text:
    Succession of Edward D. Lewis.
    The children of parents, domiciled in this State at the time of their decease, no doubt retain the domicil of their parents, and the courts of the State, having jurisdiction of this domicil, have, exclusively, the power of appointing those, who are entrusted with the control of the persons, and the administration of the property of minors so situated; and, as a general rule, the domicil of the minor cannot be changed by a departure of the tutor or the removal of the minor from the State.
    The right of expatriation is not questionable in a free country, and that a natural tutor expatriating himself has aright to take his children with him, is still less disputable. 4 M. 716, 717.
    We see nothing in the jurisprudence of the State which would prevent a foreign tutor from being recognized as entitled to stand in judgment in all conservatory or administrative measures which the interest of his ward might require. He may provoke by and with the advice of a family meeting and under the sanction of the court, the investment of the funds of the minor, the sale of his property and the reinvestment of its proceeds.
    Article 946 of the Code of Practice, appears to have been intended to provide for a case where the minor was not represented, but it is not applicable where the tutor, though a non-resident, is either present or represented.
    from the Fourth District Court of New Orleans, Reynolds, J.

      M. M. Oohen, for F. ATbey, appellant.

      J. B. & G. T. Bemiss, for under tutor.
   Lea, J.

Felix Albey, who resides in France, is appellant from a judgment refusing to recognize him as tutor of the minor, Mary Annette Lewis, and to permit him, in his said capacity, to take such steps for the preservation and administration of the estate of said minor, as her (interest may require. The state of facts upon which this decree was rendered, so far as they are necessary to an elucidation of the case, are substantially as follows : Mary Ann Hare, the mother of the minor, whose tutorship is the subject matter in contestation, married Fdward D. Lewis, of this city, who died at Nice, in Sardinia, on the 3d September, 1848. The sole issue of this marriage was a posthumous child, born two days after her father’s death. Upon her return to New Orleans, Mrs. Lewis was appointed and qualified as natural tutrix of her minor child. In 1853, Mrs. Lewis married the present applicant, after having obtained the consent of a family meeting, duly homologated, that she should retain the tutorship of her daughter. Her husband resided in France, to which country she removed, taking her daughter with her. She continued to reside in France until the month of September, 1854, when she died, leaving her husband testamentary tutor of her child. It is upon this appointment, duly confirmed by the proper tribunals of the domicil of the deceased, at the time of her death, that the petitioner rests his application to be recognized by the tribunals of this State, so as to enable him to enter upon the administration and-control of the assets belonging to his pupil.

This application is resisted on the ground that the father of the minor having been, at the time of his death, a citizen and resident of this city, where his estate is situated, and where his succession was opened, his minor child is also a citizen of the State, and that the courts of France have no power to appoint or confirm a tutor to an American minor, and that the succession of the father being under administration in one of the courts of the State, that tribunal alone has jurisdiction over the person and property of the minor. The first question to be determined in this case is, whether the minor’s domicil is in France or Louisiana ? The children of parents domiciled in this State, at the time of their decease, no doubt retain the domicil of their parents, and the courts of the State having jurisdiction of this domicil have exclusively the power of appointing those who are intrusted with the control of the persons and the administration of the property of minors so situated ; and as a general rule the domicil of the minor cannot be changed by a departure of the tutor or the removal of the minor from the State. But this general rule cannot, in the nature of things, “embrace cases where a parent leaving the State, takes his child along with him.” The right of expatriation, as was remarked by Der-bigny, Justice, in the case of Delacroix v. Boisblanc, “ is not questionable in a free country*” and “ that a natural tutor expatriating himself has a right to take his children with him, is still less disputable.” 4th Martin 716, 717. The natural tutrix appointed by the court of the original domicil in this case, removed her domicil to France, taking her child with her, and the domicil of the child was changed with that of the mother. She died in France, and her succession was opened there, and the court of the common domicil of both mother and child, appointed a tutor to the minor, in accordance with the terms of the will of the last surviving parent.

This appointment is in every respect legal. The objection that the court of France had no power to appoint a tutor to an American minor, cannot be consistently maintained by courts that are, themselves, daily making appointments of a similar character. The application stands before the court, therefore, in the same light as would a tutor legally appointed to a minor born in France; with all the rights which any foreign tutor would have with reference to property in this State, belonging to his ward. The petitioner in this case asks that he be “ recognized as tutor,” and that as such, he may be allowed to obtain such orders, decrees, judgments and proceedings, as may be “ legal and equitable” and “to the court may seem meet and proper.” We do not understand this application as claiming the right to act otherwise than under the orders ef the court, and therefore, of course, in accordance with the laws of the State. The rights of guardians and tutors, deriving their authority from the laws and tribunals of one State, with reference to the property of their wards, situated in another, has been the subject of frequent and inconclusive controversy. Mr. Justice Story’s work, on the conflict of laws, contains a compilation of authorities which is, itself, the fruitful source of divergent opinions.

It may be sufficient, therefore, as furnishing a safe and consistent rule of action founded on considerations of expediency and policy, to refer to the precedents of our own jurisprudence. In the case of Berluchaux v. Berluchaux et als., 7th La. 547, it was held to be “ a doctrine not controverted by the court that the tutor of a minor, deriving his authority from the law of their common domicil, has a right to exercise the actions of his pupil everywhere,” “ the comity of nations recognizing the validity of such an authority.” It was announced in that case, that had a tutor, duly qualified at the place of the minor’s domicil, claimed the right to represent said minor in the proceedings for a partition, such right would have been recognized.

In Chiappella, v. Conprey et als., 8th La. 86, it was determined that a tutrix residing in France, might sue for and take possession of property situated in Louisiana belonging to the inheritance of her ward, and that such tutrix would be recognized in the courts of this State without confirmation by its tribunals, and that such tutrix might exercise her office by an agent or attorney in fact, residing here; and in accordance with this doctrine, the sum of $11,500 was paid over to the agent of a foreign tutor. In the matter of the succession of Senae, the right of a widow, residing in Prance, to stand in judgment as the representative of her child, was again expressly recognized.

The Act of 1848, p. 97, it is true, is limited in its application to tutors or guardians, residing within the United States; it has, moreover reference to the removal of property from the State ; but it is to be observed that the Act appears to have been intended as an enlarging, not as a restrictive statute, and was properly passed for the purpose of quieting all doubts with reference to the question which had divided the opinions of jurists. Be this as it may, we see nothing in the previous or subsequent jurisprudence of the State, which would prevent a foreign tutor from being recognized as entitled to stand in judgment in all conservatory or administrative measures, which the interest of his ward might require. He may provoke by and with the advice of a family meeting, and under the sanction of the court, the investment of the funds of the minor or the sale of his property and the reinvestment of its proceeds. Article 946 of the Code of Practice appears to have been intended to provide for a case where the minor was not represented, but is not applicable, where the tutor, though a non-resident, is either present or represented. In the case of Moneeau v. Poydras, 6th An., Eustis, Chief Justice, held, that in relation to the power of a court to direct the funds of a succession to be retained or remitted for distribution, under the sanction of the tribunals of the domicil of the testatrix, we consider there can be no question. Its exercise is a matter of discretion depending on the circumstances of each case, and on the established comity prevailing between nations in amity with each other; and this doctrine we take to be in accordance with the growing spirit of liberality, which characterizes the modern intercourse of nations. See also Gravillion v. Richards, Executor, 18th La. R. 293.

We do not wish to be understood as limiting, in any manner, the right which every creditor or party interested, may have to insist upon the appointment of an administrator or curator of an estate, in cases where their interests require such an appointment In the case at bar, the estate appears to be free from debt, and the only interest represented is that which is personal to the minor ; we can see no good reason why the tutor of the domicil should be embarrassed by the appointment of a domestic tutor. The under tutor has acted in good faith, and with reference to the proper discharge of his duty. He ought not, therefore, to be condemned personally to pay costs.

It is, therefore, ordered, that the judgment appealed from be reversed and that Felix ATbey be recognized as the tutor of the minor, Mary Annette Lewis, and as such, entitled to represent the interest of said minor in all matters rendered necessary in the administration of the personal interests of said minor in the succession of her father, subject to the order of the court and to ' its sanction in all proceedings had herein, and to such requirements as respects the furnishing of security, as the court in its discretion, may impose.

It is further ordered that the costs of these preceedings in both courts be paid by the estate.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    M. S. Heddrick v. T. & C. Banister.
    A due bill was sued upon more than four years after its maturity. It was signed by the defendant, but the body of the bill was not in her handwriting. A blank space was left, in which the amount expressed to be due was inserted in the handwriting of the plaintiff himself. In the intervening time between the maturity of the note and the institution of the suit, plaintiff had two settlements, one with Mr. Ballister and one with Mrs. Banister, the defendants, which purported to be settlements in full. For a long time subsequent to the date of the bill, the plaintiff had access to the papers and accounts of the defendants, and stood generally on the footing of a confidential business adviser, until a quarrel occurred, which put an end to all friendly intercourse. ECelcb: that these settlements are not proof of payment of the due bill, nor could they have been admitted for that purpose, but they were admissible as forming a part of the circumstances, and as tending to show the character of the business transactions and relations subsisting between the plaintiff and the defendants, from which an inference may be drawn with reference to the reality of a consideration for the due bill, and that, under these circumstances, a sufficient showing has been made to shift the burthen of a valid consideration for the due bill from the defendants upon the plaintiff.
    from the Fifth District Court of New Orleans, Augustin, J.

      T. W. Collens, for plaintiff.

      Durant & Hornor, for defendants and appellants.
   Lea, J.

This is a suit upon a written acknowledgment and promise to pay to the plaintiff $1000, borrowed money, alleged to have been executed by the defendant, Charlotte Banister, who is and was, at the time of the alleged execution of the note or due bill, a public merchant, resident in this city, acting in her capacity as such, with the full knowledge and consent of her husband, who is made co-defendant herein, and against whom, together with his wife, judgment is prayed in solido.

Notwithstanding the wide range of the testimony adduced on the trial of the case, and the somewhat ambiguous character of the answer, it appears to us that the defence must be confined, under the pleadings, to a denial of any consideration whatever for the note or due bill, a denial of title in the plaintiff, and of any authority on the part of the defendant, Mrs. Banister, to execute the note. No plea of payment has been made by the defendants, and the genuineness of the defendant’s signature must be considered as admitted by the pleadings, if not established by the evidence.

It is also admitted, that, at the date of the note, Mrs. Banister was a public merchant, trading in her own name. It may be assumed also, that in a business of the character and extent of that in which the defendant was engaged, occasional loans, for the purpose of carrying on the business, would properly come within the scope of “commercial contracts,” such as a married woman, who was a public merchant, might be authorized to make, and in such case, the reasonable presumption would be, that the money so borrowed was used in her business.

Applying these principles to the facts of the case, so far as they are established by legal evidence, we nevertheless think, the plaintiff has failed to make out a conclusive case against the defendants. It is proper to remark, however, that, in considering the case, we throw out of view all the testimony taken on the first trial of the case, in which the defendant w^s not properly before the court; which testimony was objected to by the defendants, as appears by the hills of exceptions.

Apart from the testimony of Clidsey and Mrs. Conklin, which we think was inadmissable, the plaintiff’s ease rests almost exclusively on the testimony of Robert Carter, which, in some respects, is not only inconsistent with itself, but unsatisfactory from the apparent' interest which he appears to have taken in the plaintiff’s success in this suit.

The instrument sued on hears date of the 24th January, 1849, and matured on the 1st September of the same year. Assuming that it was signed by the defendant, Mrs. Banister, it is clear that the body of the note was not in her handwriting, and that a blank space was leftj in which the amount expressed to be due was inserted, which insertion is shown to be in the handwriting of the plaintiff himself.

This due bill, it appears, was not sued upon till the latter part of December, 1853, more than four years after its maturity, and in the intervening space between the maturity of the note and the institution of the suit, it appears that the plaintiff had two settlements, one with Mr. Banister and one with Mrs. Banister, which purported to be settlements in full. Those receipts are not proof of pay. ment of the due bill, nor could they have been admitted for that purpose, but they were admissable as forming a part of the circumstances, and as tending to show the character of the business transactions and relations subsisting between the plaintiff and the defendant, from which an inference may be drawn with reference to the reality of a consideration for the due bill.

It is moreover shown that, for a long period of time subsequent to the date of the bill, the plaintiff had access, to the papers and accounts of the defendant, and stood generally on the footing of a confidential business adviser, until a quarrel occurred, which put an end to all'friendly intercourse.

Now, we think that, under these circumstances,, a sufficient showing has been made to shift the burthen of proof of a valid consideration for.the due bill, from the defendant upon the plaintiff; and that no satisfactory proof has been made on the part of the latter to entitle him to a judgment.

It is ordered, that the judgment appealed from, be reversed, and that,as respects the plaintiff’s demand, there be judgment as in case of’ nonsuit, and that plaintiff and appellee pay costs in both courts.


author: Buchanan, J.

text:
    George Mather v. James Harrison & Co.

      Fact: Proof of agency.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.
    -tJL Durant & Hornor, for plaintiff and appellee.

      Hunton & Bradford, for defendant.
   Buchanan, J.

This case turns entirely upon questions of fact. Were the hundred hogsheads of sugar, sequestered herein, purchased for the account of defendants ? Was Prescott authorized by defendants to make the purchase for their account? The evidence requires us to answer both these questions in the affirmative. Prescott's testimony upon these points is positive and uncontradicted. The fact, elicited in cross-examination, that Janies Harrison & Co. told him, before he went up the coast, that they would have nothing to do with the planters in the transaction — that he (Prescott) must draw upon them {Harrison & Co.) individually — makes no difference as to the liability of Harrison & Co. It was merely the form which they chose to give to their payment. In substance, it was unquestionably a contract between them and the planter, through the mediation of Prescott. And this view is borne out by the acts of defendants.

Being dissatisfied with the quality of the first lot of sugar received, they order Prescott, by telegraph, to cease weighing, and come down the river. Upon what principle did they undertake to control Prescott's operations or movements, if he was not acting as their agent? Again, they receive from the steamboat this lot of one hundred hogsheads, which Prescott ships them, and which he had already taken for their account, when the telegraphic dispatch reached him.

The reasons for judgment, of our brother in the District Court, contain a lucid and correct narration of the facts in the cause.

Judgment affirmed, with costs.


author: Sfofford, J.

text:
    John McDonogh v. Martin Gordon., Jr.
    A judgment, rendered by a court of competent jurisdiction, against a party who was personally cited, cannot be treated as an absolute nullity.
    The plea that a suit is premature, is a dilatory exception, and must be pleaded m H/rrvme HUs.

    The Code of Practice does not require the cause of the Judge’s recusation to be entered of record.
    The law requires no notice of recusation to be served.
    The Act of the 28th April, 1853, did not prescribe which of the other five District Judges should preside in place of the recused District Judge; therefore Held: that either of them is comptent, and that the rules of court, established merely for the convenience of the Judges and of suitors, could not destroy the competency.
    from the Third District Court of New Orleans, Augustin, J.

      Orivol, for plaintiff.

      Durant & Hornor, for defendant and appellant.
   Sfofford, J.

The original judgment in this case was signed on the 28th of June, 1845.

On the 25th May, 1854, the executors of the plaintiff had the defendant cited to show cause why the said judgment should not be revived, pursuant to the mode pointed out by the act of April 30th, 1858, “relative to the prescription of judgments.” (Session Acts, p. 250.)

The defendant made default, as ho had done in the the original action, and, on the 1st July, 1854, judgment went against him, reviving the former judgment.

In March, 1855, the plaintiffs, made their money by citing the Citizens’ Bank in garnishment.

In the following May, the defendant took this devolutive appeal from the judgment of revival, signed on the 1st July, 1854.

He has assigned nine technical objections as errors in the judgment of revival, and eleven more as errors in the judgment revived.

We dismiss the last array first, remarking only that it is quite too late to appeal from a judgment rendered in 1845, and that .the judgment in question cannot he treated as an absolute nullity, because it was rendered by a court of competent jurisdiction against a party who was personally cited.

The errors assigned against the judgment of revival shall be noticed in their order.

I. That the Act of 30th April, 1858, is not retroactive, and that it is only after the lapse of nine years, and upwards, from the date of the Act, that proceedings can be had to revive a judgment. ,

The plea that a suit is premature is a dilatory exception, and must be pleaded in limine litis.

But the defendant, as we have stated, made no appearance in the court below, and judgment by default, after personal citation, was .in due time made final against him.

II. That the Judge of the Third District Court, where the suit was pending, recused himself, without any cause being assigned of record.

The Code of Practice does not require the cause of the Judge’s self-recusation to be entered of record, and if the party wished to bring that matter before us, he should have appeared in court, and taken the proper steps to do so.

In the absence of all evidence upon the subject, we will not presume that a District Judge has recused himself without a legal cause.

III. That no notice of the recusation of the Judge of the Third District Court was served on the defendant.

The law required no such notice to be served upon him. If he wished to know what orders were made in the cause, he could have learned by obeying the citation, and making his appearance in court.

IV. That the Judge of the Fifth District Court, who rendered the judgment of revival, was incompetent to sit in the Third District Court for the trial of re, eused cases in the month of June, because, by the rules adopted by the Judges of the six District Courts of New Orleans, that duty fell for that month upon the Judge of the Sixth District Court.

The Act of the 28th April, 1853, see. 4, (Session Acts, p. 190,) did not pre, scribe which of the other five Judges should preside in place of the reousedl Judge; either of them was, therefore, competent. The rules of court, estab, lished merely for the convenience of the Judges, and of suitors, could not de-. stroy that competency.

V. That all the proceedings subsequent to 'the judgment of revival, had by the judicial action of the recused Judge, are null and void.

This is not an appeal from proceedings subsequent to. the judgment, but merely from the judgment itself.

The VI, VII, VIII and IX objections all relate to. the recusation of'the Judge, of the Third District Court, and have already been answered ia speaking of the-second error assigned. The appellant not having, shown that the Judge did' wrong, we will presume that he did right.

The statute of April 30th, 1853, under which the proceedings complained of were had, although probably enacted in the interest of judgment debtors, is well calculated to incite judgment creditors to perpetual diligence in pursuit of their demands.

It declares that any judgment may be revived, as therein provided for, as often, as the party or parties interested may desire.

The defendant complains to no purpose that he is put to unnecessary costs by the zeal of his creditor in availing himself of this remedy some years before the judgment was prescribed. If he wished to avoid the additional costs, he should have paid the judgment.

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


text:
    M. Greenwood & Co. v. Cooper et al.
    After the carrier has receipted for the goods, they are at his risk, as much as if they were aboard the vessel.
    It is proper to give notice of the sale by auction, of damaged goods, yet the failure to do so, does not preclude a party from recovery, when proof of damage is corroborated by other independent testimony.
    The principal object for which the intervention of the Port Wardens seems to be requisite, is to determine whether goods are’damaged to such an extent, as to render a sale necessary.
    from the Fifth District Court of New Orleans, Augustin, J.

      T. J. Semines, for plaintiffs and appellants :
    cited, Bathbone v. Weal, 4 An. 566, 567.

      Gohen, for defendants.:
    Plaintiffs’ counsel cites 4.An. 566-7, in reply to so much of the judgment of the District Court as decides against plaintiffs, because they sold the damaged goods at public auction, without notifying the captain of the ship or her agents, that plaintiffs intended so to do.
    But Bathbone v. Weal, does not apply to damaged goods, hut to delay in delivery of goods.
    The brief errs in stating that a sale was recommended by the Port Wardens, and that Captain Swain was a.Port Warden.

      Winthrop & Josephs, on the same side.
   Lea, J.

The plaintiffs in this case claim the sum of $4,141 for damages on goods consigned them by the ship St. Peter, and delivered in bad order.

The defendants aver that the merchandise received by them, was delivered “ in the same order and condition in which it was received,” and deny that the goods have sustained any loss or damage in consequence of their neglect.

It is somewhat questionable, whether under such a defence as this, evidence could be offered to prove a cause of damage, occurring after the receipt of the merchandise by the carrier; for the defence is, that it was delivered “ in the same condition in which it was received.” It is not urged in the pleadings, that the goods were damaged after the defendants had received them, by any overwhelming accident, which human forsight and prudence could not avert, or guard against; but it is shown by some of the witnesses, that after the boxes of merchandise had been received by the ship, and before all of them had been taken on board, there arose a violent storm, “ the like of which had never been known to the oldest inhabitant of Boston,” causing the tide to rise to an unusual height, so as to flood the lower floor of the warehouse in which the boxes had been placed for protection. But the same witness who testifies to the unusual violence of the storm, declares, with great confidence, that it did no damage to the goods, as they had been raised on boxes or skids, so as to be out of the reach of the flood.

If this was the true state of the case, it is not perceived why any reference whatever was made to the storm. The receipt of the bill of lading, acknowledging the goods to have been received in good order, has not been contradicted ; on the contrary, it is evident that the damage was caused by salt water, and even assuming (what the defendants’ witness denies) that it occurred during the overflow, it is not satisfactorily shown that such injury might not have been prevented by due diligence. After the defendants had receipted for the merchandise, it was at their risk as much as if it had been on board of the vessel. If it was brought to them faster than they could conveniently dispose of it, they were not bound to receive it.

Objection has ,been made, that the defendants-were not notified of the intended sale of the damaged goods. It certainly would have been proper to give such notice, but the failure to give it, does not, in our opinion, preclude the plaintiffs from a recovery, when the proof of damage is corroborated by other independent testimony. The goods were sold at publie auction by a regularly licensed auctioneer, and it is not pretended that they were sold at a sacrifice. There has been no imputation of bad faith in the proceeding, and no intimation that if the defendants had been present at the sale, they could have suggested a better means of arriving at the true measure of the damage sustained.

Moreover, the proof of damage does not rest exclusively upon the proves verbal of sales made out by the auctioneer. The experts who examined the merchandise, very minutely and conclusively establish its perishable condition, and the absolute necessity for a sale at auction. They moreover show that the extent of damage actually sustained, when taken in connection with its exposure to absolute destruction, was such as not to justify any expectation of a higher price than it actually brought. The principal object for which the intervention of Port Wardens seems to be considered requisite, is to determine when there exists a necessity for a sale, but when that fact is once established, as in the case at bar, the actual sale is always made at public auction. Now, it was the right of either of the parties to have ‘insisted upon an auction sale, and had the whole matter been' referred to the Port Wardens, they could have done no more than sell at auction. We consider, therefore, that the evidence sufficiently shows, that the defendants have sustained no damage from the want of notice complained of. See Rathbone v. Neal, 4 An. 567; also, 23 Wendell’s Reports, 306, Bowman v. Teal.

It is ordered, that the judgment appealed from be reversed ; and that the plaintiffs, Moses Greenwood & Go. do have and recover of the defendants, Stephen Davenport, A. Allen, J. Larrdbee, and Gyrus Cooper, in solido, the sum of $4,141 19, with interest thereon, at the rate of five per cent, per annum, from the 21st June, 1851, till paid, and costs of suit, w'ith privilege for the payment of the same on the ship'St. Peter.


text:
    P. Maxwell v. S. H. Kennedy & Co.
    Plaintiff offered in evidence, “ the drafts and protests filed with the petition.” No objection was made to the introduction of these documents. JOeld: That the introduction of the documents, without objection, was itself sufficient proof of the endorsements of the drafts sued on.
    PPEAL from the Sixth District Court of New Orleans, Ootton, J.

      jlX Durant & Eornor, for plaintiff.

      Wolfe <& Singleton, for defendants and, appellants.
   Lea, J.

In this case the defendants are sued as acceptors upon two bills of exchange, drawn by Rhodes, Degram, & Oo., to their own order, and endorsed by them. The defendants pleaded the general issue. On the trial of the case, the plaintiff offered in evidence, “ the drafts and protests filed with the petition.” No objection was made to the introduction of these documents, and judgment was accordingly rendered in favor of the plaintiffs for the amount claimed in the petition. It is urged, on behalf of the defendants, that the endorsements of the payee should have been proved. We think that the introduction of the documents sued on, without objection, was itself sufficient proof of the endorsements.

We are not prepared to say that the case is one in which damages as for a frivolous appeal, should be allowed.

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


author: Merrick C. J.

text:
    Same Case on a Re-hearing.
    ■When parties are present, or presumed to be present, at the trial of a cause, and written instruments are offered and received in evidence without objection, the signatures of all persons properly parties to such instruments, are considered as admitted. This well settled rule of evidence applies to bills and notes as well as to other instruments.
   Merrick C. J.

(Spoefobd, J. dissenting.)

On the motion for a re-hearing in this case, we say, we drawers, acceptors and endorsers of bills of exchange, and of the makers and endorsers of promissory notes, to form a part of such instruments.

We know of no good reason why these instruments, (bills of exchange and promissory notes,) should remain longer an exception to the well settled and convenient rule, that whore parties are present, or presumed to be present, at the trial of a cause, and written instruments are offered and received in evidence, without objection, the signatures of all persons properly parties to such instruments, are considered as admitted. See Tyler v. Marcelin & Depas, 8 An. 312.

As the defendants did not choose to put the plaintiff upon the proof of the endorsements in the lower court, we think they should not be permitted here, on an objection so purely technical, to obtain a reversal of the judgment of that court.

Re-hearing refused.


author: Spofford, J.

text:
    State v. Manuel Obregon.
    It is always proper for the Judge to elucidate the law, even by supposing a state of facts for the purposes of illustration ; it is proper that he should inculcate upon the minds of jurors a sense of their high responsibility to the public as well as to the accused; this, however, should be done by remarks of a general character, not by observations tending‘directly to induce the jury to find a particular verdict in the cause before them.
    The Judge instructed the jury that it was their duty to find an unqualified verdict, if the case was clear. Held: That there was error in the Judge’s instruction, for, if the case was not clear, beyond a reasonable doubt, they could not find the prisoner guilty at all, and the charge amounted to an instruction that if a person was found guilty of arson, he should always be punished with death; overlooking the Act of May 27th, 1846, which declares that: “ in all cases where the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto, without capital punishment.”
    from the First District Court of New Orleans, Robertson, J.

      Isaae JH. Morse, Attorney General, for the State.

      G. & O. E. Schmidt, for defendant and appellant. •
   Spofford, J.

The prisoner was convicted of arson, by an unqualified verdict, and sentenced to death.

He complains, on appeal to this court, that the charge of the Judge, appended in writing to one of his bills of exceptions, was contrary to law, and greatly to his prejudice.

The upshot of the charge was, to impress the jury with the idea that if they found the prisoner guilty of arson at all, it was their duty not to qualify their verdict by adding the words, “ without capital punishment.”

After stating that he found no point of law in the case that required a special mention or particular elucidation, the Judge went on to say, amongst other things, that: “ the penalty of arson, in a case which is clear, is death, and that jurors should not hesitate to find an unqualified verdict when the case was clear; that some years ago, when fires were most frequent in the city, a man was found guilty and executed for arson, and fires ceased for months after; that there is a strong necessity for the severest punishment of the crime of arson at the present time; that the crime is daily committed with impunity, and unless jurors do their duty fearlessly, and without being too scrupulous as to the severity of the law, no man’s life, family and property can be safe ; that there, is an imperative necessity for punishing crimes of the highest grade with the utmost severity; that there is a remarkable increase of high crimes, and, as the Judge believed, that nothing less than the infliction of capital punishment will deter offenders in such cases ; that to-day, while the jury has been sitting on the trial of this case, crime has been perpetrated, and two men have been killed by being shot down in the street; that it is time that jurors should have sufficient nerve to do their duty fearlessly, and aid in putting down those heavy crimes; that it is their duty, when a case is clear, to find a verdict according to the facts, no matter what the consequences may be to the accused, as the jury have nothing to do with the punishment, the law fixing that.”

In some respects, these instructions are contrary both to the letter and spirit of the Acts of April 30th, 1853, and May 29th, 1846, upon which we have recently given our views, in the case of the State v. Meloin.

It is always proper for the Judge to elucidate the law, even by supposing a state of facts for the purposes of illustration; it is proper that he should inculcate upon the minds of jurors a sense of their high responsibility to the public as well as to the accused; this, however, should be done by remarks of a general character, not by observations tending directly to induce the jury to find a particular verdict in the cause before them.

Aside from the general tenor of the Judge's charge in this instance, there was error in instructing the jury that it was their duty to find an unqualified verdict, if the case was clear; for, if the case was not clear, beyond reasonable doubt, they could not find the prisoner guilty at all; and the charge amounted to an instruction that, if a person was found guilty of arson, he should always be punishable with death, overlooking the Act of- May 29th, 1846, which declares that: “ in all cases when the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto, without capital punishment.”

It is therefore ordered and decreed, that the judgment in this case be reversed, the verdict of the jury set aside, and-the cause remanded for a new trial, according to law.


author: Merrick, C. J.

text:
    S. D. Tonge v. F. Kennett & Co.
    Plaintiffs offered to prove that it is the custom in New Orleans, for the consignee to insure goods consigned for sale, against loss by fire. Defendants, who had reconvened, objected, on the ground that there was no allegation of a neglect to insure and a loss therefrom. Held: There would be great force in the objection if the case stood upon a simple answer, but defendants having, by their pleading, become plaintiffs, the evidence was admissible, as tending to rebut the reconven-tional demand.
    To recover against a consignee of goods which had been burnt, while in his possession, and not insured by him, it must be made to appear by the most conclusiveproof, thatitisthe custom for commission merchants to insure goods consigned to them for sale, unless instructed to the contrary.
    from the Fourth District Court of New Orleans, Beynolds, J.

      Mott S Frazer, for plaintiff:
    Defendants in a previous shipment from the same plaintiff, through the same agents, of goods of the same kind, and without instruction to insure, charged premium for fire insurance, and rendered their account to the owners, which was not objected to. This mode of doing business being ratified, it becomeg the basis of transactions between the parties, and the parties were bound to insure. Bolston v. Ba/rkley, 6 M. 649 ; Berthoud v. Gordon. 6 L. 583 ; Btwng v. Sigh, 2 Rob. 103; Patterson v. Leake, 5 An. 547; 1 Domat, Cushing ed. 477; Moons v. Surnmul, 2 Wash. C. 01 203; Wallace v. Telfair, 2 Tenn. R. 188, in note; 1 do do 24; 2 Vesey,jr.T 239; 3 Kent. Comm. 261

      Marr and Goold & Btansbury, for defendants and appellants.
   Merrick, C. J.

The plaintiff’s petition was filed 13th August, 1851. He alleges in substance that in the months of December, 1849, and January 1850, he shipped from Baltimore to the defendants in this city, sundry consignments of cotton ducks and ravens; that defendants made certain advances upon the same ; that a balance of $2,033 12Ja- is still due petitioner; that defendants, although applied to, neglect to account, pretending that the said goods have been lost and destroyed, which petitioner denies to be the truth.

The defendants in their answer, among other things, allege that the goods were stored in their warehouse, a safe building, and that they, with the residue of the merchandise of the defendants, were destroyed by the extensive fire of February, 1850, without any fault on the part of the defendants, a few pieces of the goods being saved from the Are. The defendants then assuming the character of plaintiffs, in reconvention, demand j udgment against the plaintiff for $2,066 92, on account of the excess of the advances made by them over the proceeds of the sales of the goods saved at the Are, and the sales rendered the plaintiff before the fire took place. ■

On the trial, the plaintiff offered to prove, by witnesses upon the stand, that it is the custom of commission merchants, in the city of New Orleans, to insure all goods consigned to them forsale. The Judge of the lower court having received the testimony of the witnesses produced, notwithstanding defendents’ objection, that the defendants excepted on the ground they were not sued for not insuring the goods assigned to them, but for converting them to their own use, and that the pretended custom was not alleged in the petition. '

There would be great force in the objections of the defendants, if the case stood upon a simple answer, but the defendants having, by these pleadings become plaintiffs, the evidence was clearly admissible as testimony tending to rebut the reconventional demand.

-In this court the controversy has turned principally upon the following points, as in substance maintained bjr plaintiff, viz :

1st. That the defendants having rendered one account of sales in which they charged the plaintiff with fire insurance, it is sufficient evidence to show that such was the course of dealings between the parties, and that they were, therefore, bound to procure an insurance against fire, on the subsequent consignments.

2d. That it is the custom of commission merchants, in New Orleans, to insure all goods consigned to them for sale, and defendants being bound by it, are responsible for all damages resulting from the non-observance of this custom.

I. The account of sales rendered by defendants to plaintiff’s agents, on which the charge for fire insurance is made, bears date, New Orleans, Dec. 81st, 1849. The plaintiff under date of December 19th, 1849, wrote to the defendants that he forwarded them certain invoices and bills of lading (forming the largest part of the goods in controversy) and concluded by saying that he had requested Messrs. J. O. Solimán & Go., (who had made advances on the goods, and who seem to have acted as plaintiff’s agents) to obtain insurance upon them. On the 12th of January, 1850, he wrote again from Baltimore, and informed the defendants that Messrs. J. G. Selbnan & Son, had, at his request, effected insurance upon the invoices of the goods shipped, by the ships Charles and Genesee.

It is possible that the plaintiff intended to inform the defendants, that he had effected a marine insurance upon these goods, but not having done so, and having informed them in general terms that he had requested his agents to procure insurance, he left the defendants at liberty to infer from his general expression that he had insured as far as he considered it his interest to do so, and that if he had intended to instruct them to insure against fire, he would have said so. We do not think the authorities cited cover or are applicable to this case.

II. In view of the many millions in value of merchandize, of every character and description, annually consigned to this city for sale, we cannot, on the testimony of three witnesses, (how respectable soever they may be,) founded on their individual experience, say that the custom of commission merchants is to insure against fire in all cases whore they do not receive instructions to the contrary. Before we can give our sanction to a custom involving interests of such variety and magnitude, and thus recognizing its legal existence, it must be made to appear by the most conclusive proof. We do not, therefore, think the testimony in this case sufficient to establish the existence of the alleged custom.

In one of the defendants’ letters to Messrs. J. 0. Sellman & Son, written after the fire, they say that in the case where they had insured the plaintiff’s goods, it was a special insurance upon those goods. We find further, that the defendants had an open policy of insurance against fire of $7000, at the time of the loss, which was endorsed upon the policy of the insurance issued by the Columbus Insurance Company in these words :

“Nov. 1, 1849. On merchandize generally, (except hemp,) contained in store No. 68 Camp street, being' stock in trade for sale on commission or held in trust for others, in the sum of seven hundred (thousand) dollars for six months, $7000, rate 3-4, premium $52 50.”

Defendants, in their letter of 22d February, 1850, six days after the fire, speaking of it, inform Messrs. J. G. Bellman & Go., that they have not yet made up their (Kennett & Go's) claim against the insurance office, but have no doubt that the matter will be speedily arranged.

It appears by the answer that defendants laid before the Insurance Company a statement of their losses, which were made up of loss upon shot, $6045 ; and pilots’ ravens and duck, as invoiced at Baltimore, $3704 92 ; total, $9749 92.

The Insurance Company paid them $7000/ The defendants, in their correspondence say, and the testimony establishes the fact, that the defendants were specially instructed to insure the shot and lead, but it appears also, that the shot belonged to the firm of Kennett, Simonds & Co., of St. Louis, of which Ferdinand Kennett, one of the defendants, was a partner.

The defendants contend, that, inasmuch as they had special instructions to insure for Kenneli, Simonds & Go., therefore they are at liberty to apply the amount received from the Insurance Company first to the payment of this firm. Wore the firm of Kennett, Simonds & Go., a distinct firm, there would be more reason in this position; but we look upon the contract of agency as one in which the most perfect good faith should reign, and we do not think that Ferdinand Kennett, a member of both firms, should be permitted so far to decide the rights of the parties under the general clause of insurance, in this case, as to cover the loss of himself and partners in full, and apply the remainder only to to plaintiff’s claim.

It does not appear that this endorsement upon the policy was made for the benefit of Kennett, Simonds & Go., more than for the plaintiff, and, we think, such were defendants’ views, when they wrote the letter of February 22nd, 1850.

We think, therefore, the rights of the parties should be adjusted in this way :

The defendants should be credited with their advances -. $3,200 00
And amount paid freight. 37 53
Add Insurance. 20 57
$3,258 10
They should be charged with the proportion of the amount these goods bear, as invoiced, to the amount received for insurance. $2,659 79
And amount realized from sales of goods injured by fire.-215 61
2,875 40
Difference $882 70

And there should be judgment on the defendants’ reconventional demand for the balance in their favor.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed ; and now, proceeding to pronounce such decree as should have been rendered by the lower court, it is ordered, adjudged and decreed, by the Court, that there be judgment in favor of the defendants, upon the demand setup in the plaintiff’s petition, and that the said defendants do recover, and have judgment in their favor upon their recon-ventional demand against the plaintiff, for the sum of three hundred and eighty-two, seventy one-hundreths dollars, with legal interest thereon, from the 16th day of February, A. D. 1850, until paid; and that the plaintiff pay the costs in both courts.


author: Buchanan, J. Merrick, C. J. Vooriiies, J.

text:
    Heirs of Jourdan v. Heirs of Gravier.
    By a statute of the Legislature, passed in 3850, the Second Municipality was authorized to lay off streets through a portion of its batture, acquired by donations under a notarial act made by the donors, in September, 1820; and in case of an agreement being made with the original parties to that act, for the sale of the batture, the corporation was authorized and required to lay off the same into lots, to sell said lots, and to' divide the proceeds according to the terms of such agreement ; provided, one third of the net proceeds of sale should be reserved for the liquidation of the debts of the old corporation of New Orleans. Under the provisions of the statute, a notarial act of agreement was passed on the 80th June, 1351, between the representatives of the parties who. signed the act of donation of 20th September, 1820, (among them the heirs of Grower — the defendants,) and the Second Municipality of New Orleans, by which it was agreed that streets should be laid off and the squares between ‘the streets sold, the net proceeds to be divided, one third to. the general sinking fund, or old corporation of New Orleans; one third to Municipality No. 2, and the remaining third “ to the original parties to the contract of 20th September, 1820, or to the-heirs or legal representatives thereof, whose assent is given to the present agreement, each one.respectively to receive in proportion to the front of the lots or portions of ground originally-owned by him, as shown by the said contract.” The sale was made, and D&nis, one of the defen» dants, as agent of the heirs of Grrnier, received one third of the proceeds of certain lots, being those lying opposite the frontage, assigned to the heirs of Qrowier, in the contract of the 20thk September, 1820. The heirs of Jotwclcm brought this suit to recover of the defendants, the heirs* of Gro/oier, the proceeds of lots sold under the contract of the 80th of June, 1851, which were-situated opposite to the ground assigned to their ancestor by a “ transaction” between him and, the heirs on the 21st of February, 1821. Held,: The question presented, correctly considered, is. purely a question of fact: Have the heirs of Grwoier acknowledged the title of Jourdan, the* ancestor of plaintiffs to the batture, outside of Hew Zevee street, in front of the lower half of his lot on Tchoupitoulas street, in the notarial act of February 21st, 3821 ? JBy the Cow't: the plaintiffs claim a portion of the proceeds of the sale of the batture, as belonging to them under the notarial act of 21st of February, 1821, and as having been received by a party who had concluded himself' by that act, from disputing their right of ownership in a portion of the batture outside of New»Levee street, and they insist that the money so received by defendants, is to be deemed, as received for the account of them, the plaintiffs. But the court held that the plaintiffs were not en* titled to recover.
    from the Sixth District Court of New Orleans, Ootton, J.

      Janin <& Griffon, for plaintiffs.

      Denis & Boselius, for defendants and appellants.
   Buchanan, J.

On the 20th September, 1820, an Act was passed before Lmergne, Notary in New Orleans, between certain parties styling themselves the actual possessors of the batture in front of the faubourg, Saint Mary, of the one part, and the city of New Orleans of the other part, by which Act the parties of the first part donated to the parties of the second part (which accepted the donation) all the rights of said donors, each for what concerns him, in and to:

1st. All that portion of said batture existing between the outer foot of the new levee and the marginal line of the waters of the river at its lowest stage, and between the property of Wdliam Montgomery, Delord street above, and Canal street below.

2. The new levee, then lately constructed, and the soil upon which it reposed such as it shall be when the levee shall have been repaired (which by a subsequent part of the Act appears to be a width of sixty feet, constituting the present New Levee street.)

8d. The soil necessary for the prolongation of the streets of the faubourg St. Mary to the New Levee.

4th. The soil of Tchoupitoulas street, in all the extent of said faubourg, giving to said street a width of sixty feet, inclusive of the sidewalks.

Among the parties of the first part in this Act of donation, were the heirs of Bertrand Gramier, defendants herein ; and the proportions of each of said parties in the donation, were figured upon a plan annexed and referred to in the Act, by which it appears that the batture in question extended from Delord street above, to Common street below. Upon this plan, the ground contained between Delord, Common, Tchoupitoulas and New Levee streets, (exclusive of the prolongation of Gravier, Poydras, Girod, Julia and St. Joseph streets) is divided into lots of various dimensions, numbered from one to twenty-four. Of these lots, that numbered fifteen, is referred to in the Act of donation as one of those belonging to the heirs of B. Gravier.

The donors bind themselves to defray the expenses of constructing a -new levee and market house ; and for that purpose assess themselves at the rate of three hundred dollars for every thirty feet front claimed by them severally, for which assessment they furnish, in the same Act, their several promissory notes to the order of the Mayor of the city, payable at one and two years after date. The amount of the assessment to the heirs of B. Gravier, upon a frontage of 845 feet 9 inches, was $9,697 50, for which amount they furnished their notes as aforesaid.

The donation was made on the condition that the land included in it, should remain inalienable and unseizable for debt or otherwise, in the hands of the city corporation, which could never, under any pretext, sell, exchange, give, or in any other manner dispose of the same, in whole or in part, in any manner whatever, nor employ it for other public uses than those to which it was destined by nature, nor even make any constructions or buildings thereupon, with the sole exception of a fire engine ; this restriction not to be interpreted as preventing the corporation from making wharves for the facility of commerce.

Subsequently to this donation, by the heirs of Qrrnier, to the city corporation, of all the batture between New Levee street and the river Mississippi, in front of lot No. 15, of the plan above refered to, the said heirs made a contract in the nature of a transaction with the ancestor of plaintiffs, John Joseph Jourdan, by authentic act before Lavergne, dated February 21st, 1821, of which the following are the material clauses: The contracting parties declared that John Joseph Jourdan is proprietor of a lot situated in the faubourg St. Mary, bounded below by the property of Mr. Elie Victor Jourdcm, and above by that of Louis Bm'tholemy Macarty, measuring sixty-one feet, ten inches, French measure, front to Tohoupitonlas street; that in front of said lot belonging to said Jourdan, there exists a batture from Tchoupitoulas street to the margin of the river, following (to the river) the lateral lines of the said lot, upon which batture, or portion of batture, the said Jourdan and the heirs of Qrrnier pretend to have rights respectively, to-wit: the said heirs of Gravier,by inheritance and by partition made with Edward Livingston, and the said Jourdan, as riparian proprietor. Now, the contracting parties, wishing to avoid the lawsuits which might arise between them out of those respective pretensions, have agreed to terminate all difficulties in this regard by an amicable arrangement, and in form of transaction. They have, consequently, agreed to divide the said batture, or portion of batture, in litigation, so that the said Jourdan shall have the half, and the said heirs, Gravier, the other half, — which they have done and executed in the following manner :

Article 1st. In order to effect the execution of this transaction, the parties have agreed to refer to a plan made by Filié, City Surveyor, as regulating their conventions. (Observe, that this plan includes the identical space of ground, figuring on the plan annexed to the Act of donation of 20th September, 1820, as lot No. 15, in said Act of donation stated to be in the actual possession of the heirs of Gramier; the only difference being, that, whereas, in the plan annexed to the donation, the lot extended unbroken from Tchoupitoulas to New Levee street, in the plan referred to in the transaction, said lot is cut into two equal portions by a street called Commerce street, running parallel to and between New Levee and Tchoupitoulas streets.)

Article 2d. By means of the operation represented on said plan, all the ground in litgation between the parties is found divided into two lots, figured on said plan by the letters A, B, C, D, E, F, G, H, leaving sixty feet wide for Thoupi-toulas street, and forty feet for Commerce street.

Article 3d. The two said lots of ground are divided each into two equal portions by the perpendicular lines, which are represented on said plan, to the effect that the said John Joseph Jourdan may have for his share the two halves of said lots, adjoining the lots of Elie Vidor Jourdan below, and the heirs of Gravier, for their share, the two other halves of said lots, adjoining the lots of Mr. L. B. Macarty above. The parties reciprocally transfer to each other all their rights in and to the portions of grounds thus assigned as the share of each in the partition.

It is well understood between the parties, pursues the Act, that the donation which the heirs of Gi-avier have made to the corporation of the city of New Orleans, of the levee and of the ground between the levee and the water’s edge, by Act before the same notary, on the 20th September, 1820, remains approved and ratified by John Joseph Jourdan, in all that concerns the portion of said levee and ground which is situated in front of the halves of lots ceded to said Jourdan by the present transaction, and this, in the same manner as if the said Jourdan had been a party to said Act, but under the benefit of the execution, on the part of said corporation of the obligations which it has assumed in said Act; it being well understood also, that said Jourdan puts himself in the place of the heirs of Gravier towards the undertakers, with whom they have treated for the portion of levee in front of the half lot cede! to him by the present Act.

In consequence of what precedes, all lawsuits or contestations between the parties, relative to the batture or portion of batture, are extinguished, the said parties renouncing respectively all rights, actions or pretensions contrary to the present agreement, which has between them the authority of a definitive judgment.

The Act of the Legislature dividing the city of New Orleans into Municipalities, approved March 8th, 1836, in its eleventh section, recognized the validity of the donation of the 20th September, 1820, and prohibited any municipal disposition of said batture in violation of that compromise.

But by another statute, approved 21st March, 1850, the eleventh section of the Act of 1836 was repealed in this particular, and the Second Municipality was authorized to lay off streets through a portion of said batture; and in case of an agreement being made with the original parties to the notarial act of September 20th, 1820, for the sale of the batture, the corporation was authorized and required to lay off the same into lots, to sell said lots, and to divide the proceeds according to the terms of such agreement; provided, one-third of the net proceeds of sale, should be reserved for the liquidation of the debts of the old corporation of New Orleans.

Under the provisions of this Act of the Legislature, a notarial act of agreement was passed on the 30th June, 1851, between the representatives of all of the parties who signed the act of donation of the 20th September, 1820, (among them the heirs of Gravier,) and the Second Municipality of New Orleans, by which, after a preamble to the effect that the batture had greatly increased since the 20th of September, 1820, and that a large portion of the same was no longer necessary for the purposes of a landing, it was agreed, that streets should be laid out upon the said batture conformably to a plan referred to; that the lots composing the squares or islets between the said new streets should be sold, and that the proceeds, after deducting expenses of sale, should be divided as follpws: one third to the general sinking fund, or old corporation of New Orleans; one-third to Municipality No. Two ; and the remaining third “to the original parties to the contract of the 20th September, 1820, or to the heirs or legal representatives thereof, whose assent is given to the present agreement, each one respectively to receive in proportion to the front of the lots or portions of ground originally owned by him, as shown by the said contract.”

The sale was made accordingly, and H. R. Denis, one of the defendants, as agent of the heirs of Gravier, received, on the 18th November, 1853, one-third of the proceeds of certain lots, being those lying opposite the frontage assigned to the heirs of Gravier in the contract of 20th September, including the lot numbered 15 upon the plan referred to in said act, as already described.

The heirs of John Joseph Jourdan have instituted the present action to recover of the defendants the proceeds of sales of the lots sold under the contract of the 30th June, 1851, which were situated opposite to the ground assigned to their ancestor by the transaction of the 21st February, 1821. The petition charges, that “ the defendants, Kohn & Denis, acting as agents of the heirs of Gravier, utterly disregarding the act of compromise of the 21st February, 1821, and representing the heirs of Gravier as entitled to the one-third of the proceeds of batture lots donated by Jourdan to the corporation of New Orleans, by the act of compromise of 1821, claimed and received one-third of the proceeds of bat-ture lots comprised between the continuation of the side lines of the lots which became said Jowrdan's share by said act of compromise of 1821, between New Levee and Pulton streets, and between Pulton and Front streets.”

We have been thus minute in detailing the stipulations of the various contracts and the terms of the legislative enactments which have a bearing upon the present controversy, because the question presented for our decision, correctly considered, is purely a question of fact — namely: Have the heirs of Gravier acknowledged the title of Jourdan, the ancestor of plaintiffs, to the batture outside of New Levee street, in front of the lower half of his lot on Tchoupitoulas street, in the notarial act of February 21st, 1821 ?

A good deal of discussion has taken place at bar upon the original title to the batture of the faubourg St. Mary, as between Bertrand Gravier and those who purchased lots under him, fronting on Tchoupitoulas street, and all the decisions upon the title to the batture in the Superior Court of the Territory of Orleans and the Supreme Court of Louisiana, from 1807 down to 1841, have been reviewed in the argument of this cause. But we view such discussions as foreign to the present issue. The plaintiffs do not claim the batture under their original title, but they claim a portion of the proceeds of the sale of the batture, as belonging to them, under the notarial act of the 21st February, 1821, and as having been received by a party who had concluded himself, by that notarial act, from disputing their right of ownership in a portion of the batture outside of New Levee sweet. And they insist that the money thus received by defendants, is to be deemed as received for the account of them, the plaintiffs.

We do not think that the analysis of the notarial act of 1821 which we have given, justifies these pretensions of the plaintiffs. We have seen, the parties commence by declaring that Jourdan is the proprietor of a lot having a front on Tchoupitoulas street; that there exists in front of said lot, and extending to the margin of the river, a batture; that both parties pretend to have rights upon said batture. The nature of those pretensions on each side is even declared in general terms; but there is nothing which in the least resembles a recognition by either of the contracting parties bf the validity of the pretensions of the other. In order, however, to avoid lawsuits, the parties agree to terminate all difficulties by an amicable division of the property in dispute, or litigation, as they express it. And what was the property so in litigation ? The terms of the contract answer that question most precisely. It was the ground between New Levee and Commerce, and between Commerce and Tchoupitoulas streets, figured on a plan referred to in the act as comprised within letters A, B, C, D and E, F, G, H. The article second of the contract declares this tó be all the ground in litigation between the parlies. In fact, under the state of things existing on the 21st February, 1821, and under the other conventions of the parties contained in the same contract, it was impossible that they should have contemplated or included in their partition, any portion of the batture outside of New Levee street. For one of the contracting parties (Gravier's heirs) had made, on the 20th September previously, a formal and irrevocable donation of all the rights which it had or might have in the batture outside of New Levee street, to the city corporation ; and the other contracting party, in this very contract, approves and and ratifies the said donation, as if he had been a party to the act. On the 21st February, 1821, therefore, both the contracting parties had solemnly divested themselves of any title which they might have had to the batture outside of Levee street. But it is argued that the ratification of the act of the 20th September, 1820, by Jourdan, was made with an express reservation of the execution on the part of the corporation of the obligations imposed upon it by the said act. This is true; but it seems to us entirely illogical to give the effect to that reservation which the plaintiffs’ counsel have sought to deduce from it. The violation by the city of the restrictions upon their use and enjoyment of the property donated in 1820, cannot have the effect of extending the meaning and enlarging the operation of a compromise between other parties, in 1821, respecting property in litigation between those parties, different from that donated. The violation by the donee of the conditions of the donation, or the rescission of the donation by common consent of the original parties to the donation, might have the effect of riviving in pristine vigor the pretensions of the heirs of Jour-dan, such as they existed prior to 21st February, 1821, to the ownership of the batture in front of his lot and outside of the lots comprised in the transaction of that date. But it is not seen how it could give them the right of claiming from the heirs of Gravier money received by the latter as the consideration of a quit claim of all pretensions of Gravier’s heirs to the same batture. The Act of the Legislature of 1850 authorized the corporation to make batture lots outside of New Levee street, and sell the same, on condition of obtaining the assent of the original parties to the act of 20th September, 1820. The heirs of Gravier, one of those original parties, gave their consent, on condition of receiving a proportion of the price. Nothing in the contract shows that the heirs of Gravier pretended to act in this matter as negotiorum gestores of the heirs of Jourdan, or to give away any rights which the latter may have had in the subject matter. That the heirs of Gravier, had rights, or at least pretensions to rights, of their own, is acknowledged. Those rights or pretensions were a sufficient consideration in law for the price which they received; and it is out of the question to superadd another consideration not warranted by the terms of their contract of the 30th June, 1851, with the city.

Note. — The cases of Jerome Tov/ené and Widow Poycto'as de LaUa/nde, against the same defendants turned on the same point and are therefore not reported.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for defendants, with costs in both courts.

Merrick, C. J.

There seems to be equity in the plaintiffs’ claim, and I can concur in the conclusions of Mr. Justice Buchanan only by viewing the rights of the parties as settled by the Act of the Legislature, considered as a donation conferring upon the parties named, the right to receive a sum of money in certain proportions.

Vooriiies, J.

The view taken by Mr. Chief Justice Merrick of this case, is the only view in which I am able to concur.

Le Gardeur, on behalf of plaintiffs and appellees, argued the case elaborately on an application for a re-hearing, but the re-hearing was refused.


author: Merrick, C. J. Spoffobd, J. Lea, J.

text:
    Kennedy v. New York Life Insurance Company.
    A special plea to that effect, is necessary to put the plaintiff upon proof of his interest in the life in-
    The agent of a foreign insurance company received the premium upon a life insurance, and gave his receipt, which, it was agreed, should be exchanged for a policy, within thirty days, if the insurance was not rejected by the parent office. Keld: The “ temporary policy ” did not terminate at the expiration of thirty days. That time was fixed as the period within which the policy was to be exchanged for one from the parent office. It was the duty of that office to forward the rejection of the contract, made by their agent, to the office at New Orleans, (where the “ temporary policy” was entered into,) immediately on receiving notice of the contract made on their behalf by their agent. The insurance office could not therefore relieve itself from liability by rejecting the insurance, when, after the lapse of thirty days, it received notice of the death of the person insured.

      Kennedy had an insurable ^interest in the life of Mathews to the extent only of one half of the amount due by Mathews to K&mtedy & Foster, — Lea, J.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    J-3L Wolfe & Singleton, for plaintiff.'

      R. Hunt and Bright, for defendants and appellants:
    A policy in the name of a single partner, is limited to his own share. 2 Duer, 20, 24, n. Ill; 1 Arnould, 147; 8 Kent., 258; Graves v. Boston Oo., 2 Oranch, 419.
   Merrick, C. J.

On the 21st day of May, 1852, the defendant, through 0. 0. Lathrop, its agent at New Orleans, entered into the following agreement with the plaintiff, viz:

“Agency New York Life Insurance Company,

Ho. 92 Oamp street, Hew Orleans.

TEMPORARY POLICY NO. 41.

Received of Samuel H. Kennedy, Esq., the sum of $157, as specified below in full, for twelve months’ premium on the amount of $5000Jierewith insured on the life of Bmid Wooldridge Matthews, subject to the usual conditions contained in the policies of the New York Life Insurance Company.

It is hereby agreed that a policy from the parent office for the above amount $5000 shall be exchanged for this, within thirty days from this date : provided, the risk is accepted ; but if rejected, this temporary, policy shall become void on receipt of such rejection at this office, when a pro rata amount of the premium received shall be returned.

$98 30 costs,.

62 20 note, [Signed]. C. C. LATHROP,

1 50 policy.. Agent."

$157 00

At the time this agreement was made, and subsequently, the parties were treating for an insurance for life upon the life of Matthews, who, it seems, at that time, was under medical treatment. The physician of the company having given it as his opinion that, from the improved state of Matthews' health, it would be safe to issue a temporary policy at once, the above instrument was-executed.

It further appears that Matthews went to Louisville, where he continued under medical treatment until his death, the 3d of September of the same year, the proposition for an insurance for life, still being entertained and only awaiting the certificate of the Louisville physician to be issued. He died of tubercular consumption. There is nothing in the testimony to induce a suspicion that Kennedy, Matthews and the physician of the company were not acting in the most perfect good faith at the time the agreement was entered into.

After the death of Matthews, the President of the company having been informed thereof by G. 0. Latlwop,’ the agent, directed him (Lathrop) to deduct the pro rata premium for thirty days, and return the remainder of the premium paid to Kennedy, the plaintiff, advising Lathrop that the application forwarded to that office, upon examination on receipt, was declined or suspended until Mr. Matthews' complete recovery.

This appears to be the first notice of the rejection, (if such it can be called,) of the temporary policy issued the 21st of May.

The answer admits Lathrop’s authority to enter into said agreement. The first question, therefore, is, Did the temporary policy terminate at the expiration of the thirty days ?

"W"o are satisfied that it did not so terminate. The thirty days were fixed as the period in which the policy was to be exchanged for one from the parent office, if the risk should be accepted by the parent office. This period was in the interest of the company, and was for the purpose of enabling the parent office to reject, if they should see fit, the contract éntered into by their agent. And it was their duty to forward the rejection of the contract made by their agent, to the office at New Orleans, within the thirty days, and immediately on receiving notice of the contract made on their behalf by their agent. 11 L. R. 286.

The acknowledgment of the receipt of the premium for the insurance upon ■the life of David Wooldridge Matthews, for the amount of $5000, for twelve months, shows that, in contemplation of the parties, the contract was for insurance for one year. If the policy should be rejected by the company, it did not annul the contract made by their agent for the past; it terminated it for the future only. The insured was to receive back his premium pro rata for the time remaining, and, as a consequence of the retaining of the premium between the date of the temporary policy and the notice, the company were liable to the risk during the same period. We have no doubt of the liability of ■the company upon the instrument produced in evidence.

We have looked into the evidence offered by defendant and rejected by the court. It was not communicated to the insured, and its reception could have had no influence upon the case. It is objected in this court, that the insured was without an insurable interest to the amount of the policy taken out, and that, therefore, the judgment should be either reduced in amount or absolutely in favor of the defendant.

There would be more force in this objection if the defendant had put the fact at issue in his answer.

The -answer, after admitting the execution of the policy by Lathrop, as their agent, .is but a general denial as to all other matters.

We think in order to put the plaintiff upon proof of interest in the life insured, there should have been a special allegation to that effect. The contract of insurance is one of indemnity; but in the life insurance, the amount of the indemnity, we think, like a valued policy, is agreed upon before hand, and the other party ought not, under our system of pleading, to contest this admission m his contract, without putting it expressly at issue.

Perhaps in the action of assumpsit at common law upon a policy of life insurance, under the general issue, it might be necessary to show an interest in the life insured, but then it would be because, in the action of assumpsit, that plea puts every thing at issue, the consideration, as well as every thing tending to show that there was an indebtedness on the part of defendant.

Under this plea, the defendant might give in evidence the illegality of the contract, coverture, lunacy, and in fine, everything which would show that the plaintiff was not entitled to recover. 8 Greenleaf, No. 135. At common law also, upon simple contract debts, that is, on contracts not under seal, (and of this nature we take the policy of insurance to be,) it was necessary in all cases that the party suing upon such contract, should prove the consideration for the promise.

Oür law, on the contrary, presumes every contract which does not appear illegal or immoral on its face, to be made for a valid cause and upon a sufficient consideration, and it is incumbent upon him who would put the opposite party upon the proof of the sufficiency of the cause, to do so, specially by his pleadings. 2 L. R., 455.

As a general rule in life insurance, there is no distinction between total and partial losses. Annesley, 207.

If a party is not permitted under our law to recover on an insurance for life, in a life in which the insured has no interest, it is because it is a wager and, as such, is against the policy of our law. It is evident, then, that the defendant who would avail himself of the defence, should plead it.. Harvey v. Fitzgerald, 6 M. R. 550.

It is true that the plaintiff, in his petition, has alleged that he had an interest in the life insured, and he has also adduced proof to show that he was the surviving partner of Kennedy & Foster, and that Matthews, as a member of the insolvent firm of Matthews & Patch, was indebted to Kennedy & Foster, in a sum somewhat larger than the amount covered by the policy. Perhaps under the authority of Millaudon v. Atlantia Insurance Company, 8 L. R. 557, the plaintiff would be entitled to recover, had the defendant put the interest of the plaintiff directly at issue. However this may be, under the view we take of the case, the allegation in plaintiff’s petition was unnecessary, and the introduction of proof, out of extreme caution, cannot be permitted to prejudice his case. It is a well settled rule of law, that unnecessary allegations, need not be proven. Montgomery v. Meyers, 2 An. 276.

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

Spoffobd, J.

Although the fact of the plaintiff's interest, as a creditor, in ■ the life of Matthews, appears to me to have been put at issue by the pleadings,, yet I do not find that the extent of that interest was put at issue at all.

The defendant, it seems, has raised that question for the first time in this, court.

I therefore think the judgment should not be disturbed, unless it appears affirmatively and conclusively from the evidence, that the plaintiff’s interest was less than the amount insured.

But the evidence is quite consistent with the opposite hypothesis. For instance, if the plaintiff was in advance to his firm, of jKennedy & Foster, or if the assets of the firm were less than the liabilities, and the succession of Fos- fer¡ insolvent, or if at the time the insurance was effected, Kennedy, as is probable, had the sole administration of the partnership affairs, it might follow that he had an insurable interest in Matthews' life, to a greater amount than the policy specified.

I therefore concur in the judgment.

Lea, J.

I fully concur with the other members of the court, in the opinion which has been read, so far as it recognizes the liability of the defendant upon the contract of insurance; the only difference between us, has reference to the measure of that liability. The plaintiff, Samuel 3. Kennedy, insured the life of his debtor, Matthews, for the sum of $5,000. The latter having died within the period covered by the policy, Kennedy brought this suit in his own name to recover the amount for which his debtor’s life is insured. It appears to me, that assuming the defendant’s liability on the contract, but one inquiry can be entertained in examing this case, and that is, what is the interest which is protected by the policy ? I deem it immaterial to inquire whether, under the plea of general denial, it was or was not necessary, that an allegation and proof of interest should be made.

The answer in the absence of a special allegation of an interest, might have contained a special averment of the want of it, but the petition does contain a special averment of the plaintiff’s interest as a creditor, and the evidence introduced by the plaintiff himself conclusively shows the precise amount of that interest. Now as we have the means of determining in dollars and cents the full amount of the plaintiff’s insurable interest, as fixed by his own proof, the question is, whether the court shall, notwithstanding the evidence, give him a judgment for the whole amount expressed in the policy.

The evidence in this case is quite as conclusive with reference to the plaintiff’s insurable interests, as the most formal admission could possibly make it. We know that it is based upon a debt due to the late firm of Kennedy & Foster, for the sum of $5,642, with interest from the 31st of December, 1848. The fact is established by the plaintiff himself. It is not disputed. Now, should we take this undisputed fact as the basis of the judgment in this case, or should we ignore it altogether, on the ground that the averment of an insurable interest and the evidence offered in support of it, were alike unnecessary and will therefore be rejected as surplusage?

It appears to me, (it is urged with deference to the opinion of the majority of the. court,)'that the adoption of such a doctrine results in a judgment in favor of the plaintiff for a sum largely exceeding the amount which his own evidence establishes as due to him.

Acting upon the assumption that evidence adduced on the trial, furnishes ample materials for a judgment upon the merits, it is proper next to inquire what was the amount of the plaintiff’s insurable interest in the policy, for which, and for which alone, as it appears to me, he is entitled to ajudgment. The plaintiff was a member of the commercial firm of Kennedy & Foster, since dissolved by the death of Foster. Matthews was a debtor of this firm as before stated, in .the sum of. $5,462, with interest from the 31st of December, 1848. It is not shown that there were any other partners besides the plaintiff and Foster, and the presumption of law, in the absence of proof to the contrary, is, that their interest as partners was equal. The plaintiff’s interest, therefore, in the debt due by Matthews, which it was the object of the insurance to protect, is one half of $5,462, with interest as above stated. The decree of the court, however, awards him the sum of $5,000. What the judgment of the court should be in such a case, depends, it appears to me, upon the solution of- the question, whether a partner, who insures in his own name, and sues in his own name, can recover more than his individual and separate interest in the object insured ?

Although on this point there is a conflict of opinions among the French writers on insurance, it appears to me that neither in England nor America is there any division of opinion. The authorities, so far as I have had access to them, are unanimous and unequivocal. Mr. Duer, in his work on insurance, discusses this question elaborately, and concludes with the opinion that, “ in the United States, the doctrine may be considered as established, that although each partner has a right to insure the partnership property in the name or on account of the firm, yet where the insurance is expressed to be on his sole account, it must be limited in its application to his individual share. See 2d Duer, sec. 20, lect. 9. In the case of Graves v. The Boston Marine Insurance Company, the decision of which, the author considers “ conclusive evidence of the existing law on this subject” Chief Justice Marshall remarks, “that under no rule of proceeding on a special contract, can the interest of a co-partnership be given in evi-evidenee on an averment of individual interest, or an averment of the interest of a company be supported by a special contract, relating in its terms to one individual.” In the copious notes annexed to his lecture, Mr. Duer has with great care collated many of the English authorities, and reconciles them with each other and with our jurisprudence on this subject. Mr. Philips, in the last edition of his work on insurance, fully supports the opinion of Mr. Duer. See vol. 1, p. 219, see. 391, et sequiiur.

In the reasons given for the judgment rendered in this case, it is intimated that a distinction is made between the liability on contracts for the insurance of property, and contracts of life insurance, and that, “ as a general rule, in life insurance there is no distinction as to total and partial losses.”

From the necessity of the case, a life policy is always against a total loss, but whether it is for the whole amount specified in the policy, or the whole amount of the interest of the assured, depends entirely upon the character of each particular contract. “ Where the interest of the party effecting a life insurance, or in whose favor it is made, is manifestly indefinite, as in case of dependance for support, the interest is valued at the amount insured.” See 2d Philips, sec. 1755, p. 441. No proof of the extent of the interest of the insured is necessary in such a case. It will he sufficient to prove a beneficial interest without showing its extent. But I apprehend no such rule of recovery, even in contracts of life insurance, can be extended to cases where the interest is fixed and determinable, as in the case at bar, viz., that of a creditor in the life of his debtor for the security of the debt due to him. The right of the insured to recover in such case will be regulated precisely as in eases of insurance of property against fire or marine risks, viz., by the extent of the interest of the insured. This very question appears to have engaged the attention of the writers on life insurance. Mr. Philips, in the last edition of his work on insurance, 2d vol., sec. 1755, remarks : “ Where a policy of insurance is taken out by a creditor on the life of his debtor, or in favor of any party having a definite computable interest in the insured life, the amount of the interest being precisely determinable, a total loas by the death of, the insured subject is only the amount of such interest, although it may be less than the amount specified to be insured.” And again. 'see. 1216: “ In a policy in favor of a creditor on the life of a debtor, as security for a debt in a fixed sum, the amount of the insurable interest may be estimated as in any insurance upon property.” And in such case it is manifest the amount recoverable cannot exceed that interest. See, also, sec. 1247; also, vol. 1, sec. 208.

I think the plaintiff is entitled to recover of the defendant a sum equal to one-half of the amount due by Matthews to the firm of Kennedy & Faster, and that his recovery should be restricted to that amount.


text:
    Jane Cowand, wife of A. K. Aken, v. Josephine Pulley, wife of Elijah Cox, and Her Husband.
    Suit on a due bill.
    It was objected that the plaintiff did not allege in her petition that she was separated in estate from her husband. By the Court: No such allegation is necessary. The evidence shows conclusively that the debt originated in a loan of money made by the petitioner, in her own name, out of funds which were paraphernal. She had a right to assume at any time the administration of her para-phernal property, and the taking of this due bill for money lent by herself was itself an act of administration.
    Parties engaged in the purchase of materials, and theínanufacture thereof into carriages for sale, are liable as commercial partners; but mechanics, who make carriages to order, or repair them, would not necessarily be commercial partners.
    The prescription of three years, applicable to a loan of money, does not apply to a due bill given at the time for such a loan.
    A PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Phillips, for plaintiff. C. B. Duncan, for defendants and appellants.
   Lea, J.

The plaintiff sues upon a due bill given by the late firm of Alcen & Cowand for the sum of $464 20. The petitioner, who is a married woman, alleges that the due bill sued upon is her paraphernal property, that it was given to her for money lent to the late firm of Alcen & Cowand, who were commercial partners, and are bound in solido, and that the- defendant, the widow in community of Joseph 0. Cowand, one of the firm, having never renounced the community, is bound for the community debts. Various matters of defence are set up, which will be considered separately.

1st. It is urged that there is no allegation that the petitioner is separate in estate from her husband. No such allegation is necessary. The evidence hows conclusively that the debt originated in a loan of money made by the petitioner in her own name to the late firm of Alcen & Oowand out of funds which were paraphernal. She had a right to assume at any time the administration of her paraphernal property, and the taking of this due bill for money lent by herself was itself an act of administration.

2d. It is objected that it is not proved that the firm,, which the petitioner avers signed the bill, is a commercial one, and that the firm being an ordinary partnership, the liability of the partners is joint, and that the joinder of the other partner is a necessary prerequisite to a judgment. As we are of the opinion that there are other reasons why there must be te judgment of nonsuit, we shall dispose of this point with the remark that if the evidence established that the defendants were engaged in the purchase of materials and the manufacture thereof into carriages for sale, they would,, under our law, clearly be liable as commercial partnersbut mechanics, engaged in making carriages to order, or in repairing them,, would not necessarily be commercial partners. The evidence is not as full on this point as would be satisfactory. Persons associated in the mechanical employments are not, as a general rule, commercial partners, though they may, and generally do, so conduct their business in this city as to be merchants also.

3d. The defendant objects that no proof whatever has been offered showing that she was the wife of Oowand at the date of the loan, and, moreover, that neither the note nor protest sued upon have been offered in evidence.

These objections appear to be well founded, and as they are urged upon the consideration of the court, we cannot overlook them. We have searched the record in vain for any evidence showing that the defendant was the wife of J. 0. Oowand at the date of the alleged loan, and whatever may have been intended on the trial of the case, the note of evidence does not show that either the due bill or the protest thereof were offered in evidence. It is true the evidence establishes the loan of money for which the note was given, but if the action is to be considered as based upon the loan as such, the plea of the prescription of three years would bar the action and extinguish the debt. It is only as the holder of the due bill, existing in a negotiable form, that the petitioner can escape the plea of prescription; and this brings us to the consideration of the question whether this plea, to wit: the prescription of three years, is applicable to a loan of money for which, at the time of making it, a note or due bill, in a negotiable form, was given.

It is urged that the debt itself consisted in the borrowing of the money, and that the due bill is merely the evidence of the debt. The same remark, however, will apply with equal force to all bills of exchange or promissory notes, transferable by endorsement or delivery, originating in loans of money. Even in the hands of third parties they are merely evidences of debt which have been assigned or transferred to the holders. The fact, as is often the case, that they originated in loans, would not bring them within the operation of the prescription of three years.

We think it was the intention of the Legislature to protect the holders of debts evidenced by negotiable paper against the operation of any prescription but that of five years.

It is ordered, that the judgment appealed from be reversed, and that upon the plaintiff’s demand there be judgment as in case of nonsuit, and that the plaintiff and appellee pay .costs in both courts.


text:
    X. Mathis and Madeline Roll v. Magdalena Gerantz, Tutrix, and in her own right.
    The will of the testator not having been dictated to the notary in the presence of the three attesting witnesses, is null and void.
    Facts constituting bad faith in a purchaser or possessor*.
    from the Sixth District Court of New 'Orleans, Cotton, J.
    McKay, for plaintiffs. Michel & Gilmore, fpr defendant and appellant.
   Spofford, J.

It is amply proved, that the testator, Joseph Mathis, did not dictate his will to the notary in presence of the three attesting Witnesses. The District Court, therefore, did not err in holding the testament to be null and void. C. C. 1571. Mouton v. Cameau's Heirs, 5 An 565.

The plaintiffs are the duly recognized heirs at law of their deceased son, Joseph Mathis.

They are therefore entitled to recover identically such property belonging to his succession, as has not been legally alienated. '

In this suit, they claim a particular lot of ground in the faubourg Livaudais, parish of Jefferson, which is alleged to be in possession of the defendant. This lot belonged to the succession of Joseph Mathis, but it was community property, having been acquired during the marriage between him and his wife, Mary Gerantz. The defendant is sister and heir of Mary Gerantz.

The plaintiffs, as heirs of Joseph Mathis^, cannot'of course recover more than his interest in the property sued for. The judgment is erroneous in giving .them the whole, instead of one-half of the lot. See Cresse v. Marigny, 4 M. 54.

But the defendant contends that notwithstanding the nullity of the will, as the property has been sold under judicial order, she is a purchaser in good faith, and cannot be disturbed.

We do not find her to be a purchaser or possessor in good faith. The lot in question was never sold as a part of 'the succession of Mathis. It remained in the possession of his widow and executrix, until her death, and was after-wards sold as part of her succession, at the instance of her creditor, Henry Maride, who was administrator thereof, and who, it is admitted, had notice of the plaintiffs’ claims. But Maride, administrator, was the husband of the present defendant. He was incompetent, by reason of his office, to purchase at the succession sale; but it appears that one Burdette bought the lot in controversy, and within two weeks conveyed it to MarMe, for the same sum he bid for it at the probate sale. Under the circumstances, we must regard Burdette as a person interposed and purchasing for the benefit of the administrator, Maride, who is since deceased. The sale was therefore null. The defendant, Marble's widow, claims the property as tuirix of their minor children, inheriting their father’s title; she is entitled to retain one-half the property as heir to her sister, Mary Gerantz, widow in community of Joseph Mathis; and the plaintiffs are entitled to the other half as heirs of Joseph Mathis, whose succession has never been legally divested thereof.

It is therefore ordered, that the judgment of the District Court, so far as it annuls the pretended will of Joseph Mathis, be affirmed ; and that in other respects, it be avoided and reversed. It is further ordered and adjudged, that the plaintiffs be decreed to be the owners of one undivided half of the lot of ground and improvements thereon, described in their petition as situated in the faubourg Livaudais, parish of Jefferson, in square No. 5, bounded hy Levee, Rousseau, Eourth and Washington streets. It is further ordered, that the plaintiffs have judgment against the defendant for fruits and revenues at the rate of ten dollars per month, from the 20th September, 1852, the day of judicial demand, until delivery of possession of one-half the premises aforesaid. And it is further ordered, that the costs in the District Court be paid by the defendant, and the costs of this appeal by the plaintiffs and appellees.

      Merrick, C. J., not being present at the argument of this case, took no part in this decision.