text:
    No. 688.
    George Gliddon et al. v. Daniel Goos.
    Parol evidence is inadmissible to prove a service of citation or copy of petition.
    from the Eighth Judicial District Court, parish of Calcasieu. JBailcij, J.

      Xouis Zcvegiie for plaintiff and appellee, George IT. UTeWs for defendant and appellant.
   Taliaferro, J.

This is a suit to revive a judgment.

The defendant, by bis counsel, filed a peremptory exception, alleging that plaintiffs have no cause of action because the plaintiffs do not aver that they are the owners of the judgment sought to ho revived, nor that defendant is indebted to them. He further excepts that no authority is shown in John S. Walton, who, in the petition, nurports to act as the agent of the other plaintiffs.

The exception we think was correctly overruled.

The petition, in respect to the parties named as plaintiffs, is to some extent indistinct, but it is sufficiently clear who are the parties suing and the purpose for which they sue. The petition is that of Gliddon, Palmer, McLean and Elizabeth Clark, of the parish of Orleans, and oí Walton, of the city of New Orleans agent and attorney in fact ” oí (he four persons named. These parties, as plaintiffs, aver that ;i on the twenty-seventh of March, 1858, the said plaintiffs herein, Glid-don, Palmer, McLean and Elizabeth Clark, in this court obtained a final judgment against tbo defendant for $1250,” etc.; that they are desirous of having the said judgment revived in the manner and form prescribed by law,” wherefore, the premises considered, your petitioners pray,” etc. Here we think is an allegation of a sufficient right to ask for the revival of the judgment. The addition of the name of Walton, the attorney in fact, as a party plaintiff, to those of his principals may be regarded as surplusage. The four parties named were the original plaintiffs in the suit of March 27,1858, in which they obtained the judgment which they now seek to revive. The samo plaintiffs now pray for a revival of the judgment. Appearing themselves for that purpose, the name of the attorney in fact in the petition, with theirs is nugatory. He sets up no-right or interest in the judgment. -The matter is entirely between the defendant and the same parties who obtained the original judgment against him. JJlile per •inutile vitiaiur.

On the trial of the exception the defendant’s counsel objected to the introduction of witnesses to prove that at the time copies of the petition and citation were served on the defendant there was also served upon him a copy of the petition in the suit of March 27, 1858. lie further objected to the proof by parol, of the service of such copy, as its service, if made, could only be shown by the return, in writing, of the officer who served it. The objections were overruled, the testimony admitted and the defendant reserved his bill of exceptions. The exception should have been sustained. The evidence, however, is immaterial to the issue.

The plaintiffs on the trial of the exception introduced the original petition, the one in the suit of March 27, 1858, to show identity of parties. There was no necessity to show that a copy of it had been served upon the defendant. On the merits the case is with the plaintiffs. Their case is fully made out and judgment was rendered in their favor. The bill of exceptions taken on the trial on the merits contains matter in substance the same as that embraced by the previous exceptions and was properly overruled.

It is therefore ordered, adjudged and. decreed that the judgment of the District Court be affirmed with costs in botii courts.


source: Caselaw Access Project

author: IIowel, J.

license: Public Domain

text:
    No. 612.
    E. Ewing, Administrator, v. G. W. Root et al.
    Damages will "be allowed tlie appellee when prayed for, if the record shows no legal ground for taking the appeal.
    from the District Court, parish of Vermilion. Bailey, J.

      JR. F. Bailón for plaintiff and appellee, M. F. Gerard and JR. 8. Berry for defendant and appellant.
   IIowel, J.

The defendant, Elias Lindstrum, has appealed from a judgment on default against him, rendered upon three promissory notes, amounting to $1500 exclusive of interest.

In his brief he urges that he has a good defense, but no sufficient reason is shown why a defense could not have been made in the Court below. The proceedings are all regular, and more than the usual legal delays occurred before judgment by default was made final, which is fully sustained by the evidence.

The appellee has prayed for damages, which, under the circumstances presented in the record, must be allowed.

It is therefore ordered that the judgment appealed from be affirmed, with one hundred dollars damages and costs of suit in both courts.


author: Howe, J.

text:
    No. 731.
    George W. Hudspeth, District Attorney, etc., v. Adolph Garrigues.
    A party having held an office before the war, which required him to take an oath to support tho Constitution of the United States, and after the passage of the secession ordinance by the State having accepted and filled tbe office of clerk of one of the District Courts of the State, is not disqualified from, holding office by the act of Congress of 1808, admitting Louisiana to representation in Congress, nor by the fourteenth amendment to the Constitution of the United States.
    The holding of the office of clerk of the District Court, while under the authority of tho State while in rebellion, was not of itself an act of rebellion.
    from tire District Court, parish of St. Landry. Porier, J.

      George W. Hudspeth, District Attorney, for plaintiffs and appellees, Bailey & Esiiletie, Henry L. Garland, J. H. Overton, Moore & Morgan and George B. King for defendant and appellant.
   Howe, J.

This action was instituted in behalf of the State, under

the provisions of the act of October 15, 18G8, and a judgment was asked decreeing the defendant to be a usurper of, and intruder into, tho office of Parish Judge of St. Landry, and ordering him to deliver tiie office, with its appurtenances, to Joim Arnrcin, who was made a party plaintiff.

The petition alleges that the defendant unlawfully holds the office, being prohibited therefrom by the provisions of the fourteenth amendment of the Constitution of the United States; and by the provisions of an act of Congress of J une 25, 18G8, admitting the State of Louisiana to representation in Congress ; it being averred that he took an oath as a judicial officer [of the State] to support the Constitution of tho United States, and subsequently engaged in insurrection and rebellion against the same and gave aid and comfort to tho enemies thereof. It was also alleged that he had forfeited his office and the same had become vacant by his failure to file in the office of the Secretary of State the oath of eligibility prescribed by act No. 39 of the statutes of 1868.

The defendant answered by a general denial; asserted that he was qualified to hold the office and had been duly elected and commissioned, and denied that Amrein had ever been legally appointed or qualified.

After a trial upon tiie merits, the Court gave judgment for plaintiff, and the defendant has appealed.

The evidence in the case is chiefly documentary, and it appears that tiie defendant hold tho office of Parish Judge before the late rebellion, and, as such, took an oath to support the Constitution of the United States; that on the seventh November, 18GJ, he was appointed clerk of the District Court for tho parish of St. Landry to fill a vacancy, and that he held the office for some years thereafter. The first question that arises in the caso, then, is, in the language of the plaintiffs’ briefs

“■ Was holding the office of clerk of the District Court ill the parish of St. Landry, during the rebellion, and under the authority and jurisdiction of a State acknowledged as one of the Confederate States of America, after having held the office of Parish Judge ‘ engaging in insurrection or rebellion against the United States, or giving aid and comfort to the enemies thereof?’ ”

In solving so doubtful and delicate a‘question as this, we must not be unmindful of the complicated nature of modern civilization. The State is not a tribe of barbarians, who may be engaged in a rude agriculture to-day and transformed in toto to a band of warriors to-morrow. The necessities of civil life will still exist in a civilized society no matter how extensive and desolating may be the ravages of war. Property must be bought and sold, offenders against the criminal laws must be arrested and punished, private rights must often be adjudicated, successions must be opened, the claims of heirs, minors and married women must be ascertained and protected; and therefore, it might well be that in the parish of St. Landry, during the late rebellion, the office of a clerk of court might exist as a necessity without the discharge of its duties being considered in any enlightened view an engaging in insurrection or rebellion, or giving aid and comfort to tho enemies of the United States. If, in 1861, every citizen of this parish, except those who were absent in the rebel army, had been a devoted friend of the United States, would it have been their duty to refrain from holding these minor local offices, and by leaving them vacant allow society to relapse into a chaotic condition ? We think not. On the contrary, we apprehend that there could be nothing in the discharge of the legal duties of such offices that could be considered as taking part for or agaiust, or giving aid or comfort to, either one side or the other in the great controversy. And in the special case before us wo are constrained to think that jf the defendant confined himself to his legitimate duties as clerk (and there is no evidence that lie did not), the fact that he held the office simply would not go to disqualify him under the act of Congress of June 25, 1868, admitting Louisiana to representation, and the fourteenth amendment to the Constitution of the United States.

If, in legislative, or other official capacity, he had been engaged in the furtherance of the unlawful purposes of the insurgents, when the duties of his office necessarily had relation to the support of the rebellion ; if he had held a position created for the purpose of more effectually carrying on hostilities, or whose duties appertained to the support of the rebel cause; or if he had in some way misused the office ho did hold to forward the designs of the enemies of the United States; the caso would have been very different. But, so far as we are advised by the record, he performed only clerical duties, such as belonged to a state of peace, and were designed to preserve civil order and administer civil law. . .

The point that the defendant has forfeited the office ho now holds by failing to file an oath of eligibility as required by tho act No. 39 of the laws of 1868, has already been settled adversely to the claims of plaintiffs by the decision rendered lately at Monroe in the case of Downes v. Towne, and is not now insisted upon by counsel.

We are of opinion that the plaintiffs have failed to establish their case by sufficient evidence.

It is therefore ordered and adjudged that tho judgment appealed from be avoided and reversed, and the suit dismissed at the costs of the co-plaintiff, John Amrein.


author: Ludeling, C. J.

text:
    No. 733.
    Augustin Guillory v. Alexander D. Deville et als.
    Tho statute of I8G5, exempting certain property from seizure under execution, is in derogation of common right, and the exemptions from seizure will not he extended to objects not expressly designated in the law.
    Tli 3 prescription of five years cannot be invoiced in a case wbero judgment has been rendered on the noto, and execution and garnishment process has issued and judgment against the garnishee has been rendered from which an appeal has been taken by the original judgment debtor. In such a case the note becomes merged in the judgment, and live years prescription does not apply.
    XL PPEAL from the District Court, parish of St. Landry. Porter, J.

      Dupre <& Garland, for plaintiff and appellee. B. A. Martel, for defendants and appellants.
   Ludeling, C. J.

The plaintiff, having obtained a judgment against A. D. Deville, caused an execution to he issued against him and garnished J. B. Victorianne. Victorianne acknowledged that he was indebted to A. D. Deville, and there was judgment against him for the sum he confessed to owe.

The defendant, A. D. Deville, in the District Court, alleged that he was entitled to the benefit of the law entitled “ an act to exempt from seizure and sale a homestead and other property,’’ adopted on the twenty-second December, 1865, and he urged that no judgment should be rendered against Victorianne, his debtor, for the amount confessed by bim, because be, Deville, did not own property to the amount of two thousand dollars, exclusive of the debt seized.

The object of the law is clearly indicated by its title. It is to exempt from seizure one hundred and sixty acres of ground and the buildings and improvements thereon, occupied as a residence, and ono workhorse, one wagon or cart, one yoke of oxen, two cows and calves, twenty-five head of hogs, or one thousand pounds of bacon, or its equivalent in pork, and, if a farmer, the necessary quantity of corn ox-fodder for the current year; provided that the property herein described shall not exceed in value two thousand dollars,” etc. This statute is in derogation of common right, and must ho strictly construed, and the exemption from seizure will not be extended to objects not expressly designated in tho law.

The thing seized is not exempted from seizure. • The plea of prescription is untenable. Tho note was merged in the judgment and wo cannot go behind tho judgment.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed and that tho appellant pay the costs of appeal.


author: Taliaiosuiio, J.

text:
    No. 648.
    E. N. Cullom v. William Mock.
    In fixing tlie value of file services rendered by an attorney in a litigation in which he has been engaged, the.court will not be governed exclusively by the estimate oí the witnesses, but will look into the whole record and form an estimate founded on the usual charges made for such services as appear to have been rendered.
    from the District Court, parish of Avoyelles. Lewis, J.

      IS. Worth Cullom (in person), plaintiff and appellee, Taylor & Irion, for defendant and appellant.
   Taliaiosuiio, J.

The x>laintiff sues to recover one thousand dollars, which sum he alleges is due him by the defendant for attorney’s fees. The defendant'admits that he engaged'the plaintiff’s services as attorney, but avers that the plaintiff failed to be present and give his personal attention to tho suit on appeal and that ho was on that account compelled to employ other counsol. ■

Tho plaintiff had judgment in his favor for the amount claimed, with üve per cent, interest from the fifteenth of September, 18GS. From this judgment tho defendant appeals.

It is not denied that the plaintiff is entitled to remuneration, but it is contended that the value of the services rendered has not been clearly established. It is further objected that the judgment of the lower court is erroneous in allowing interest from the fifteenth of September instead of from tho thirty-first of October, the date of the signing of the judgment.

We gather from the record that the plaintiff was engaged in tlio inception of the suit and conducted it through the District Court; that the case was an important one and much complicated; that the trial in the lower court occupied several days, and that the plaintiff had spent much time and labor in preparation for the trial. It further appears that he furnished an elaborate brief for the appellate court, and. was prevented from being personally present by sickness. On the other hand, it appears that in June, 1866, after the trial in the District Court, plaintiff made a visit to Kentucky. During his absence, the defendant employed eminent counsel to attend and argue his case in the appellate court. The counsel thus employed, it is shown, examined the brief furnished by tlie plaintiff, and remarked tfyat bo bad no objection to it, and made only a few additions to it, and tlieso of an unimportant character. The defendant swears that in consequence of the absence of the plaintiff be was compelled to employ other counsel to whom be paid seven hundred dollars. It seems that the defendant felt much solicitude as be naturally would do having large interests at stake; and we cannot but think it commendable prudence in him to provide against the possible contingency of the plainliff’s failure to return in September to attend the appellate court. It is always important that the leading counsel in a case, the one presumed to be more familiar with the subject in all its bearings than any other person, should be personally present at the trial. Of this advantage the defendant was deprived, although he was successful on the final trial, and the plaintiff did all in his power to compensate his own unavoidable absence. By the rules which have guided this court in relation to fees for professional services it has not been governed wholly by the opinions of witnesses regarding the value of the services rendered, especially whore these opinions have not been corroborated by other evidence. A counsel fee is in its nature honoranmn and not marees; and the fixing its amount is a matter of much delicacy, and one in -which the court must be regulated by a conscientious estimate of the value of the services. In this case no specific agreement as to the compensation to the counsel seems to have been made. And no specific sum is fixed by any of the witnesses as the value of the services. Nevertheless, it is shown that the defendant recovered ninety-five bales of cotton, and that at that time cotton was worth from thirty to thirty-five cents per pound. Two of the witnesses say the usual fee iu such cases is ten per cent, of the amount recovered. This is perhaps the approximate basis upon which the judgment of tile lower court rests as to the amount. Upon a review of all the facts presented, we think the judgment should bo reduced, and that eight hundred dollars should be awarded the plaintiff as a liberal compensation. As to the time from which interest should run, we think the lower court did not err in fixing it at the time of the termination of the suit.

It is therefore ordered, adjudged and decreed that the judgment of the District Court bo annulled, avoided and reversed. And it is further ordered, adj udged and decreed that the plaintiff recover from the defendant eight hundred dollars, with five per cent, interest thereon from the fifteenth day of September A. D. 1866. It is further ordered that the defendant and appellant pay the costs incurred in the lower court, and the plaintiff and appellee those of this appeal. 5 N. S. 399; 3 Am 518; 4 Ah.-578, 503¿II An. 637.


text:
    No. 634.
    Alcibiade Deblanc, Tutor, etc., v. Pierre Gary, Administrator.
    Tbe surviving husband having qualified as natural tutor to his minor children, and caused an inventory of the community property to be made, and on that basis caused the one-halt interest of the wife in the community to be adjudicated to him, for which he executed a special mortgage in favor ot the heirs on his own property, and he dies, and a dative tutor is appointed to represent his minor children; the dative tutor, thus appointed, may vote at the deliberations of the creditors to dispose of the property oí the deceased, an insolvent.
    The dative tutor as mortgagee for the minors, without reference to' the amount, may demand as against the ordinary creditors, that the property be sold for cash or port cash.
    A peremptory exception that the petition discloses no cause of action, admits for the purpose of its consideration, all the allegations in the petition to he true.
    from tlie District Court, parish of St. Martin. Oates, J.

      R. Perry, for plaintiff and appellant, Gary & Found, and yl. & F. VoorMes, for defendant and appellee.
   Howe, J.

In the year 1856, Désiré Bóraud was confirmed as natural tutor of his minor children, Corinne and Désiré, issue of his marriage with Corinne Deblanc. An inventory of the property owned in community with the deceased wife was made, amounting to $5178. The debts of the community were $1500. By the advice of a family meeting, the proceedings of which were homologated by a judgment of the court of March 10, 1856, the property belonging to the community was adjudicated to the surviving husband, including the lots of ground hereinafter mentioned, and a mortgage retained to secure the share of the minors. The certificate of adjudication was recorded March 11, 1856. In 1865 Désiré Bóraud, the elder, died insolvent. At a meeting of creditors, a majority in number and amount voted to sell the property on a credit of one, two and three years.

The plaintiff in this case, who had in the meantime been appointed dative tutor of the minors, voted in favor of selling the immovable property mortgaged in their favor for one-half cash and the balance on a credit of about one year.

Upon the petition of the defendant, who had been appointed and qualified as administrator, the proceedings of the meeting of creditors were ordered by the clerk of the court to he homologated and carried into’ effect, and the property sold on a credit of one, two and three years.

The sale being advertised, the plaintiff brought this suit to enjoin the same. He alleged in his petition the indebtedness of the deceased, Bóraud, to the wards, secured by tacit mortgage on his property, and by special mortgage on certain lots in St. Martinsville, adjudicated to him as before mentioned in 1856; that at the death of the minors’ mother he was in good circumstances, 'and none of tjie debts- now claimed against his succession were in existence, that at the meeting oí creditors of Béraud the plaintiff had voted in the manner we have mentioned, hut that in disregard of the conditions of sale fixed by him the defendant was about to sell on other and different terms the property subject to the tacit and speeial mortgages of the minors, and that the minors actually stood in need of the proceeds or a portion thereof.

The defendant filed a peremptory exception, that the petition disclosed no cause of action, inasmuch as it appeared by the petition itself that the minors’ rights have not been previously settled and liquidated as the law contemplates, in order to enable the minors’ tutor to vote in the deliberation of creditors.

The court sustained the exception, and dismissed the suit, and the plaintiff has appealed.

Our insolvent laws provide that the wife in partnership with her husband or Ms heirs shall not be allowed to vote in the deliberations of creditors, unless their rights shall have been previously settled by a partition or a judgment fora separation of goods.

His heirs” is probably a typographical error for “her heirs,” as the statute refers to a living insolvent, and the latter phrase is used in the law of 1842. Statutes 1855, p. 434, § 16; See also the French text.

It is also provided in respect to insolvent successions, that, in the choice of syndic, the sale of property, and the administration and settlement of the estate, the same forms shall be observed as are prescribed for the administration of estates ceded by insolvent debtors, reserving to the heirs all their rights and claims as creditors. Statutes of 1855, p. 399, § 4.

Under similar provisions of law it was held in the case of Lesseps v. His Creditors, 7 Ann. G21, which was a contest for the election of a syndic, that the votes given by the daughter of the insolvent and by the insolvent himself as tutor of liis minor children were illegally given, because the community right of their deceased mother “had not been previously settled by a deed of partition or judgment for a separation of property.” But that case differs from the one at bar in some important features. The question was of the election of a syndic, and that was to be determined by a majority of creditors in amount, and a single dollar might have decided the contest between the rival candidates. In such a contest, the exact amount of the minors’ claim might be of supreme moment; but in the case at' bar it might be sufficient to-maintain the plaintiff’s action that the claim of the minors as mortgagees should be established for any sum, since a mortgagee even for the smallest amount has a right, as against the ordinary creditor, to claim a sale for cash or partly cash. Statute of 1855, p. 434, § 17.

Again, in the case of Lesseps, a protest was made before the notary against the -votes, and the judgment which declared them valid was appealed from. In the case at bar, no exception was made to the vote of plaintiff, which was- founded upon his uncontradieted affidavit of the amount due.

But a more important distinction than either of those is, that while in the case of Lesseps there had been no settlement of the rights of the heir and minors, and votes in their behalf were properly decided to have been illegally received, in the case at bar it appears that long ago, at a time free from suspicion, when cBéraud was in good circumstances, and owed none of the debts which now encumber his succession, the property of the community, which had existed between him and the mother of the minors, was inventoried and appraised, and then adjudicated to him at the estimated price. A definite debt was thus established, a definite mortgage created. The practical effect of the adjudication was that of a partition by licitation, where the owner of an undivided half buys the whole property .and remains indebted to the other- owners in common for one-half the price.

In this view of the case, and considering the famiiiar principle that the exception of no cause of action admits for the purposes of its consideration the allegations of the petition to be true, we are constrained to the conclusion that the exception should have been dismissed. •

It is said in the exception itself, and contended in argument, that the petition itself shows that the claim of the minors is unliquidated, but we do not so understand it. The petition, indeed, asts “ that in case it be disputed by tho creditors, the claim of the wards against the estate of their father be recognized, and its amount fixed without regard to that mentioned in the deliberations of the creditors, or in this petition, but according to what may be established by the evidence;’’ but this is in tho alternative only, and cannot, by hypothesis merely affect the rights of the minors, as fixed by the facts which otherwise appear.

It is'therefore ordered that tho judgment appealed from be reversed, the exception dismissed, and the cause remanded to bo further proceeded with according to law, the appellee as administrator to pay the costs of the appeal.


text:
    No. 130.
    Monition of John Hall. Oppposition of F. E. Laurence and Husband.
    The wife is sufficiently authorized, if, in a proceeding by executory process to sell her mortgaged property, both she and her husband are made parties defendant.
    The averment in the petition that the defendants are non residents is sufficient to authorize the appointment of an attorney to represent them in a proceeding via executiva.

    The court will notice judicially who are its attorneys, and where it appears that an attorney lias been appointed curator ad hoc, the phrase curator ad hoc will he treated as surplusage and the appointment be regarded as that of attorney to represent the absentee.
    The attorney appointed to represent the absentee in a proceeding via executiva is the proper party to whom notice of seizure must be addressed, and on whom service must be made.
    The readvertisement of property that has been once offered for sale is sufficient notice to all parties interested.
    The law does not require the sheriff to return an order of seizure and sale in seventy days, rotaining a copy where it has not been fully executed, the same as in case of a fi. fa. The direction by the clerk to return the order in seventy days has no legal effect.
    from tlio District Court parish of St. Mary. Gates, J.

      J. G. Oliver Dimartrait, for plaintiffs and appellees, Edward Simon, for opponents and appellants.
   Howe, J.

On the fifth of January, 1867, by virtue of an order of seizure and sale, issued in executory proceedings in the suit of Hall, Rodd & Putnam v. Mrs. F. E. Laurence and husband, a plantation belonging to Mrs. Laurence was sold by the sheriff of St. Mary for cash at a little more than its appraised value and purchased by tbe appellee, John Hall.

The appellants, Mrs. Laurence and husband, opposed the confirmation and homologation of the monition afterward sued out by appellee on several grounds, which we will notice in the order in which they have been presented in tbe brief of their counsel.

I.That Mrs. Laurence was never authorized by her husband or by tbe judge to appear in the proceedings via executiva prior to the judgment therein.

The record shows that both husband and wife were made parties defendant, and that suffices.

II.That there is no necessity shown for the appointment of a curator ad hoc to the parties sued, because their absence from the State at the time is not sufficiently established by positive and competent evidence.

Tbe petition of tlie plaintiffs in the executory process averred that Mrs. Laurence and her husband resided somewhere in New York or New Jersey, and were absent from Louisiana, and not represented therein. We deem this sufficient. Frost v. McLeod, 19 Ann. 80. Tlie opponents in this proceeding have not even attempted to prove (as they might surely have done if such was the truth) that they were not absentees at the time the executory proceedings were taken.

III.That if the appointment by tbe judge of a representative to the opponents, as absentees, was necessary, this representative should have been an attorney, and not a curator ad hoc.

It is true that article 737 C. P. uses the word attorney, and its use in this case would have been desirable to save doubt, discussion and litigation; but the court will notice judicially who are its attorneys; and when we find that Henry Gibbon, Esq., was appointed curator ad hoc to represent the defendants, we may'properly treat the phrase curator ad hoc as surplusage, and omitting it, notice that an attorney of the court was appointed to represent the defendants.

IV. That Mrs. Laurence and her husband were not served with three days’ notice antecedent to the seizure.

The proper notice was served on Henry Gibbon, Esq., the attorney appointed to represent the defendants. It recites at length his appointment, and appears to make the proper demand.

Y. That the three days’ notice directed to the curator ad hoc should should have been directed and addressed to the parties themselves? although served on him.

We have not been referred to any authority in support of this proposition, and wo do not think it. correct. Where citation is issued against an absentee it is properly addressed, not to the absentee but to the curator ad hqc in cases where a. curator, is properly appointed. 13 Aim. 405. A fortiori in this case, where the notice is not a citation, but practically a notice of judgment merely, we think the direction,and address sufficient.

VI.' That neither the parties nor the curator were notified of the postponement of the sale from the third November, 1866, to the fifth January, 1867, and to appoint an appraiser that day.

The record shows that on the fifth January, 1867, an appraiser was appointed by the plaintiffs and one by the defendants ; that they were duly sworn, as well as the umpire who was afterward selected, and the defendants’ appraiser agreed to the valuation made by the umpire. We thus find the defendants possessed of actual knowledge of the timé of sale and taking part in its preliminaries. They cannot now s'ay that they had no notice to appoint an’ appraiser; and as to a notice of a postponement of the sale; the re-advertisement, which in this case was formal and regular, furnished all required information on this point. 11 Ann. 64; 12 Ann. 839.

VII. That the writ had already expired at the time of the sale, and no copy thereof was retained by the sheriff.

The sheriff was not bound to return the writ as in cases provided for by act of 1855, No. 199. It is not a writ of fieri facias. 18 An. 656. rfhe fact that the clerk subjoined to it a direction to return it in seventy days did not deprive it of vitality after that time had expired. The direction by the clerk was ultra vires, and must be treated as mere surplusage.

VIII. That Mrs. Laurence never appointed and named the appraiser, Jolin Tarlton, neither did the sheriff on her failure, nor any other person authorized by her or by the court so to do.

As before remarked, the record satisfies us that the appraiser, Tarl-ton, was appointed by the defendants. The testimony of Tarlton does not rebut this. He says he was requested by Mr. II. E. Laurence to act as appraiser, and so told the sheriff. But he does not say he was not appointed by Mr. Gibbon, the attorney, or by Mrs. Laurence also. ■ For the reasons given, it is ordered and adjudged that the judgment of the District Court be affirmed with costs.


author: Ludei.ing, C. J.

text:
    Mo. 721.
    James M. Edwards v. Henry Dupuy.
    Courts ■will not declaro an act of the Legislature void unless its unconettlutionallty is established beyond all reasonable doubt.
    The act of the Legislature of 1SG9, No. 110, entitled “An act to amend and re-enact sections four and nine of an act entitled an act to organize the parish courts of this State,” etc., is constitutional. The decision in the case of Hawley v. Barlow (ante page 5G3) rc-affirmed.
    from the District Court, parish of Avoyelles. Miller, J.

      JSdwards &■ Dueote for plaintiff and appellee, Gullom á Walsh for defendant and appellant.
   Ludei.ing, C. J.

The plaintiff, who is Judge of the Parish Court of the parish of Avoyelles, has enjoined the clerk of the District Court of said parish from performing the ministerial duties in the Parish Court, and from collecting the fees due for such services.

He avers that the act of the General Assembly approved March 9, 1869, which confers the rights and imposes the duties aforesaid, is contrary to the articles 86, 115 and 117 of the Constitution of this State.

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

Article 86 of the Constitution declares that the parish judge shall receive a salary and fees to he provided by law.”

The act No. 110 provides that parish judges shall receive salaries, “and that they shall further be entitled to the fees which are now provided for clerks of courts in all cases of appeals from justices of the peace courts to the parish courts.” Whether the General Assembly has properly exercised its discretion in this matter cannot be inquired into by us; it is sufficient to know that the General Assembly was not limited in the exercise of its discretion as to ivhat fees should be allowed the parish judges.

The most which can be said in favor of the position assumed by the plaintiff, that the law is unconstitutional, is that it is not free from doubt. And courts will never declare a solemn act of the Legislature void unless its unconstitutionality is established beyond all reasonable doubt. Chief Justice Marshall said: “The question whether a law shall be void for its repugnancy to the Constitution, is at all times a question of niucli delicacy, which ought seldom, if over, to be decided in the affirmative, in a doubtful case. It is not oil slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to bo considered as void. The opposition between the constitution and the law should be such that the judgo feels a clear and strong conviction of their incompatibility with each other.” 6 Cranch 126, Fletcher v. Peck. In Ogden v. Saunders, 12 Wheaton p. 270, Mr. Justice Washington said: But if I could rest my opinion in favor of the constitutionality of the law, on. which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, he a satisfactory vindication of it. It is but a docent-respect dire to file wisdom, the integrity and the patriotism of the legislative body by which any law is passed to presume in favor of its validity, until its violation of the constitution is proved beyond a reasonable doubt."

The law in questiou is not repugnant to ihe'article 115 of the Constitution. That article is similar to article 119 of the Constitution of 1845. The language of the article seems to lack precision, hut it is obvious that the object of the provision of the constitution was to prevent the amendment or revival of laws merely by reference to their titles — the w! ole act as amended was rc-enacted and published, and that was sufficient.

The act number 110 is not in opposition to article 117 of the Constitution ; it docs not create a new office. See O. K. Hawley v. J. C. Barlow, 21 An. 563.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he avoided and reversed, that the injunction he dissolved, and that the plaintiff and appellee pay the costs of both courts.


author:
Wyly, J.
      Mr. Justice Taliaferro,
     Ludeling, C. J.
      Wxly, J.

text:
    No. 1388.
    Poindexter and Pollard, Appellees, v. John E. King, Appellant.
    A suit to recover on a contract of agency is prescribed by ten years. 15 An. 534; 16 An. 397; 17 An. 246.
    When an agent, acting in the capacity of a commission merchant, has received produce on consignment, with instructions from the shipper to sell the same for gold, he can not discharge his liability to the principal by accounting for the net proceeds in a depreciated currency of less value than that for which the property was sold, although that currency be a legal tender dollar for dollar.
    An account stated and acknowledged by the other partybccomes a closed account, but It may be re-examined afterward by either party for the purpose of correcting errors or supplying omissions.
    from. Sixth. District Court, parish of Orleans. Duplantier, J.

      Pmcc, Poster & J2. T. Merrick for plaintiffs and appellees. Marr & Ponte for defendant and appellant.
   Wyly, J.

In 1861, plaintiffs consigned to defendant seventy-four hogsheads tobacco, which were sold by the latter for account of plain-tiiffs in December, 1862, for $14,338 36 in .gold, and account current thereof promptly rendered by defendant.

During tlie year 1801 plaintiffs drew on defendant their several bills, amounting in tlie aggregate to $8436 36, which defendant accepted and paid out of his own funds, and for which, with interest, plaintiffs became his debtor.

Immediately after the sale of the consignment, as aforesaid, the defendant paid over the cash balances in gold to Messrs. Watt, Given & Co., as requested by plaintiffs, to wit, $4533 92.

On twenty-first September, 1863, plaintiffs wrote to the defendant, objecting to some of the items of the account, and stating, ‘‘now we claim that you owe us the premium the gold was then worth—

On amount of bills.-.$8,436 36

On amount of commissions. 210 90

On amount of interest balance. 785 76

Total.$9,433 02

Plaintiffs’ petition alleges “the difference of value of gold and currency of the city at the date of said transaction was fully thirty per cent, in favor of gold, which on said sum of $8436 36, and the interest charge of $785 76, makes the full sum of $2881 91, 'which, added to the $210 90 erroneously charged for commissions, -makes the sum of $3092 81.” To recover this $3092 81 this suit has been instituted.

The court below gave judgment in favor of plaintiffs, and defendant has appealed.

"Plaintiffs contend that their factor, John E. King, could not apply the gold proceeds of the tobacco to the extinguishment of his account against them for bills drawn on said consignment in 1861; that as their consignee he should have allowed them the premium of thirty percent. in favor of gold in settlement of "his said account, and that he should not have charged them two and a half per cent, commissions on the various bills drawn by them against their said consignment.

Plaintiffs contend that their factor paid these bills in currency, and in his account charged them as paid -in gold, or applied their gold to the payment of his account.

There is no positive evidence in the record to establish the allegations of plaintiffs. The bills drawn by plaintiffs in 1861 could not have been paid in United States treasury notes, because they were not then in circulation in this city. The act authorizing issue of legal tender notes only passed twenty-fifth February, 1862. There is no allegation or proof that said bills were paid by the drawee, the defendant, in Confederate notes; and we can not presume that the parties before this court dealt in an unlawful currency.

It is true, the record shows that “the banks in New Orleans suspended specie payment on seventeenth September, 1861, excepting the Southern Bank.” But it does not follow that defendant could not pay the various drafts of his consignors in lawful money without doing so through the banks.

It seems the various bills accepted and paid by defendant were given in part payment for the tobacco which plaintiffs had bought and shipped to him. Plaintiffs must have received a lawful consideration for the bills, and what difference was it to them how the drawee paid the payee thereof? The bills were made payable in dollars and not in any particular currency.

Now, if plaintiffs had desired to ascertain positively in what currency the bills were paid by the defendant, why did they not get the evidence of the payee of those bills, who could state positively how ho was paid and in what currency ?

Defendant occupied the position of factor toward the plaintiffs, and also the position of creditor for the amount of-his individual funds advanced to pay plaintiffs’ bills. What was the relation of the parties to each other on eighth December, 1862, the day the consignment of tobacco"was sold? Plaintiffs were owing the defendant the amount of money he had advanced for them and interest thereon. They were not owing him the illegal charge of two and 'a- half per cent, commissions on the bills drawn against the consignment in his hands. On the other hand, the defendant was owing the plaintiff the full amount of the net proceeds of the sale of tobacco.

At once, by operation of law, the entire indebtedness of plaintiffs to defendant became extinguished by compensation, and defendant was only owing the plaintiffs the balance due out of the proceeds of said consignment. Compensation only extinguished the amount of lawful indebtedness of plaintiffs to defendant in lawful money. Gold is lawful money of the United States; and an indebtedness in dollars can be compensated by a counter indebtedness in gold.

At the time the bills were drawn and delivered to the payee specie was the only legal tender of the United States. In the absence of positive evidence we must presume that the defendant paid those bills in lawful money, and plaintiffs became indebted to him from the time of the payment thereof.

We think, then, on eighth December, 1862, all debts, lawful claims, against plaintiffs became .extinguished by compensation, and that defendant then occupied the relation of factor toward plaintiffs, owing them only for the balance of the proceeds of the tobacco. Defendant seems to have acte'd faithfully for his consignors; his sale seems to have given satisfaction, and he paid over , the $4533 92 in gold promptly to Messrs. Given, Watt & Co. at the request of plaintiffs. Indeed plaintiffs were very late in raising any objection to defendant’s account current, rendered to them nearly nine months before.

We do not think the plea of usury, set up by defendant, applies to this case.

We regard this as an action of mandate, not prescribable in three years as an open account. Ten years-is the only prescription against such a demand. 17 A. 246, and the authorities there cited.

Under the circumstances of the case, we believe that defendant is only indebted to plaintiffs $210 90, the amount of the illegal charge made by him for commissions on plaintiffs’ bills.

It is therefore ordered and decreed' that, the judgment of the court below be avoided and annulled, and proceeding now to give such judgment as the court should have rendered .in this case, it is ordered, adjudged and decreed that plaintiffs have judgment against defendant for $210 90 with five per cent, interest thereon from eighth December, 1802, and the cost of the court below, plaintiff to pay cost of this appeal/

Mr. Justice Taliaferro,

dissenting t

I am unable to arrive at any other conclusion than that the defendant paid the Hoover drafts, amounting to $5456 36, in what was called currency.” These drafts fell due on the twenty-ninth of January, 1802. All the facts in the record point to this conclusion as inevitable. Jacob Barker states that the banks in New Orleans suspended specie payments on the seventeenth September, 1861, except the Southern Bank. He states also that from the eighth to the fifteenth December, 1862, gold was forty per cent, premium for treasury notes; and that on the fourteenth February, 1862, gold was at thirty-seven and a half per cent, premium for treasury notes. It is in evidence that in December, 1862, business in New Orleans was mainly done in currency. (Record, p. 14.) The defendant in December, 1862, paid over by order of his principals to Given, Watt & Co. in gold $4533 92. A member of that firm swears that for this payment in gold the firm credited the plaintiffs with $5726, the amount they owed that firm. This is the same thing as paying the debt in currency,” for the defendant required them to receive $4533 92 in gold, as equivalent to $5726 in currency. I can not suppose that, having paid a debt of his principals in currency, after he had received the gold proceeds of the tobacco, he paid the Hoover drafts in gold or silver ten months before he had funds of any kind in hand belonging to his principals. He could not have paid these drafts in paper money of any kind which was of equal value with gold or silver, for there was at that time in this country no such paper money. Hedged around as he is by the evidence in the record, I think it illogical to deduce that the defendant paid these drafts in gold or in bank notes, convertible at will into specie, because it is not affirmatively shown that he made the payment in depreciated currency. On the contrary, all the facts in evidence raise a legitimate and very strong presumption against him, which must prevail in the absence of any proof tending to rebut that presumption.

Considering it then established that he did pay the two Hoover drafts in currency” thirty-seven and a half per cent, below the value of gold, and that he charged the amount dollar for dollar against the gold proceeds of the tobacco, I think he ought to account to his principals for the premium on gold for currency” at the time the payment was made, or rather the thirty per cent, premium claimed by the plaintiffs in their petition.

The relation that existed between the parties was clearly that of principal and agent or factor ;■ standing in that relation, the primary duty of the defendant was strict fidelity to the interests of his principals and a proper regard of his legal obligation to restore to them all profits that may have arisen from, and to give to them the benefit of all advantages that may have grown out of their business entrusted to his care. Civil Code, article 2974; 10 Rob. 487.

I do not think the plea of prescription can avail the defendant. The claim simply of the gold premium can not he assimilated to an open account standing isolated from the business of the mandate.. It springs from the transactions arising from the agency, and m'akes a part of them. It arises ex-ooniractu, and is not barred by the prescription of three years. C. C. article 3508; 15 An. 143 and 534; 16 An. 397; 17 An. 246. The plea of ratification, I think, should n,ot prevail. True, some nine or ten months intervened between the time of the rendition of the account and the date of the letter of plaintiffs objecting to the account.

It is shown that intercourse between New Orleans and.Clarksville was free in May, 1862. That the last named place was in possession oi the Federal forces in 1862, and that it was not recaptured by the insurgents. This by no means establishes that there was any direct communication between the places during the whole period embracing the transactions. It appears that the communication was circuitous, being by the way of New Y'ork. A state of war. existed in a considerable portion of the country through which this communication was had. It is not shown that the communication,'such as it was, was safe, reliable and constantly free from suspension and delay. Under ordinary circumstances the pica might have weight, but under those that did éxist, I am inclined to think none should be attached to it.

The plaintiff claiming equity should do equity. The first two bills drawn upon the defendant were paid by him before the suspension of specie payments; I think the inference clear that they were paid in specie or bank notes, convertible at that time into gold or silver at the will of the holder. The defendant should not therefore be held to account, so far as those bills are concerned, for any premium. The judgment, I think, erroneous in that respect, and should be reduced. Tlie defendant is not protected by the doctrine announced in Weaver v. Anfou and subsequent decisions. The facts in this case are wholly different. In Weaver v. Anfou, tire defendant was estopped by bis baste to sbow that be bad been dealing in an unlawful currency in derogation of law and morals, alleging bis own turpitude to avoid bis contracts. The check was paid either in Confederate money or in bank notes, and the court presumed the transaction to have been in lawful rather than in unlawful currency. This presumption in favor of the plaintiff in that case would ceteris paribus have availed the defendant in this case; but under the evidence it is swept away; for it is distinctly in proof that in the important payment made for his principal to Given, Watt & Co. he discharged the debt in currency, for he compelled his agent’s creditor to receive gold with the high premium for it in payment of a debt contracted in 1860.

Same Case on Reheaeino.

Ludeling, C. J.

The defendant is sued for an account of bis agency in selling seventy-four hogsheads of tobacco shipped to him between the twenty-second of March and the first of May, 1861. The tobacco was sold in obedience to. instructions, for coin, and it netted $14,333 49 in gold, which was worth, at that date, and at the period when this suit was brought, $18,794 26 in currency.

The plaintiffs drew several bills against their shipments of tobacco, amounting to $8436 36, which the defendant accepted and paid.

The defendant rendered an account to the plaintiffs to which the plaintiffs urge the following objections :

That the charge of two and one-half per cent, commission for advancing, in addition to eight per cent, interest per annum, is unlawful and usurious.

That the bills drawn by the plaintiffs were paid in currency which was depreciated, and the amount thereof is charged up against the gold proceeds of the tobacco, and that the balance of interest is also charged up against said gold proceeds.

The defendant filed a general denial, and afterwards filed a supplemental answer, pleading the prescription of one and two years to the right of plaintiffs to object to the usurious charges in the account, and the prescription of three years against the demand of plaintiffs, which, it is alleged, is on an unacknowledged or open account.

The plea, as it respects the usurious interest, is without application. The plaintiffs have not paid any usurious interest — they are contesting the defendant’s right to apply their money to the payment of unlawful interest claimed by him.

The prescription of three years is equally untenable. The suit is brought upon a contract of agency, and it is barred by ten and not three years. 7 An. 53; 10 R. 487; 15 An. 534; 16 An. 397; 17 An. 246.

John E. King having made advances to Poindexter & Pollard on the shipments of tobacco to the amount of $8436 36, the latter became the debtors of the former for that amount, and King had-a privilege on the tobacco to secure the payment of the debt. If the tobacco had been destroyed, it would not be pretended that King eould have recovered $8436 36 in gold from his debtors — they could have discharged their liability in currency.

If the tobacco had been sold for United States treasury notes, King could have legally retained only $8436 30 out of the proceeds. On-what principle then can he be permitted to claim and retain $11,248 48 or its equivalent, in payment of the' $8436 36 due him'?

The shippers had aright to instruct their factor what fo sell their property for; they told Mm they wanted gold for the balance coming to them. How could this fact change the rights of the defendant against the plaintiffs 1

We cannot perceive why his debt should be paid in gold, if the tobacco were sold lor gold, and in currency, if the tobacco were sold for currency. If the defendant had alleged and proved that he had been obliged to pay out gold for the plaintiffs, there might have been some equity in his demand, but such is not the fact. It is admitted that the banks suspended specie payment on the seventeenth day of September, 1861, and it is proved that after that period, the business in New Orleans (when the drafts of the plaintiffs were paid) was mainly carried on in currency. The Hoover drafts, due on the twenty-ninth of January, 1862, amount to $5455; ahd that they, at least, were paid in a depreciated currency, the evidonce in the reebrd leaves no reasonable doubt. It is contended that the plaintiffs are estopped from claimingany thing from defendant .because .they acquiesced in the account rendered to them by not objecting sooner. This question is not presented by the pleadings. But if it had been it would not have prevented the plaintiffs from showing errors in the account. The effect resulting from an acknowledgment of the account would be to shift the anus of proof. “These accounts are necessarily provisional until settled, and even after settlement, may be rectified' by either party on account of errors or omissions, subject to which every settlement is held to be made.” 2 An. 27.

The defendant is bound to account to his principals for the balance of the gold receipts. The agent cannot be. allowed to enrich himself at the expense of his principal. . .

It is therefore ordered, adjudged and decreed that the judgment of this court rendered on the thirtieth November, 1868, be avoided and reversed, and that the judgment of the- District Court be amended so as to reduce the amount of the judgment of the District Court in favor of the plaintiffs to the sum of two thousand nine hundred and seventy-seven dollars and fifty-four cents, and'that the judgment thus amended be affirmed, and that the appellees pay the costs of this appeal.

Wxly, J.

I still adhere to the views expressed in the original decision of this case.

The drafts were drawn on the consignment and paid by the defendant before the issue of the United States currency, and in the absence of proof to the contrary, the presumption is inevitable that they were paid in lawful money, gold or silver, which was then tho only legal tender. I cannot presume — indeed the plaintiffs have not alleged — that the defendant paid their drafts in Confederate notes; parties will not be presumed to have dealt in an unlawful currency when it has neither been alleged nor proved. If the agent has paid gold on tho consignment, and we can presume nothing else, he is entitled to recover tho same from his principal, whether the consignment be destroyed or be sold, under tho directions .of tho latter, for United States currency or gold. It matters not that the tobacco could have been sold on eighth December, 1862, for either gold or United States currency (the latter being then in circulation). The drafts were drawn in 1861, and they were paid before the act was passed authorizing tho issue of United States currency; they could not have been lawfully discharged or paid except in gold or silver. And tho principal was bound to return an equal value to his agent.

Tho account was rendered by tho defendant to tho plaintiffs nearly nine months before any objection was made. In that account ho imputed a sufficient amount of the gold imococds to the payment of the amount of his advances. The account of sales was in gold, the amount of advances was deducted therefrom, dollar for dollar, in tho account. After the lapse of so long a time, without objection, it ceased to be an open account, and became, a stated account between the parties.

Now, if plaintiffs seek to go behind that account or settlement, and claim that their factor has been unfaithful; that, instead of paying the drafts which they drew on him in 1861, in gold or silver (the only lawful money), he in fact discharged the same in Confederate notes, ol less value, they must allege and prove the infidelity of the agent; they must make out their case; they cannot establish it upon presumptions that are unlawful, and therefore impossible.

If the relation of defendant and plaintiffs be oniy that of debtor and creditor, and therefore the debt of the latter could have been discharged on eighth December, 1862, in United States currency, dollar for dollar, the defendant could compensate his debt with tho gold of plaintiff which happened to be in his hands, dollar for dollar.

For the foregoing reasons and those assigned in the original opinion of this court, I cannot assent to the decision just rendered.


text:
    No. 1746.
    Anatole Cousin v. Abat, Generes & Co.
    Abat, Generes & Co., commission merchants in the city of New Orleans, received, in 1862, of Anatole Cousin, a customer of theirs, the sum of $16,715 in notes of the so-called Confederate States, to be invested in city bonds and notes secured by moitgage. Tiie notes were invested in bonds of the city, known as Defense Bonds, which were redeemable m the tame kind of currency. Cousin brings suit for the amount thus delivered. Held — That the entire transaction being in Confederate notes was illegal and null. 19 An. 161, 2S8, 859; Constitution of 1868, article 127.
    The organization known as the Confederate States neyer reached the dignity of a defacto government. Stewart v. Smith, ante page 67.
    The ordvr of Major General Duller compelling the holders of City Defense Bonds to pay a certain per cent, thereof for the benefit of the poor of New Orleans, was punitory, and no action lies to recoi er the amount of such assessment.
    from the Second District Court of New Orleans. Thomas, J.

      J. Ad. Rosier, for plaintiff and appellant. Guprien Dufour, for defendants and appellees.
   Howe, J.

The evidence in this case satisfies us that the plaintiff delivered to the defendants’ firm a sum of Confederate money to ho 'Invested; and the latter invested it, with the exception of a smalL portion, tendered in court, in bonds of the city of New Orleans payable in the same currency.

Under such circumstances, we are of opinion that the court a qua properly rejected the demand of the plaintiff. Hunly v. Scott, 19 An. 161; King v. Huston, 19 An. 288; McCracken v. Poole, 19 An. 359; Norton v. Dawson, 19 An. 464.

The plaintiff, appellant, has filed in this court an assignment of errors, in which he alleges that the proceedings and judgment of the lower court are manifestly erroneous in this, that the one hundred and twenty-seventh article of the Constitution of 1868 is repugnant to article 1, section 10 of the Constitution of the United States, which forbids the passage by a State of a law impairing the obligation of contracts. We presume this assignment was made through inadvertence. The judgment appealed from was rendered in July, 1867, before the Constitution of 1868 was framed, and long before it was adopted.

The other points raised by the appellant, that the Confederate States were a government de facto, and that obligations like those in suit in this case, founded on the use and circulation of Confederate treasury -notes, should he enforced by our courts, have already been settled adversely to his views by numerous decisions. See- Smith v. Stewart, 21 An. page 67, and the cases above cited. We think the subject is one to which the rule of stare deeisis is justly applicable, and we must therefore decline to reopen the controversy.

We are of opinion that the judge a quo did not err in dismissing the reconventional demand of the defendants. They were compelled by Major General Butler to pay for the support of the poor of New Orleans a certain per centage upon the amount of City Defense Bonds” to which they had subscribed. They claim to have thus paid $4000 for account of the plaintiff, upon the sixteen bonds for $1000 each, in which they had invested his Confederate notes. We apprehend that the action of the commanding general was punitory, and that the payment by defendants in expiation of an offense.^ cannot give them any claim against the plaintiff.

For the reasons given it is ordered and adjudged that the judgment appealed from he affirmed with costs.

Rehearing refused.


author: CaliafeRKO, J.

text:
    No. 1730.
    Degelos, Durrive & Co. v. Emily Woolfolk.
    Where a commercial firm has obtained judgment against' a debtor, and the firm is afterwards dissolved by the death of two of the partners, and the survivor forms a new partnership with two other parties, and judgment is qbtai-ned against the new firm, on which execution issues, only the interest of the surviving ‘partnor in the judgment in favor of the old firm oan be reached by seizure*. The other interests in such judgment belong to the he'rs or creditors of the deceased partners, and cannot be made liable for the debts of the new firm.
    The plea of res judicata will not be maintained unless the parties to the first judgment are the same as those of the socond.
    from the SecondD'istrict Gpurfc of New Orleans. Thomas, J.

      JElmore & King, Alfred ShaWf and. Simonds & Gayar re for appellants. P. IL Morgan for appellees.
   CaliafeRKO, J.

The conflicting claims of various creditors for the proceeds of the property of their debtor, sol'd under executions, form the subject of this litigation.

The case is brought before us from the Second District Court of Now Orleans on appeal from a judgment o.u a rule taken by the administrator of Mill on Sheriff Hays to show cause why he should not pay over to him two thousand and fifty-six dollars, with costs, out of the funds in his hands collected in the suit of E. Durrive v. Emily Woolfolk. The rule was made absolute. Shaw, a predecessor of Ilays in the sheriffalty, and two of the contestants, Lanata and Mrs. Cay arre, have appealed.

Edward Durrive, as liquidator of the firm of Degelos, Durrive & Co., obtained a judgment in May, 1858, against the defendant, Mrs. Woolfolk, for about eight thousand dollars, with interest.

In 1864, Hernandez, a creditor of the defendant, brought suit against her on Ms claims, and attached fifty bales of her cotton.

Subsequently to the attachment of Hernandez, Durrive, the liquidator, seized the same cotton under fi.'fa. issued on his judgment, and the sheriff, proceeding under this writ and also under one issued in the suit of Hernandez, sold the cotton, and by consent of parties, retained the money in his possession subject to the final decree of court.

The suit of Hernandez was instituted in the Sixth District Court of New Orleans. Durrive, liquidator, -intervened in that suit, and moved that the funds in the hands of the sheriff be paid to him in preference to Hernandez. The court decided in favor of Hernandez. The liquidator appealed, and this Court reversed the decision on the ground that the attachment was illegally taken out by Hernandez. This disposed of his claim, and he disappeared from the contest.

Mrs. Gayarre had obtained a judgment in the Fourth District Court against E. Durrive & Co., and issued execution upoim’it. The same funds were seized under this writ Victor Rommage had obtained a judgment against E. Durrive & Co. in "the Third District Court, and he also seized, under fi. fa., the money in controversy in the hands of the sheriff. He took a rale upon the sheriff to show cause why he should not pay the funds to him. Mrs. Gayarre intervened, by third opposition, claiming to be paid by preference. Mrs. Rosalie Harris, wife of E. Durrive, junior, also intervened and claimed the fund's.

P. II. Morgan, as the attorney of E. Durrive & Co., appeared and moved the transfer of the cause to the Second District Court. This motion was overruled. The court ordered that the sheriff pay over all the funds in his hands to Mrs. Gayarre after paying to P. H. Morgan three hundred dollars for professional services rendered the liquidator. The administrator of Rommage was the only one of file parties who appealed'. His appeal was dismissed.

Here the scene changed-to the Second District Court. The counsel for Miche'l Hebert, administrator of file estate of Thomas Mill, formerly a partner of the house of Degelos, Durrive & Co., had, as we have before seen, taken rule on the sheriff to show cause why he should not pay to the administrator of Mill’s estate two thousand and fifty-six dollars and costs. A new contestant entered the list. Dominique Lanata intervened and claimed the money in the sheriff’s hands. Soon after Mrs. Gayarre appeared and excepted to the proceedings on the ground that the Third District Court had rendered a judgment in her favor, ordering the sheriff to pay over to her the funds in his hands; that she had issued execution on that judgment; that it could not be interfered with, nor the execution stayed except by injunction taken out under oath and by giving security according to law. This exception was overruled. The Court awarded to Mrs. Gayarre one-third of the funds seized, and two-thirds to the heirs of Mill.

The three appellants from this judgment are the sheriff Shaw,- La-nata and Mrs. Gayarre. The sheriff and Mrs. Gayarre sot up in this Court the plea of res judic&tU.

The opponent Lanata alleges that the proceeds of the sale of cotton, seized by Durrive, liquidator, belong to him in right of his seizure of the funds under fi. fa. issued on his judgment against Mrs. Emily Woolfolk, for the reason that the judgment of Degelos, Durrive & Co. against Mrs. Woolfolk had become extinct by novation. He averred that the liquidating partner of the firm of Degelos, Durrive & Co. had received, in payment of the judgment, the acceptances of Messrs. Eellowes & Co. by an arrangement with that house, and that the original debt of Mrs. Woolfolk to Degelos, Durrive & Co. did not exist when the liquidating partner issued execution on the judgment and seized the fifty bales of cotton.

These allegations of Lanata are not sustained by the evidence. Dur-rive, the liquidator, and Judge Labauve, who testified in the case as witnesses, state that, by the arrangement, the liquidator of the partnership was not to subrogate Eellowes & Co. to the judgment against Mrs. Woolfolk until the acceptances were fully paid. Judge Labauve, who was counsel for one of the parties, drew up the agreement, and he states that it was expressly understood, and so reduced to writing, that no novation was to take place. It seems that eight hundred dollars were paid by Eellowes & Co., and nothing beyond that; and it does not appear that they have ever claimed any right in the judgment.

It is in proof that the original firm of Degelos, Durrive & Co. was dissolved by the death of Degelos and Mill, and took place in 1856 or 1857. Subsequently, a new firm was established, composed of Edward Durrive, senior, E. Durrive, and Edward Durrive, junior. The stylo of this firm was E. Durrive & Co. The firm of Degelos; Dur-rive & Co. was composed of Edward Durrive, senior, Degelos and Mill — Edward Durrive being the only one of the original firm who became a partner in the new firm. It appears that the judgment of Mrs. Gayarre was obtained against the firm of E. Durrive & Co., and not against the firm of Degelos, Durrive & Co. It results, then, that her seizure could only reach the share and interest that Edward Dur-rive had in the original judgment of Degelos, Durrive & Co. against Mrs. Woolfolk, from having been a partner of that firm. That interest was a third. The other two-thirds were consolidated and were owned by Mill.

The plea of res judicata cannot avail the opponents who set it up. The parties were not the same. In the Third District Court, which directed all the proceeds of the cotton to be paid over to Morgan and Mrs. Gayarre, the administrator of Mill did not appear, nor was he cited. P. II. Morgan appeared as counsel of E. Durrive & Co. Two1-thirds of the money belonged to Mill’s estate. Mrs. Gayarre’s judgment was against E. Durrive & Co. She was not the creditor of the firm of Degelos, Durrive & Co. The estate of Mill owed h'er nothing. She could not, by alleging that the funds belonged to E. Durrive & Co., her debtors, grasp more than the one-third of the funds, and that by reason of one of that firm owning a third interest of the debt of Mrs. Woolfolk to Degelos, Durrive & Co.

Wo think the controversy was properly settled by the court below, and that justice has been done between the parties.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


text:
    No. 1810.
    Heirs of J. W. Wilder v. Henry C. Petty.
    H. C. Petty and the-heirs of Wilder lield property in common, on which a mortgage existed in favor of tbe Citizens’ Bank. Tbe heirs brought suit and obtained a partition in kind, which was executed before a notary public. Tbe heirs then, through their'tutrix, having obtained the consent of the bank, moved for a division of the encumbrance, and obtained the permission to sign the necessary stock note in favor of the bank. The tutrix afterwards refused to sign the note.' Held — That she was properly compelled by judgment, on rul'e, to sign the note, and that evidence was inadmissible^ on trial of tbe rule, to show the condition of a partnership which had existed between their ancestor, Wilder, and the defendant, Petty, of which Petty was liquidator.
    from the Second District Court of Now Orleans. Thomas, Jr

      Bace, Foster & J3. T. Merri<¡k, for plaintiffs and appellants. T. A. Bartleite, for defendant and appellee.
   Howe, J.

The plaintiffs sued the defendant for the ■ partition of

certain real property held hy them in common. Judgment was rendered that the property he divided in Rind, and a partition was accordingly made before a notary, and as the defendant drew the more valuable portion, lie paid to plaintiffs, in cash, a sum sufficient to equalise the shares, and an act was duly signed and homologated.

A mortgage, rested on the Whole property in favor of the Citizens’ Bank to secure a note given for a loan, and renewable, according to the charter, upon stock of the bank. ■ It seems that the hank consented that this debt should he divided; and, upon her own motion, the tutrix (Obtained permission to sign the necessary stock note. Pot some reason, which is not apparent., she afterwards declined to sign the acts necessary to divide the debt, and the defendant, Petty, took a rule to compel the signature. The rule was made absolute, and tile plaintiff in the suit appealed.

Upon the trial ot the rule tire -plaintiffs, defendants on rule, reserved a hill of exceptions to the exclusion by tbe judge of testimony offered by them in reference to the condition of the partnership which had existed, between the decedent, Wilder, and the defendant, Petty, of which Petty was liquidator. The j'udge did not err in this ruling, as the property partitioned did not appear to form any part of the partnership assets.

Nor do we perceive any error in the judgment on the merits of the rule. The division of the encumbrance appears to he, in this case,’ at least, a natural and just sequel to the partition in kind, prbvoked hy the appellants themselves, and necessary to complete it in such manner as to fully secure the rights of the minors as well as those of the defendant.

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


text:
    No. 2250.

    The State of Louisiana on information and relation of George M. Wickliffe v. L. T. Delassize.
    An action against a party for usurping, intruding into or unlawfully holding or exercising a public office in the parish of Orleans must bo brought by the Attorney General in the name of the State. Act No. 156, 5 2, of 1868.
    A .¿L PPEAL from the Seventh District Court for the parish of Orleans. Gollens, J.

      Semines & Mott, for plaintiff and appellant. W. II. Hunt, for defendant and appellee.
   Howe, J.

This suit was instituted under the act No. 156, approved October 15, 1868 providing a remedy against usurpations of or intrusions into or the unlawful holding or exercising a public office or- franchise in this State.” The relator, averring himself to be the Auditor of Public Accounts, alleged that the defendant had usurped and intruded into that office, and prayed that the latter might be excluded therefrom, and that the relator’s right thereto might be recognized and adjudged in his favor.

The defendant excepted to this petition on the ground that the same was not filed by the Attorney General or by any other person authorized to institute the suit. The court sustained the exception and dismissed the suit, and the relator has appealed.

By act No. 58 of the Legislature, approved September 8, 1863, it was provided as follows:

“ Section 1. That an action by petition may be brought before the proper District Court by the Attorney General, iu the name of the State, upon his own information and upon the complaint of any private party, against the persons or parties offending, in the following cases:

“Mrst — 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 an act, or 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.

“ Sec. 2. That in all such cases, when made known to the Attorney General, it is hereby made his duty to so bring action against the offending party.”

*******

Sec. 4. That where an action shall be brought by the Attorney General by virtue of this law, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the people as plaintiff.”

*******

The act No. 156, under which this action is brought amends and reenacts the preceding, so that the first and second sections read as follows:

Section 1. * * That an action by petition may be brought before the proper District Court or Parish Court, by the District Attorney or District Attorney pro tempore; and, for the parish of Orleans, by the Attorney General, or any other person interested, in the name of the State, up on his own information or upon the information of any private party against the party or parties offending, in the following cases* * * * * ■

“Sec. 2. That, in the eases mentioned in the foregoing section, it is hereby made the duty of the District Attorney or the District Attorney pro tempore of the parish in which the ease arises, and for the parish of Orleans by the Attorney General, to bring action against the off'end•ing party or parties, when so required'to do.”' .

The third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh sections are substantially the, same in the amendatory as in the original act. They provide that where the action is instituted by the Att rney General on the information of the person interested, the name of such person shall be joined with the State as plaintiff; that in an action brought upon the state of facts alleged in the case at bar, the name of the pmty rightfully entitled to the office may also be set forth, and to secure him the fees, etc.', the defendant may be arrested; that if the judgment be against the defendant and in favor of the person alleged to be entitled, the latter may take upon himself the execution of the office and demand the books and papers; that the defendant may be prosecuted in criminal proceedings for refusing to comply with such demand, and that the person so adjudged to be entitled, may, by action, recover tiie damages sustained by reason of the usurpation.

The cases,provided for are the same in both acts, and so far as the first class is concerned — the usurpation of and intrusion into a public office — we agree with the judge a quo that the latter act does not authorize the institution of the suit at bar. It may be that its first section, read alone, might sustain the proceeding, though it would be difficult then to conjecture why the Legislature should authorize any person interested in the parish of Orleans to bring the suit, and exclude the people of the rest of the State, when interested, from such a privilege, But the law, as a whole, appears to have amended and reenacted the act No, 58, principally for the purposes of including parish courts as the tribunals, in proper cases, if any there oan be; of imposing the duty of bringing the action on District Attorneys in country parishes, and finally of making it imperative on the Attorney General and the District Attorneys tp bring such actions “ when so required to do.” The phrase “ when so required to do,” in the second section, evidently relates back to the first section, and alludes to some requirement by the “other person interested.” The remaining portion of the act No. 58, as we have seen, is practically unchanged, and plainly contemplates, not that the person interested shall bring the suit in the name of the State, but that his name shall be joined as plaintiff in a suit brought by the State through its proper officer. Such an interpretation seems to be the one which, is most consistent with the tenor of the law, with the statutory and constitutional definitions of the duties of the law officers of the State, and with the general principles which underlie the action in the nature of quo warranto.

It is therefore ordered and adjudged that the judgment appealed from bo affirmed with costs.


author: TaliafeeRo, J.

text:
    No. 1633.
    Succession of Charles Schuttler.
    The executrix and tutrix, haying interests in common with tlie major and minor heirs, are incompetent to represent the minors in a judicial partition.
    Proceedings in partition, where the tutrix has represented the minors without the advice of a family meeting, are null, and the purchaser of property at a sale made under such circumstances cannot be compelled to pay the price bid.
    from the Second District Court of New Orleans — Thomas, J.

      17. Fmelier for appellant. Bu-dd & Grover and Frank Haynes for appellees.
   TaliafeeRo, J.

The defendants in rule, Ryan and Lacey, having purchased real estate of the succession of Sclmttler, at a probate sale made in the year 1837, declined paying tlie amount of their bids. A rule was filed against them by the executrix of Schfittler to show cause why they should not be required to comply with the terms of the sale; or failing' therein, why the property purchased by them should not be sold at their folie enehere, and at their risk. They answered separately, but the grounds of defense were substantially the same, except that Lacey averred that the title to the property purchased by him wras defective, for the reason that Schfittler bought it at a probate sale oí Weber’s estate, in which minor heirs were interested, and that the legal proceedings to divest the interest of the minors had not been observed. The defendants averred that the proceedings in the succession of Schfittler, under which the sale and adjudication were made, were also defective and null, and that the adjudication passed no title to the purchasers. They allege that the steps taken by the executrix to obtain the order under which the sale was made, Avere irregular and illegal, the object being a disguised partition; and not having observed the formalities required in proceedings to effect a judicial partition, nullity ensued.

Judgment was rendered in the court below in favor of the defendants, and the executrix has prosecuted this appeal.

The executrix of Schfittler is his widoiv and the mother of liis six children, three of whom are of the age of majority and three arc minors. The executrix is also tutrix of the minors. The domicile of these parties is in the parish of Avoyelles, in this State. The real properly of the succession is situated in New Orleans. The proceedings seem to have been carried on partly before the Second District Court of New Orleans and partly before the District Court of the Seventh Judicial District sitting for the parish of Avoyelles.

In June, 1867, the executrix filed a provisional account, in which the debts of the succession wero sot down, and the amount of the assets. The debts deducted, a remaining balance of eight hundred and twenty-four dollars and forty-seven cents was distributed. This account was duly homologated in the month of July. The executrix filed a petition in the Second District Court on the twenty-fifth of J une, 1867, setting forth that the major heirs had become clamorous for a full and final settlement of the succession; and to effect that purpose, she prayed that the real estate in New Orleans be sold for cash .for her half interest, and also for the interests of the major heirs, but on a credit of one, two and three years, with mortgage, for the minors’ share. Pending the action of the court on this application, proceedings were tahen in Avoyelles to procure the consent of a family meeting to the sale, and obtain the terms upon which the minors’ interest in the real estate should be sold. These proceedings being exhibited to the Second District Court, it rendered the order.prayed for, and after the legal delays, the property was sold..

It is clear from the entire course pursued in this case., that a parti-, tion of the succession was the actuating motive of the executrix and the major heirs. There was else no necessity for a sale of the remaining property of the estate after the debts were paid, and a partial division made by the provisional account. The interests of the executrix and tutrix were in conflict with those of the minors, and she was incompetent, in a judicial partition, to represent them. As a proceeding in partition, and we can taire no other view of it, it was null for the want of proper parties. In regard to the additional ground of defense set up by Lacey, it seems well founded. The particular property adjudicated to Lacey was acquired, as already said, from the succession of .Weber at a probate sale made at the instance of a tutor without the authority or advice of a family meeting. This Court pronounced the nullity of that sale in the matter of the succession of Mrs. J. G-. Weber. 16 An. p. 420.

We concur with the Judge a quo in the judgment rendered by him. Civil Code, article 1291; C. P. 116, 1020 ; 5 An. 208; 14 An. 154; 15 An. 251.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


author: Howei.u, J.

text:
    No. 1518.
    Joseph Westermeier v. Henry Street.
    Where a judgment in reconvcntion lias been appealed from'by the p'aintiff, the judgment in his favor cannot be revised or amended on the answer of the appellee to the appeal.
    To enable the lessee to recover damages in consequence of the failure of the lessor to deliver the premises leased at the date of the written lease, he must show that he has put the lessor in default.
    The lessee, after notifying the lessor that the premises arc in a leaky condition, may, if the lessor refuse, cause them to be repaired so that they will be tenantable, and deduct the . expense of repairs from the rent.
    from the'Fourth District Court of New Orleans — Titeará, J.

      T. J. Barhart and B. W. Huntington for plaintiff and appellant. Honor & Benedict. for defendant and appellee.
   Howei.u, J.

This is a suit for the recovery of rout due and for the dissolution of the leasó because of the failure to pay the rent, the defense to which is the general denial, with a demand in reconvcntion for damages caused, it is alleged, by the plaintiff’s failure to deliver ■possession of. the premises at the date stipulated, by delivering them in a1 leaky and otherwise untenantable condition, and by the illegal and'malicious issuance and execution of the writ of provisional seizure.

Pending the trial in the court a qua, the plaintiff discontinued his demand for the dissolution of the lease, without prejudice to defendant’s, recon vcntional demand.

Judgment was rendered in favor of the plaintiff for the rent claimed, with five per cent, interest from the date of filing his petition, and lessor’s privilege on the property seized, and in favor of the defendant on his demand for five hundred dollars with interest from judicial demand, the plaintiff to pay all costs of suit.

■ From the judgment against him for five hundred dollars damagos, the plaintiff has appealed; and in answer to the appeal the defendant has prayed that the judgment of the lower Court he amended by striking out all that portion in favor of the plaintiff and by allowing defendant the whole amount of damages (five 'thousand dollars) claimed by him.

•The judgment in favor of plaintiff has not been appealed from, and cannot be revised on the answer of the appellee.

As to the damagos in the loss of business and the wages of employes, allCgtsd to have been sustained in consequence of plaintiff’s failure to deliver the premises at the date stipulated in the written lease, the defendant lias neither alleged nor proven that ho put the plaintiff in dciault. And besides, conceding that a lessor may be held liable for such damages, he has waived them by taking possession of the premises and paying rent without objection. The last and the further reason, that the lessee could have had the premises repaired on the lessor’s refusal to do so, and have deducted the cost thereof from the rent, will not authorize him, under the evidence, to recover damages alleged to have resulted from the delivery of the premises to the lessee in a leaky and otherwise untenantable condition. And as to the third item-of damages, there is nothing in the record to show that the issuancetof the writ of provisional seizure was illegal and malicious. On the contrary, it was authorized by law and sustained by the judgment of the Court a qua. But there was error in allowing damages and mating plaintiff pay costs.

It is, therefore, ordered, that the Judgment appealed from, which allows damages on defendant’s reeonventional demand, be reversed, and that there bo judgment thereon in favor of plaintiff, with costs in both courts.


author: Wxlt, J.

text:
    No. 2012.
    Succession of Widow Theodore Zeringue.
    The action for a separation of patrimony is prescribed against in three months from the date of acceptance of the succession by the heir. C. C. 1409. If a creditor fails to bring’ suit for, or demand a separation of patrimony from the heir for more than three-months after.acceptance of the succession, his debt becomes a personal one against the heir, and will rani: inferior to a mortgage debt which the heir has created on the property. ' :
    from the Second District Court, parish of Orleans — Dwvig-nectud, J.

      Jamos D. Augustine and M. Dugueioi appellants. G. 2?. Schmidt for Mrs. Steph, opponent and appellee.
   Wxlt, J.

This is an opposition to'an administrator’s account, and contest between creditors for preference in the funds in the hands of the administrator.

Widow Zeringue inherited a house and lot and some slaves from her mother, Mrs. St. Amand, who died in 1861, being her sole surviving heiress.

She lived in the house with her mother ; and after her death, she continued to occupy her property and collect the hire of her slaves without administering.

The slaves having ceased to be property, she became anxious to .raise some money on the house and lot, and in order to give confidence in her title, she made formal application to the probate court on thirtieth December, 1863, to be recognized as sole surviving lieir, and to be put in possession of the property, which was done. On twenty-ninth February, 186-1 (within three months thereafter), she borrowed from Widow J. Steph eleven hundred and ten dollars, and gave her note therefor secured by special mortgage on the house and lot, the mortgage certificate showing there were no prior mortgages on the property given either by Mrs. Zeringue or her mother, Widow St. Amand.

Widow Theodore Zeringue afterwards died, and II. F. M. Fortier was appointed administrator of her estate. He caused the house and lot in this city (the only remaining property) to be sold to pay debts,; and filed his account, showing, after the payment of court charge,s and privilege claims, a balance of two thousand and fourteen dollars and eighty-eight cents, proceeds of sale, which he allowed in his account to he applied to a claim which he alleged was due from Widow St. Amand to the minors Guillotte, issue of' his wife by a former marriage with William Guillotte, deceased, and represented by Mrs. For-tier, his wife, as natural tutrix.

Widow J. Steph, the holder cf the note for eleven hundred and ten dollars secured by special mortgage on the property sold, filed an opposition to the account, alleging that she had not been put on the tableau, and that the administrator ignored her claim, although she held the first mortgage, and that she was entitled above all other creditors to Che funds in the hands of the administrator.

Mrs. Fortier, as tutrix of her minor children, issue of her marriage with William Guillotte, deceased, filed also an opposition, alleging that although her claim, in behalf of said minors, was correctly put down on the tableau for the amount of the principal, with its proper rank and privilege on the proceeds of the property sold, still the administrator liad failed to allow the interest on said debt, which is equally due by preference. She further alleges that, on or about the fourteenth April, 1860, prior to her second marriage, she loaned a sum of money to Widow J. B. St. Amand out of the funds in her hands as tutrix of her minor children, taking her note drawn to her own order and indorsed for the amount. That after the death of Widow SI. Amand, Widow Zeringue often acknowledged the debt as due by the estate of her deceased mother, and promised to sell property and pay it; but that notwithstanding these repeated promises, she caused herself to be put in possession of the succession of her mother, the said widow St. Amand, as her sole heiress, and then illegally granted a mortgage on the house and lot, the only property of the estate, to secure the debt to Widow J. Steph, created by herself since her mother’s death. She claims that, as creditor of Widow St. Amand, she should be paid out of the proceeds of the property of the latter in preference to the creditors of Widow Zeringue. She admits, however, that she todk a mortgage and the individual note of said Widow Zeringue for the debt contracted by her mother, Widow St. Amand, and gave up the original note to her; but avers that she did so without the authorization of her husband or of the court, and that she did not intend to novate the debt, nor to relinquish her right to contest the mortgage to Widow J. Steph. She prayed that the mortgage granted by Widow Zeringue to Mrs. J. Steph be declared null and void, or that the same be put down on the administrator’s tableau only ranking after' hex claims in behalf of her said minors.

Widow J. Steph, in bar of the demand of Mrs. Fortier, as tutrix, to have her alleged debt decreed entitled to a preference over the personal creditors of Widow T. Zeringue, pleaded the prescription of three months in conformity with article 1409 C. C., averring that said tutrix bad failed to demand a separation of patrimony within three months from either the express or tacit acceptance by Widow Zeringuo of her mother’s succession. She also averred that the alleged debt,' due by Widow St. Amand to said tutrix, was novated by the mortgage and note of Mrs. Zeringue given in lieu thereof.

The Court sustained the opposition of Widow J. Stcpli, and ordered that the account of -the administrator be so amended as to place her claim thereon, to be paid by preference out of tho proceeds to be distributed ; and that tho claim of Mrs. Fortier as tutrix' be plaoed-next in rank on the tableau.

From that judgment Mrs. Fortier, as tutrix, and her husband, as administrator, have appealed.

The question Is, has the'creditor of Mrs. St. Amand a-preference on the proceeds of the sale of the property inherited, possessed and controlled by her daughter for so many years without administering, over the personal creditors of the latter'?

By article 1370 of the Civil Code, Creditors have three kinds of action to cause themselve to be paid the debts due them by the deceased, viz: ‘ '

“ 1. A personal action against the heirs or those who stand in the place of heirs;

“2. A hypothecary action against the detainers or possessors of the property mortgaged for their'debts; ■'

“3. And the actionrfor the separation of the patrimony of the deceased from that of the heir.”

By article 1409, The suit for separation of patrimony must be instituted within three months from the express or tacit acceptance by the heirs. After the expiration of this term it is not admitted.”

Tho evidence in the record satisfies us that Widow Zeringue occupied and controlled, in her own right, the property which she inherited from her mother from the death of the latter in 1861, and that this' was a tacit acceptance of the succession. 19 An. 60. Mrs. Fortier, tutrix, was fully aware thereof, because for several years she rented rooms or boarded at her. house. We do not find in the record that any suit was ever instituted-for a separation of patrimony, although seven years had elapsed since Widow Zeringue began the occupancy and control of the property which she inherited from her mother, Mrs. St. Amand. We do not see what difference it makes whether Mrs. Zerin-gue assumed the ownership of the property by her tacit acceptance in 1661, or by her formal express acceptance In 1863, as Mrs. Fortier, tutrix, has not instituted suit for the separation of patrimony within three months of either of the acceptances ; indeed, there is not in this proceeding any legal demand for the separation of patrimony, because we find no compliance with article 1410 C. C., which says ¡ “ The petition for -separation of patrimony shall not be received unless it be accompanied with the sworn declaration of the creditor or creditors that they "believe that the heir is embarrassed with debts, and that they have reason to believe that his personal debts will absorb the effects of the succession to their prejudice.”

Mrs. Fortier, tutrix, without even attempting to cause herself to be paid by proceeding under article 1370 C. C., now seeks to have the mortgage of Mrs. J. Steph declared null as done in fraud of her rights, when in fact she has never attempted to assert any rights against the succession of Mrs. St. Amand. The fact that Mrs. Zeringue mort-' gaged the property to Mrs. J. Steph within three months after the formal acceptance in 1863, docs not now give Mrs. Fortier, tutrix, the right to have the same declared null as done in fraud of her rights.

Article 1411 C. C. must bo construed in reference to article 1400 C. C. The latter article limits the period for the action of separation of patrimony to throe months, and says : “ After the expiration of this term it is not admitted.” Article 1411 C. C. provides that within this term the heir cannot alienate or mortgage the property to the prejudice of the creditors, and if he does they may cause the act to be declared null as done in fraud of their rights.

If they do not assert their rights within the three months, they lose them as against the succession; and their only remedy then is a personal action against the heirs, or those who stand in place of the heirs. C. C. 1770.

We understand article 1411 C. C. to prevent the heir from alienating or mortgaging the property to the prejudice of the rights of the creditors, and if so, to have it declared null. It does not render absolutely npll the mortgage given within the three months ; it only does so when the same is prejudicial to the rights of the creditors. What right of the creditors ? The right within throe months to an action for separation of patrimony. C. C. 1409. If a creditor has lost his right by failing to exorcise it within the period limited by law, how can a mortgage or sale of the property by the heir affect him ? How can it prejudice rights which he has lost? How can we say that the mortgage of Mrs. J. Steph prejudices the right of Mrs. Fortier, tutrix, to have the property of Mrs. J. B. St. Amand separated from that of her heir so as to have a preference thereon over the personal creditors of the heir, when she has failed to assert that right in the time and manner provided by law ? She has lost her right, and the mortgage cannot be said to be prejudicial to a right which has already ceased to exist.

The defense to the prescription of three months, that the same cannot run against the minor heirs represented by Mrs. Fortier, is not available. We know of no exception to article 1409 of the Civil Code. It was the duty of the tutrix to protect those for whom she was appointed to act. If she failed to discharge her duly by causing the property of Mrs. St. Amand to be separated from that of the heir in. the time and manner provided by law, or if the rights of the minors have been impaired by her neglect, she will be amenable therefor.

On the whole, we think tho judgment of the Coart below fully sustained by the law and the evidence.

Judgment affirmed, with costs.