butler and Mrs. Margaret Farrar', his wife, duly authorized by him, sell to Julien Poydras all the property, lands, slaves and farming utensils, which she held at the post of Pointe Coupee, for $53,000, payable in three instalments. They enumerate the lands and slaves sold, and describe one of the tracts of land as iollows, viz : “ Item, une terre sise dans Vanse de la Fausse Riviére, bornée d’un cóté á celle du Sieur Charles GremiUion, et de l’autre á celles du Sr. Joseph Beeuir, containing seise arpents et deux-tiers de front."

In another part of the act the parties describe the whole property sold as “Tous lesquels biens meubles etimmeubles appartiennent aux susdits vendeurs pour les avoir eu de la succession de feu Sr. Benjamin Farrar', pére de la demoiselle Marguerite Farrar', femme du Sr. R. Butler', dans les parts qui lui sont échues lors de la separation des biens de la dite succession aux héritiers, le sept du mois de novembre de l’année mil sept cent quatre-vingtseize.”

These two sales to Gharles GremiUion and JuUen Pogdras cover the whole tract of land acquired from Abraham Filis and wife. No notice is taken of the interest in the same of Anne Franciska Farrar' who married Samuel G. Young. The plaintiffs, Benjamin Farrar' Young and Flisa E Young, claim as her heirs. But at the same time, they and the other plaintiffs claim as heirs of Margar'et Butler, deceased, and are therefore bound by her warranties and are estopped by her admissions. If then Mar'gar'et Butler was bound in warranty to JuUen Poyck'as and his vendees, then the plaintiffs are repelled from claiming the land by the same warranties. Thus the heirs of Benjamin Farrar, jr., are bound as warrantors in both acts of sale. The heirs of Anne Fra/neisha Farrar are bound by the act of sale of Margar'et Butler and its recitals.

But the plaintiffs’ counsel contend that Julien Poydras, the purchaser, appears by the recital in the inventory to have been the executor of the last will and testament of Br. Benjamin Farrar, deceased, and as he had not settled up his account in 1801, he could not buy any of the effects of the succession from the heirs. The will has not been produced to us, and we are not informed whether the seizin of the estate was conferred upon the executor or not. If it were not, the heirs would be considered in the possession of the estate, having the right to dispose of the same, upon furnishing the executor with funds sufficient to pay the debts and legacies, and the property could not therefore be considered under the administration of the executor. After this lapse of time, and in the absence of all proof of fraud, the parties must be considered as having treated with each other in good faith, and Mrs. Butler must be presumed to have sold only those things in her possession and under her control. Moreover, the title to the property in question is alleged by plaintiffs to have been acquired by the heirs after the death of Dr. Benjamin Farrar. See Moreau & Carleton’s Partidas, p. 1087, Law 2; p. 1089, Law 4; p. 1090, Law 6; p. 663, Law 4; 11 Martin, 298; Ross v. Ross, 3 An., 533.

But it is further urged that Margas'et Farras' owned only one undivided third part of the tract of land in question, and that, therefore, she could not sell as the- absolute owner, by boundaries, two-thirds of the same. The answer to this is that she did sell such portion, claiming the right so to do, and recognized the ownership and possession of Charles Qremillion, by claiming to his boundaries. The plaintiffs then, as we have already said, being her heirs, are bound by her acts, which, after the lapse of more than half a century, must be held to have been performed with a full knowledge of her rights and those of her co-heirs.

It is again objected that the act produced by defendants, purporting to be from Benjamin Farrar, jr., to Oharles Qremillion, contains an erasure and interlineation which is a forgery and entirely changes the location intended by the grantor. It is contended that, as the act originally stood, the tract was described as on the island of Eausse Riviere; that the words “ l’lie de la) Eausse Riviérc ” were improperly changed to “ le lieu de la Eausse Riviére.” Two witnesses were examined as experts. They say that they are of the opinion that the words Visle were partially erased, and that the words le lieu were written in the place of them. One of the witnesses said, that he thought both words were written with the same ink, although he could not say whether it was written by the same hand or not. It is in proof that the expression “ une terre sise au dit lieu de la Fausse Biviire ” was a common expression in acts at that period, and the officer in closing the act in question says that it was "passie d dit lieu de la Pointe Coupee,” &c. In support of the genuineness of the act as it now stands, is the proof of the adjoining boundaries, the act of Mrs. Butler referring to the tract of Charles Qremillion, the ratification in 1810, the copy made in 1806, and the proof of the continuous possession of Charles Qremillion and his vendees as far back as the memory of the witnesses go, which is upwards of forty-five years. The title followed by possession for this long period must, even in the case of doubt, be considered to have been originally conformable to the possession, and the erasure and interlineation so sustained to be sufficiently explained.

A reference to these sales to Charles Qremillion and Julien Poydras shows that the plaintiffs are divested of title. Wo do not, therefore, feel ourselves called upon to consider defendants’ title step by step, nor to show how the prescription in favor of the defendant has also been acquired; for on this point also we are of the opinion that the case is with the defendant.

But the defendant, Miaajah Courtney, claims that he has been injured in the sum of $5000 by the unwarrantable institution of this suit, and that the District Judge erred in refusing to allow him to introduce evidence to pi’ove such damage. In general, the law considers the taxed costs as the only damage which a party sustains by defence of a suit against him, and these he recovers by the judgment in his favor. This point was considered in the case of the same plaintiffs against Lebeau et al. See 13 An.

Judgment affirmed.


author: Spofford, J.

text:
    George W. Womack v. Robert Fluker.
    Ths security cannot point out for discussion property which, once belonged to his principal and was even mortgaged to secure the original holder of the notes sued on, when such property is no longer in the principal debtor’s possession and has passed by successive conveyance into the hands of a third person.
    APPEAL from the District Court of the parish of St. Helena, Watterston, J.

      Julian E. Wilson, for plaintiff.

      Muse & Ecvrdee, for defendant and appellant.
   Spofford, J.

The only question here presented by the defendant and appellant grows out of his plea of discussion.

Being sued as a surety merely ho had a right to plead discussion, by complying with the requisites of the law.

“ The surety who does require the discussion is bound to point out to the creditor the property of the principal debtor, and furnish a sufficient sum to have the discussion carried into effect. He must not point out the property of the principal debtor situated out of the State, nor the property which is in litigation, nor that which is mortgaged for the debt and no longer in the possession of the debtor.” C. C. 3016.

It appears that the property pointed out for discussion by the security in this case, although it once belonged to his principal and was even mortgaged to secure the original holder of the notes sued upon, is no longer in the principal debtor’s possession, but has passed by two successive conveyances into the hands of a third person.

It was not competent for the surety to point out property in this predicament for discussion.

Our Article 3016 is taken substantially from Article 2023 of the Napoleon Code. M. Troplong, commenting upon the latter Article, says : “ Si les biens indiqués étaient passés par vente ou autre alienation, dans les mains de tiers détenteurs, la caution ne serait pas fondée á en exiger la discussion.” Du Cautionnement, No. 267.

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


author: Buchanan, J.

text:
    Mary Jane Matthews et al. v. Jeannette Matthews et al.
    When husband and wife removed from another State to Louisiana and after the removal the husband received money from the estate of the mother of his wife, it was held that the wife had a valid claim therefor against the husband’s estate.
    The will of W. M. contained the following clause: “ I wish my wife Jemnette Matthews to lime Tier lawful part of my estate, mid her choice of the house servants after my decease, as prescribed by the lams of this State f

    Held: That the clause, “ her lawful part of my estate,” applied by the testator to his wife, meant, the one-half of the acquests and gains in full ownership, and the usufruct of the other half.

      Held, also: That the clause by which the testator bequeathed to his wife her choice of the house servants after the testator’s decease, was a bequest of as many as she should choose to select of the slaves employed about the house at the time of the testator’s death, and that the widow having selected four, from, out of the eight or nine in number, was entitled to them.
    APPEAL from the District Court of the parish of Pointe Coupée, Cooley, J.

      J. L. Lobdell, for plaintiffs and appellants.

      U. B. & E. Phillips, for defendants.
   Buchanan, J.

This is an action of partition. The questions are almost exclusively of fact, which have been correctly decided by the District Court, with the exception of a claim of Mrs. Matthews, for six hundred and fifty dollars, being for so much received for her account by her husband, from the estate of her mother, in 1841 and 1845, which was long after the removal of the parties to Louisiana. This constitutes, therefore, a good claim against the estate of William Matthews, on the part of his wife.

There are two questions of the construction of the last will of William Matthetos.

We agree with the District Judge, that the words “her lawful part of my estate,” applied by the testator to his wife, mean the one-half of the acquests and gains in full ownership, and the usufruct of the other half.

But we feel hound to differ from our learned brother upon the meaning to he attached to the other clause of the same testamentary disposition, which bequeathes to Mrs. Matthews “ her choice of the house servants after my decease.” This appears to us to have been evidently intended as a bequest of as many .as she should choose to select, of the slaves employed about the house at the time of the testator’s death. It is proved that the house servants were eight or nine in number, and their names are given by the witnesses. The widow has selected four of those, who are named in her answer.

We do not find any error in the rulings of the court in relation to the admission or rejection of evidence, as set forth in the hills of exception.

It is, therefore, adjudged'and decreed, that the judgment of the District Court be amended, by decreeing to the defendant and appellee, Jeannette Matthews, the four slaves, George, Sarah, Ellen and Elizabeth, selected by her from among the house servants of her husband, as a particular legacy to herself from her husband, in full ownership ; that Mrs. Jennette Matthews also recover from the estate of her husband, Willimn Matthews, a further sum of six hundred and fifty dollars, for so much separate and paraphernal property, received for her by her said husband in his lifetime; that in other respects the judgment of the District Court he affirmed; and that the separate estate of William Matthews pay costs of appeal, that is to say, all costs incurred by and subsequently to the filing of the petition of appeal.


author: Spoeford, J.

text:
    John S. Brien v. R. Percy Sargent.
    A purchaser at public sale who shows a judgment, execution and Sheriff’s deed in the usual form has an apparently just title, under which to prescribe, notwithstanding informalities in the sale unknown to him, if he possesses long enough under such title before the informalities are declared by suit to set aside the sale.
    APPEAL from the District Court of the Parish of Madison, Fas'rar, J.

      Kan'Hson & Sawyer, for plaintiff and appellant.

      A. Snyder, for defendant.
   Spoeford, J.

This is an action to annul a Sheriff’s sale and to recover certain lands in the parish of Madison, alleged to he held by the defendant under mesne conveyances from the purchaser at said Sheriff’s sale.

The judgment against the present plaintiff, under which the lands in question were sold, is admitted to have been valid. The only objections to the sale that need be noticed, because the only ones pleaded, are, that a curator ad hoe, appointed to defend the suit, was not the proper person to be served with notice of seizure, and, that, if he were, no proper service was made upon him.

The defendant pleaded specially the prescription of five and ten years; the cause was tried upon that plea only, and decided in favor of the defendant.

The plaintiff and appellant complains that the District Judge erroneously refused to admit evidence that he was in actual possession of the premises in 1843. That evidence was irrelevant and unnecessary, for the Sheriff’s sale, which forms the basis of the defendant’s title, did not take place until 1845, and it is admitted that the plaintiff was in possession up to the date of the seizure, which preceded that sale.

The argument of the defendant is, that by the act of seizure that possession was divested and, by the Sheriff’s sale, transferred to his author, the purchaser at said sale. And so the record shows. If, then, the informalities charged as to the notice of seizure are truly charged they do not repel the plea of prescription.

For it is settled, that a purchaser at public sale who shows a judgment, execution and Sheriff’s deed, in the usual form, has an apparently just title under which to prescribe, notwithstaneing informalities in the sale, unknown to him, if he possesses long enough under such title before the informalities are declared by suit to set aside the sale. Walton v. Canfield, 2 Rob., 468, affirmed in Leduf v. Bailly, 3 An. 8.

The Sheriff’s deed to defendant’s author is dated on the 3d March, 1845. Citation in this case was served on the 23d June, 1857. Upwards of twelve years intervened, a period sufficient to perfect prescription, counting the term, as against the plaintiff, prior to the statute of March 14-th, 1848, p. 60, at twenty, and since then at ten years. C. C. 3437.

There is no evidence to impeach the good faith of the defendant or his authors ; a commencement of possession being shown by the Sheriff’s return, and present possession being declared by the institution of this suit, a continuity of such possession may be fairly inferred from the plaintiff’s allegation that “ the defendant holds said lands by mesne conveyances under said Sheriff’s sale, and has derived and continues to derive large profits therefrom.”

Judgment affirmed.


author: Merrick, 0. J. Buchanan, J.,

text:
    The State of Louisiana v. The Judge of Second District Court.
    An appeal will not be granted to a third person not party to the suit, who claims a superior privilege on a fund ordered by the judgment to be distributed, where it is apparent that new evidence would be necessary to establish that the judgment appealed from was erroneous.
    ON a mandamus to the Eon. P. E Morgan, Judge of the Second District Court.

      Whittaker & Fellowes, Ghwroet & Drouet, and J. M. Meunier, for relator.
   Merrick, 0. J.

It is apparent from the petition of the relator and the brief of counsel, that they do not complain that the judgment from which they seek to appeal was erroneous on the facts then before the court, or that this court would not be obliged to render the same judgment on those facts. The object of the relator is to introduce other evidence and to prove, by testimony which she will introduce, that she has a privilege superior to all the parties in that suit, and that the judgment should be i eversed as to plaintiff and defendant, and intervenors and she herself be decreed to have a privilege superior to them all. After reciting the judgment in the case of Wilkinson v. The Towboat Persian, which had been rendered, she avers “ that as soon as the proceedings had herein came to her knowledge, having a direct interest in the proceeds of said towboat, as likewise the other parties, (consent having been first obtained,) intervened in said suit and took a rule together with the other intervenors in her said suit, upon the several parties in the suit of J. B. Wilkinson v. Towboat Persian, Captain and Owners, to show cause why a suspensive appeal should not be granted from the judgment distributing all the funds, she offering in evidence the two records for the purpose of showing the priority of her seizure under mesne process, the nature of the claims in controversy and the returns of the Sheriff.” In another place in her petition relator shows “that by said final judgment, the whole proceeds of the towboat Persian have been distributed without regard to the rights of this opponent and others, all privilege creditors of the highest class.”

Relator’s counsel in their brief say “ that the judgment now sought to be appealed from should be re-opened, at least so far as it distributes the fund, and when that is done, the fund can be properly distributed in the suit having the first seizure, viz, Lombard v. Limbert, and to which suit we are parties.”

It is thus manifest that the relator does not ask for an appeal for the purpose of having the judgment of the lower court reviewed by us on the facts 0f that case alone, the only manner in which it can be examined, but she desires to show by other proof that her seizure was the oldest, and that her privilege outranks those in that case. As this cannot be done, and as her remedy is manifestly that of third opposition, we do not think that we should do the vain thing to order an appeal to be allowed, particularly as the relator neglected to make proof before the District Judge of her interest in the judgment appealed from. Lex neminem eogit ad vana. See case of Dufau v. Duflechier's syndic, 3 L. R. 305 . In this case, the Supreme Court says : “ Where no objection is made to the capacity of the third party as appellant, but he wishes new evidence to establish that the judgment appealed from must be reversed, we are without authority to assist him, the correctness of the judgment appealed from being to be tested by facts pleaded and proved before its rendition.”

See also the case of Herman v. Smith, 7 N. S. 677 and 3 Rob. 116. The cases cited by the counsel for the relator are not in conflict with the doctrine of these cases.

It is, therefore, ordered, that the rule be discharged, at the costs of the relator.

Buchanan, J.,

dissenting. In my opinion the relator has made a sufficient showing to justify her application for an appeal from the judgment of the District Court, distributing the proceeds of the towboat Persian.

“ The right of appeal is given, not only to those who were parties to a cause in which a judgment has been rendered against them, but also to third persons not parties to that suit, when such third persons allege that they have been aggrieved by the judgment.” C. P. 571.

“ Whenever a conflict of privileges arises between creditors * * * * * the court shall proceed to class the privileges and mortgages according to their rank and privilege in a summary manner, after notifying the pa/rties interested.,” Acts of 1855, p. 497, sec. 37.

By the terms of this Act of 1855, notice is to be given of a distribution of a fund seized by several parties claiming privileges, not only if the several seizures are in the same court, as in the case at bar, but even if some of the seizures are in other courts.

The relator has taken all the steps necessary to secure her rights, and sees the fund upon which she claims a privilege distributed without any notice given to her. This is a direot violation of the law of 1855$ and there is a manifest probability of her rights being irretrievably lost, unless an appeal is allowed her.

Voobhies, J., concurred in this opinion.


text:
    Shapley Owen v. Gersham Brown.
    A party ill answering interrogatories on facts and articled, is not permitted to state his conclusions of law on the facts.
    ■Where a party interrogated on facts and articles fails to make a sufficient answer, the interrogatories will bo taken for confessed.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      A. L>. Caldwell, for plaintiff.

      Louis Selby, for defendant and appellant.
   Merrick, C. J.

This case was before ns last year and was remanded for a

new trial, and among’ other things, in order that the defendants might procure the answers of the plaintiff to interrogatories on facts and articles. See 12 An. 112.

There are six interrogatories and answers, but it will be necessary to consider only the first interrogatory and answer. They are as follows, viz:

“ 1st. Did you receive for slave Tom, for which you obtained a verdict in this case, six hundred dollars in a compromise in full with the owners of steamers Niagara and Empress, or the owners of either of said steamers ?”

Plaintiff answers: I received six hundred dollars in full discharge against the steamboat Empress for carrying off my negro man Tom, as I believed they had carried him off; retaining to myself any claim I might have in case I could recover the said negro, at the same time retaining my right or claim against Brown, the defendant'in the suit. I did not sell the negro to the owners of the boat.”

The answers to the other interrogatories evidently have reference to the foregoing.

The defendant’s counsel contend that the answer is insufficient and that the interrogatory must be taken as confessed.

Under the authority of the case of Hoover v. Miller, 6 An. 205, it appears to us that the -objection to the answer is well taken. The Article 353 of the Code of Practice authorizes the party interrogated to state other facts closely linked to the fact on which ho has boon questioned. He is not permitted to state his conclusions of law on the facts, for that would be usurping the province of the court.

He must confine himself to a narration of facts and not the consequences or results of facts. Eor what might seem conclusive to the party, might appear very differently to the court.

The answer given instead of being satisfactory (as they usually are where facts only are stated), gives rise to other questions, as, “ How did you retain your right to the negro ? How did you retain your right against the defendant Brown ? Were these reservations expressly made in the release which you executed, if in writing ? If the affair were merely oral, what did you agree upon ? And in what terms did you reserve your rights ? Or if nothing was said, was the intention merely one in your own mind not communicated to the captain of the steamboat or mentioned in the release ? ” As these questions indicate, the plaintiff ought, by his answers, to have shown how and in what manner ho reserved his rights.

The value of the interrogatories on facts and articles depends on excluding from them all matters of .opinion; for, most suitors are persuaded of the justice of their causes, and would have but little hesitation in affirming that they are in the right, provided they could so easily dispose of the action.

Taking the interrogatory as confessed, the plaintiff is not entitled to a double satisfaction for the loss of his slave, and a settlement with, and an unconditional discharge of one of the tort-feasors has discharged the other.

As to the value of the services of the slaves Brown and John with which the defendant has been charged by the judgment of the District Court, we are of the opinion that the testimony is not sufficiently certain and cogent to maintain that portion of the decree.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants; and that they recover costs in both courts.


author: Merrick, 0. J.

text:
    Jose Colomer v. Morgan & Valette.
    Tho registry of a Sheriff’s deed in the hook of mortgages, does not convey the information required hy the statute ; unless recorded in the hook of conveyances, the property is liable to seizure.
    APPEAL from tlie District Court of the Parish of St. Tammany, Walterston, J.

      Jesse R. Jones, for plaintiff.

      A. Hennen, for defendant and appellant.
   Merrick, 0. J.

The present action was commenced by an injunction to prevent Morgan, the Sheriff, from turning the plaintiff out of the possession of certain lots of ground and buildings in the town of Mandoville, in the parish of St. Tammany.

The defendant, Valette, answered by setting up title to the property in himself and praying to be decreed to be the owner and put in possession. The case was tried before a jury and a verdict was rendered in favor of the plaintiff.

The defendant insists that the action is a petitory action, and that the titles are before the court, and that it must pass upon the question of title. If so, his own position is that of the plaintiff in the petitory action, for the proof shows that Kuzac, through whom both parties claim, was in possession of the property up to the time of the Sheriff’s sale to plaintiff, and since that time the plaintiff has been in public possession of the property. The injunction was sued out to prevent a disturbance of that possession. The defendants title must, therefore, be examined in order to ascertain whether it be good, and, in all things, superior to plaintiffs. Tho defendant claims through a Sheriff’s sale in a suit against Weymouth, and by Weymouth through Kuzac. The plaintiff claims as a purchaser at a Sheriff’s sale in the suit of Tio, assignee of J. F. Bercia & Co. v. Kuzac and Wife.

The sale from Kuzac to Weymouth was simulated, and Kuzac remained in possession. The simulated act of sale was executed in July, 1852, and duly recorded. Weymouth confessed judgment in favor of Valette, and under an execution (which appears to have been lost) issued on the judgment, the premises in controversy were sold at Sheriff’s sale and bought by the defendant, August 6,1853. This sale was recorded in the mortgage record on the 27th day of August, 1853. In November, of that year, Tio obtained his judgment against Kuzac and wife. He issued his execution on the 6th of January, 1854, and the next day the Sheriff seized the property as the property of the defendants. Kuzac and wife, on the third day of March, 1853, enjoined the sale of the property. The injunction was finally dissolved on the 10th day of June, 1854, and on the fifth day of July, 1854, for the first time, the defendants’ title was recorded in the register of conveyances, it being nearly six months after the seizure under Tio’s execution. On the fifth day of August, 1854, the property was adjudicated at the Sheriff’s sale to the plaintiff, a third person, purchasing in good faith.

The defendant Valette, on the 23d day of January, 1854, after Tio’s seizure, instituted an action against Euzac and wife, to obtain the possession of the property, and recovered $200 yearly rent. This suit was decided in favor of Valette in November, 1854, and the second writ of possession issued thereon against Eusac and wife, was enjoined by the commencement of the present proceeding, the first writ having produced no visible effect, although the Sheriff, in his return, says he delivered the keys to an agent of Valette.

The counsel for Valette asserts, that the title of his client is formal, and that the Sheriff’s sale was duly recorded. On examining the same, however, we find it was not recorded in the book of conveyances until after Tio had caused the property to be seized under his execution. The registry made in the book of mortgages at the instance of the Sheriff, does not convey the information required by the statute, and the subsequent registry in the proper book could not defeat Tio’s previous seizure. 2 Rob. 379, Tulane v. Levison; 2 An. 787, Robertson v. Brown, 5. An. 154.

This view of the case renders it unnessary to examine the question whether Valette had notice of the defects in Weymouth’s title or not.

We have not considered the proceedings in the suit of Valette against Weymouth, nor the delivery of the keys in January, 1855, under the judgment against Euzac, as having any material bearing on the case. Eusac and wife were in possession when Tio caused the property to be sold, and the proof shows that the plaintiff has been in possession ever since, except possibly a momentary interruption when the Sheriff handed the keys to an agent of Valette, in January, 1855, after the plaintiff’s purchase.

The Testimony of witnesses to show the declarations of Euzac and Weymouth, as well as their letters, were clearly admissible under the issue of fraud and simulation made by plaintiff’s verbal answer to the defendants’ reconventional demapd.

Judgment affirmed.


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    Francis Boone v. Henry Pelichet.
    The defendant having admitted, in answer to interrogatories, that a sale made to him by the Sheriff of a slave sold under execution, as the property of the plaintiff, was subject to a right of redemption on the part of the plaintiff, it was hold that that tho Art. 2255 of the Code, which requires an actual delivery of the proporty wlion a verbal salo is reiied on, was not applicable to such a case.
    It was not necessary the plaintiff should exhibit the money to put the defendant in mora, as he had refused to make the reconveyance.
    A party called on to answer interrogatories on facts and articles in open Court, has not the right of reading answers previously prepared, but may be required to answer orally in open court.
    APPEAL from the District Court of the Parish of Iberville, Beale, J.

      A. Talbot, for plaintiff;

      E. W. Blake, for defendant and appellant.
   Merrick, C. J.

A slave, the property of the plaintiff, of the value of about §500, was advertised and about to be sold under an execution. The defendant, offered the plaintiff, as an act of friendship, the loan of the money to pay the debt, about $370. At first it was agreed that the plaintiff should mortgage the slave to the defendant to secure the loan, but on consultation the parties were advised to go through the forms of a sale,.and suffer the slave to be sold by the Sheriff under the execution, the defendant buying her in, and retaining the title to secure the repayment of his money. With the express understanding between the parties that the plaintiff should be permitted to redeem the property on payment of the debt and interest in a reasonable time, the slave was so adjudicated by the Sheriff to the defendant.

Within three months afterwards the plaintiff called upon the defendant and offered to redeem the negress by the payment of the price and interest. The defendant refused to receive the same. This suit is brought to compel the defendant to deliver and reconvey the slave to the plaintiff. The facts above detailed appeared by the defendant’s answers to interrogatories on facts and articles, and the testimony of a witness introduced by defendant himself.

There was judgment in the lower court in favor of plaintiff.

It is objected that the defendant was not put in mora, and that, therefore, plaintiff cannot maintain the action. It was not necessary that the plaintiff should exhibit the money after the defendant had refused to receive it, and reconvoy the slave.

It is further objected by the defendant, that as he has not delivered the slave to the plaintiff, the verbal sale of the same cannot be enforced. He cites C. C. 2255, 2415, 2437,; 1 Ann. 457; 6 Ann. 206.

The Articles of the Oode and authorities cited are not strictly applicable to this case. This is not so much a suit to enforce a specific performance of the contract of sale between the defendant and the plaintiff as it is to have defendant’s title declared to be subject to a right of redemption on the part of the plaintiff; to show that defendant’s title is not absolute as it appears on its face, but is simulated, and that it can only be viewed by the court as a security for money lent. It is not thp admission of title in the defendant which the plaintiff seeks to acquire by the contract of sale, but an assertion on the part of the plaintiff that he is still the equitable owner of the property, never having really and absolutely parted with all his interest in it. See cases of Sémère v. Sémère, 10 Annual, 704.

The answers of the defendant merely supply the place of a counter-letter, and no re-delivery is required.

There was no error in requiring the defendant to answer the interrogatories orally in open court, instead of reading answers which had been previously prepared, 11 Ann. 351.

The judgment would have been more formal if it had specified the sum to be paid by the plaintiff to defendant; but we think, as the amount can bo ascertained by reference of the petition, which is substantially confessed by defendant’s answers, that the plaintiff ought not to be taxed with the costs of appeal; particularly as the objection was not specially urged as one of the grounds for a new trial.

Judgment affirmed.


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    Hugh Brown, Administrator, v. W. Sadler.
    The defendant being sued as third possessor of property subject to a mortgage for tho balance of prico of adjudication at a succession sale, set up as an exception that the notes given at the succession sale for the price of the property were not produced : Held : That as these notes were not negotiable, but made payable to tho legal representatives of the estate, the exception was not properly taken.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Bowman Delee, for plaintiff and appellant.

      J. McVea, for defendant.
   Spofford, J.

The plaintiff, administrator of the succession of James Gair, brought this suit against a third possessor of some real estate formerly sold as the property of the said succession, and hypothecated to secure the balance of the price not paid in cash.

That balance was evidenced by two promissory notes not negotiable, but payable to the legal representatives of James Gair, and signed by Ann Gair, the purchaser, under whom the defendant holds.

These notes are not produced, but the plaintiff alleges that they went into the hands of Mrs. Catharine Gair, who, for a time, administered the estate as tutrix, but who, as is alleged, has absconded, taking said notes with her or destroying them, in order to defraud the estate by collusion with her sister-in-law, Ann Gair, who was without means to make the purchase aforesaid.

The defendant excepted that this suit could not be brought against him until Mrs. Catharine Gair, former administratrix, had been called upon for an account of her administration; and further, that Mrs. Catharine Gair and Miss Ann Qair should be made parties to the suit.

Upon these exceptions the suit was dismissed, and the plaintiff has appealed.

The permanent departure of Mrs. Catharine Qair and Miss Ann Gair from the country is a sufficient .answer to the objection that they were not made parties to this suit.

It was impossible also for the administrator to call upon the tutrix for an account of her gestión for the same reason.

The allegations of the petition being considered as true, for the purpose of deciding upon the exception, we are of opinion that they disclose a right of action. A debt is alleged to be due an estate lawfully represented by the plaintiff; the notes, which are not negotiable and have been fraudulently carried away, are only the evidence of that debt; property in the hands of defendant is alleged to be encumbered to secure it; the defendant is alleged to have notice of the existence of a mortgage to secure such debt, by reason of its registry. The defence urged in his brief, that the notes may have been paid to the tutrix, is a defence to the merits, of which he cannot avail himself in this form.

This is not a suit to render an administrator liable for a single act of administration, and the cases cited from 3 La. 182, and 1 N. S. 126, are inapplicable.

It is a suit to recover a debt due the succession, and to make property in the hands of a third possessor liable for it.

It is, therefore, ordered, that the judgment of the District Court be reversed, the exceptions filed by the defendant over-ruled, and the cause remanded for further proceedings according to law, the defendant and appellee to pay the costs of the appeal.


author: SroiroRD, J.

text:
    Melançon et als. v. Widow Aglae Bringier—James P. Bingay v. Widow Aglae Bringier.
    The defects of a title to land resting only on surveys which were unauthorized and illegal cannot ho supplied hy prescription.
    The certificate of purchase under such void surveys would not constitute the basis of prescription as a title translative of property, where the parties whose possession is relied on to make out the plea of prescription had notice of the defects in the title and of the danger of eviction.
    APPEAL from the District Court of the parish of Ascension, Duffel, J.

      Upton fy Lacey, for plaintiffs.

      Ilsley Perault and Legendre, for defendants and appellants.
   SroiroRD, J.

The plaintiffs in these petitory actions claim certain lands in the parish of St. James by virtue of certificates of purchase from the United States, the same being for back concessions granted to front proprietors upon the Mississippi River, under the Acts of Congress.

The only objection urged to the regularity of the plaintiffs’ titles, by the defendant and appellant, concerns the title of Bingay alone. It is urged that his claim of title is defective, because it shows an outstanding claim in favor of the widow Simon Arsenaux which has never been conveyed to him.

For the reasons given by the District Judge, it seems to us that the application in the name of widow Simon Arcenaux must be held to have been made by a clerical error for widow Frangote Arcenaux, and that the certificate of purchase enured to the benefit of "the latter, and sufficiently sustains the title of Bingay.

In other respects, the sole reliance .of the defendant is upon a plea of prescription.

Her title to the land in dispute rests only upon the surveys of Wilson and Rightor, which were held to be unauthorized, illegal and of no effect, in the case of Jourdan et al. v. Barrett et al., 4 Howard 177, reversing the judgment of the Supreme Court of Louisiana as reported in 13 La. 38.

Those cases are referred to for a full explanation of the nature of the Bringier title to so much of the back concession as conflicted with the equitable claims of the adjacent front proprietors to their ratable share of the land in the rear of the bend upon which their locations lie. The title now set up by the defendant is precisely' the same as was there held to be unavailing. And we are of the opinion that its defects have not been supplied by prescription.

Even if the certificates under which Bringier claimed could be regarded as, in form, translative of property to all that was embraced in the void surveys of Wilson and Rightor, still the record shows that the parties whose possession is relied on to make out the plea of prescription had notice of the defects in such title and the danger of eviction; moreover, their possession of the particular tracts now in dispute during a period sufficient to enable them to prescribe is, at best, equivocal. It lacked those elements of a corporeal detention, of publicity, and of continuity, which should be shown in a case like this.

Judgment affirmed.


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    Elizabeth A. Montgomery, wife of J. H. Meyers, et als., v. Jackson M. Chaney et als.
    If a father desires to prefer one child to another in the distribution of his property, he is hound to state his design expressly, by declaring that the gift or legacy is intended a as an advantage or extra portion,” or using other equivalent terms.
    When there is a price actually paid by the son to the father, in a salo by the lattor to the former, and it even exceeds one-fourth of the value of the property sold, but is much below its fair value, and an advantage is thus indirectly sought to be given to one heir over others, the law will compel the heirs to stand on an equal footing.
    It will form no bar, under such circumstances, to an action, to onforcc the principle of equality among the heirs, that the property thus sold by the parent to the child, did not exceed the disposable portion unless it appears that the sale was made avowedly as an advantage or extra portion, or such intention is manifested in a subsequent act before a notary and two witnesses.
    Under a charge of simulation as well as fraud, all the facts and surrounding circumstances attending tlio transaction may be proved by parol evidence.
    APPEAL from tlie District Court of East Feliciana, Ratliff, J.

      Muse If Hardee and F. Hardesty, for plaintiffs and appellants.

      T. G. Morgan and J. B. Smith, for defendants.
   Spofford, J.

This suit was brought by some of the forced heirs of Elizabeth Chaney, deceased, against Jaclcson M. Chaney, one of their co-heirs, to set aside a pretended sale of certain slaves from their deceased ancestor, Mrs. Chaney, to her son, the said Jaclcson M. Chaney, upon the allegations that no price was paid by the pretended purchaser, but that the sale was simulated and fraudulent, the same being really a disguised donation obtained by undue influence on the part of the pretended purchaser. The prayer of the petition is that the sale bo declared void, and that the property purporting to have been conveyed by it be decreed to be the property of the succession of Elizabeth Chaney, deceased, and as such partitioned pro rata among her heirs.

There was a verdict and judgment for the defendant, and the plaintiffs appeal, relying upon various bills of exceptions reserved by them to the rulings of the District Judge in rejecting evidence and in charging the jury.

Equality between heirs of the same degree is the cardinal principle of the Louisiana law of inheritance. No deviation is allowed from this rule, save within a narrow limit and by pursuing the forms prescribed by law. If a father desires to prefer one child to another in the distribution of his property, he is bound to state Ms design expressly, by declaring that the gift or legacy is intended “ as an advantage or extra portion,” or “ using other equivalent terms.” 0. O., 1311. “ The sales of immovable property or slaves, made by parents to their children may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one fourth of the real value of the immovables or slaves sold, at the time of the sale.” C. O., 2419. The forgoing article is a legislative recognition of the right to institute such actions as the present. And even where there is a price actually paid exceeding one-fourth of the value of the property sold, but much below its fair value, and an advantage is thus indirectly sought to be given to one heir over others, the law searches it out and compels the heirs to stand upon an equal footing. “ The advantage which a father bestows on Ms son, though in any other manner than by donation, or legacy, is likewise subject to collation, Thus when a father has sold a thing- to his son for a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate, all that is subject to collation.” C. 0., 1326.

The present action was, therefore, well brought, and the fact, if fact it be, that the property conveyed to the defendant by his mother did not exceed the disposable portion, forms no bar to the plaintiffs’ demand, unless it appears that she conveyed it to him avowedly as an advantage or extra portion, the declaration of which intention should appear in the instrument itself purporting to convey the property, or in a subsequent act before a notary and two witnesses. C. C., 1310, 1311.

And the doctrine with regard to remunerative donations has no application to a sale of this kind ; nor would the fact that the pretended vendee had rendered valuable services to the vendor, if found to be true, dispense him from the duty of giving up the property conveyed to him by a simulated title, such as is alleged in this case ; for “ the obligation of collation does not exclude the child or descendant, coming to the succession of his father, mother, or other ascendant, from claiming wages which may be due to him for having administered the property of the ascendant, or for other services.” C. C., 1327.

The true questions are : was the sale in question a real sale, and was. a fair price at the time actually paid ?

If these questions, or either of them, are answered in the negative, collation is due by the pretended vendee, or the property comes into the mass, to be distributed according to the rules laid down in the Code upon the subject of partition, unless it be found that the deceased declared the same to be intended as an advantage in the manner already indicated.

The instructions of the judge to the jury were not in accordance with these views, and the bill of exceptions to his charge was well taken.

Most of the bills of exceptions, with ¡regard to the admissibility of evidence, were well taken also. The allegations are, that no price was paid, and that the apparent sale was a simulation, and a disguised donation, and that the defendant sought to obtain an indirect advantage over his co-heirs by his influence with his mother. It is unnecessary for a party plaintiff in such a demand to set out in his petition the details of his proof. Nor is it necessary that all the evidence should be direct and positive. Simulation, as well as fraud, may be shown by presumptive evidence. The fact that the identical money paid before the notary was used in another and a cotcmporaneous sale by the same vendor to another vendee, was pertinent, and the plaintiffs should have been allowed to prove it; as well as the cotemporaneous sales; and so of all the other circumstances which have a tendency to show that the sale was not bona fide, and that no real consideration passed to and was retained by the vendor, such as the relative condition and circumstances of the parties, their means and revenues, their subsequent conduct, the influence of one over the other, the fact that the price was nominal, the suggestions of the defendant to the notary, and generally such matters of fact as conduced to establish the plaintiffs’ allegations of simulation and indirect advantage. The testimony should then be carefully weighed by the jury, and if they find that the material allegations are not proved with reasonable clearness and certainty, they should find for the defendant.

It is, therefore, ordered that the judgment of the District Court be reversed, the verdict of the jury set aside, and the cause remanded for a now trial according to law, and one ip conformity with the views hereinbefore expressed, the defendant paying the costs of this appeal.


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    Firemen’s Charitable Association v. George H. Berghaus.
    Where a contract belongs to a class which is reprobated by public policy it will bo declared void, although in that particular instance no injury to the public may have resulted.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      C. D. Choiseul and F. J. Lugenbühl, for plaintiff and appellant.

      W. II. Hunt and Denegre, for defendant.
   Spofford, J.

The present suit is based upon a written contract made between the defendant, Berghaus, and Alfred, Bellanger in his official quality as Chief Engineer of the Fire Department of New Orleans. Berghaus had bought a quantity of burning cotton in the Levee Cotton Press, where (at the time of the purchase made at auction at the instance of the underwriters) the Fire Department were engaged in' suppressing an extensive firp. As soon as Berghaus had bid off the cotton, the Chief Engineer gave orders to the fireman who had hitherto been playing upon the cotton with the steam fire engine “Young America” to take up. Berghaus, apprehensive of the total destruction of his cotton, besought the Chief Engineer to countermand his orders; he promised to do so for a consideration ; Berghaus thought the price demanded too high and went to look elsewhere for assistance; but he shortly returned and secured a resumption of the services of the “Young America” by entering into the following contract:

“ It is agreed by this instrument that George H. Berghaus pays for the use of the steam fire engine, now engaged at the fire of the Levee Steam Cotton Press, twenty-five dollars per hour as long as she is engaged, the reservation to be that service ends on Monday next at 6 o’clock P. M., and also to be at the disposal of the Chief Engineer whenever he sends for her, this to be when a fire occurs, a separate arrangement to be made with the 2d Assistant Engineer who is to be left in charge of the steam engine, and the pipemen to be left in charge of the pipes; also the engineer and assistant of the steam engine to be paid twenty-five dollars per day for their services.
David Bradbury, superintendent,.... $20 p. 24 hours.
'Henry Dawes and assistant,........ $50 “ “
One fireman,..................... $ 6 “
12 pipemen, each,.........■.......$ 6 “ “
(Signed) March 8th, 1856, 2 o’clock P. M.
Geo. H. Berghaus.
Alfred Bellanger,
Chief Engineer.”

This contract, upon its faco, is opposed to public policy, and cannot be enforced in a court of law.

The city ordinances prescribe the duties of the fire department and its officers. The department is paid for its services out of the city treasury; its officers and engines are devoted to the public in the extinguishment of fires, and cannot therefore be employed by private citizens to extinguish fires for pay. Equality and impartiality are required in the discharge of all official duties. The temptation of pecuniary interest should not be allowed to disturb the administration of a department paid, by the whole public for the equal service of all.

In the present case, it was the duty of the fire department to go on in the extinguishment of the fire at the Lower Ootton Press, or it was not. If it was their duty, they were paid for it by the city, and had no right to charge Berghaus for doing their duty. If it was not, they had no right to make the contract sued on, and thus pervert their engines and the services of their officers and men from their true destination, which is the equal protection of New Orleans from injury by fire, to the furtherance of private speculation.

When a contract belongs to a class which is reprobated by public policy, it will be declared void, although in that particular instance no injury to the public may have resulted. The cose must yield to the principle, not the principle to the case.

And no number of subsequent promises to pay can infuse vitality into a contract originally void by the policy of the law.

Judgment affirmed.


author: Merrick, O. J.

text:
    E. H. Roquest & Co. v. Steamer B. E. Clark, Master and Owners.
    It is not a valid objection to a proper interrogatory to a garnishee that it requires him to maleo a statement of his accounts with tho judgment debtor.
    It may be necessary and proper to give a party the full benefit of the statute of 1839, that the garnislieo should be submitted to tho most pointed interrogatories, but ho cannot go beyond the design of the statute of charging the garnishee with property or effects of the judgment debtor, or with some indebtedness to him.
    APPEAL from the Sixth District Court of Now Orleans, Howell, J.

      Durant If Horner, for appellants.

      Singleton (f Clack, for appellees.
   Merrick, O. J.

An execution having issued on this judgment in this case, interrogatories were propounded to Conery, as garnishee, under the Act of 1839.

The case presents the question to what extent parties are allowed to propound interrogatories under this statute, and whether any questions may be propounded except such as tend directly to charge the garnishee with property and effects in his hands belonging’ to the debtor.

The plaintiffs propounded seven interrogatories, four of which the garnishee answered, and to the three remaining ones he excepted, and his exceptions being sustained, plaintiffs appeal.

The interrogatories and answers are as follows, viz:

“ 1st. Who were the owners of the steamer B. E. Clark on the day when you became security on the bond to release the seizure in this case ?
Answer. Thomas H. Beers, Jo. Lodwiclc and John Amsden."
“ 2. Have you in your possession or under your control any rights, credits, effects or property of any description belonging to the said owners, or in which they, or either of them, is or are directly or indirectly interested ? What is the amount or value of the same, and does it reach the sum of $1500 ? ”
Answer. I have not at this time/ neither had I at the time of the seizure herein, or since, in my possession or under my control, any rights, credits, effects, property, or any thing of value belonging to said owners, or either of them, - or in which they or either of them are interested, either directly or indirectly ? ”
“ 3d. Are you indebted in any sum of money to said owners, or either of them, to the amount of $1500, say fifteen hundred dollars ? ”
Ansiver. “ I am not at this time, nor was I at the time of the seizure herein, or since, indebted to said owners, or either of them in any sum whatever.”
“ 5th. Was the transfer to Theard in good faith? ”
Answer. “Tes.”

The following interrogatories the garnishee refused to answer:

“ 4th. Have you since you signed the said bond had any interest in the said steamer, directly or indirectly ? And have you now ? And what is it ?”
“ 6th. Had you any thing to do with the transfer of the steamer, which was made by the owners after this list was brought to Theard ? Were you interested therein ? If so, how ? Did any portion of the price pass through your hands ? ”
“ 7th. How much has the indebtedness of the steamer to you been reduced from the 4th of June, 1856 ? In explanation to your answers to this and the foregoing interrogatories, please annex a full and detailed account of your transactions with this boat and the owners thereof to the date you signed the bond, and from that time up to the date of your answering these interrogatories ? ”

The garnishee filed the following exception to answering said interrogatories :

“ This defendant as garnishee excepts to answering the 4th, 6th and 7th interrogatories, on the ground that plaintiffs have no legal right to propound the same to this garnishee, and this garnishee is not legally bound to answer the same in this form of action. That in answering the 1st, 2d, 3d and 5th interrogatories, he has answered all that can be required of a garnishee. Wherefore he prays the judgment of this court dispensing him from answering the 4th, 6th and 7th interrogatories, on the grounds and for the reasons herein stated.
(Signed) ' E. Conery.”

On hearing the exceptions, the court ordered that the garnishee be dispensed with answering the 4th, 6th and 7th interrogatories.

The plaintiff proceeds under the Act approved 20th March, 1839, p. 166, sec. 13, being an amendment of Art. 246, C. P. Among other things it provides :

“ Whenever a party plaintiff in a cause has applied for a writ of fieri facias against the defendant, and has reason to believe that a third person has property or effects in his possession, or under his control, belonging to the defendant, or is indebted to him, he may cause such third persons to be cited to answer under oath such interrogatories as may be propounded to him touching said property and effects, or such indebtedness, in the same manner and with the same regulations as are provided in relation to garnishees in cases of attachment.”

In cases of attachment it is provided:

“ If a creditor know or suspect that a third person has in his possession property belonging to Ms debtor, or that he is indebted to such debtor, he may make such a person a party to the suit by having him cited to declare on oath what property belonging to the defendant he has in his possession, or in what sum he is indebted to such defendant,-even when the term of payment has not yet arrived. The person thus made a party to the suit is termed the garnishee.” C. P., Art. 246.
“ A creditor may likewise annex to his petition interrogatories on facts and articles, to be answered categorically under oath by such garnishee, as to the nature of the property belonging to the defendants which may be in his possession, and as to the amount of the sums for which he may be indebted to him.” Code of Practice, Art. 247.
“ The garnishee who has been cited in a suit must put in his answer, within the usual delay, declaring in the same, fairly and truly, what property belonging to the defendant he lias in his possession by whatever title he may possess the same, as well as what sums he may owe to such defendants, whether the same be due or not due ; and if interrogated on facts and articles, he must answer under oath, clearly and categorically, such question put to him touching such matter.” O. P., Art. 262.

It is obvious that each case of garnishment must depend upon its own circumstances. In order to make the remedy given by the statute effectual, parties ought not to be too much restricted in the exercise of their rights under it. They are in many instances compelled to resort to this remedy as the only one which can be made available, and with a knowledge that the answers which they shall obtain, cannot be contradicted except by positive written proof; by the oath of two wetnesses or possibly by one witness and strong corroborating circumstances. O. P. 364, 354.

With these advantages in his favor, justice may often require that the garnishee should be submitted to the most pointed and searching interrogatories. But then these interrogatories must not go beyond the design of the statute, viz, to charge the garnishee with property or effects of the judgment debtor, or with some indebtedness to him.

When they tend to some other purpose, the garnishee ought to be relieved from answering.

We think with the District Judge, that the tendency of the 4th and 6th interrogatories was to charge the garnishee as a partner in solido, and not to fix upon him any liability as a debtor to the defendants; the District Judge was clearly right in sustaining the exceptions in these interrogatories.

There is a portion of the seventh interrogatory which the garnishee might perhaps have been, in the discretion of the District Judge, required to answer, viz : “ How has the indebtedness of the steamer been reduced from the 4th of June, 1856 ? ” But as the question assumes that the defendants were indebted to the garnishee, instead of the garnishee to them, we do not feel called upon to interfere with the discretion of the District Judge in this particular, as he had the party before him, and was satisfied with his answers.

We do not consider it a valid objection to a proper interrogatory, that it requires the garnishee to make a statement of his account with the judgment debtor. Sometimes that will be the only mode of ascertaining the true state of the accounts of the parties, and litigants cannot be deprived of their rights, because it may occasion the opposite party some inconvenience.

But the seventh interrogatory assumes, as just observed, that the garnishee is the creditor of the defendants, and if such be the case, a statement of the account is an idle ceremony, accompanied perhaps with trouble and expense, and from which the District Judge might well relieve the garnishee. At all events, the decision is not so manifestly erroneous as to require our interference.

Judgment affirmed.


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    Heirs of Gormley v. Maria Theresa Palmes.
    Where a judicial sale is attacked for defects which are relative only, they should he specially alleged and a resulting injury shown, as well as an offer of restitution to he made so far as the plaintiff has heen benefited.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      J. S. Whitaker, for plaintiffs and appellants.

      Durant Horner, for defendant.

      Emerson fy Huntington, for warrantors.
   Spofford, J.

The plaintiffs claim the lots in question, one-half as heirs of their mother, and the other half as heirs of their father, the property having belonged to the community.

As heirs of their mother, they have no pretence to disturb the title of the defendant. For that title was acquired at a judicial sale made by her consent and ratified by her receipt of a part of the price. As her heirs, the plaintiffs are warrantors of her acts, and are bound to protect the defendant so far as her half of the property is concerned.

And as to the half claimed by plaintiffs as minor heirs of their father at the date of the sale, it appears that the same was administered by their mother in her quality as tutrix; that suit was brought against her as representing the Gormley succession, for a debt of the succession specially privileged upon the property to pay a paving bill; that the property was subject to be seized and sold for such debt; that Mrs. Gormley admitted its justness, and stipulated that the property upon which the privilege was claimed, be sold on a credit of twelve months, for bond and mortgage, in lots; that it was sold to the author of the defendant’s title under the judgment rendered by a competent court pursuant to this agreement of parties; and that the tutrix received a part of the price.

We do not think the plaintiffs have made out such a case as the more modern authorities require, to authorize the court to treat a judicial sale of this character as a mere nullity.

Whatever defects may have been urged in argument are relative only, and should have been specially alleged; and a resulting injury should have been shown, as well as an offer of restitution made, so far as the plaintiffs have been benefited.

The validity of the claim and privilege under which the property was sold, has not been denied by plaintiffs ; the stipulation that it be sold on a twelve months credit was a stipulation in the interest of the minors, of which they have no reason to complain. It is not clear that the sale was made in block otherwise than was authorized by the terms of the decree; and if it were, there are not allegations and proof of any resulting injury to the plaintiffs. See Taylor v. Lewis, 8 La. 177; Poultney’s Heirs v. Ogden, 8 La. 440.

Judgment affirmed.


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    Accessory Transit Company of Nicaragua v. George W. McCerren et als.
    In an action for vindictive damages for an unfounded and malicious suit, both malice and want of probable cause must be alleged and proved.
    The measuro of damages to be recovered on an attachment bond, is the actual expense and loss resulting from the levying of the attachment, including the fees of counsellor professional services rendered, exclusively in relation to the attachment.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      F. H. Clack, for plaintiff.

      Benjamin, Bradford Finney, for defendants and appellants.
   Buchanan, J.

Defendants are sued as principal and surety in an attachment bond given in a suit instituted by McCerren against plaintiffs.

The plaintiffs declare, first, against both defendants, for damages actually sustained in lawyer’s fees paid and loss of interest on moneys attached; secondly, against the defendant McCerren alone, for vindictive damages for an unfounded and malicious suit.

The District Court properly disregarded the second branch of this action. We have frequently had occasion to decide, that to maintain such a claim, malice and want of probable cause must not only be alleged, but proved. The allegations of the petition are sufficiently full upon both these essential points; but no proof of either has been furnished. It appears that McCerren sued the Transit Company for damages for having, in violation of their obligations, annulled a contract which they had made with him.

■ He also claimed, in the same suit, other and distinct damages for a trespass. The Transit Company answered, first, by formally denying the contract alleged by McCerren; and, secondly, by claiming damages of McCerren, in reconvention, for violations of the same contract, which violations had justified the company in annulling it. Very evidently, the latter of the two pleas contained in this answer, waived the former; and the parties went to trial upon the cross actions, before a jury, which rendered a verdict in favor of the Transit Company against McCerren, without damages. It is impossible to infer malice, and want of proble cause for suit, on the part of McCerren, from those pleadings and that verdict.

But the general verdict and judgment for defendants in the suit of McCerren against the Transit Company, carried with them necessarily a dissolution of the attachment, which was an incident of that suit. The final judgment is deemed to have settled that the attachment of McCerren had been wrongfully obtained, and to have fixed the liability of the principal and surety upon the attachment bond. The measure of damages under that bond, is the actual expense and loss resulting from the levying of the attachment; including the fees of counsel for professional services rendered, exclusively, in relation to the attachment. The writ was levied upon a debt due the company by their agent in New Orleans, Templeton, who was made garnishee, and served with interrogatories. He acknowledged'a considerable balance in his hands to the credit of the company; but it is admitted that the attachment made no difference in the dealings of Temple-ton with the company, and that he continued to x>ay out and disburse, for account of the company, as if there had been no garnishment.

In regard to lawyer’s foes, as an element of damage in this class of cases, it seems now to be settled by the decision in Norton & White v. Cammack, 10 An. 10, affirming that of Penny v. Taylor, 5 An. 714, that, although no separate fees have been stipulated for services rendered in relation to the attachment, as contradistinguished from the defence of the suit at large, yet the court may assess as damages against the obligors in the attachment bond, such proportion of the whole fee paid counsel of the obligee, as it may deem reasonably applicable in remuneration of services peculiarly relating to the attachment.

The services of the counsel of the Transit Company, in the suit of McCerren against them, having particular reference to the attachment, consist of two rules, in one of which, having for object to set_ aside the writ, the company was plaintiff ; and in the other, to pay the debt attached into court, the company was defendant. In the first of those rules, the company was partially successful; and in the second, entirely so.

We cannot say that the proportion of counsel fees, admitted to have been paid by the company for defending that suit, which the District Judge has assessed, as applicable to services rendered upon those rules, is unreasonable.

Judgment affirmed, with costs.