text:
    No. 5174.
    Mrs. C. Pickens, Administratrix, v. Thomas Friend.
    Where the settlement alleged by the plaintiff to have taken place in relation to partnership business, was shown by an instrument signed by the plaintiff and defendant and attested by one witness, and when, on the trial of the cause, the defendant offered to prove by the witness that this instrument was only a statement of the account of the partnership; and that, at the time of signing the same, the plaintiff was, otherwise and besides, largely indebted to him — which indebtedness was acknowledged by the plaintiff;
    Held — That the objection to the introduction of such evidence was properly sustained. The written act bound the parties and must speak for itself. The purpose for which the testimony was sought to be introduced seems to be vague. If the object of the defendant was to show that the succession of which plaintiff is the administratrix, owed him more on account of the partnership than the stated account shows, it was clearly inadmissible; if to show that the administratrix individually owed him, it was irrelevant.
    Appeal from the Superior District Court, parish of Orleans. Hawkins, J.

      T. A. Bartlette, for plaintiff and appellee. Finney <& Boland, for defendant and appellant.
   Taliaferro, J.

The plaintiff injoins an order of seizure and sale,taken out by the defendant, on the ground that the defendant in injunction, claiming to be subrogated to the rights of a mortgage creditor of her late husband, James A. Pickens, paid the ’ebt to which he claims to be subrogated, out of funds belonging to a partnership that existed between the defendant and James A. Pickens, of whose succession she is administratrix. She avers that, by the defendant’s account or exhibit to her of the partnership transactions, and upon which she made a settlement with him, he credits himself with the amount of the mortgage debt of James A. Pickens, which he paid to the creditor, and that there remains.due him by the succession only the sum of $402 70. She alleges further that garnishment process has been taken against the defendant by certain creditors of his, and this balance due him seized in her hands. She prays that the settlement stated by her to have been made with the defendant be recognized as fixing the balance due on the morigage debt purchased by the defendant; and that upon payment of that balance ($402 70), there be judgment decreeing the said mortgage debt and judgment rendered upon it satisfied; that no proceedings be had against her until she be released from the garnishment; and if not released that the judgment be decreed satisfied upon payment by her of the said balance of $402 70.

The defendant admits that he was in partnership with James A. Pickens, in a contract with the North Louisiana and Texas Railroad, to do certain work for the company; that after the death of his partner he received the amount due the partnership for the work. He avers that he advanced the capital and means required for carrying on the business, and besides advanced several sums of money for the separate use and benefit of James A. Pickens; that the succession of Pickens was indebted to bixn in the sum of $2826 with interest; that the settlement referred to by the plaintiff was simply a statement of the condition of the partnership affairs, and had no reference to the various debts due him by the succession. He alleges the nullity of the judgment under which garnishment process issued against the plaintiff and prays a dissolution of the injunction with damages.

There was judgment in the court below in favor of the plaintiff, and the defendant appeals.

The settlement alleged by the plaintiff to have taken place in relation to the partnership business is shown by an instrument signed by the plaintiff and defendant, and attested by one witness. On trial of the cause the defendant offered to prove by the witness that this instrument was only a statement of the account of the partnership, and at the time of signing the same the plaintiff was, otherwise and besides, largely indebted to him, which indebtedness was acknowledged by the plaintiff. Objection being made to the introduction of this proof on the ground that the written act bound the parties and must speak for itself, and the objection being sustained, the defendant reserved a bill of exceptions.

It appears to us the ruling of the court was correct. The purpose for which the testimony was sought to be introduced seems to be vague. If the object was to show that the succession owed him more on account of the partnership than his stated account shows, it was clearly inadmissible; if to show that the administratrix individually owed him, it was irrelevant.

We are unable to find that the defendant has made good the allegations of his answer, and conclude that the judgment of the lower court should remain undisturbed.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Vookhies, J. Taliaferro, J.

license: Public Domain

text:
    No. 80.
    Milton Wilson v. J. P. Benjamin et als.

    The exception to the jurisdiction of the court of Concordia came too late after issue joined. It should have been made in lisnime litis.
    At a public sale made for the purpose of partition, the plaintiff, a possessor in bad faith, became the adjudicates of two tracts, including the very land which he had possessed during twenty years, and which he had highly improved by clearing and otherwise.
    Although the plaintiff has not been actually dispossessed, yet, as a question of law, such has been the effect of the sale and adjudication. In matter of eviction it is a well settled doctrine that actual dispossession is not always required. A purchaser may be evicted, although he continues in possession of the property, if that possession be under a different title, as for instance, if the vendee should subsequently hold under the true owner.
    The same principle may be laid down with regard to the possessor in good or bad faith, whose works and constructions have been kept by the owner of the soil. Whether the latter appropriates them to his own individual use,»or alienates them to the person to whom he owes the reimbursement, or to any one else, the case is the same. In the first and third hypothesis he retains or transfers that which is but conditionally his property ; and, in the second, he transfers to the owner his own property; in the latter, the obligation to reimburse or refund can not be doubted.
    The obligation of the defendants in this case is to pay the value of the materials and the price of the workmanship, without regard to the increase or decrease in the value of the soil. As the buildings were the plaintiff’s property, the defendants’ claim for their rent is unfounded.
    The defendants’ other claim for the rent of the land is also unfounded. The case is not one of letting and hiring. The claim is one in the nature of damages for the wrongful detention of property; and, although the trespasser is not allowed to prefer a claim for the enhanced value of the soil, attributable to his improvements, yet in the admeasurement of damages, to which he is subject, the benefit derived from such improvements becomes an important element.
    The defendants, Wright, Williams & Co., contend that, previously to the partition sale, they had parted with their interest in these lands. The answer to this is, that the partition suit was carried in their own name and for their individual benefit.
    from the Ninth Judicial District Court, parish of Concordia. Haralson, J.
    Jury trial. A. N. Ogden and W. B. Spencer, for plaintiff and appellant. W. H. Hunt, for the testamentary executors of James D. Denegre. H. B. Shaw, Yorh & Sawyer, Benjamin, Bonford <& Finney, for defendants and appellees.

       This case was decided in May, 1861, rebearing was granted, and in May, 1870, tbe final opinion of the court was recorded. Having been lately sent to the Reporter, it appears in this volume.

   Vookhies, J.

The plaintiff’s action arises under the provisions of article 5' 0 of the Civil Code. He claims to be reimbursed for the value of “ plantations, constructions and works,” which he alleges to have made on the defendants’ property.

First — The exception of Wright, Williams & Co. to the jurisdiction of the court of Concordia came too late after issue joined; it should have been filed in limine litis. C. P. 333; Acts 1839 p. 172, § 23.

Second — The plaintiff settled upon the land, from which he has been evicted, some time in the year 1835. His object was to acquire a preemption right; but it does not appear from the record that he ever took the necessary steps. For the space of twenty years, running from the date of his possession, he had no just reason to believe himself the master of this property; and he well knew that lie had no title. He was, therefore, a possessor in bad faith. C. C. 495, 3414, 3415.

In the meantime a suit was pending between the United States government and Curry & Garland, who claimed, as transferees of L. Bringier, the Bringier grant, in which was included the tract of land occupied by the plaintiff. Upon the final termination of this suit adversely to the government, the parties in interest proceeded to make a judicial partition of the property in question. At the public sale made for that purpose, the plaintiff became the adjudicates of two tracts, including the very land which he had possessed during twenty years, and which he had highly improved by clearing and otherwise. Although the plaintiff has not been actually dispossessed, yet, as a question of law, such has been the effect of the sale and adjudication. In matter of eviction it is well settled doctrine that actual dispossession is not always required. A purchaser may be evicted although he continues in possession of the property, if that possession be under a different title; as, for instance, if the vendee should subsequently hold under the true owner. Eviction, as defined by the Code, “ is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person.” C. C. 2476; 15 An. 514, sue. of D. W. Coxe. The same principle may be laid down with regard to the possessor in good or bad faith, whose works and constructions have been kept by the owner of the soil. Whether the latter appropriates them to his own individual use, or alienates them to the person to whom he owes the reimbursement, or to any one else, the case is the same. In the first and third hypothesis he retains or transfers that which is but conditionally his property; and, in the second, he transfers to the owner his own property. In the latter, the obligation to reimburse or refund can not be doubted. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.” C. C. 2279.

The obligation of the defendants is to pay the value of the materials and the price of the workmanship, without regard to the increase or decrease in the value of the soil. C. C. 500; Dearmand v. Pullen, 16 An. (not reported). The value of the buildings, adopting the lowest estimates, amounts to the sum of $3770. As these buildings were the plaintiff’s property the defendants’ claim for their rent in the sum of $4800, is unfounded.

The defendants set up another claim of $10,560 for. the rent of the land; but as there was, previously to the sale in 1855, no privity of contract between them and the plaintiff, the case is not one of letting and hiring. C. C. 2639. The claim is one in the nature of damages for the wrongful detention of property; and, although the trespasser is not allowed to prefer a claim for the enhanced value of the soil, attributable to his improvements, yet, in the admeasurement of damages to which he is subject, the benefit derived from such improvements becomes an important element. The improvements, such as clearing a portion of the land, the whole of which was at the time a forest, and putting it in a high state of cultivation, were worth, independently of the buildings and constructions, iully the amount at which the detention of the property might be appraised.

Third — The defendants, Wright, Williams & Co., contend that, previously to the partition sale, they had parted with their interest in these lands. The answer to this is that the partition suit was carried on in their own name and for their individual benefit.

It is therefore ordered and decreed that the judgment of the district court be avoided and reversed, and that the plaintiff do recover the sum of three thousand seven hundred and seventy dollars from the defendants, in the proportion of their respective shares, as fixed' by the partition of the proceeds of the sale of the Bringier lands, made by order of court in the case of W. C. Micou v. D. S. Stacy et als. It is further ordered that the plaintiff do recover, on this amount, interest at the rate of five per cent, per annum from judicial demand, and costs in both courts. It is further ordered that the defendants’ reconventional demand be rejected, at their costs.

Land, J., absent, concurring.

On Rehearing.

Taliaferro, J.

After a careful review of this case, we find no reason for altering the decree rendered by our predecessors on the twenty-seventh May, 1861.

It is therefore ordered that the judgment remain unchanged.

Mr. Justice Howe recused.


author: Wyly, J.

text:
    No. 853.
    Succession of Alexander McDonald.
    It is well settled that the authorization of the husband any time before trial on the merits-will be sufficient.
    Appeal from the Parish Court, parish of Vermilion. Guegnon, J.

      F. B. Kmg, for administrator and appellee. B. 8. Perry, for opponents and appellants.
   Wyly, J.

We do not find the transcript incomplete and the clerk’s certificate insufficient. Therefore the motion to dismiss the appeal on account thereof is denied. This is an appeal from the judgment dismissing the opposition of Ann McDonald, wife of John Stafford, to the account and supplemental account of the administrator of the succession of Alexander McDonald, on the ground that she was not authorized by her husband.

She alleged in her petitions of opposition that she was authorized, subsequently, and before trial on the merits, John Stafford filed an opposition himself in which he averred that he authorized the suits of his wife. It is well settled that the authorization of the husband any time before trial on the merits will be sufficient.

It is therefore ordered that the judgment appealed from be annulled and it is now ordered that this cause be remanded in order that the opposition herein may be tried and this litigation be proceeded in according to law, appellee paying costs of appeal.


text:
    No. 849.
    J. P. Cross v. F. P. Parent. E. Parent and B. J. West, Intervenors.
    In the intervention of “West, the judgment in his favor was an absolute nullity; the matter in dispute in his intervention being less than five hundred dollars, the district court was without jurisdiction raiione materia. If the property he claimed belonged to him, he should have sued tor it in a court of competent jurisdiction.
    Appeal from the Third Judicial District Court, parish of Iberia. Train, J.

      JR. 8. Perry and J. JRobertson, for plaintiff and appellant W. F. 8chmng, for West, intervenor. J. A. Breaux, for defendant and appellee.
   Wyly, J.

The plaintiff sued the defendant for $1368 59, and attached a stock of goods in a store in the town of Iberia.

Edward Parent intervened, claiming to be the owner of the property attached under a notarial act of sale from his brother, the defendant, of date March 2,1871. He was also permitted to release the attachment on bond.

Subsequently B. J. West intervened, claiming to be the owner of part of the merchandise attached, of the value of three hundred and five dollars.

The court gave judgment for West for the restoration of the goods claimed by him;' gave judgment for the plaintiff for the sum claimed of the defendant, but set aside the attachment on the ground that the sale to the intervenor, E. Parent, was not a simulation, reserving the right of plaintiff to attack it in a direct action.

Prom this judgment the plaintiff appeals.

The important question is, was the sale from the defendant to his brother, E. Parent, a simulation?

The defendant and this intervenor are the only witnesses testifying as to the verity of the sale. They say the price was $2000; $600 cash, and $1400, the sum the defendant was owing the intervenor for fourteen months salary as clerk preceding the sale. The statement of these witnesses is highly improbable in view of the evidence of the plaintiff and other witnesses.

Three disinterested witnesses testify that the intervenor, quite a youth, only came from Havana some two or three months before the pretended sale, and that he was without sufficient means to pay his passage and other expenses, money for that purpose having been advanced at the request of the defendant.

If he only came from Havana to live with his brother two or three months before the sale, it is impossible for the statement of the Parent brothers to be true, that the defendant was owing $1400 for fourteen months salary to the intervenor as clerk in the store previous to the sale. It is highly improbable that the defendant with a store worth only $2000 would give his young brother, a stranger in the neighborhood, a salary of one hundred dollars per month to clerk for him, and that for fourteen months this young man, without money to pay his passage from Havana, was able to live without touching a dollar of his salary. When the attachment was levied the sign of the defendant was over the store, and the sheriff swears he was in possession.

In view of the evident untruthfulness of the witnesses supporting the sale in regard to the fourteen months salary preceding it, we must regard their evidence as to the payment of the six hundred dollars as also untrue. Our conclusion is that the sale was a simulation.

In regard to the intervention of West,, we will remark that the judgment in his favor was an absolute nullity; the matter in dispute in his intervention being less than five hundred dollars, the court was without jurisdiction ratione materiw. If the property belonged to him he should have claimed it in a court of competent jurisdiction.

The attachment should.have been maintained and the intervenors dismissed.

It is therefore ordered that the judgment herein be amended so as to recognize the plaintiff’s privilege on the property attached, and to dismiss the intervenors with costs of their interventions, and as thus amended it is ordered that the judgment be affirmed, appellees paying costs of appeal.


text:
    No. 840.
    John I. Adams & Co. v. Samuel Wakefield, Tax Collector.
    "While the property seized for taxes, and the sale of which is injoined, belonged to the former proprietor, "W". J". Barden, no registry was necessary to preserve the privilege of the State for taxes due by him. But when the plaintiffs bought the property in 1872, it passed to them free of the privilege for taxes for the preceding years, because there was no registry of those tax claims. The subsequent registry could not fix on the purchasers an incumbrance which did not exist as to third persons, when the plaintiffs acquired the property.
    Appeal from tbe Third Judicial District Court, parish of Iberia. Train, J.

      Fred. Gates, for plaintiffs and appellants. Ji. L. Belden, District Attorney, for defendant and appellee.
   Wyly, J.

John I. Adams & Co., mortgage creditors of William J. Darden, foreelo'sed their mortgage, and on sixth April, 1873, purchased the land described in the petition, there being only $71 50 recorded as a privilege for taxes, which they paid. Subsequently the taxes of Darden for the years 1868,1869, 1870 and 1871, amounting in the aggregate to $795 50, were recorded, and the tax collector seized the land purchased by John I. Adams & Co.. The plaintiffs then sued out an injunction to restrain the sale. The court dissolved the injunction with one hundred per cent, damages and costs. The plaintiffs appeal.

While the property belonged to Darden, no registry was necessary to preserve the privilege of the State for taxes. But when the plaintiffs bought it, the property passed to them free of the privilege for taxes for the years 1868, 1869, 1870 and 1871, because there was no registry of the tax claims. The subsequent registry could not fix an incumbrance which did not exist as to third persons when plaintiffs acquired the property.

It is therefore ordered that the judgment herein be annulled, and it is now ordered that there be judgment for the plaintiffs perpetuating the injunction with costs.


author: Ludeling, C. J.

text:
    No. 851.
    Marie Elodie Perret, wife, etc. v. Bernard Sanarens and Sheriff.
    The plaintiff having a legal mortgage on a certain piece of land at the time of its being given to her by her husband, in payment of a valid debt which he owed to her, took said land free from defendant’s mortgage which was junior to lier’s, and which she could have disregarded in enforcing her rights, by the sale of said property, without giving good cause of complaint to said junior mortgagee.
    Appeal from the Third Judicial District Court, parish of St. Mary. Train, J.

      Edward Simon, for plaintiff and appellant. A. 0. Dumartrait, for defendant and appellee.
   Ludeling, C. J.

In 1857, the plaintiff received by donation from her mother, $3400 in cash. The plaintiff s father testified that this money was paid or delivered to her husband, Charles Armelin.

In 1866, to reimburse his wife this sum of mo.ney, he made a daiion enpaiemeni to his wife b.y notarial act in due form, and she was put in possession of the real and personal property, appraised by two appraisers at $3267.

Subsequently, she sold portions of the real estate to different persons. In 1871, B. SanaTens, who had had a mortgage on the real estate, executed by the husband, Charles Armelin, in 1866, caused the said lands to be seized and advertised for sale under his mortgage, proceeding against M. E. Perret and her vendees as third possessors of the mortgage property.- Mrs. Armelin, née Perret, injoined the sale.

There was judgment dissolving the injunction with damages and the plaintiff has appealed.

The facts already stated show that the plaintiff had a valid debt against her husband for $3400, and that he transferred to her, by notarial act, property worth less than her debt, in satisfaction or extinction thereof. At the date of said transfer, her legal mortgage existed on the land and she might have enforced it by the sale of the property, without any reference to the mortgage of Sanarens, which was junior to hers. So she could take the property in payment of her debt, without giving cause of complaint to the junior mortgagee. C. C. 2421, 2399, 2402; 8 An. 484. He has not shown that the property was given for an inadequate price or that he has been injured by the dation m paiement.

The defendant took a bill of exceptions to the testimony of Ursin Perret on the grounds that it contradicted the notarial act of donation to his daughter.. We agree with the district judge that his testimony does not conflict with said act. The donation was made to the daughter, and the testimony of U. Perret shows that the money was delivered to the husband.

The other bills of exceptions are unimportant.

It is therefore ordered and adjudged that the judgment ot the lower court be annulled, that the injunction be perpetuated and that the plaintiff, M. E. Perret, have judgment against Bernard Sanarens for one hundred and fifty dollars damages and costs in both courts.


text:
    No. 830.
    Vincent Boagni v. Victor Fouchy.
    Tlie presumption is that every one, capable of contracting, knows what an obligation is which he signs, and he can not be relieved from the effects of his act by showing that he does not understand the language in which the obligation is written.
    from the Eighth Judicial District Court, parish of Calcasieu. Morgan, J.

      G. H. Wells, for plaintiff and appellant. L. Levegue, F. Fenodin, for defendant and appellee.
   Ludeling, C. J.

This is an action on promissory notes bearing eight per cent, interest from twenty-eighth of January, 1867, the date of the notes. The answer admits the execution of the notes, but avers that interest should run only from the maturity of the notes, that having been the agreement, and that the plaintiff fraudulently wrote the notes in English and made them bear interest from date instead of their maturity. He further alleges that there was a special agreement with plaintiff, by which the plaintiff bound himself to remit the interest on the notes if he paid five hundred dollars, which sum was paid. Interrogatories on facts and articles were propounded to-the plaintiff to sustain this defense and the plaintiff emphatically denied them. The defendant then made himself a witness for himself and he contradicts the answer of the plaintiff to the interrogatories on facts and articles. But this can not overthrow the answers of the plaintiff thus obtained, particularly when corroborated by the notes signed by the defendant.

The presumption is that every one capable of contracting, knows what an obligation is which he signs, and he can not be relieved from the effects of his act by showing that he does not understand the language in which the obligation is written. The letters of the plaintiff offered in evidence do not establish any agreement to remit interest or any part of the debt.

It is therefore ordered and adjudged that the judgment of the lower court be amended by allowing interest at the rate of eight per cent, per annum on the debt, from the twenty-eighth of January, 1867, and that, as thus amended, it be affirmed. Appellee to pay costs of appeal.


author: Moe&an, J.

text:
    No. 834.
    Succession of R. P. Epperson.
    Among the several grounds of opposition to a public administrator’s account it was urged,, that said public administrator bad not been legally appointed. To this tbe Administrator excepted on tbe ground that it was an attempt to remove bim from office, wbicb be maintained, could only be done by direct action. Tbe judge a quo erred in dismissing tbe opposition. Admitting that in sucb a proceeding as was before tbe court, tbe administrator’s capacity could not be questioned, still bis exception should only bave been maintained in so far as it related to tbe denial of bis capacity: Tbe merits of tbe opposition on other points remained intact, and tbe opponent bad a right to bave them passed upon.
    APPEAL from the Parish Court, parish of Yermilion. Guegnon, J.

      B. 8. Perry, for opponent and appellee. F. B. Kmg, for the succession, appellee.
   Moe&an, J.

The public administrator published an account of his, administiation. The aecouut was opposed by Perry, administrator of the succession of Bradley. Among other grounds of opposition, it was urged that the public administrator had not been legally appointed. To this opposition the administrator excepted on the ground that it was an attempt to remove him from office, which, he says, can only be done by direct action. His exception was maintained and the opposition dismissed. The judge erred. Admitting that in such a proceeding as is now before us, the administrator’s capacity could not be questioned, still his exception should only have been maintained in so far as it related to the denial of his capacity. The exception maintained in this regard, still left the merits of the opposition intact, and the opponent had a right to have them passed upon.

It is therefore ordered adjudged and decreed that the judgment of the parish court be avoided, annulled and reversed, and that the case be remanded to be proceeded with according to law, the costs of appeal to be borne by the administrator.


author: Morgan, J.

text:
    No. 833.
    Susan A. Webb v. Amelia E. Keller. Payne et als. Intervenors.
    The defendant, dative tutrix, alleging that the condition of the estate of her deceased husband required a sale of the property belonging to it, bad it sold after the usual judicial proceedings, and purchased it all. She subsequently filed a tableau placing herself thereon as a creditor for a sum larger than the property was appraised at. This tableau was homologated. After the adjudication she mortgaged the property to certain individuals. One of the defendant’s children prays that said sale be declared null and void. Payne, claiming to control said mortgage, intervenes to have said mortgage recognized and enforced.
    The exception to the intervention on the ground that the demands made by the intervenor were not incidental to, or necessarily connected with, the actions between the parties, is not well founded. The foundation upon which the intervenor’s mortgage rested, was the sale made under order of court to the defendant. If the sale was null, his mortgage was null also, because the defendant would not have had any title to the property mortgaged. Although the judgment in this case, between the plaintiff and defendant, would not probably have been conclusive of his rights, he not having been a party to the suit, still he had such an interest in the result in the controversy as to entitle him to intervene.
    The title to the property purchased by the defendant as stated, is, as to third parties, good and valid. Those who dealt with her did so under the faith of judicial proceedings. To set aside the sale made under the authority of justice and thus destroy the mortgage which was taken as the result thereof, and which was accepted in good faith, would be to make like proceedings snares instead of shields.
    If plaintiff’s tutrix has assumed responsibilities towards her, and has been derelict in the performance of any duty, the judgment of the district court in this case reserves her rights against said tutrix, and this is her only recourse.
    Appeal from the Eighth Judicial District Court, parish of St. Landry. Morgan, J.

      Henry Ii. Garland, for plaintiff and appellant. John H. King, B. A. Martel ds Hudspeth, for intervenors and appellees.
   Morgan, J.

Lewis A. Kell Webb died in 1861. He left a widow and two children, both of whom were minors. His property consisted principally of lands and slaves, of which a large proportion belonged ■to the community of acquets and gains. Some of it was separate property. He appointed his widow executrix of his will, and bequeathed to her Lis entire estate. She qualified as executrix and as natural •tutrix, and took possession, it is alleged, of the entire estate. The widow married. The marriage having taken place without the inter-veniion of a family meeting her tutorship ended. Subsequently, how■ever, she was appointed dative tutrix. Her husband was her co-tutor. Alleging that the condition of the estate required a sale of the property 'belonging to it, she obtained an order therefor. She also caused the •property to be appraised. A meeting of the family was called to •deliberate as to the terms upon which it should be sold. The family meeting recommended that all the property of the deceased, separate -and community, be sold for cash. The under tutor approved of this recommendation. The property was.sold on the fifth of January, 1870. 'The mother purchased it all. She subsequently filed a tableau placing herself thereon as a creditor for a sum larger than the property was appraised at. This tableau was homologated.

After the adjudication to her she mortgaged the property she had. purchased to Payne, Huntington & Co., and also to Payne, Dameron & Co. Here commences the contest. Petitioner, one of Webb’s children,, prays that the sale and adjudication made to her mother on the fifth January, 1870,be declared null and void; that the property be declared! to belong to her sister and herself; that the defendant be condemned, to pay twenty thousand dollars, amount of revenue of the property belonging to the succession of her father, received by the defendant, since the first January, 1870. To this proceeding the defendant seems-to .have interposed no obstacle.

But J. W. Payne obtained leave to intervene, and, setting up the-mortgages given by the defendant to Payne & Huntington, and to Payne, Dameron & Co., which mortgages he claims to control, prays that the plaintiff may take nothing by her action, and that he have judgment against the defendant for the amount of the notes which he holds; that his mortgage may'be recognized and enforced, and the property sold to satisfy the same. There was judgment in his favor, and the plaintiff has appealed. In the district court plaintiff moved to strike out that portion of the intervention which related to and asked for judgment in intervenor’s favor against the defendant and for the foreclosure of the mortgage. This motion being overruled, plaintiff, upon the trial, objected to the introduction of evidence upon these issues. The objection was. that the demands made by the intervenor against the defendant were not incidental to, or necessarily connected with, the action between the parties. The objection was pot sustained and the plaintiff excepted to the ruling of the judge.

It does not seem to us that the court erred. The foundation upon? which the iutervenor’s mortgage rested was the sale made under order of court to the defendant. If that sale was null, Ms mortgage was null, because the defendant would not have had any title to the property-mortgaged. And although the judgment in this case, between the plaintiff and defendant, would not, probably, have been conclusive of his rights, he not having been a party to the suit; still it appears to-us that he had such an interest in the result of the controversy as to entitle him to intervene. If he had the right to intervene, the purposes for which he could intervene are not limited. If he has the right to-have the property mortgaged to him sold, he can, it seems to us, assert that right in this proceeding as well as he could in a direct action.

It appears to us that the title to the property purchased by the defendant on the fifth January, 1870, is, as to third parties, good and valid. Defendant was the executrix of a will. She obtained authority to sell the property of the testator in order to pay the debts of his succession, and to make a partition between herself and the heirs. An appraisement of tlie property was ordered; a family meeting was convened, who recommended that the whole property of the succession, whether separate or community, be sold for cash. The under tutor concurred in this advice. The property was sold; the defendant became the purchaser. She subsequently furnished an account of her administration, which account, after due publication, was homologated. It was after the sale that the intervenors’ mortgage was taken. Tlie title being in the defendant the property was her’s, to do with as she pleased. She could sell it, or she could mortgage it. Those who dealt with her did so under the faith of judicial proceedings-. To set aside the sale made under the authority of justice, and thus destroy the mortgage which was taken as the result thereof, and which was accepted in good faith, would be to make like proceedings snares instead of shields.

We have not failed to be impressed with the positions taken by plaintiff’s counsel, and which have been ably argued in his brief. Plaintiff’s tutrix may have assumed responsibilities towards her, and snay have been derelict in their duty. But this is no reason why those who acted in good faith, and whose acts were based upon the orders of a court of competent jurisdiction, should be made to suffer.

The judgment of the district court reserves her rights against her tutrix, and this, we think, is her only recourse.

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

Rehearing refused.


author: Howell, J.

text:
    No. 867.
    A. Berard, Administrator, v. C. Young, Sheriff, et als.
    Where the execution under which the sale was to be made issued from the parish oourt, it is in that court; tliat tlie disposal of the proceeds must be determined. The exception to the jurisdiction was properly taken.
    Appeal from the Third Judicial District Court, parish of Iberia. Train, J.

      Deblane & Four net, for plaintiff and appellant. Joseph JL. Breaux, for defendants and appellees.
   Howell, J.

This is a proceeding- by third opposition, in which the plaintiff claimed the proceeds of property about to be sold by the sheriff. The defendants except to the jurisdiction of the court ratione materice.

The execution, under which the sale was to be made, issued from ¡the parish court, and it is in that court that the disposal of the proceeds must be determined. The exception was therefore properly maintained.

Judgment affirmed.


text:
    No. 866.
    The State of Louisiana v. John J. Gilmore.
    The prisoner requested the judge to reduce his charge to the jury to writing. This he refused to do. The request was made before the charge was delivered. To the judge’s refusal a bill of exception was taken. The exception must be sustained.
    Appeal the Third Judicial District Court, parish of Iberia. Train, J.
    Criminal case. JR. JL. JBelden, District Attorney, for the State, appellee. J. A. Breaux, for defendant and appellant.
   Morgan, J.

The defendant was prosecuted under an information filed by the District Attorney, for libel. He was found guilty and sentenced to pay a fine of $305, or to be imprisoned for thirty days. He has appealed.

The prisoner requested the judge to reduce his charge to the jury to writing. This he refused to do. The request was made before the charge was delivered. To which a bill of exception was taken.

The judge refused to the accused a right guaranteed to him by the law. See. 2133 of the Revised Statutes provides that “in all cases appealable to the Supreme Court, it shall be the duty of the judge to deliver his charge to the jury in writing, if the counsel of either party require the same.”

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.


text:
    No. 860.
    The State of Louisiana v. William Hoozer et als.
    The absence of part of the jurors at the time and when the case was called for trial, in no manner deprived the defendants of the opportunity ot inquiring into the character and qualifications of the jurors. A sufficient number of jurors being present to form the panel, the court did not err in ruling the defendants to trial.
    Saving had all the notice the law requires in order to prepare their challenges, the defendants were not entitled to a postponement of the trial, because all the jurors summoned for the term were not present.
    Appeal from the Eighth Judicial District Court, parish of Calcasieu. JMJorgan, J. Criminal case.

      George W. Hudspeth, District Attorney, for the State, appellee. G. H. Wells, for defendants and appellants.
   Wyly, J.

The defendants having been convicted of the crime of shooting and wounding with a dangerous weapon while perpetrating a robbery, appeal from the judgment sentencing them to the penitentiary for life.

They complain that the court erred in forcing them to trial in opposition to their written objections, alleging that of the list of the forty-four petit jurors drawn for the term and served on them, only twenty-one were present, while they were entitled to thirty-six peremptory challenges and the State to six; that in consequence of the absence of said jurors they were unable to prepare their challenges. What legal right the defendants were deprived of is not perceived. They do not deny that they were duly served with a list of the petit jurors drawn for the term.

The absence of part of the jurors at the time and when the case was called for trial, in no manner deprived the defendants of the opportunity of inquiring into the character and qualifications of the jurors. A sufficient number of jurors being present to form the panel, the court did not err in ruling the defendants to trial. Having had all the notice the law requires in order to prepare their challenges, the defendants were not entitled to a postponement of the trial because all the jurors summoned for the term were not present.

Judgment affirmed.

Rehearing refused.


text:
    No. 862.
    Julie Guilbeau, widow, etc., v. Pierre S. Wiltz et als.
    On the nineteenth of June, 1873, P. S. Wiltz obtained from the district court in St. Landry an order of seizure and sale against a certain piece of property. On the twenty-first, notice thereof was served on the plaintiff, administratrix of the estate of the deceased owner of the mortgaged property, and the seizure was made on the twenty-fourth of the same month, a keeper was put in possession and notice of the seizure served on the plaintiff and administratrix. The property was subsequently sold and adjudicated to P. S. Wiltz & Co. on the sixth September, 1873.
    On the twenty-fourth of June, 1873, the probate court of St. Landry homologated the deliberations of a meeting of the creditors of the deceased convoked on the petition of th& administratrix, and held on the twentieth of June, 1873. The judgment of homologation ordered the sale of all the property of the estate, including that in dispute here, and which was then actually in the jurisdiction of the district court. Under this order the - said property was adjudicated to the plaintiff and administratrix on the thirty-first of July, 1873:
    Hold — That the mortgage creditor had the right to go into the district court to have the mortgaged property sold. That court having been seized of jurisdiction of the property, the order of the probate court was ineffectual to divest that jurisdiction, and the sale thereunder to the defendants and appellants was not the sale of the property of another,, as contended by the plaintiff and appellee. On the contrary, the sale under the order of probate conveyed no title.
    Appeal from tbe Eighth Judicial District Court, parish of St. Landry. Morgan, J.

      Joseph U. Moore, for plaintiff and appellee. Bailey & JEsiilette, for defendants and appellants.
   Howell, J.

The plaintiff, widow of Oscar Buillard, sues to annul a sale of land made by the sheriff to the defendants under executory proceedings instituted by one of the latter.

The material facts are: On nineteenth June, 1873, P. S. Wiltz obtained from the district court in St. Landry an order of seizure and sale against the property in question. On twenty-first same month notice thereof was served on the plaintiff, administratrix of the deceased owner of the mortgaged property,^nd the seizure thereof was made on the twenty-fourth of same month, a keeper or guardian put in possession, and notice of the seizure served on the plaintiff and administratrix. The property was advertised .to be sold on the second August, 1873, but there being no bid it was readvertised to be sold at twelve months’ credit on sixth September following, when'it was adju. dicated to the defendants, P. S. Wiltz & Co.

On the twenty-fourth June, 1873, the probate court of St. Landry homologated the deliberations of a meeting of the creditors of the deceased convoked on the petition of the administratrix, and held on twentieth June, 1873. The judgment of homologation ordered the sale of all the property of the estate, including that in dispute here, and which was then actually in the jurisdiction of the district court. Under this order the said property was adjudicated to the plaintiff and administratrix on thirty-first July, 1873.

The defendants make the following points:

First — The ordinary jurisdiction being seized of the matter, could not be ousted by any subsequent exercise of the probate jurisdiction, both jurisdictions being equally competent.

Second — The proceedings culminating in the probate decree of twenty-fourth June, 1873, were inchoate on nineteenth of June, when the executory process issued; and they were ex parte, it not appearing that P. S. Wiltz, the mortgage creditor, who took out the said executory process, was either notified of the order of court convoking the meeting of creditors or present at said meeting. “ Fe non apparentibns et de non existentibus eadem est lex.”

Third — At the date of the probate sale, under which appellee claims, the property in dispute was in the custody of the sheriff, under the writ issuing at the suit of Pierre S. Wiltz in his executory proceedings.

Fourth — The adjudicatee at the probate sale provoked by Julie Guilbeau, administratrix, was Julie Guilbeau herself, upon whom, on twenty-first June, 1873, notice of the order of seizure and sale issuing out of the district court, at suit of P. S. Wiltz, was served, and it is contended that the plaintiff in the executory proceeding had the right entirely to disregard the probate sale and the proceedings preceding the same.

We think the points and conclusion of the appellants well made and sustained by the law. The mortgage creditor had the right to go into the district court to have the mortgaged property sold, and that court having been seized of jurisdiction of the property, the order of the probate court was ineffectual to divest that, jurisdiction, and the sale thereunder to the appellants was not the sale of the property of' another, as contended by the appellee. On the contrary, the sale under the order of probate conveyed no title.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that the demand of the plaintiff be rejected, and the defendants, Pierre S., Patrick S. and Louis A. Wiltz, be decreed the owners of the property described in plaintiff’s petition, and. purchased by them at sheriff’s sale on sixth September, 1873. Costs of both courts to be paid by plaintiff.

Rehearing refused.


text:
    No. 837.
    Euphrasie Pelagie G. Tessier v. Robert Hart Littell, Testamentary Executor.
    "Wliere it is evident that the basis of the action is the right to an account to be rendered by the testamentary executor, this court will, expropriomotu, decide that the District Court which rendered tho judgment, had no jurisdiction ratione material. In this instance, it is the demand ol‘ parties claiming to be heirs, in a succession under administration, and it should therefore have been instituted in the parish court.
    Appeal from the Eighth Judicial District Court parish of St. Landry. Laurent Dupre, acting Judge.

      Lewis & Bros., for plaintiff and appellee. J. L. M. Moore, for defendant and appellant.
   Morgan, J.

Alfred Moore died in December, 1849.

Jonathan Harris was appointed administrator of his estate in January, 1850. He caused an inventory of the property left by the deceased to be made. The property was appraised at $580 50. It was sold under order of court, and brought $530 10. On the twenty-third of May, 1854, he filed an account of his administration, and a tableau showing the debts due by the estate, amounting to $609 67|-. This tableau was published according to law; no opposition was made to it, and on the first of July, 1854, it was homologated, and the administrator was ordered to pay the creditors in conformity thereto.

Harris died in 1868. Littell is the dative testimentary executor of his will.

On the twenty-fourth of November, 1871, twenty-four years after Moore’s death, seventeen years after the homologation of Harris’ tableau, and four years after Harris’ death, this suit was instituted.

Plaintiffs alleging themselves to be the widow and children of Alfred Moore, claim from the succession of Jonathan Harris, forty-five hundred dollars with twenty per cent, interest per annum from December, 1849. They allege that shortly before Moore’s death, he sent for Harris and requested him to take charge of his affairs, and that three days after is death, Harris came to the house and demanded of the widow the property and money belonging to the estate, and that on or about the seventh of December, 1849, which was before Harris was appointed administrator, she gave him four thousand five hundred dollars, the property of her husband’s estate. They aver that Harris never inventoried nor accounted in any manner whatever for the money thus delivered to him; that he never rendered a full, fair and perfect account of his administration, and therefore, that his succession is responsible to them for the amount above set forth and the interest as claimed. They had judgment in the court below with five per cent, interest from seventh of December, 1849, subject to a credit of $400, paid in April, 1857.

We feel constrained to say, ex proprio motu, that the District Court which rendered this judgment was without jurisdiction, ratione maieriw. It is evident that the basis of this action is the right to an account. It is the demand of parties claiming to be heirs, in a succession under administration, and should have been instituted in the parish court. It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed, and that the suit be dismissed with costs.


text:
    No. 838.
    Arthur Simon v. Charles H. Walker and Sheriff.
    There are not sufficient causes to dismiss the appeal on the grounds: That the certificate of the cleric is too comprehensive; that the appellant proceeded by rule to set aside the order dissolving the injunction before petition and order of appeal; and that the suit is still pending on the merits in the district court.
    Even if the certificate of the clerk could be regarded as defective, because it embraced more than is necessary, that is no cause for the dismissal of an appeal.
    It is manifest that the injunction in this case should not have been set aside on bond, as the plaintiff in injunction had alleged and sworn that the sale would work him an irreparable injury. The order setting aside the injunction must be annulled.
    Appeal from the Third Judicial District Court, parish of St. Mary. Train, J.

      Tucker & Dumartrait, for plaintiff and appellant. D. Oaffery, for defendant and appellee.
   Ludeling, C. J.

This is an appeal from an interlocutory order setting aside an injunction on defendant’s giving bond. A motion to dismiss the appeal has been made on the grounds that the certificate of the clerk is too comprehensive; “that the appellant proceeded by rule to set aside the order dissolving the injunction before petition and order of appeal,” and that the suit is still pending on the merits in the district court. These are not causes for dismissing an appeal.

Even if the certificate of the clerk could be regarded as defective, because it embraced more than is necessary, that is no cause for the dismissal of an appeal.

On the merits of this appeal, it appears that the plaintiff obtained an ihjunction to prevent the sale of one hundred and sixty acres, etc., worth $2000, claiiped as a homestead. He alleged and swore that the sale thereof would work him an irreparable injury. This injunction was set aside by the plaintiff in execution, he giving bond, and the plaintiff in injunction took a devolutive appeal after the sale.

It is manifest that the injunction should not have been set aside on bond, as the plaintiff in injunction had alleged and sworn that the sale would work him an irreparable injury. C. P. 307.' But the order was granted and the sale was made. It is impossible for us to reinstate the injunction to prevent an accomplished fact. If on the trial of the merits of the injunction suit it should be ascertained that the plaintiff in injunction had a homestead right on the laqds and personal property described in his petition, it will be competent for the court to grant him adequate remedy. At present this court can afford him no practical relief.

It is therefore decreed that the order setting aside the injunction be annulled with costs.


author: Wyi.y, J.

text:
    No. 865.
    State of Louisiana v. Ozeme Fruge.
    As to til© sufficiency of the proof to sustain the charge of murder against the defendant, this court can not revise the judgment, because its appellate jurisdiction is limited to questions of law.
    Appeal from the Eighth Judicial District Court, parish of St. Landry. Morgan, J.
    Criminal case. G. W. Hudspeth, District Attorney, for the State, appellee. Joseph M. Moore and JB. A. Martel, for defendant and appellant.
   Wyi.y, J.

The defendant was tried and convicted of murder, and from the judgment sentencing him to be hanged, he has appealed. There is no bill of exceptions nor assignment of errors, and from the record the proceedings appear to be regalar. The counsel suggest, however, in their brief, that the defendant was convicted on the testimony of an accomplice, unsupported by any other evidence, and that he was unworthy of belief. As to the sufficiency of the proof to sustain the charge, this court can not revise the judgment, because its appellate jurisdiction is limited to questions of law.

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


text:
    No. 832.
    State of Louisiana v. Aladin Nunez.
    The objection set up in a motion in arrest of judgment, that Charles W. DuRoy, who filed tho information as district attorney pro tempore, was not appointed to that office and consequently that his official act was a nullity, came too late. If the exception is a good one, it should have been pleaded before going into tho trial. Besides, in a motion in arrest of judgment, only errors fatal on the face of the record can be examined.
    Appeal from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J. Criminal case.

      Joseph A. Ohargois, District Attorney, ior the State, appellee. William Mouton, DeBlanc & Four-net, for defendant and appellant.
   Wyly, J.

The defendant having been convicted of larceny appeals from the judgment sentencing him to the penitentiary for twelve months. The point upon which he relies in this court, is the objection set up in a motion in arrest of judgment, that Charles W. DuKoy, who filed the information as district attorney pro tempore, was not appointed to that office, and consequently his official act was a nullity.

We think the court did not err íd holding that this objection comes too late. If the exception is a good one, it should have been pleaded before going into the trial. Besides, in a motion in arrest of judgment, only errors patent on the face of the record can be examined.

Judgment affirmed.


text:
    No. 857.
    Hypolite Belair, Natural Tutor, et als. v. Celina Dominguez, Administratrix. Opposition of the heirs to the tableau filed by the administratrix.
    The court below did not err, as contended by the opponents, to the tableau of the administratrix, in not charging the community existing between the deceased and his surviving widow with a certain sum of money received by the deceased, during marriage, from the sale of his separate property, because it is not proved that this money was expended by the decoased forth© benefit of said community.
    Whether the individual debts of the deceased were discharged by the giving in payment of certain slaves belonging to the community existing between the deceased and Ms surviving widow, administratrix of his estate, or by funds arising from the sale of said slaves, the result is the same. The community should be credited for tho amount of its property disposed of for the individual benefit of the deceased.
    Appeal from the Parish Court, parish oí Lafayette. Moss, J.

      Mow-ton lit Debaillon, Joseph A. Breaux, for opponents and appellants. M. Ft. Girard, for defendant and appellee.
   Wyly, J.

The plaintiffs, the heirs of Nicolas Vallot, appeal from the judgment on their oppositions to the account rendered by the defendant, their stepmother, tbe surviving widow of the deceased and his administratrix. The objections urged in this court will be considered in the order stated in the brief of the appellants :

First — They complain that the court erred in not charging the community existing between the deceased and the defendant with $389 66, the sum received by the deceased, during marriage, from the sale of his separate property. It is not proved that this money was expended by the deceased for the benefit of the community, and therefore it can not be charged therewith. Stewart v. Pickard et al., 10 R. 18 ; also 2 An. 44; 11 An. 297.

Second — They object to the credit allowed for the amount of the individual debts of the deceased to the opponents, his heirs by a former marriage, discharged by the giving in payment of certain slaves belonging to the community. We think the court did not err. Whether the debts were paid by funds arising from the sale of the slaves, or the giving of them in payment thereof, the result is the same; the community should be credited for the amount of its property disposed of for the individual benefit of the deceased.

Third — The item of $525 76, credited as payment to Aurore Thériot, is sustained by the evidence. Also the item of $347 77 is correct* We see no error in the judgment.

Judgment affirmed.


text:
    No. 843.
    Valcourt Veazy v. Onezime Trahan, Jr., Administrator.
    The objection to the jurisdiction of the district court over the demand of the plaintiff can not be maintained, but, as the administrator of the estate of the deceased represents only the creditors of the succession, and has power only to pay the debts and turn the residuum over to the heirs, he can not represent the latter in a controversy to settle the rights of the respective partners in community, nor in a partition of the community property. A judgment against the administrator in this case would not bind the heirs of the deceased. The judge a quo did not err in dismissing the suit against the administrator.
    Appeal from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J.

      F. It. King, for plaintiff and appellant. B.. F. O’Bryan, lor defendant and appellee.
   Howell, J.

The plaintiff, as surviving husband, instituted this suit in October, 1872, against the administrator of the succession of his wife, who died in February, 1864, to recover one-half of the proceeds of the personal property sold in August, 1864, and to partition the land and obtain the usufruct of the property of the deceased,, alleging that all the property inventoried and sold belonged to the-community, and there were no debts, or if any, they had long since been paid. The defendant excepted :

First — That no proceedings can be had against him for the partition of land, he being incompetent to stand in judgment in such suit and. no other heirs being cited.

Second — That the claim for money can not be passed on by the district court, it being a probate matter.

Third — The suit is premature, no tableau of distribution having been filed, on an opposition to which alone this demand can be urged.

Prom a judgment maintaining these exceptions the plaintiff has appealed. The district court has jurisdiction of the demand, but as the administrator represents only the creditors of the succession and has power only to pay the debts and turn the residuum, over to the heirs, he can not represent the latter in a controversy to settle the rights of the respective partners in community, nor in a partition of the community property. A judgment against the administrator in this case would not bind the heirs of the deceased. The judge a quo did not err in dismissing the suit against the administrator.

Judgment affirmed.


text:
    No. 846.
    Eugene Petetin v. Vincent Boagni, Administrator.
    The prescription of five years is pleaded against tlie plaintiff wlio sues the administrator of one of the solidary obligors on a promissory note. The plaintiff having offered to prove that the prescription had been interrupted as to the decfased, Steen, by the testimony of the other maker of the note, Hardy, establishing Hardy’s acknowledgment of the obligation before prescription had accrued, and having also offered other witnesses to the same effect, this was objected to on tlie ground that parol testimony was inadmissible to prove any acknowledgment or promise to interrupt the prescription of a debt against a. person deceased;
    Held — That the overruling of the objection by the court a qua was correct.
    The evidence offered was not to prove the promise or acknowledgment of the deceased debtor, Steen, but to prove the acknowledgment of Hardy, the living debtor, nor was it-to prove the creation of a new debt, after the old one had been extinguished by prescription. The acknowledgment of Hardy, a debtor in solido with Steen, interrupted the prescription as to him or his estate.
    Appeal from the Eighth Judicial District Court, parish of St. Landry. Morgan, J.

      Henry L. Garland, for plaintiff and appellee. JB. A. Martel & Hudspeth, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sues the administrator of one of two solidary obligors on a promissory note, who pleads the prescription of five years.

To prove that the prescription had been interrupted as to the deceased Steen, the plaintiff offered the testimony of the other maker of the note, Hardy, and of other witnesses, to prove the acknowledgment of Hardy before prescription had accrued. This was objected to substantially on the ground that parol testimony was inadmissible to prove any acknowledgment or promise to interrupt the prescription of. a debt against a person deceased. The objection was overruled, the testimony was received and a bill of exceptions was taken to the ruling.

We think the ruling correct. Article 2278 R. C. Code declares, “ parol evidence shall not be received : 1. To prove any acknowledgment or promise to pay any judgment, sentence or decree of any court of competent jurisdiction, etc., for tiie purpose of reviving the same after prescription has run. 2. To prove any acknowledgment or promise of a party deceased to pay any debt or liability, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed, 3. To prove any promise to pay the debt of a third pexson. 4. To prove any acknowledgment or promise to pay any debt or liability evidenced by writing, when prescription has already run.

But iu all the cases mentioned iu this article, the acknowledgment or promise to pay shall be proven by written evidence signed by the party, who is alleged to have made the acknowledgment or promise, or by his specially authorized agent or attorney in fact.”

The testimony offered is not prohibited by said article.

Paragraph two of the article forbids the proof, by parol, of an acknowledgment or promise of a party deceased. Paragraph four forbids the parol proof of any acknowledgment or promise, after prescription had already run.

The evidence offered was not to prove the promise or acknowledgment of the deceased debtor Steen, but to prove the acknowledgment of Hardy, the living debtor ; nor was it to prove the creation of a new debt, after the old one had been extinguished by prescription. The acknowledgment of Hardy, a debtor in solido with Steen, interrupted the prescription as to him or his estate. C. C. 3552.

It is not necessary to notice the other bills of exceptions in this case.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.


text:
    No. 855.
    D. O’Bryan, Agent v. George McVey.
    The possession of the lessee being only tbat of his lessors, when the fact was disclosed hy the answer of the lessee, who is defendant >n this instance, his lessors should have been made parties to the suit which is a hypothecary action against lands alleged to be mortgaged in favor of the plaintiff and owned by the lessors of defendant. No valid judgment could be rendered in the case without tlio parties interested being before the court.
    Appeal from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J.

      D. O'Bryan, Breaux & F. B. King, for plaintiff and appellee. DeBlane <& Ferry, for defendant and appellant.
   Ludeling, C. J.

-This is a hypothecary action against lands alleged to he mortgaged in favor of the plaintiff, and alleged to be in possession of George McVey.

He answered and averred that lie was the lessee of Robertson & Avery, tlie owners of the lands and asked that they might be notified •of this proceeding.

This the district judge refused to order, and judgment was rendered ordering the property to be seized and sold to satisfy the mortgage, unless the lessee paid the debt within ten days after the notification of this judgment. The defendant appealed. Eobertson & Avery were the owners of the lands encumbered with the mortgage, and therefore the third possessors thereof, the possession of the lessee being only that of his lessors; and when this fact was disclosed by the answer of McVey, his lessors should have been made parties to the suit. No valid judgment could be rendered in this case without the parties interested being before the court.

It is therefore ordered and adjudged that the judgment of the court a qua be annulled and that the case be remanded to cite the owners and third possessors of the property mortgaged and to be tried de novo.

It is further ordered that the costs of appeal be paid by the appellee.

Eehearing refused.


text:
    No. 844.
    Succession of Pierre Cabrol. Opposition of Marie Nezat.
    Where the dative testamentary executor contended that none of the issues raised in a supplemental petition of opposition of the ninth August, 1873, to his tableau and final settlement, could be entertained by the court, because before that, to wit: on the fourth of August there was judgment homologating all the items not opposed:
    Held — That as the original petition opposed in general terms the homologation of all the items of the account, except the law charges and costs, it follow’s that only these items were homologated hy the judgment of the fourth of August, 1873. The supplemental petition of the ninth of August supplies, so far as the items therein specified, the deficiency complained of in the original petition of opposition. It cures to that extent the objection of vagueness. The court a quct erred therefore in dismissing the opposition.
    Appeal from the Parish Court, parish of Vermilion. Ouegnon, J.

      F. B. King, for the succession, appellee. James A. Breaux, for opponent and appellant.
   Wyly, J.

Marie Nezat, widow of Pierre Cabrol and now wife of E. Noel, appeals from the judgment dismissing her opposition to the homologation of the final account of the dative executor of Pierre Cabrol.

The petition was filed on the thirtieth July, 1873, opposing in general terms all the items of the account except the law charges and costs. This was excepted to on the ground that the petitioner was not authorized by her husband, and the petition was too vague to apprise the executor of the specific grounds of opposition and to enable him to prepare a defense.

On fourth August a supplemental petition of opposition was filed. It was dismissed, however, on motion of the petitioner, and on the ninth August another supplemental petition of opposition was filed, in which the opponent objected to the item charged as commissions by the executor, also to the fee of the attorney of absent heirs, also to the item charged as money paid to C. H. Remick on the ground that the note was prescribed.

The husband of the opponent appeared to authorize his wife before there was a trial of the exceptions, and this was sufficient.

The accountant, however, contends that none of the issues raised in the supplemental petition of opposition of the ninth August, 1873, can be entertained by the court, because before that, to wit: on fourth August there was judgment homologating all the items not opposed. As the original petition opposed in general terms the homologation of all the items of the account except the law charges and costs, it follows that only these items were homologated by the judgment of fourth August, 1873. The supplemental petition of ninth August supplies, so far as the items therein specified, the deficiency complained of in the original petition of opposition. It cures to that extent the objection of vagueness.

Our conclusion is that the court erred in dismissing the opposition.

It is therefore ordered that the judgment appealed from be annulled, and it is now ordered that this case be remanded in order that the issues specified in the supplemental opposition of the ninth August,. 1873, may be tried on the merits, and for further proceedings according to law, appellee paying costs ot appeal.


text:
    No. 839.
    Joseph Mallon and Wife v. Frederick L. Gates.
    In tb© name of Joseph Mallon and his wife an injunction was taken to stop the sale of a plantation belonging to Joseph Mallon, on the grounds that they were entitled to a homestead. The wife made the affidavit and executed the bond, having been authorized to do-so by the judge, on proof that the husband was absent.
    The right to the benefit of the homestead act is not established by the facts of this case. But the husband, who alone could have asserted the right, if it existed, is not before the court, and nothing therefore can be decided to affect his rights. The wife has asserted no right personal to herself in this suit, and she has no right to represent her husband in the matter, nor can she bind him by her acts.
    Appeal from the Third Judicial District Court, parish of St. Mary. Train, J.
    i?. L. Belden, Allen & Foster, for plaintiff and appellee. FrederieJc Gates, for defendant and appellant.
   Ludeling, C. J.

Joseph Mallon confessed judgment- in a suit to enforce payment of a note secured by mortgage in July, 1872. In August, 1873, the judgment creditor caused execution to be issued, and the property of Joseph Mallon was seized arid advertised for sale. On the third of September á petition, in the name of Joseph Mallon and his wife, was filed, praying for an injunction to stop the sale of the plantation of Joseph Mallon, on-the grounds that they were entitled to a homestead, etc. The wife made the affidavit and executed the bond for the injunction, having been authorized to do so by the judge, on proof that the husband was absent.

There was judgment in favor of the wife fór-one hundred and sixty acres of the land, etc. The defendant appealed.

The following facts appear from the record: That the plantation seized belonged to the husband, the debtor; that he and his wife resided in Franklin more than a year preceding the seizure, and that the husband had left the State, apparently with the intention not to return tó St. Mary parish. It iurther appears that Mallon and wife have no children or other person directly and legally dependent upon them. It is therefore manifest^that they'have uo right to the benefit of the homestead act. Hut the husband, who alone cofild have asserted the right, if it existed, is not before the court, and we can not therefore decide anything to affect his rights. The wife has asserted no right, personal to herself in this suit, and she has no right to represent her husband in the matter, nor can she bind him by her acts.

It is therefore ordered and adjudged that the judgment of the district court be annulled, and that there be judgment in favor of the defendant against the plaintiff and her sureties on the injunction bond for $500 damages. It is further ordered that the costs in both courts be paid by the plaintiff. •


text:
    No. 858.
    Clet Provost et als. v. Ursin Provost.
    If the plaintiffs havq any rights in the land, a portion of which they claim by suit in the parish, court, feliese rights descend to them from one.succession which was opened in 1816, and another which was opened in 1859. Neither of these successions now exist. They have been closed. The property sought to he divided is alleged to he worth $50,000. Under this state of facts the parish court was without jurisdiction.
    Appeal from the Parish Court, parish of Iberia. Fontelieu, J.

      B. L. Belden, for plaintiffs and appellants. Z. F. Fournet, for defendant and appellee.
   Morgan, J.

Plaintiffs claim from the defendants the partition of certain lands situated in the parish of Iberia. They have instituted their suit in the parish court.

If they have any rights in the land, a portion of which they claim, these rights descend to them from one succession which was opened in' 1816, and another which was opened in 1859. Neither of these successions now exist. They have been closed. The property sought to be divided is alleged to be worth $50,000. Under this state of facts the parish court was without jurisdiction.' 25 An. 143.

The judgment dismissing the suit for want of jurisdiction is correct.

Judgment affirmed.


text:
    No. 863.
    State of Louisiana v. Sosthene Herpin.
    Where the appearance bond by the defendant in a criminal prosecution was taken and approved by the parish judge before whom the preliminary examination was had, the fact that there is no order committing the defendant for trial before the district court, nor any order admitting him to bail, nor fixing the amount of the bail, can not avail in assignment of error.
    Where it is manifest in the record that the word August is written by mistake for July, it is a mere clerical error which is controlled by the context and accompanying documents. While the court was in session, the fact that the petit jury and witnesses in criminal matters were discharged for two or three days at á time, on different occasions during the said term, did not release the defendant from the obligation of his appearance bond.
    Appeal from the Sixteenth Judicial District Court, parish of Vermilion. Mouton, J.
    Criminal case. J. A. Ohargois, district attorney, for the State, appellee. M. JE. Girard, for defendant and appellant.
   Howell, J.

This is an appeal from a judgment on an appearance bond given by the defendant in a criminal prosecution.

Mrst — The first assignment of error is that there is no order committing the defendant for trial before the district court, no order admitting hiiu to bail nor fixing the amount of the bail.

The bond is taken and approved by the parish judge, before whom, it seems, the preliminary examination was had, and hence the alleged omissions or defects do not avail.

Second — The information charges the defendant with an offense committed on the thirty-first day of August, 1869, while the bond was given on the seventh of said month, and such bond could not be forfeited for an offense committed after the date of the bond.

It is manifest in the record that the word August is written by mistake for July, and is a mere clerical error which is controlled by the context and accompanying documents.

Third — -There was no court held during the term at which the bond was forfeited, and it was physically impossible for defendant to ask or obtain a trial at that time.

This is an error. The record shows that the court was in session, and the fact that the petit jury and witnesses in criminal matters were discharged for two or three days at a* time, on different occasions during the said term, did not release the defendant from the obligation of Ms bond.

Fourth — ^When the judgment was signed the case had been placed and was on the dead docket, and any action therein taken while on the said docket is an absolute nullity.

The record shows that the bond was forfeited, and the judgment entered against the defendant and his sureties, in solido, before the order to place the case in the dead docket, and it could not have been taken therefrom to have the judgment drawn up and signed.

We find nothing in the record to authorize a change in the judgment against the appellants.

Judgment affirmed.


text:
    No. 850.
    J. M. Pool v. L. Fontelieu, Public Administrator.
    Plaintiff claims a privilege on the “buildings which he and his partner, now deceased, erected on a certain piece of ground to which neither of them claimed title, and for the erection of which he paid bills to a certain amount. But this the law does not allow. He stands in the position of a partner who has advanced his partner’s proportion towards the construction of certain buildings. It is not to parties occupying such relations that privileges are given. •
    There was in this case no dispute about title to real estate. The only question was whether plaintiff could establish by witnesses that a house built on a certain piece of ground had been paid for by him. This court thinks he could.
    The prescription of three years does not apply to a particular indebtedness in gold which is evidenced by a receipt and which is promised tobe paid on demand; and if it came in the category of money loaned, prescription would only commence to run from demand. In the absence of proof to tbe contrary, the demand must be assumed to have been made only when his petition was served.
    Appea; from the Third Judicial District Court, parish of Iberia. Train, J.

      JDeblanc & Fournet and Schiving, for plaintiff and appellant. James A. Breaux, for defendant and appellee.
   Morgan, J.

Pool claims to be a creditor of the succession of John W. Combs, now under administration, in the sum of four thousand and forty-five dollars and forty-seven cents, and claims a privilege for $1775 26 on certain property belonging to the succession, which sura he prays may be ordered to be paid in due course of administration.

Subsequently Pool, alleging that the administrator was about to sell certain property as belonging to the estate of Combs, one undivided ■half of which belonged to him (Pool) filed a third opposition as to a portion of the property advertised for sale, and applied for and obtained an injunction restraining the sale of the one undivided half thereof. The two proceedings were cumulated and consolidated. To the demand contained in the first petition, the administrator files a general denial. He further denies that any privilege exists, and invokes the prescription of one and three years. Reconvening, he claims judgment against the plaintiff for $488 82, on an account stated, in his reconventional demand. To the injunction he answers that no portion of the property sought to be sold belongs to the plaintiff in injunction. There was judgment in favor of the plaintiff for $1000 in currency and $250 in gold, with judicial interest from judicial demand, and the injunction was dissolved. The prescription pleaded was declared to be not available. This appeal is taken from the judgment referred to by the plaintiff.

Plaintiff and deceased were partners in the butchering business. On the eighth March, 1868, the deceased acknowledged an indebtedness to the plaintiff of $1000. This settlement was, however, subject to correction. On a certain lot of ground, to which neither of them claims title, they built a house. This house seems to have been occupied by the plaintiff. We think it established that after the settlement of the eighth March, 1868, the plaintiff paid bills on the house in question amounting to $1078 48. Admitting that these payments were made with partnership funds, still one-half thereof belonged to the plaintiff. This would make his interest in the property $534 20. Added to the acknowledged indebtedness of the eighth March, upon a settlement of accounts between the partnership, the deceased would owe the plaintiff $1534 20. We think it lias been established that the deceased paid on account of the partnership $226 45, one-half of which is due by the plaintiff. Plaintiff is therefore entitled to a judgment on this part of the case for $1420 96. He claims a privilege on the buildings. But this the law does not accord to him. He stands in the position of a partner who has advanced his partner’s proportion towards the erection of certain buildings. It is not to parties occupying such relations that privileges are given.

Defendant excepted to the introduction of parol testimony to prove title to the property in dispute, on the ground that it was an immovable, to which title could not be established by parol. The error in this position, it seems to us, is that no attempt was made to establish title to an immovable. The only question was whether plaintiff could establish by witnesses that a house, built on a certain piece of ground, had been paid for by him. We think he could.

As regards the claim for gold, the testimony has not satisfied us, as it did not satisfy the district judge that more than $250 had been established. This sum is evidenced by a receipt for, and a promise to return the same on demand. The prescription of three years, which is pleaded against it, does not apply. It was an acknowledgment of a particular indebtedness to be paid on demand, and if it came in the category of money loaned, prescription would only commence to run from demand. In the absence of proof to the contrary, we would assume that the demand was only made when the petition was served.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended by allowing the plaintiff $1420 96 instead of $1000, in addition to the $250 in gold; and that in so far as the injunction prayed for is concerned, it be reversed, and that the injunction be made perpetual.

Rehearing refused.


text:
    No. 836.
    Arsene Corner v. Cesaire Bourg.
    'The plaintiff; in necessitous eiroumstances, oan not be excluded from the benefit of the homestead law, when it is shown that the entire property of herself and the minor is less than $1000.
    It being proved that tbe minor owns $216 95, and she, the widow, $50, she is entitled to the usufruct of $733 05 during her widowhood. Afterwards this sum is to vest in and belong to the minor heir of the deceased.
    "Whether or not the tutor of the minor has applied for the homestead is immaterial. The plaintiff, who has an interest, has made the application. The destination of the money, after the expiration of the usufruct, is fixed by law, regardless of the question whether the tutor of the minor has made a formal application for the homestead or not.
    As the plaintiff is not the mother of the minor, she is not dispensed by article 560 of the Revised Code from giving security for the usufruct of the money.
    Appeal from the Parish Court, parish of Lafayette. Moss, J.
    M. Ft. Girard, for plaintiff and appellee. Mouton & tDebaillon, for defendant and appellant.
   Wyly, J.

The plaintiff, the surviving widow of Michel Bourg, being in necessitous circumstances, opposed the account of the defendant, the administrator of her husband’s succession, on the ground that she is entitled to $1000 under the homestead law. Revised Statutes, 1693,1694. The court found that she only possessed, in her own right, property of the value of $50, and gave her judgment for $950. The defendant appeals. He claims in this court a reversal of the judgment:

First — Because there is a minor of the decéased by a previous marriage who is entitled to the homestead in preference to the plaintiff, his stepmother.

Second — Because, if the surviving widow is entitled to the homestead, it can only be for the usufruct of $733 05, the minor owning property of the value of $216 95, and she $50.

The plaintiff, in necessitous circumstances, can not be excluded from the benefit of the homestead law because it is shown that the entire property of herself and the minor is less than $1000. She is entitled, under sections 1693 and 1694 of the Revised Statutes, and the proof in the record, to the usufruct of $733 05 during widowhood, afterwards this sum to vest in and belong to Theovide Bourg, the minor heir of the deceased. As the major heirs have no interest it is useless to consider the amount of their property. It can have no bearing in determining the amount of the homestead to be allowed in this case.

Whether or not the tutor of the minor has applied for the homestead is immaterial. The plaintiff, who has an interest, has made the apiplication. She can recover, however, only what the law allows, which is, in this case, a usufruct during widowhood of $733 05; afterwards, under the express provision of section 1694 of the Revised Statutes, this money must pass to and vest in the minor heir of the deceased. The destination of the money, after the expiration of the usufruct, is fixed by law, regardless of the question whether the tutor of the minor has made a formal application for the homestead or not.

As the plaintiff is not the mother of the minor, she is not dispensed by article 560 of the Revised Code’ from giving security for the usufruct of the money. Succession of Tassin, 12 An. 885.

It is therefore ordered that the judgment herein in favor of plaintiff be amended to read as follows : It is ordered that plaintiff recover of the defendant $733 05, to be held in usufruct during widowhood, after-wards to vest in and belong to Theovide Bourg, the minor heir of Michel Bourg, deceased. As thus amended it is ordered that the judgment be affirmed, appellee paying costs of appeal.


text:
    No. 834.
    Lambert B. Cain, Liquidator v. Solomon Loeb.
    The form of certificate to the return of a commission to take testimony is not sacramental,, and it is sufficient if it appear in the return, when and where and by what authority the deposition of the particular witness was taken.
    An affidavit that the district judge was absent from the parishis sufficient under the law to authorize the parish judge to grant the order of the district judge for taking testimony.
    Appeal from the Eighth Judicial District Court, parish of -St. Landry. Morgan, J.

      Henry L. Garland for plaintiff and appellant. Lewis & Brother, Bailey & Bstilette, for defendant and appellee.
   Howell, J.

This is a suit on a merchant’s account, the defense to-which is a general denial and the prescription of three and five years.

Erom a judgment sustaining the plea of prescription the plaintiff has appealed.

A bill of exceptions was taken to the exclusion of the depositions of the plaintiff, on the ground that in the caption of the return to the commissioner the name of Louis Rose is inserted while the answers are those of L. B. Cain, and in the certificate his .name is used.

We think the variance immaterial under the circumstances, and that the name of Rose is a clerical error. The commissioner certifies that the answers are those of L. B. Cain, sworn to and signed by him in the presence of the commissioner, and were correctly written down. The form is not sacramental, and it is sufficient if it appear in the return when, where and by what authority the deposition of tho particular witness was taken, and this appears in this instance. The deposition should have been received.

A second bill was taken by plaintiff to the exclusion of the deposition of E. L. Golson for want of a legal order of court, the parish judge not being authorized uuder the affidavit to grant the order of the district judge.

There was an affidavit that the district judge was absent from the parish, which is sufficient under the law.

A third bill- was taken to the exclusion of six letters of the defendant on the ground that there was not sufficient proof of their genuineness before being offered.

We think the proof sufficient. The witness Bose stated positively that they were in the handwriting of the defendant and signed by him, and had reference to the indebtedness of the defendant to the plaintiff.

With this evidence, which comes up in the record, the plaintiff has fully made, out his case and taken it out of the prescription pleaded.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendant $3735 16, with five per cent, interest from first January, 1868, less five hundred dollars paid on sixteenth February, 1870, and costs in both courts.

Behearing refused.


text:
    No. 848.
    Thomas B. Stevens v. Ed. F. Pinneo et als.
    When the act of sale contains the pact de non alienando, no matte r through how many hands the property sold has passed, so long as the price agreed to be paid remains due, the vendor has the right to proceed directly against the vendee, regardless as to who is in possession of the mortgaged premises.
    The fact that the property was not divided into lots of fifty acres or less according to article 132 of the constitution, is not sufficient cause) for annulling the sale on the relation of the plaintiff, who complains of the illegality of the executory proceeding under which it took place.
    Appeal from the Third Judicial District Court, parish of Iberia. Train, J.

      HeBlane d¿ Fournet, for plaintiff and appellant, aiming & Haase, Lewis & Bro., for defendants and appellees.
   Morgan, J.

The object of this action is to annul a sale of real estate made by the sheriff in virtue of an order of court issued in an executory proceeding.

The exception of no cause of action can not be maintained. If plaintiff’s property was illegally sold he has the right to have the illegality declared.

Broussard sold to Marsh a certain piece of property. To secure the credit price he reserved the vendor’s privilege and a mortgage, the act of sale and mortgage containing the pact de non alienando.

Marsh sold the property to Pinneo. Pinneo sold the one half thereof to Thomas B. Stevens, the plaintiff. On the seventeenth of July, 1872 Broussard instituted executory process against Marsh upon a portion of the price remaining due on account of his purchase, and, under ex-cution the property was sold to Broussard, who, in his turn, sold it to Pinneo. Stevens says he was absent at the time of the sale.

He seeks to annul the sale on various grounds :

First — Because he was never notified of the order under which the property was sold, though the party obtaining the order, and the parties purchasing under it, knew him to be the owner of one-half thereof.

The answer to this is that the act of sale from Broussard to Marsh contained the pact de non alienando. No matter through how many hands the property had passed, so long as the price agreed to be paid by Marsh remained due, Broussard had the right to proceed directly against Marsh, regardless as to who was in possession of the mortgaged premises.

Second — Because the order was granted against Marsh who was not the owner of the property. The answer we gave to the second objection answers this one.

Third — Because the property was not divided into lots of fifty acres or less, according to article 132 of the constitution. This is not sufficient cause for annulling the sale on the relation of Stevens.

Fourth — Because every formality prescribed by our laws for the enforcement of contracts, mortgages and privileges for the seizure and sale under execution of the debtor or third possessors of property have been disregarded and ignored by those who obtained and those who executed the order of seizure and sale under which the property in question was sold. This objection is so general that it amounts to no'thing.

Judgment affirmed.


text:
    No. 444.
    David Bowen, Guardian, v. F. R. Callaway, Tutor.
    The parish court having made the appointment of tutor, and having jurisdiction of the tutor’s administration, is the proper tribunal in which the tutor should he called on to account for and deliver the property of the minor to a legal representative of said minor.
    The plaintiff, having satisfactorily exhibited evidence of his appointment as guardian of a minor in the State of Georgia, is entitled to sue for aud recover the property in this State belonging to his ward.
    The appointment of the defendant as tutor, contradictorily with and on the opposition of plaintiff’s predecessor, did not conclude such predecessor, or the plaintiff, his successor, from asserting the right set up in this action, which is different from that involved in the former contest; nor was it necessary for the plaintiff to show before instituting this suit that no debts existed against the minor. Protection is provided in this respect hy the Code.
    Appeal from the Parish Court, parish of Webster. Taylor, J.

      Watldns & Fort, for plaintiff and appellant, L. B. Watlcins, for defendant and appellee.
   Howell, J.

The plaintiff, a resident of Terrell county, Georgia, representing himself as the legally appointed guardian of the minor, James A. G. Roby, sues the tutor of said minor in Webster parish for the funds and property in his hands belonging to the said minor, to be recognized as guardian and for authority to remove the property upon complying with article 364 R. C. C. The defendant excepts :

First — To the jurisdiction of the parish court, the amount claimed being over five hundred dollars, and the matter not being probate j

Second — That plaintiff is not legally appointed the guardian, and the ordinary of Terrell county, Georgia, had no jurisdiction to make such appointment.

Third — That plaintiff has judicially declared defendant to be the tutor, and has shown no cause of action while such tutorship exists.

Fourth — That defendant was appointed tutor contradictorily with plaintiff’s predecessor, who then assumed the same quality, which he pleads as res judicata.

Fifth — That previous to the institution of this suit plaintiff did not make proof that there were no debts against the minor.

Sixth — That the succession of the minor’s father and the accounts of the defendant, as tutor, to the latter of which plaintiff has filed an opposition, are not settled.

The judge a quo maintained his jurisdiction, but dismissed the suit on the ground that plaintiff’s appointment was a nullity, that of the defendant being operative. In our opinion he did not err in maintaining his jurisdiction; the parish court having made the appointment of tutor, and having jurisdiction of the tutor’s administration, is the proper tribunal in which the tutor should be called on to account for and deliver the property of the minor to a legal representative of said minor. But we think the judge erred in dismissing the action upon any of the exceptions filed.

The plaintiff has exhibited satisfactory evidence of his appointment as guardian of the minor in the State of Georgia, whither his mother' had removed with him after his father’s death in this State, and where she contracted a second marriage and afterwards died, and under the terms of article 363 R. C. C., the plaintiff is entitled to sue for and recover the property in this State belonging to his ward. See 4 An. 523.

The appointment of the defendant as tutor, contradictorily with and on the opposition of plaintiff’s predecessor, did not conclude such predecessor or the plaintiff, his successor, from asserting the right set up in this action, which is different from that involved in the former contest. Nor is it necessary for the plaintiff to show, before instituting this action, that no debts exist against the minor. Protection is provided in this respect by the Code. The exceptions seem to have been treated as an answer, and evidence introduced to show the condition of the minor’s estate in the hands of the defendant, from which it appears that the succession of the father has been fully administered; that the defendant owes the minor $4813 89 on his final account, and that .the items of property in the hands of the defendant, belonging to the said minor,’ are properly described in plaintiff’s petition.

It is therefore ordered that the judgment appealed from be reversed and that the plaintiff, David Bowen, of Georgia, be recognized as the guardian of Jamos A. G. Roby, and that defendant pay over to him the sum of $4813 89, with five per cent, interest from fourteenth August, 1873, and (1 oliver to him the property described in plaintiff’s petition as belonging to said minor, and in his, defendant's hands, upon plaintiff’s making proof as required by article 364 R. C. C., that the debts of the minor are paid, after which the said plaintiff shall be authorized to remove said funds and property of said minor from this State. It is further ordered that the defendant pay coses in both courts.

Rehearing refused.