author: Wyly, J. Howell, J., Morgan, J. Wyly, J., Ludeling, C. J.,

text:
    3703.
    Factors and Traders’ Insurance Company v. The City of New Orleans.
    This case is hold by the court to be governed by the one of Campbell v. the City of New Orleans, 12 An. 34. There is but one difference in point of fact. Campbell paid his taxes without objection or protest, and sought only to recover the amount back afterithadbeen decided in a controversy between another party and the city, that the ordinance under which the assessment was made was unconstitulional. In the present case, the plaintiffs, before making their last payment for taxes, expressly stipulated with the City Treasurer, to whom their money was paid, that it should be returned in case there should be ren•dered a decision in a certain sense, by the court, in another pending controversy, But they paid, not because they wore compelled to pay, but because they chose to pay, and, on the contrary, did not resist payment, as was done in the case upon the decision of which they -were content to rest their case.
    ’The sti illation by plaintiffs with the City Treasurer amounted to nothing, for it was not shown that he had authority to make the contract.
    'There was an unquestionable, natural obligation on the part of plaintiffs to bear their quota of the expenses of carrying on the municipal government of the city of New Orleans. The plaintiffs have enjoyed all the advantages and protection of that municipal government. To return to them the money which they have paid in consideration of these advantages, would be to give them the protection which they required ±br their personsand property, and make their fellow citizens pay for it.
    The law under which plaintiffs paid their taxes, was in full force and vigor at the time. It is a fallacy to contend that it never had any life because it was unconstitutional.
    Rights may be acquired under a law, notwithstanding that law may have been subsequently declared to have been unconstitutional.
    To escape the penalties inil cted by a law, or avoid responsibilities imposed by it, upon the ground that it is unconstitutional, its unconstitutionality must be distinctly declared before the penalty or responsibility has accrued.
    from the Sixth District Court, parish of Orleans. Oooley,

    J.

      George 8. Lacey, City Attorney, and II. R. Walsh, Assistant ■City Attorney, for defendant and appellant. Gibson & Austin, for plaintiffs and appellees.
   Wyly, J.

The plaintiff sues the defendant for $10,175 56, the amount of a license tax paid by it to the defendant during the years 1867, 1868 and 1869, on the ground that the said tax was unconstitutional, because not equal and uniform upon all persons pursuing the business or occupation of insuring.

The court gave judgment for the amount claimed, and the defendant appeals.

The license tax collected from the plaintiff in 1867 was five-eighths of one per cent, on the amount of premiums received, and in 1868 and 1869 it was one and one-half per cent, on the amount of premiums.

Any percentage on the amount of premiums received is clearly unconstitutional, because all insurance companies do not receive the same amount of premiums. Article 124 of the Constitution of 1864, and article 118 of the Constitution of 1868, require that a license tax, as well as a tax on property, shall be equal and uniform. To be equal •and uniform, the tax must be the same on all persons persuing the particular occupation or calling taxed, without reference to the abilities, fortunes or success of those engaged in it. City of New Orleans v. Home Mutual Insurance Company, 23 An.

“He who has received what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.” R. C. C., art. 2301.

Upon this article, and articles 2302 and 2304, the plaintiff relies to •support its demand for the restitution of the amount improperly paid. The defendant, however, contends that there was a natural obligation, binding the plaintiff in conscience and natural justice to pay what was paid, and therefore, under article 2303, it can not be recovered. Article 2303 declares that “ to acquire this right (the right to receive what was improperly paid) “ it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery.”

It will be observed, from the plain provisions of article 2303, that ■in order to defeat the right of recovery there must be a natural obligation to pay “ the thing paid to pay the particular debt that has been •collected.

If A pays a forged note to B, recovery of the amount can not be defeated, because the latter may hold a natural obligation against him. resulting from being the owner of another note that is prescribed.

The law in express terms only permits the action for repetition to be defeated where there was a natural obligation to pay the “ thing paid;” that is, to pay the particular debt that has been paid. Now •the inquiry is, not whether there was a natural obligation binding the plaintiff in conscience and natural justice to pay some other debt of •equal amount to the city of New Orleans for the support of its government or otherwise, but it is simply whether there was a natural obligation to pay the particular debt or claim that was paid and which .is alleged to be unconstitutional ?

It is useless to pursue any other inquiry, because the defense anmounced in article 2303 is in precise terms, limited to the particular debt or claim paid.

The question then is, was'the plaintiff under a natural obligation to-pay an unconstitutional taxi

We say no. An unconstitutional ordinance of a municipal corporation is an absolute nullity; it was void from the beginning; it never had any obligatory force either in law or conscience.

To say that an assessment in direct violation of the constitution binds the citizen in conscience and natural justice, is an absurdity too-manifest to require argument.

Until there is an assessment (and an unconstitutional' assessment is no assessment) there is no debt; there is no obligation either natural- or civil.

The amount collected from the plaintiff was unduly collected,, because he never owed the debt; there was no ordinance of the city requiring of the plaintiff a license tax. What was supposed to be an-ordinance requiring the assessment of the tax never had any existence, because it contravened article 124 of the constitution of 1864' and article 118 of the constitution of 1868.

In support of his position, counsel of the defendant cites several decisions of this court: 9 R. 325; 12 An. 34, 346, 421. In not one of these cases was the question now under consideration presented, to- wit Whether there is a natural obligation to pay an unconstitutional tax?1

This court has never held that an unconstitutional tax imposes a natural obligation to pay.

A natural obligation is defined to be one that can not be enforced by action, but it is binding “in conscience and according to natural-justice.” Revised Code, 1757. How any act of the corporation of New1 Orleans, prohibited by the Constitution, can create an obligation binding “in conscience and according to natural justice,” we can not imagine. In Isam J. Sims v. The Parish of Jackson, 22 An. 440: the question was, whether the plaintiff could recover from the defendant the amount of a cotton tax collected from him during the years 1865, 1866 and 1867, on the ground that said tax was not equal and uniform, and therefore it was violative of article 124 of the Constitution of 1864, then in force. The court held he could do so, and gave judgment against the parish of Jackson for the amount unduly collected of Sims. This is the only case to be found in our reports where the precise, question now under consideration was presented.

While that decision stands, and we see no reason to overrule it, a party who has paid a municipal corporation an unconstitional tax may-demand its restitution, or the restitution of the amount thereof.

Judgment affirmed.

Howell, J.,

dissenting. Eor the reasons given by the court in the case of Campbell v. New Orleans, 12 A. 34,I think the plaintiffs should not recover. In my opinion, there is no distinction, in regard to the-natural obligation, between a tax or license illegally imposed, that is, not in conformity to the mode prescribed by the statute, and one unconstitutionally imposed, that is, not in the mode prescribed by the-Constitution. There was a natural obligation resting on the plaintiffs to contribute to the support of the city government, and the fact that the sum paid by them was not uniform with the sums paid respectively by other insurance companies, did not destroy that obligation. The-principle announced in- article 2303, R. C. C., if applicable to the subject of taxation, does not, I think, rest on the sum paid, but on the-, natural obligation to pay. It is not pretended that the plaintiffs were exempt from the payment of the license. On the contrary, article 118> of the Constitntion is imperative that they “ shall obtain a license, as-provided by law.” An assessment is only the means of carrying out. the obligation to contribute to the support of the government.

I therefore dissent.

On Rehearing.

Morgan, J.

Plaintiffs seek to recover from the city of New Orleans* $10,175 66, with legal interest on various amounts and from various dates, upon the ground that through error, or under protest, they paid to the city $1030 on the fourteenth January, 1867, for license tax for-that year; $3892 56 on the twenty-ninth January, 1868, for license tax for for that year; and $5253 on twenty-seventh February, 1869, for license-tax for that year. They aver that these various sums of money were exacted and collected from them by virtue of several ordinances of the city government, dated respectively twenty-seventh December, 1867,. thirty-first December, 1868, twenty-ninth December, 1869.

They aver that these ordinances were in violation of the constitution of the State which was in force at the time they were enacted; that they were unequal, oppressive, and not uniform; and were, therefore, by reason of their unconstitutionality, absolutely null and void. They aver that the city has exacted and collected the various large sums related by them without the color or authority of law, and that it still retains them, in violation of the constitution.

Further they aver, that the city specially agreed to refurn to them the-sum of $5253, if the Supreme Court should declare the ordinance imposing this license tax under which this sum was collected unconstitutional, in a litigation which was pending when this license was paid;, and that notwithstanding the decision of the Supreme Court which has declared the ordinance to be unconstitutional, the city persists in its, refusal to return the same.

Ip their supplemental petition they aver, that the ordinances under-which they paid were so rigid that they were compelled to pay or incur ■the danger of having their place of business closed.

Defendant admits the receipt of the money, and admits that there was an agreement on the part of a city official to refund the money in case it should be decided, in the matter then pending between the city and the Mutual Insurance Company, that the ordinance was unconstitutional, but avers that the official aforesaid had no authority to bind the city. It further avers, that any money paid by plaintiffs for license tax was truly and justly due and owing to the city ; that the money so paid was necessary for the purpose of defraying the expenses of the city; that it was faithfully appropriated to that purpose; and that plaintiffs have received their proportionate share of the benefit derived therefrom, in the protection of their interests and property.

They further allege, that if the plaintiffs were not legally bound to pay a license tax to the city, they were at least under a natural obligation to contribute their quota to the support of the municipal government from which they derived protection, and that under such circumstances an action will not lie to recover the several amounts alleged to have been paid, even though such payment had been made under protest.

It is not alleged nor, we believe, disputed that the money was not collected and disposed of in the manner and for the purposes set forth in the answer.

In principle, we think the case is governed by the case of Campbell v. the city of New Orleans, 12 An. 34.

In that case, as in this, Campbell paid to the tax collector a certain sum of money as his city tax for the year 1850. In that case, as in this, it did not appear that the money was paid under any compulsory warrant or execution. It is alleged here that if plaintiffs had not paid they incurred the risk of having their place of business closed, but it is not shown that they had been condemned to pay by any authority.

In that case, as in this, there was a judgment in a suit between the ■city and another party defendant, declaring the ordinance, under which the tax was proposed to be collected of him, unconstitutional. And there, .as here, it was not denied that the money paid by the plaintiff was necessary for the purpose of deiraying the expenses of the years for which they were collected. The court declared that the municipal authorities were virtually the plaintiff’s agents for the purpose of laying such an assessment upon his taxable property as would defray his share of the necessary expenses of police, etc.; that the assessment was laid upon property legally liable to taxation, although they had neglected in so doing to pursue certain prescribed forms — a neglect which would have rendered the plaintiff’s obligation to pay invalid m foro legis, if he had raised the objection in time and in the proper manner. The court considered that he was under a natural obligation to pay his proportion of the expenses of the municipal government :and that, inasmuch as he had paid the amount assessed to him for that purpose, he had only discharged a natural obligation ; and as no suit will lie to recover what has been paid or given, in compliance with a natural obligation, gave judgment for the city. If this opinion of the court be a correct exposition of the law, the plaintiffs have no •case.

In one particular the con troversy between Campbell and the city differs in point of fact from the case we are now considering, in this, that whereas Campbell paid without objection or protest, and sought •only to recover after it had been decided in a controversy between another party and the city that the ordinance under which the assessment was made was unconstitutional, in this case the plaintiffs, before making the last payment, expressly stipulated with Mount, the City Treasurer, to whom the money was paid, that it should be returned in •case this court should determine the case of the city v. another insurance company in a certain sense. Still there was not any coercion on the part of the city, under force of which this payment was made There was no execution in the hands of the sheriff by which their property could have been seized in case they did not pay. There was no judgment commanding them to pay. They paid, not because they were forced to pay, but because they chose to pay. They aver, it is true, that they were threatened with the close of their place of business in case they did not pay, but their relief from this apprehension was not by paying; on the contrary, it was by resisting payment, as the •company did in the case upon the decision of which they were content to rest their obligation. The stipulation with Mount, the Treasurer, amounts to nothing, for it is not shown that he had any authority to make the conti act on the part of the city which the plaintiffs set up. If he was not able to bind the city, the stipulation which he made is not obligatory. There was an unquestionable natural obligation on the part of the plaintiffs to bear their quota of the expenses of carrying on the municipal government of the city of New Orleans.' Their domicile is here; their business is done here; they have an interest in the paving and lighting of the streets, and the building and repairs of wharves; they have the same interest in the maintenance of a good police that other inhabitants of the city have, and it is of vital importance to the success of clieir company that tiie fire department should be kept in a state of proper efficiency. None of these things can be done without money. The money necessary to carry them on must be contributed by the citizens. It is levied in the form of a tax or contribution, or by whatever name you may chose to call it, and when .collected it is used for these purposes. It is because of its general ramifications, benefiting each and every inhabitant of the city alike,, that each and every one of its inhabitants is under a natural obligation to contribute, in proportion to his means, toward the support of these departments, without which the place could not be lived in. Now, it is not pretended that plaintiffs have not enjoyed the advantages and protection of the municipal government. To return to them the money which they have paid in consideration of these advantages,, would be to give them the protection which is requisite to their existence, and make their fellow-citizens pay for it.

There is, in our opinion, another reason why the plaintiff should! not recover. It is, that the law under which the tax was paid was in full force and vigor at the time the money was paid. It is contended that it never had any life because it was unconstitutional; that an unconstitutional law is no law, and therefore must be considered as never-having been written. This is a fallacy. The rule of universal application is, that all laws are presumed to be constitutional until the contrary is decided. Courts do not assume to themselves the prerogative of deciding on their own motion, that a law under which rights are-claimed or duties are imposed is unconstitutional. To authorize them-to do this the matter must be directly put at issue by the parties-litigating before them. Rights can be acquired under a law which-may be determined to have been unconstitutional, and pains and' penalties be avoided by those who justify their acts as having-been committed under a law, however that law may have been subsequently declared to have been unconstitutional. If a piece-of property is sold under a fi. fa. issued in the case of A v. B, and C purchases it, if it should thereafter be determined in a litigation between D and C that the law under which A obtained his-judgment against B was unconstitutional, would B be entitled to get-back his property from C ? If the Legislature passed a law regulating trials in criminal cases, and A, being indicted for murder, was tried under that law, found guilty, sentenced and was hung, and in the-case of B, tried before the same tribunal for the same offense, B’s counsel should, after conviction, and on a motion in arrest of judgment,, convince the judge that the law under which he was trying the case was unconstitutional, and the prisoner be discharged, would the sheriff who had hung A be liable to be punished ? Certainly, if the position contended for be correct that an unconstitutional law is ipso facto null and void, for the killing would have been unlawful; it would have been willful, and would have been perpetrated upon a reasonable being, who was, when the killing was-done, in the peace of the commonwealth. Such a result, so monstrous, is only to be avoided by adhering to the rule that to escape the penalties inflicted by a law, or to avoid responsibilities imposed by a law ■upon the ground that it is unconstitutional, its unconstitutionality ■must be distinctly alleged before the penalty is imposed or the responsibility is determined.

It is therefore ordered, adjudged and decreed that the judgment heretofore rendered by us be set aside, and it is now ordered, adjudged and decreed that the judgment of the District Court be avoided, •annulled and reversed, and that there be judgment in favor of the defendants with costs in both courts.

Wyly, J.,

dissenting. I adhere to the first opinion delivered by this •court in this case, and I reserve the right to file an additional argument in support of my position.

Ludeling, C. J.,

dissenting. I am constrained to dissent from the «opinion of a majority of my associates. I adhere to the opinion originally rendered in this case, which I think is in accordance with the law and jurisprudence of this State. Article 2301 of the Civil •Code provides that “He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he unduly received it.” Article 2302 says : “He who has paid through mistake, believing himself a debtor, may .reclaim what he has paid.” “To acquire this right, it is necessary that the thing paid should not be due in any manner, either civilly or naturally. A natural obligation to pay will prevent the recovery.” The same doctrine is announced in the Institutes of Justinian, lib. Ill, tit. 28, DeSolutione Indebiti, Cooper, p. 292; in Pothier, vol. 1, chaps. 1 and 2; in Domat, No. 1520, and in Larombiere. - “ Le paiement fait sans cause oblige a restitution celui qui l’a regu.” Yol. 5, 612 et seq.

I can not conceive how there can be a natural obligation to pay an illegal tax. A tax can only be imposed by law; if any obligation springs from the law, it must be a legal obligation. In my opinion the ■original decree should remain undisturbed.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 4582.
    James E. Yeatman, Executor, et al. v. Louisiana State Bank and B. H. Buckner.
    'This is a suit to annul a judgment alleged to have been obtained through fraud and ill-practice. The evidence adduced was not such as to satisfy the court that these allegations were well founded.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Thomas P. Farrar and J. A. Campbell, for plaintiffs and appellees. Sparrow & Montgomery, for defendants and appellants.
   Howell, J.

The plaintiffs sue to annul a judgment rendered upon a third opposition filed by them in the case of the Louisiana State-Bank v. B. H. Buckner, and on which they claimed a preference to* the proceeds of certain mortgaged property seized in said suit. The ground of nullity is that said judgment was obtained through fraud' and ill-practice, the said opposition having been called up and tried’ when the plaintiffs were absent and unrepresented.

The plaintiffs were the vendors of a plantation and slaves, sold in •June, 1855, to the defendant, B. H. Buckner, and in October, 1867, they commenced proceedings, via ordinaria, in the District Court of Madison, to enforce their mortgage and privilege, but did not proceed to judgment. In March, 1869, the Louisiana State Bank took out executory process and caused the said land to be sold on the first May following. The plaintiffs filed a third opposition in said proceeding,, claiming, by preference, the proceeds of the sale, which, by agreement, were deposited in the said bank. Nothing further was done therein until twenty-fifth April, 1870, when the defendant, Buckner, filed an. answer to the third opposition, and on the ninth May following the bank filed an answer, and on the next day judgment was rendered im favor of the said defendants, the records of the court showing that the-case was regularly set and taken up for trial.

A similar disposition was made, at the same time, of the suit via' ordinaria brought in 1867. Between the date of filing the third opposition and the trial, as above stated, the counsel of the plaintiffs withdrew the notes on which the said proceedings were based, gave them, up to his clients, formally withdrawing from said suits, and changed, -his domicile to California. His business in that and other courts of the district was generally left with a particular attorney, but it was shown on the trial below that the said cases of these plaintiffs had not been thus disposed of. On the contrary, a different attorney had been, consulted in regard to a transfer of the cases to the United States-Court in New Oileans; but the plaintiffs concluded to let them stand, as they were, under the belief, as they say, that the only disposition which could be made of them was a dismissal, and they instituted new proceedings on their notes in the federal court. It was after the institution of this suit in the United States tribunal, which was known to* defendants’ counsel, that the answers were filed and judgments rendered in the Madison court. The counsel for the defendants, who acted for them throughout, swears that he believed at the time of the trial that the plaintiff's were represented by the attorney who attended, generally to the business of their absent attorney, and who was then present in court. And such seems to have been the impression also of the district judge. There is nothing to show that either of the defendants thought otherwise, or had any knowledge that the plaintiffs had. no counsel in the said cases then pending iq said court.

The evidence does not satisfy us that there was fraud-or ill-practice on the part of the defendants.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants-, with costs in both, ■courts.

Rehearing refused.


text:
    No. 2950.
    U. J. Rosenthal v. L. Myers.
    Where the defendant acted merely as an agent and exhibited his authority, neither doing nor-saying anything by which he obligated himself to pay the plaintiff any sum whatever, and nothing was mentioned between them as to compensation-, but, on the contrary,, notice was given to the plaintiff that the services which he had been bespoken to-perform, were desired from another person;
    Held — That whether the plaintiff has or not any legal claim against the principal, it is clear-that he has none against the defendant.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley,, J.

      HawMns & Tharp, for plaintiff and appellee. Ootton & Levy, for defendant and appellant.
   Howell, J.

The plaintiff sues for $1000 upon an alleged employment by defendant to go to Brownsville, Texas, and Matamoros, Mexico, to perform the religious rite of circumcision on two children, alleging that, in compliance with said engagement, he went to said towns, but the parents of the said children refused his services, having employed another party. He avers that his expenses, time, professional skill, etc., were well worth to him the sum claimed.

The defense is a general denial, and the allegation that a letter was written from Brownsville to one Levi in Galveston, Texas, for the Rev. J. Hoehwald to perform the said rite, and containing the request if the said Hoehwald was absent, the letter should be forwarded to Aaron & Myers in New Orleans, which was done, and the defendant,, one of said firm, learning that Hoehwald was in California, exhibited the letter to the plaintiff and asked him if he would go, which he agreed to do, the said letter being left with him, plaintiff j that on the next day Hoehwald arrived in New Orleans and was advised of the said letter, and both he and defendant notified the plaintiff that he, Hoehwald, would go in accordance with the directions in the said letter j and that the custom is not to make any charge for. performing the said rite.

There was judgment against defendant for $600, and he appealed. We think the evidence fails to fix any liability on the defendant for the debt of other parties. He acted merely as the agent of the parents of the two children and exhibited his authority. He neither did nor. said anything by which he obligated himself to pay the plaintiff any sum. Nothing was said between them- as to compensation; and he .gave immediate notice to the plaintiff that the party desired by the parents of the children would go as requested. Whether the plaintiff has any legal claim against the said parents or not, it is clear that he has none against the defendant.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, with costs in both courts.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2933.
    Villeneuve Le Blanc et als. v. Philip Marsoudet et als.
    Wlicro a suit was instituted on promissory notes, whioli were tlie obligations of an ordinary partnership, whose members were only bound jointly and had to be sued as joint obligors;
    'Held — That a citation addressed to the firm, and served at the elected domicile of the ordinary partners, did not have the effect of bringing them into court. The judgment against them is, therefore, a nullity. The citations should have been addressed to each of the defendants.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      R. J. Grover, for plaintiffs and appellees. Oarleton Runt, for ■defendants and appellants.
   Ludeling, C. J.

This isa suit to annul a judgment by default on several grounds. It will be necessary to notice only one of them, to wit: the want of a citation.

The suit in which the judgment complained of was rendered was based upon promissory notes executed by V. Le Blanc, Jr., & Co., an ordinary partnership. Following is a copy of one of the notes:

$3,500. New Orleans, March 12, 1861.
On the thirteenth of Januai’y next we promise to pay to the order ■of ourselves, at the office of Messrs. Bellocq, Noblom & Co., in New •Orleans, thirty-five hundred dollars, for value received, with interest at the rate of eight per cent, per annum after maturity until paid.
V. LE BLANC, Jr., & Co.

The other note was similar to the foregoing, with the exception of the date of its maturity. These being obligations of an ordinary partnership, the members thereof were bound jointly only, and had to be sued and cited as joint obligors. 14 La. 364; McGehee v. McCord et als.

Neither of the joint obligors was cited. The only citation in the record is addressed to V. Le Blanc, Jr., & Co., the firm, and was ¡served at the supposed elected domicile of the defendants. We preterniit the expression of an opinion upon the question whether or not the defendants could have been sued out of the parish of their real ■domicile at the date of the institution of that suit. But we have no doubt that a citation addressed to a firm, and served at an elected domicile of the ordinary partners, did not have-the-effect of bringing them into court. The citations should have been addressed to each of the defendants. C. P., art. 179, sec. 2.

■ The'defendants in that suit were not cited, and the judgment is an absolute nullity.

it is therefore ordered that the judgment of the district court be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 4109.
    Jurey & Harris v. Mrs. Mary J. Hord et als.
    Where it is admitted that the money claimed hy plaintiffs was given to the defendant and her two children, and that by the act of their merchants and factors, the garnishees in this case, said money was placed to the sole credit of their mother, the defendant;
    Held — That this act did not divest the right of her children, the intervenors in this proceeding, and did not make the money garnisheed the sole property of-defendant. There was no such confusion or mingling as affected the rights of the intervenors.
    APPEAL from the Fourth District Court, parish of Orleans. Theard, J.

      Bemmes <£• Mott, for plaintiffs and appellees. Bhmton, Grover <& Bemiss, for intervenors and appellants. A. Robert, curator ad hoe, for absent defendants.
   Howell, J.

The intervenors in this case have appealed from a judgment dismissing their intervention, in which they claimed the funds attached herein by plaintiffs as belonging to the defendant.

“ It is admitted that the money attached in this suit was in the name of Mrs. Mary J. Hord, on the books of Joseph Hoy & Co. (garnishees), and that Mrs. Mary J. Hord received the same from Mrs. Eliza Askew, her mother, who gave it to Mrs. Hord and her two children (the intervenors), to defray the expenses of the Cold Spring plantation, for the year 1870.”

“It is admitted that Mrs. Hord is the administratrix of the estate of her former husband, and that she and her two children, Lizzie and Andrew Jackson, are the owners of the Cold Spring plantation, Washington county, Mississippi.” The suit of plaintiffs is not for supplies for the year 1870, and hence no question as to any liability of intervenors therefor arises. Nor is there any force in the position of plaintiffs, that “if the intervenors had any interest in the money, it was lost when it became confused with the money of the defendant; it could no longer be identified; and when it was deposited by Mrs. Hord in her own name with; the garnishees, it became subject to her debts* and to seizure by her creditors.”

The admission is, that the money was given to the mother and two* children, and the act of the merchants, the garnishees, in placing it all' to the credit of one, did not divest the right of the other two, and make, it the sole property of the one. There was no confusion or mingling which affected the rights of the intervenors, and by other-evidence the said sum of money belonged in equal parts to the three. Hence the intervenors are entitled, under the foregoing facts, to recover two-thirds thereof. Mrs. Hord has not appealed from the judgment against her. We understand from the record and the briefs,, that tlie sum of $3531, in the hands of the garnishees, is the matter in controversy.

It is therefore ordered that the judgment dismissing the intervention* herein be reversed, and that the intervenors, Lizzie and Andrew Jackson, be decreed entitled to two-thirds of the sum of $3531, in the hands of Joseph Hoy & Co., garnishees,- with their costs in both courts..


author: Howell, J. Taliaferro, J.

text:
    No. 4360.
    B. A. Malone v. Lawrence Casey et als.
    The Parish Court has jurisdiction of suits for the recognition of heirship and for the partition of succession property, and where the amount involved exceeds five hundred dollars, the appeal is directly to this court.
    Where in a suit instituted for partition by plaintiff against her coheirs, a curator ad hoc was-appointed, on the prayer of the plaintiff, to one of said heirs who was a minor, the appointment was erroneous.
    APPEAL from the Parish Court of Jefferson. Keon, J.

      W. W. Edwards, for plaintiff and appellant. B. L. Preston, for defendants and appellees.
    On Motion to Dismiss the Appeal.
   Howell, J.

A motion is made to dismiss this appeal on the ground that “if the Parish Court, from whence this appeal lias been taken,, was vested with jurisdiction of the cause, which is excepted to, then the appeal should be from that court to the district court of the judicial district, and this court has no appellate jurisdiction herein.”

This proposition is not true. The parish court has juiisdiction of' suits for the recognition of heirship and the partition of succession property, as this is, and when the amount involved exceeds five hundred dollars, the appeal is directly to this court. Const., art. 88;. C. P. 1022.

Motion oyerruled.

On the Exceptions and Merits.

Taliaferro, J.

The plaintiff, claiming to be an heir of Mary Casey, deceased, instituted an action of partition against her coheirs to have the succession property of the decedent’s estate partitioned. One of the heirs being a minor, the plaintiff prayed for the appointment of a curator ad hoc to represent the minor in the partition proceedings, and the appointment was made as prayed for. The delendants excepted to the jurisdiction of the parish court, and also to the appointment of a curator ad hoc to represent the minor. These exceptions were adopted by the curator ad hoe, and they were sustained by the court, and the suit dismissed. The plaintiff has appealed.

The appointment of a curator ad hoc to represent the minor was erroneous, and to that extent the exception should be sustained; but as to the jurisdiction, it should be overruled. The Court of Probates has jurisdiction “in partitions of successions, where minors, interdicted or absent persons are interested.” C. P., art. 924, sec. 14.

So far as we can learn from a rather scant record, it would appear that the proceedings in this case have been irregular. The succession can only be accepted on behalf of the minor with benefit of inventory, and it appears he is without a tutor. The succession is without a representative, and the minor’s interest therein not ascertained and secured. Under this state of facts, we deem it best to remand the case for further proceedings.

It is therefore ordered and adjudged that the judgment of the Parish Court, so far as it sustains the exception to the appointment of a curator ad hoc to represent the minor be affirmed ; but in all other respects it be annulled and reversed. It is further ordered that this case be remanded to the court of the first instance, to be proceeded with according to law, the defendants and appellees paying costs of this appeal.


text:
    No. 774.
    P. J. Pavy & Co. v. Juste Bertinot.
    "Where the defendant objected to the ruling of the court receiving in evidence a note and mortgage, on the ground that they were not stamped at the time of their execution, as required hy law, and where it appeared that neither the notary before whom the act of mortgage was passed, nor the parties, had any stamps when the act was passed, and mention of the fact was made in the act, but that one of the plaintiffs went immediately to Opelousas, purchased the necessary stamps from the recorder, who placed them on the act and canceled them in the presence and at the request of the party;
    Held — That this was sufficient.
    "Where at the time a mortgage-bearing note was given, no stamps were affixed to it, but before the note was offered in evidence it had been stamped by the district United States collector of internal revenue, who collected the interest required by law and remitted the penalty, this was all the law required of the parties.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Thomas 3. Lewis, Acting J.

      Martel & Hudspeth, for plaintiffs and appellants. 3. L. Garland, for defendant and appellee.
   Ludeling, C. J.

The plaintiffs instituted two suits against the defendant, one on a mortgage note for $4274 86, with eight per cent, interest from maturity, and the other on a balance of account for $898 14, and for a portion of this account they claimed to have a privilege upon certain machinery furnished to the defendant. The plaintiffs also obtained an injunction to prevent the defendant from wasting, dilapidating or disposing of the mortgaged property, during the pendency of the suit, and to prevent him from using the gin and mill. They also obtained a writ of sequestration. The cases were tried together by consent; and there was judgment dissolving the injunction and setting aside the writ of sequestration, with one thousand dollars damages against the plaintiffs, and for the sums claimed by the plaintiffs against the defendant, subject to a credit of three hundred and fifty dollars, and recognizing the mortgage and privilege claimed by the plaintiffs. From this judgment the plaintiffs have appealed. The defendant has prayed for an amendment of the judgment in his favor, in his answer to the appeal.

The defendant excepted to the ruling of the court receiving the note and mortgage in evidence, on the ground that they were not stamped at the time of their execution, as required by law. It appears that neither the notary, before whom the act of mortgage was passed, nor the parties had any stamps when the act was passed, and mention of this fact is made in the act, but that one of the plaintiffs went immediately to Opelousas, purchased the necessary stamps from the recorder, who placed them on the act, and canceled them in the presence and at the request of the party. This we think was sufficient. The note was made on the seventeenth of July, and the mortgage to secure it was passed on the twenty ninth of the same month. At the time the note was given, no stamps were affixed to it; but before the note was offered in evidence, it had been stamped by S. A. Stoekdale, United States collector of internal revenue, first district of Louisiana, who collected the interest required by law, and he remitted the penalty. This was all the law required of the parties. See Levy & Schener v. Solomon Loeb, just decided.

On the merits, the only question we deem necessary to notice is in reference to the amount of damages allowed against the plaintiffs for wrongfully suing out the injunction and sequestration. It appears that the mill and gin were stopped, during two or three days, by these proceedings; and two witnesses testity that the services of an attorney to defend this suit are worth six hundred dollars. There is no evidence to show the amount of damages done by preventing the defendant from using his mill and gin during two or three days, if any were done him; or to prove the value of the services of an attorney to have the injunction and sequestration set aside — for which alone the plaintiffs can be held responsible. We think one hundred and fifty dollars ample to cover all damages occasioned by the improvident suing out of these writs.

It is therefore ordered, that the judgment of the lower court be amended so as to reduce the amount of the judgment in favor of the defendant for damages to one hundred and fifty dollars, to be credited on the judgment in favor of the plaintiffs — and that, as thus amended, •the judgment be affirmed, with costs of appeal.


text:
    No. 787.
    Addie E. Harris and Husband v. Adeline Keigler and Husband.
    Where in defense against plaintiffs’ claim, an agreement -with said plaintiffs in full satisfaotion of the amount clue them, was relied on l>y defendants on account of tbeir tutorship, and a bill of exception was taken to its introduction in evidence, on the ground that an agreement of this nature could not be established by parol evidence;
    Held — That when all the parties are able to contract, if they did make a contract, there is no reason why it may not be proved by competent proof,
    APPEAL from the Parish Court, parish of St. Mary. Handy, J.

      Hmnartrait, Tucker <& Hmis, for defendants and appellants. Winchester, Oaffery & Foster, for plaintiffs and appellees.
   Ludeling, C. J.

The plaintiffs sue the defendants for an account of their tutorship.

The answer alleges that, long before, an account of the tutorship was rendered, which was approved of by the plaintiffs after having examined it, and kept it in their possession more than ten days; and that afterwards they agreed with defendants to take twenty-five hundred dollars in cash, and the defendants’ note for $7500, in full satisfaction of the amount due them, as shown by the account rendered.

There was judgment in favor of the plaintiffs, disregarding said alleged settlement, and the defendants have appealed.

On the trial the defendants offered witnesses to prove the agreement and settlement stated in tile answer, which was objected to on the ground that an agreement of this nature could not be established by parol evidence j the objection was overruled, and the plaintiffs took a bill of exceptions. We see no error in the ruling. The parties were ■all able to contract, and if they did make a contract, we can perceive no reason why it may not be proved by competent proof. The case of Rawls v. Rawls, 6 An. 666, relied upon by plaintiffs, presented a different state of facts.

This case is analagous to Chapman et al. v. Chapman, 13 An. 228.

On the merits, we think the defendants have fully established their defense.

The position of the plaintiffs, that the verbal agreement, which exceeds five hundred dollars, is not established, because the testimony of one of the two witnesses for the defense is offset or annulled by that of a witness for the plaintiffs, is untenable, even if it were true that the plaintiffs’ witness contradicted the defendants’ witnesses. The law is that the agreement shall be proved by at least one witness and corroborating evidence. Here two witnesses prove the agreement f besides, the note given the plaintiffs is a corroborating circumstance to support the testimony.

It is therefore ordered and adjudged that the judgment of the lower-court be annulled, and proceeding to render such judgment as should have been rendered in the court a qua, it is ordered and adjudged that there be judgment in favor of the plaintiffs, against the defendants, for the sum of seven thousand ñve hundred dollars, with eight per cent, per annum interest thereon from the thirteenth of June,. 1871, till paid, and costs of the lower court. It is further ordered that the costs of appeal be paid by the appellees.


text:
    No. 796.
    State of Louisiana v. Jean Gay Fils, et als.
    Where the defendants were fully informed by the allegations oí the indictments of. the offense with which they were charged, it was unnecessary to allege also the common law ingredients of the crime of rape, with the intent to commit which the accompanying offense of burglary was charged.
    The duty imposed by law with regard to the venire of the jury is ministerial, and one which can be performed by a deputy of one of the specified officers, when legally appointed.
    The challenge to a juror, whose native tongue was the Erench, and who did not understand1 the English language, was properly sustained.
    The proceedings of the court are required to be conducted in the English language — and the-fact that the judge, counsel, witnesses, and accused understand and speak other languages-can not dispense with this requirement. Jurors, to be competent, must be able to understand all the pleadings and proceedings, as they must be considered by them.
    The right of the State to challenge without cause is limited to the number six, whatever may be the number of defendants joined in the indictment.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry, King, J. Criminal case

    G. W. Hudspeth, District Attorney, for the State. H. A. Martel and G. H. Wells for defendants.
   Howell, J.

The defendants, Jean Gay Fils, and Joseph Duplechain,. having been found guilty of breaking and entering a dwelling house in the night time with intent to commit a rape, have appealed from the judgment sentencing them to imprisonment at hard labor in the State-penitentiary for life. They assign as error:

First — The court a qua erred in overruling their demurrer to the-indictment against them, because the said indictment describes the crime of rape by its technical name only ; and the intent to commit rape being of the essence of the crime charged, the indictment is. fatally defective in not containing all the common law requirements or ingredients of that specific crime, as provided in the 976th section, of the Revised Statutes.

The defendants were indicted for a statutory offense against a habitation, denounced in section 850, Revised Statutes, to wit, breaking and entering a dwelling house at night time, and being armed with a dangerous weapon, with the intent to commit a rape upon a certain person, at the time lawfully in said house. The indictment is a compliance with said statute. It charges the felonious and burglarious breaking and entering a dwelling house at a certain hour of the night of a certain day, with the unlawful and felonious intent then and there, to commit the crime of rape in and upon a certain person then lawfully in said dwelling house; the said accused each being armed at the time with a certain dangerous weapon. They were fully informed, by the allegations of the indictment, of the offense with which they were charged, and it was unnecessary to allege also the common law ingredients of the crime of rape, with the intent to commit which the said offense of burglary was charged.

Second — The venire of the jury, from which were selected the jurors™ who tried this cause, was drawn by the parish judge, deputy sheriff, and a deputy clerk of the court, while the 2127th section of the Revised. Statutes requires that it should have been drawn by the parish judge,, the sheriff and the clerk of the court — the duty being one which can not be performed by a deputy.

We consider the duty in this regard to be ministerial and one which can be performed by a deputy of one of the specified officers, when legally appointed.

Third — The court erred in sustaining the challenge to the juror,. Eugene Joubert, for the cause, that he could not speak nor understand the English language, when his native tongue was the French; most of the witnesses testified in French; the judge and one of the counsel, spoke French, and a translator was appointed.

The court did not err. The proceedings of the court are required to* be conducted in the English language, and the fact that the judge,, counsel, witnesses and accused, understand and speak other languages can not dispense with this requirement. The jurors, to be competent,, must be able to understand all the pleadings and proceedings, as they must be considered by them.

Fourth — The court erred in allowing the State more than six peremptory challenges.

This assignment is well made. In the case of the State v. Earle and. Garvey, 24 An. 38,'we held that in each criminal prosecution the right of the State to challenge without cause is limited to the number six, however many defendants may be joined therein. This necessitates a new trial.

It is therefore ordered that the judgment appealed from be reversed,, and that this cause be remanded for a new trial.


text:
    No. 783.
    Succession of Leontine Guilbeau.
    “Wliere the administrator of a succession, •within six days after his appointment, gave bond and entered upon the discharge of the duties of his office, and so continued to the knowledge of the creditors and heirs until the expiration of nearly two years, when, upon the ex pwrtc application of some of the heirs and the husband of the deceased, his appointment was canceled on the ground “that he failed and neglected to give the security or give the mortgage required by law, and that more than ten days had elapsed since his appointment,” and one of the said heirs prayed to be appointed administrator — to which said administrator filed, an opposition and prayed for the annulling of the order canceling his appointment.
    Held — That the exceptions to the introduction of evidence to prove the inability of the administrator at the date of the bond, to furnish sureties in the parish of the succession, and to establish the sufficiency of the sureties on the said bond, could not be sustained.
    'The administrator having already been removed by an ex pa/i'te proceeding, and being, by the pleadings thus forced upon him, put in the position of the attacking instead of the assailed party, and to avoid multiplicity of suits, if for no other reason, the court would be inclined to permit him to do what he might have the right to do in a direct action for his removal based on the ground of the alleged irregularity and insufficiency of his bond.
    Besides, the object of the evidence offered and excepted to was to enable the judge a quo to execute the law authorizing him to pass on the sufficiency of the security of persons residing out of the parish, and to acquire such proof as he might deem necessary.
    Where the administrator had been appointed, had qualified, .furnished a bond, and caused inventories to be made, if there is any informality or insufficiency in such acts or pro* ceedings which would authorise a removal, this could be accomplished only in a direct action by petition and citation.
    The bond as furnished in the first instance, was not a nullity. There was, at least, a prima facie compliance with the requirements of the law, which should have been regularly attacked, if deemed insufficient.
    APPEAL from tlie Parish Court, parish of Lafayette. Moss, J.

      Fd. Fug. Mouton, for appellant.

      Be Blanc & Fournet, for appellee.
   Howell, J.

In March, 1870, Theodore Devalcourt was appointed •administrator of the succession of Leontine Guilbeau, deceased wife of Augustine Guidry, and within six days thereafter he gave bond and •entered upon the discharge of the duties of his office, and so continued to the knowledge of the creditors and heirs, until in February, 1872, when, upon the ex parte application of some of the heirs and the husband, his appointment was canceled on the ground “that he failed •and neglected to furnish the security or give the mortgage required by law, and that more than ten days had elapsed since his appointment,” and one of the said heirs prayed to be appointed administratrix. To this demand, which was published, Devalcourt filed an opposition, •and prayed for the annulling of the order canceling his oppointment, •on the ground that it was rendered without citation, notice or legal process of any sort. In an amended petition he averred his inability to give security in the parish of Lafayette, and prayed that the bond already furnished by him be accepted.

Prom a judgment on these pleadings, sustaining the opposition, setting aside the order annulling the appointment of Devalcourt and •accepting the bond previously furnished by him, this appeal is taken by the party seeking the appointment.

The theory of the appellant is that the bond which was furnished by the appellee in April, 1870, was worthless because the securities thereon did not reside in the parish of Lafayette, where the succession was -opened, and the judge did not authorize the taking of secureties elsewhere, and had not specially accepted the said bond. On the trial of the cause upon the pleadings made, the appellant objected to the introduction of evidence to prove the inability of the appellee, at the date of the bond, to furnish sureties in the parish of the succession, and to ■establish the sufficiency of the sureties on the said bond, upon the grounds, first, that it was too late, and could not be admitted to the prejudice of appellant’s action in the premises, and secondly, that it could not be received at' this stage of the proceedings, and the judge alone had by law the right to pass on the surety.

The objections that were made are not sufficient to exclude the evidence under the circumstances. Irregularities are patent in the proceedings, but the particular proceeding, in which these objections are raised, is not an action for the removal of the appellee, as was in the case of the succession of De Flechier, 1 An. 20, cited by ’the appellant, and therefore no action of her’s in the premises could be prejudiced by the evidence offered. The appellee had already been removed in an ex parte proceeding, and he was, by the pleadings thus forced on him, put in the position of the attacking instead of the assailed party, and to avoid multiplicity of suits, if for no other reason, we would be .inclined to permit Mm to do what he might have'the right to do in a •direct action for his removal; based on the ground of the alleged irregularity and insufficiency of Ms bond. It may be further said that the law (Revised Civil Code 3042) which says the judge alone shall pass •on the sufficiency of the surety tendered of persons residing out of the ■parish, also authorizes him to require such proof as he may deem ■necessary. We conclude, as said above, that the judge did not err in overruling the objections as set up.

Nor do we find such error in the judgment appealed from .as to require its reversal. The order removing the appellee, Devalcourt, was a nullity, having been made without citation, notice or appearance. He had been appointed, had qualified, furnished a bond and caused inventories to be made, and it there was informality or insufficiency in such acts or proceedings, which would authorize a removal, this could ■be accomplished only in a direct action by petition and citation. C. P. .1017, 1018. The record does not enable us to say that the judge improperly accepted the bond, of the sufficiency of which he seems to be satisfied. We do not regard the bond as furnished in the first instance, as a nullity. There was, at least, a prima facie compliance with the .requirements of the law, which should have been regularly attacked, if •deemed insufficient.

Judgment affirmed.


author: Wyly, J.

text:
    No. 770.
    Thomas Winston v. Demosthene Nunez, Administrator.
    A party acquiescing in and voluntarily discharging a judgment before appealing, can not recover the amount paid in satisfaction thereof.
    APPEAL from the Eighth Judicial District Court, parish of Vermilion. Bailey, J.

      Olivier, Dumartrait & Breaux, for plaintiff’ and appellee. William JBJibbe and JR. 3. Berry, for defendant and appellant.
   Wyly, J.

On eighteenth October, 1866, the defendant recovered, judgment against the plaintiff for $2140 dollars and interest, and on the sixth February, 1867, he paid it. On twenty-second June following he took a devolutive appeal, and in September, 1869, he succeeded in getting the judgment which lie had paid reversed by the Supreme-. Court. He now sues for the repetition of the sum paid in satisfaction of said judgment. The court gave judgment for the plaintiff, and the-defendant appeals.

We think the court erred. Here was a voluntary execution of a judgment. It was not till four months thereafter that the devolutiveappeal was taken. That appeal would have been dismissed had the-fact sufficiently appeared to the court that the judgment had been voluntarily executed. The judgment rendered in the absence of this evidence can not benefit the plaintiff. It now appears that he acquiesced' in and voluntarily discharged the judgment before appealing. He-can not recover the amount paid in satisfaction thereof.

It is therefore ordered that the judgment appealed from be annulled,., and it is ordered that there be judgment for the defendant with costs-of both courts.


text:
    No. 779.
    Frellsen & Stevenson v. Elbert Gantt.
    A simple acknowledgment of a debt, when prescription is acquired, is not a renunciation of. the prescription. In this case the evidence does not establish a positive promise to pay.. At most, it was an offer to compromise by the payment of half, which was not accepted-
    APPEAL from the Eighth Judicial District Court, parish of St. Landry.

      Henry L. Garland, Acting Judge. J. JAI. Moore, for plaintiff and appellant. Martel & Hudspeth, for defendant and appellee.
   Howell, J.

The principal question in this case is whether or not-the account sued on is prescribed. It embraces the period from June ly 1861, to December 3, 1861, and is not shown to be an account stated or acknowledged within three years, and this suit was not instituted. within that time; but it is contended on behalf of plaintiffs that in 1866 the defendant acknowledged and promised to pay the account.

A simple acknowledgment of a debt, when prescription is acquired, is not a renunciation of the prescription ; and in this case the evidence •does not establish a positive promise to pay. 21 An. 275. At most, it was an offer to compromise by the payment of half, which was not accepted. There was no express renunciation, oral or written, and no 4'aet shown which gives a presumption of the relinquishment of the right acquired by prescription. K. C. C. 3461.

Judgment affirmed.


text:
    No. 771.
    Alfred Duperier v. Celestine Darby et als.
    "The plaintiff can not recover against an indorser, when it is in evidence that the consideration of the indorsement was a slave.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.

      Olivier & ¡Dumartrait, for plaintiff and appellant. I)e ¡Blame, Four-net & Gary, for defendants and appellees.
   Wyly, J.

This is a suit against the makers and indorsers of a promissory note for $900.

The defense is the slave consideration of the note. The indorsers also contend that they were not duly notified of the dishonor of the note. The court gave judgment for the defendants, and the plaintiff appeals.

In June, 1859, J. V. Dauterive purchased several slaves from Achille Bessan and Emilia Bessan, and in evidence, in part, of the price, indorsed and delivered to his vendors the note in suit, which he held, and which was made by Celestine Darby and A. B. Dauterive. This note was subsequently indorsed and transferred to the plaintiff.

The consideration of this note, executed several days before the sale by parties in no manner connected therewith, is presumably valid. Tt evidenced a subsisting debt due by Celestine Darby and A. B. Dauterive to J. Y. Dauterive.

The consideration of the contract of indorsement by the latter was ■slave; and as against this indorser the plaintiff can not recover.

There is nothing to show that the other contracts of indorsement 'had slave considerations.

In W. H. Letchford & Co. v. Succession of Weil, lately decided, this •court held that, each indorsement being a new contract, the right of the indorsee to recover against his indorser can not be defeated because •the maker received a slave consideration for the note.

There is nothing, therefore, in the slave defense, except as to theindorser, J. V. Dauterive. As to the indorser Bessan, the notice of dishonor was sufficient. The certificate of the notary and his own. evidence establish the fact satisfactorily.

As to the other indorsers, notice of dishonor is not proven, and they are consequently released.

It is therefore ordered that the judgment of the court a qua be-annulled as to the defendants, Celestino Darby, A. B. Dauterive and Achille Bessan; and it is now ordered that the plaintiff recover judgment against each of them for nine hundred dollars, with eight per cent, per annum interest thereon from first of April, 1862, three dollars, and fifty cents cost of protest, and all costs. As to the other defendants, it is ordered that the judgment be affirmed.


text:
    No. 791.
    Caroline Lanoue, Administratrix, v. A. C. Dumartrait, Administrator.
    The only privilege granted by law to the depositor is on the price of the sale of the thing deposited by him.
    The law does not give a general privilege to the depositor, but simply on a particular movable.
    Where the funds deposited have been appropriated by the depositary, and of course can not be identified, and the amount thereof or therefor is not duo to the depositary by another, there is nothing subjected to the privilege.
    There is no law known to the court that allows the general privilege claimed by the plaintiff,' as depositor, on the property of the depositary’s succession. Said succession, being insolvent, other creditors would be affected, and it seems that, to avail, plaintiff’s claim, if it exist, registry is necessary, but has not been made.
    from the Third Judicial District Court, parish of St. Mary.

      Train, J.

      F. Gates, for plaintiff and appellant. JDeJBlane &■ Ferry, for defendant and appellee.
   Howell, J.

Counsel agree that only two questions are presented in this case, to wit:

First — Is the plaintiff, a depositor, entitled to a privilege against the-depositary of funds deposited with and used by him 1 Second — Can the depositary plead, in compensation,, debts due by, or paid on account of the depositor, for any other purpose than the-preservation of the thing deposited ?

The defendant, not having appealed, the latter question, practically decided against him, can not be examined.

As to the first, the only privilege granted by law to the depositor, is a privilege “ on the price of the sale of the thing;by him; deposited.”' E.- C. C. 3217, No; 5, 3223 and 2962. In this case there is nothing on. which the privilege can operate. The law does not give a general privilege to the depositor, but simply on a particular movable.’.’' There is no price of the sale of the thing due. The funds have been appropriated by the depositor, and, of course, can not be identified and the amount thereof - or therefor, not being due to the depositor by another, there is nothing subjected to the privilege. The plaintiff is-claiming a general privilege upon the property of the depositor’s succession, and we are aware of no law which accords such a privilege,, and the succession being admitted to be insolvent, other creditors would be affected, and it seems that to avail the plaintiff, if it exist,, registry is necessary, but has not-been made.

Judgment affirmed.


text:
    No. 788.
    Heirs of Onezime Isaac Thibodeaux v. Felix Voorhies, Testamentary Executor, et als.
    Where the character of the suit, as ascertained from the prayer of the petition, is not an* action of revindication, but is simply a suit to annul a will, because the formalities prescribed by law were not observed in making it, the parish court, which admitted the will to probate, has jurisdiction of the case.
    Where the formalities required by Art. 1578, Revised Code, were not complied with, a will is not good as a nuncupative testament by public act, nor can it be held good as a nuncupative will by private act, when the proof adduced fails to show that the formalities-required for it have been observed.
    APPEAL APPEAL from the Parish Court, parish of St. Martin. Z. T. Fournet,. Special Judge, in the place of the parish judge, recusing himself.

      Gabriel A. Fournet, FeFlcmc <& Ferry, for plaintiffs and appellees.

      Felix Voorhies and Fdward Simon, for defendants and appellants.
   Wyly, J.

This is a suit by the heirs at law of O. J. Thibodeaux to-annul his nuncupative will by public act:

First — Because the said nuncupative testament does not state that it was received by the notary in the presence of three witnesses residing in the place where the will was executed, or by five witnesses not residing in the place;

Second — Because it does not state that it was dictated by the testator to the notary and written by him as dictated;

Third — Because the said testament does not state that it was read to the testator in the presence of the witnesses.

The defendants pleaded the general issue, and averred that the will is clothed with the formalities required by law and is valid to all. intents and purposes.

They subsequently excepted, on the ground that the suit is an action !of revendication, and, as the amount- involved exceeds $500, the parish court is without jurisdiction.

The character of the suit, as ascertained from the prayer of the petition, is not an action of revindication; it is simply a suit to annul the will because the formalities prescribed by law were not observed in making it.

The parish court, which admitted the will to probate, has jurisdiction of the case.

The will recites that, at the request of the testator, the notary, with .the three witnesses mentioned therein, repaired to his residence, and he (the testator) “requested me to write his testament, which I did at his dictation, as follows:” — Here the dispositions are written, and the act concludes as follows:

“And the said Onezime I. Thibodeaux having declared that he had nothing else to add to the testament, it was closed, and immediately thereafter I read, in a loud and intelligible voice, the will, and he declared that he well understood it; and he persisted in declaring that it contained his last will. This act done and signed at the residence of Onezime Isaac Thibodeaux, in presence of Messrs. Auguste G-uilbeau, Elisee G-uilbeau and Charles Porter, competent witnesses ■for the purpose, who have signed the same with testator, and me, the notary, all after being read, and without interruption or turning aside to other acts.”

It is very obvious that the formalities required by article 1578, ■Revised Code, were not complied with. There is no express mention that the witnesses were present at the dictation, nor at the reading to the testator. Devall v. Palms, 20 An. 202; Succession of Clement Wilkins, 21 An. 115, and authorities there cited.

But the defendants contend that, if the will is not good as a nuncupative testament by public act, it is good as a nuncupative will by private act.

The proof adduced, however, fails to show that the will was read to the witnesses in the presence of the testator. Revised Code 1582. There are also only three attesting witnesses, and the evidence fails •to satisfy us that a greater number could not be had. Revised Code 1583.

It is unnecessary to consider the exceptions taken by the defendants to the ruling of the court in refusing to allow their amended answer ■to be filed, because the evidence it was intended to lay the foundation for, was admitted by the court.

It is therefore ordered, that the judgment of the court a qua annulling the will be affirmed, with costs of both courts.


text:
    No. 793.
    Augustin Guillory v. William Dejean, Administrator.
    'Whore the defense to a promissory note was the prescription of five years, and several credits being indorsed on the note, oral evidence was offered to prove that payments were made by the deceased at the dates indicated by the indorsements, the exception to the evidence was well taken.
    ‘The plea should have been maintained.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. B. T. Lewis, acting judge.

      H. L. Garland, for plaintiff •and appellee. Bailey & Bstelette, for defendant and appellant.
   Ludeling, C. J.

This is a suit on a promissory note. The defense is the prescription of five years. The note was due fifteenth of December, 1858, and citation was served on the twenty-sixth March, 1867. There are several credits indorsed on the note, and oral evidence was offered to prove that payments were made by the deceased at the dates indicated by the indorsements. To the reception of this •evidence a bill of exceptions was taken. The judge a quo erred. See It. C. C. article 2278.

The plea should have been maintained.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the defend.ant rejecting the plaintiff’s demand, with costs of appeal.


text:
    No. 794.
    Dominique Lalanne v. D. L. Goodbee et al. A. H. Chalmers, Intervenor.
    'Tlie fact that tbe ltm.it to whicli supplies might have been required according to contract, was not reached, does not amount to a violation of, or a refusal to comply with the con* tract, where there is no evidence that the plaintiff was called on and refused to furnish-more than is claimed by Mm in bis suit.
    Laborers have their privilege independent of and distinct from that of the furnisher of supplies, and each privilege attaches as against the owner of the crop produced.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. King, 3.

      John J. Morgan, for plaintiff and appellant.

      Beivis & Brother, for defendants and intervenor, appellees.
   Howell, J.

This is a sequestration suit on an account for supplies ■furnished to the defendants to make a crop under a written contract, and for a privilege on the said crop and certain movables. The defense admits the contract, but alleges its violation on the part of plaintiff in not furnishing the whole amount agreed on; denies that there was any cause for the issuance of the writ of sequestration, and •sets up a claim for damages in reconvention for an illegal seizure. AH. Chalmers, intervenes, claiming to be the owner of a part of the ; sugar cane sequestered and damages for its seizure and loss. Judgment was rendered dismissing plaintiff’s suit as of non-suit, a.nd condemning him to pay damages respectively to the defendants and intervenor, from which plaintiff has appealed.

The correctness of the account sued on, and a valid ground for the writ of sequestration, are, in our opinion, satisfactorily established-The fact that the limit, to which supplies might have been required,, was not reached, does not amount to a violation of, or refusal to-comply with the contract. Plaintiff bound himself to furnish supplies to a certain amount to enable defendants to make a crop of cotton,, corn and cane, and he appears to have furnished all that were demanded. There is no evidence that he was called on and refused more than is claimed in this suit, and we think the circumstances sworn to. by plaintiff and proven on the trial warranted him in bringing suit at the time and causing the writ of sequestration to issue in order to>. secure his privilege. The judgment therefore in favor of the defendants, was erroneous.

The only difficulty in the case is presented by the intervention ;. but a careful examination of the pleadings and evidence leads us to-the conclusion that the intervenor is the owner of that portion of the sugar cane which was in a windrow at the time of the seizure. He swears positively, and he is corroborated by a disinterested witness,, that the said cane was raised on his land, not rented to the defendants, who were for their labor in its cultivation to receive one-half in kind, but that before the seizure they had commuted the compensation, and the intervenor had allowed them, the defendants, one hundred and fifty dollars, for which he gave them credit on their rent. This cane-being on his land, distinct from that portion rented to the defendants, must be considered in his possession and not liable to seizure for the debt of the defendants due to plaintiff for supplies. We understand-the contract between plaintiff and defendants, in connection with the evidence, to relate to the crops raised by the latter in their own right’ and for themselves, and not to that which they cultivated as laborers for the intervenors. The privilege is granted against the owner of the crop, and not those who are employed to cultivate it. The laborers have their privilege independent of, and distinct from that of the furnisher of supplies, and each privilege attaches as against the owner of the crop produced. The portion of cane under consideration is shown-to have belonged to the intervenor at the time of the seizure and before, and of course the privilege operating against the defendants-did not attach to it. The amount, however, allowed to the intervenor, as the value of the cane, which is shown to have been totally lost to-him in consequence of this seizure, is excessive. He had about five . acres, and it appears that these five acres would have planted about twenty acres, and that lie was offered fifteen dollars per acre for every acre which his cane would plant. This makes the cane worth at most, three hundred dollars, and in our opinion, a fee of fifty dollars is ample for legal services in recovering his fights in this action.

The defendants are liable jointly, that is, Duncan L. Goodbee for one-half, and the widow and heirs ot David Goodbee, jointly, for the other halt.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that the plaintiff have judgment against the defendants for eleven hundred dollars and seventeen cents — against said Dnucan L. Goodbee for his half thereof; against Mrs. Justin Goodbee, widow ot David Goodbee, deceased, for one-fourth thereof, and against the minor iieirs of said David Goodbee, deceased, for the remaining fourth thereof, with privilege on aud the right to sell the property sequestered herein, except that portion of the sugar cane in windrow at the time of seizure, and claimed by the intervenor, and with costs of suit and sequestration in the lower court. And it is further ordered that the intervention of A. H. Chalmers be sustained, and that lie recover oi plaintiff the sum of three hundred and fifty dollars and costs of intervention in the lower court, costs of appeal to be paid by appellees.


text:
    No. 768.
    Isaac D. Seyburn v. Eugenie Deyris, Widow of Henry Penn, Sr., et als.
    Abbreviated Statement op Facts. ^
    On the eighth of April, 1854, Henry Penn, Sr., in a public act, acknowledged his indebted.^ ness to Philibert Hebert, natural tutor of his children, in a certain sum payable ill three installments, one-third thereof at the majority of each of the children, and the interest payable annually. In order to secure the said debt, in the same act, he mortgaged the property described in plaintiffs petition.
    On the fourteenth of February, 1859, the said Penn, Sr., died, and after a short administration the property was distributed among the surviving widow, Eugenie Deyris, and the heirs; the part encumbered with the said mortgage, being community property, was adjudicated to said widow, natural tutrix of the minors, Henry Penn, Jr., and Clara Penn.
    The plaintiff in this case, on the fourteenth of January, 1867, became the holder and owner of the mortgage obligation of Henry Penn, Sr., in favor of Philibert Hebert, tutor, by a private act of the latter to him, and also of a note subscribed by Widow Eugenie Deyris, dated the seventh of April, 1862, which note states as its consideration the interest accrued during the years 1860,1861 and 1862, on the mortgage obligation transferred to plaintiff; and subsequently, on the twenty-eighth of February, 1868, Eugenie Deyris waived prescription on this note.
    Previously, on the first of January, 1868, Widow Eugenie Deyris and one of the heirs, Clara Penn, had executed together another interest note for another year on the mortgage claim held by plaintiff.
    Plaintiff now sues Widow Eugenie Deyris, and the heirs. Henry Penn, Jr., and Clara Penn, for the amount of the mortgage claim and notes given for the interest as aforesaid, and also to enforce the mortgage.

      Points.
    Where a debt was acknowledged in an act of mortgage and not represented by notes, tbe prescription of ten years is applicable.
    The prescription of ten years was interrupted as to Widow Eugenie Deyris, by tbe note which she gave on tho seventh of April, 1862, for the interest accrued during the years 1860, 1861 and 1862, and inasmuch as subsequently, on the twenty-eighth of Eebruary 1868, she waived prescription on this note.
    The note signed on the first of January, 1868, by Eugenio Deyris, widow of Henry Penn, Sr., and by one of the heirs, Olara Penn, representing the interest for another year on the mortgage claim, did not amount to a renunciation of prescription by Clara Penn, as to her share of the past installment of the mortgage debt. That note contains no renunciation by her of tho prescription already accrued.
    There is no force in the objection that the mortgage perompted for want of reinscrijytion within ten years. Heithor inscription, nor reinscriplion, is necessary, so far as tho parties to the mortgage or their hoirs are concerned.
    The property mortgaged was community, and no distribution thereof among the heirs and surviving widow (whose rights are only residuary) can defeat the mortgage given by the deceased to secure a community debt.
    There is no difficulty in the objection that the plaintiff can iiot enforce this claim, because of the informalities of the transfer thereof by the natural tutor. This is a question that concerns the minors. The formalities for the alienation of their property being alone tor their benefit, they alone can urge the omission thereof.
    But, at the time of the transfer in this case, the heirs were of age, and they received tho money paid by tho transferree.
    It is no ground to reverse a judgment, if correct, because the Judge a quo gave wrong reasons, or because the decree does not conform to tho reasons given by him.
    Ah to the question whether interest should be allowed on tho notes given for the interest on the mortgage claim, it is determined in the affirmative.
    By these notes the interest forming the consideration was capitalized. It was a valid consideration for the debt, evidenced by these notes, and there can be no reason why they should not bear interest.
    It is unnecessary to inquire whether the riofce subscribed in January, 1868, by Eugenie Deyris and her daughter, Olara Penn, was a joint or solidary obligation, because the court gave judgment on it against them jointly, and this judgment can not be increased by holding it to bo a solidary obligation, for tbe reason that the plaintiff and appellee has tiot x>rayed for the amendment of tho judgment.
    APPEAL from the Third. Judicial District Court, parish of St. Mary. Train, J.

      Tuelcer & Davis, for plaintiff and appellee. A. O. DumarVrail, Deblane & Derry, for defendants and appellants.
   Wyly, J.

On the eighth of April, 1854, Henry Penn, Sr., in a public act, acknowledged his indebtedness to Philibert Hebert, natural tutor of his minor children, Jean Louis, St. Cyr, and Dumas Hebert in the sum- of $1944 80, payable in three installments, one-third thereof at the majority of each of the children, and the interest payable annually at eight per cent.

• In order to secure the said debt, in the same act, he mortgaged the property described in the petition, being a sugar plantation. On the fourteenth of February, 1859, the said Henry Penn died, and after a short administration, the property was. distributed among the surviving widow and the heirs; the part encumbered with the said mortgage,' being community property, was adjudicated to the widow.

On the seventh of April, 1862, she gave her note for $336 73 for the interest accrued on the mortgage debt during the years 1860, 1861 and 1862$ and subsequently, to wit: the twenty-eighth of February, 1868, she waived prescription on this note.

On the first of January, 1868, she and one of the heirs, Clara Penn, executed their note for $179 19, the interest for another year on the mortgage claim.

On the fourteenth of January, 1867, the plaintiff became the holder of the said mortgage claim, and also of the note given for interest thereon by the surviving widow on the seventh of April, 1862.

He now sues the widow Eugenie Deyris, and the heirs, Henry Penn, Jr., and Clara Penn, wife of Frank H. Bodgers, for the amount of the mortgage claim, and also for the amount of the notes given for the interest as aforesaid, and also to enforce the mortgage.

The court gave judgment against Eugenie Deyris, widow of Henry Penn, Sr. on the original mortgage claim, for $1109, with eight per cent, per annum interst thereon, from fifteenth of March, 1864, lor the further sum of $336 73, with eight per cent, interest thereon from fifteenth of March, 1862, the amount of her note of seventh of April, 1862, also for the further sum of $89 59 with legal interest, from twenty seventh of April, 1809, half of the amount of the note executed by her and Clara Penn, on first of January, 1868. The court also gave judgment against Clara Penn (wife of F. H. Bodgers) for $417 78, with eightper cent.per annuminterestthereon, fromfifteenth of March, 1864, as her share of the mortgage claim due by her ancestor, and also for the further sum of $89 59, with legal interest thereon, from twenty-seventh of April, 1867, one-half of the amount of the note signed by her and her mother on first January, 1868, for one year’s interest on the mortgage debt. The court also gave judgment against Henry Penn, Jr., for $278 55, the amount found to be due as his share of his ancestor’s mortgage debt, one of the installments thereof being held to be prescribed as to this heir. The mortgage was rendered executory, as prayed for, and the property was ordered to be sold to satisfy the judgment against the widow and heirs.

From this judgment the defendants have appealed.

They contend—

First — That the mortgage claim is prescribed.

Second — That the mortgage has perempted for want of remscription within ten years.

Third — That the plaintiff is not entitled to enforce the claim against them, because Philibert Hebert, natural tutor, had no authority and could not make a valid transfer of a negotiable asset belonging to his wards;

Fourth — That the judgment signed by the court does not conform to the reasons given for the judgment.

Fifth — A new trial should have been granted on the showing made.

As the debt was acknowledged in the act of mortgage and not represented by notes, the prescription of ten years is applicable.

The installments fell due respectively, twenty-fifth November, 1856, twenty-.first September, 1859, and in the year 1864, the periods at which the three minors, represented by the natural tutor, arrived at the age of majority.

The citations were served on twenty-seventh April, 1869. There is no question as to the prescription of the last two installments, because the ten years had not elapsed from their maturity when the suit was brought. It is only as to the first installment. As to the widow, the court did not err in holding that the notes which she gave for interest on the mortgage debt, on seventh April 1862, and on first January, 1868, interrupted prescription.

The court also correctly held that the first installment (one-third of the debt) was prescribed so tar as relates to the share thereof due by Henry Penn, Jr., because, as to him, there was no interruption of prescription, and more than ten years had elapsed from the maturity of the first installment to the institution of the suit.

As to Clara Penn (wife,of P. H. Rodgers), we think the court erred in holding that the signing of the note for $179 19 on first January, 1868, for interest for one year on the mortgage debt, amounted to a renunciation of prescription as to her share of the past installment of the mortgage debt.

The note for interest signed on first January, 1818, contains no renunciation of the prescription already accrued. 23 An. 621 j Revised Statutes of Louisiana, section 2821.

There is no force in the objection that the mortgage perempted for want of reinscription within ten years. Neither inscription nor reinscription is necessary, so far as the parties to the mortgage or their heirs are concerned. (The property mortgaged was community property, and no distribution thereof among the heirs and surviving widow, whose rights are only residuary, can defeat the mortgage given by the deceased to secure a community debt.)

Neither do we find any difficulty in the objection that the plaintiff can not enforce the claim because of the informalities of the transfer thereof by the natural tutor. This is a question that concerns the minors. The formalities for the alienation of their property being alone for their benefit, they alone can urge the omission thereof,- they can ratify the transfer, expressly or impliedly, after majority. At the time of the transfer the heirs were of age, and they received the money paid by the transferree.

It is no ground to reverse a judgment, if correct, becauge the Judge gave wrong reasons, or because the decree does not conform to the reasons given by him.

The showing made for a new trial was not sufficient. Jean Louis Hebert was not the payee of the mortgage claim, nor was he the 'holder. Besides, his receipt was not adduced, and it is not shown who made the alleged payment to him, Henry Penn, Sr., being then dead. If the defendants made the alleged payment, they should have sworn ■to the fact, which they did not.

As to the question whether interest should be allowed on the notes given for the interest on the mortgage claim, we will remark that, in •our opinion, it can. By these notes the interest forming the consideration was capitalized; it was a valid consideration for the debt, evidenced by these notes, and we see no reason why they should not bear interest. R. S. 1870, sec. 1889.

Whether the note subscribed in January, 1888, by Eugenie Deyris and her daughter, Clara Penn (wife of P. H. Rodgers), was a joint or ■solidary obligation, it is unnecessary to inquire, because the court gave judgment on it against them jointly, and this judgment can not be increased by holding it to be a solidary obligation, for the reason that the plaintiff and appellee has not prayed lor the amendment of the judgment.

It is therefore ordered that the judgment against Eugenie Deyris be affirmed, with costs; also that the judgment against Henry Penn, Jr., be affirmed, with costs; and that the judgment against Clara Penn .(wife of P. H Rodgers), be amended by reducing the sum of four hundred and seventeen dollars and seventy-eight cents, found to be her share of the mortgage claim, to two hundred and seventy-eight dollars ■and filty-five ceuts, and as thus amended let it be affirmed; andas ■■to her, let the appellee pay costs of appeal.


text:
    No. 765.
    State ex rel. R. J. Hunter, District Attorney pro tem., v. O. K. Hawley, Public Administrator.
    /No proceeding can be bad, under tbe intrusion act, to remove tbe defendant from tbe office of public administrator, on the ground that said office has ceased to exist by virtue of the •repeal of the law creating it. The case presented by the relator does not fall within the provisions of the Statute.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. J. Hunter, District Attorney pro tern., for the State, tappellant. B. J. Bowman, for defendant and appellee.
   Wyly, J.

This is a proceeding under the intrusion act, to remove •-the defendant from the office of public administrator on the ground >that said office has ceased to exist by virtue of the repeal of the law «creating it. It is admitted that the defendant was regularly appointed tío the office, and that his appointment was confirmed by the Senate; and it is not pretended that any one else is entitled to the office. The sole-ground for the proceeding is the office has ceased to exist. How any one can intrude into an office that does not exist it is difficult to imagine.

Although the defendant has not made the point, we feel bound to • notice that the intrusion act furnishes no remedy for a case like this. A proceeding may be instituted under this act only in the following cases, viz:

First — “When any person shall usurp, intrude into or unlawfully hold or exercise any public office or franchise within this State; or,.

Second — When any public officer shall have done, or suffered to be done, an act which by the provisions of law shall work a forfeiture of his office; or,

Third — When any association or number of persons shall act within, this State as a corporation without being duly incorporated.”

The case presented by the relator does not fall within the provisions of the statute, and it should be dismissed. The judgment in favor of the defendant must be amended.

It is therefore ordered that the judgment for the defendant be amended to read as follows, viz: let there be judgmentfor the defendant, dismissing the suit with costs of both courts.


text:
    No. 781.
    Joseph T. Labit, Administrator, v. Pierre Francioni.
    Where the plaintiff, alleging that the succession represented by him was the joint owner with the defendant of a steamboat, sued to have the right‘of the succession recognized and ior its share in the net earnings of the boat while in the possession of the defendant, and said defendant excepting that, if the plaintiff had any rights, which is denied, the present suit was not the form in which they can be assorted, contended that said plaintiff must sue for a general settlement, the exception must be overruled.
    The mere fact of being joint owners of a steamboat did not constitute plaintiff and defendant partners, when-there is in the record no evidence of partnership.
    Plaintiff is entitled to claim his right to the boat, if he be a joint owner, and if he has ashed for a share of the earnings of the boat, instead of the price of tho use of his property, it does not follow that he will get it, or that he is therefore a partner.
    APPEAL from the Third Judicial District Court, parish of St. Mary.. Train, J.

      F. F. King and J. A. Breaux, for plaintiff and appellant..

      JDumartrait, JDe Blanc & Berry, ior defendant and appellee.
   Ludeling, C. J.

The plaintiff, alleging that the succession, represented by him, is the joint owner, with defendant, of a steamboat, sues to have the right of the succession recognized, and for the net earnings-of the boat while in the possession of the defendant.

The defendant excepted, that, if the plaintiff has any rights, which-is denied, the present suit is not the form in which they can be asserted; that he must sue ior a general settlement of the partnership. The exception was maintained, the suit was dismissed and the-plaintiffhas appealed.

There is nothing in this record to show that any partnership ever existed between the deceased and the defendant. The mere fact of being joint owners of the steamboat did not constitute them partners.. The plaintiff alleges that the boat belonged to the deceased and the defendant, that the defendant unlawfully changed the name of the boat, and made other changes in her, and has used her for his own benefit, and that he refuses to account for said use of the boat. Plaintiff alleges that the boat has earned $250 net per month, and he prays for judgment accordingly He does not allege a partnership, nor does the defendant admit one. He certainly has a right to claim his right to the boat if he be an owner, and if he has asked for a share of the-earnings of the boat, instead of the price of the use of his property, it does not follow that he will get it, or that he is therefore a partner.. It is difficult to conceive what general settlement can be had (judging from the allegations of the petition) other than an account for the use of the property. We are of opinion that the exception should have been overruled.

It is therefore ordered that the judgment appealed from be annulled, that the exception be overruled, and that the case be remanded to be proceeded with according to law. It is further ordered that appellee pay costs of appeal.


author: Wyly, J. Ludeling, C. J.

text:
    No. 798.
    Succession of Thomas S. Hardy and Wife.
    The act oí' 1853 fixing the prescription ol' judgments at ten years from their rendition, also provides the only means by which it can be averted, and said prescription, therefore, can only be averted by complying with these requirements.
    An acknowledgment and promise to pay by an administrator, is not an acknowledgment and promise by the debtor himself or by his specially authorized agent, even if the draft given by the administrator for the payment of the judgment, with the right of subrogation to the drawee, can be regarded as an acknowledgment and promise to pay the judgment. It is not considered that the draft amounts to such a promise.
    APPEAL from the Parish Court of the parish of St. Landry. Morrogh, judge ad hoe.

      Thomas H. Lewis, administrator. Martel & Hudspeth, Dupre & Garland, Moore & Garland, for opponents to the tableau of distribution.
   Wyly, J.

The appellants, Francois Kobiu and Napoleon Kobin,. opposed the tableau filed by the administrator, because they are not placed thereon as special mortgage creditors for $731 86. The court held that their claim, evidenced by a judgment, is prescribed, more than ten years having elapsed and no revival thereof had, pursuant to the act of 1853.

It is conceded that the judgment was not revived in ten years, as required by the statute; but the appellants contend that the current of prescription has been interrupted, because, before it had accrued, execution twice issued, and also the former administratrix impliedly acknowledged the judgment by giving her draft in settlement thereof, which was not paid. “ The act of 1853, fixing the prescription ot judgments at ten years from their rendition, also provides the only means by which it can be averted.” Byrne, Vance & Co. v. Garratt, executor. 23 An. 587. See also Bertrand Drogre v. Charles Moreau and wife, 23 An. 173; Arrowsmith v. Durell, 21 An. 295; Walker v. Hays, 23 An. 176.

That the prescription of a judgment can only be averted by complying with the requirements of the act of 1853, we regard no longer an open question.

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

Ok the Motion eor a Rehearing.

Ludeling, C. J.

The appellant relies upon section 2818 of the Revised Statutes of 1870 to sustain his position ; that the course of prescription had been interrupted by the giving of a draft by an administratrix of a succession to pay a judgment against the deceased. The section is in the following words: “Thereafter parol evidence •shall not be received to prove any acknowledgment and promise to pay any judgment, sentence, or decree of any court of competent jurisdiction, either in or out of this State, for the purpose or in order 'to take such judgment, sentence or decree out of prescription, or to 'recover the same after prescription has run or been completed; but in •all such cases the acknowledgment and promise to pay shall be proven ■by written evidence signed by the debtor himself, or his specially ■authorized agent.” The written acknowledgment and promise to pay spoken of in this section is to be made by the debtor himself, or his specially authorized agent.

It is manifest that an acknowledgment and promise to pay by an administrator is not an acknowledgment and promise by the debtor him■self, or by his specially authorized agent, even if the draft given by the .administratrix for the payment of the judgment, with the right of subrogation to the drawee, can be regarded as an “ acknowledgment • and promise to pay the judgment.” But we do not consider the ■ draft amounts to a promise to pay the judgment.

We do not, therefore, deem it necessary to decide, in this case, -whether or not the section 2818 of the Revised Statutes of 1870 is repealed by the article 3547 of the Revised Civil Code.

The rehearing is refused.