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

text:
    Succession of Wm. Regan.
    When a judgment has once been signed by the Judge, it should be interpreted by the court which rendered it, as well as by all others, as the foreign writers say, objectively; that is, it should be construed with reference to the pleadings and the subject matter of the controversy, according to the natural and legal import of the terms used, without any reference to any subsequent explanation of the court of what was its-intention or in its mind at the time the decree was rendered.
    Appeal from the Fourth District Court of New Orleans, Beynolds, J.

      T. Gilmore and Benjamin, Bradford & Finney, for Mrs. Mary Began, administratrix, appellant.

      J. Dunlap, for Mrs. Gutter, appellee.
   Merrick, C. J.

On the sixth day of February, 1855, the appellant, as administratrix of the succession of William Began, deceased, filed her account or tableau of distribution.

She placed herself on the- tableau for one-half of the last community. The account and this item in it were opposed by Mrs. Fanny Guttm' and one other creditor. On a final hearing, the Judge of the District Court rendered a judgment amending the tableau and directing the administratrix to pay in the order therein regulated the creditors specified, and homologated the tableau in other particulars, and directed the funds to be distributed accordingly.

Mrs. Gutter took a devolutive appeal from this decree, not being satisfied with the amount allowed her. After talcing her appeal, she took a rule upon the administratrix to show cause why she should not pay over to her, without prejudice to her appeal, the amount allowed her by the decree.

To this rule, the administratrix replied that she was willing to comply with the decree, but, by the terms thereof, there would be nothing due to' the plaintiff in the rule, as the entire fund would be absorbed by the creditors preferred to ‘Mrs. Gutter by the decree; and as to so much of said rule as asks the court to order the execution of the judgment without prejudice to the appeal, the administratrix excepted, because the court was without jurisdiction to pronounce upon the legal effect of the execution of said judgment upon the rights of the several parties.

In this court, it is contended that the effect of the decree upon the rule was to change the former judgment of the court amending and homologating the tableau of distribution, and to decree the administratrix to pay over to the creditors the one-half of the community which was allowed her by the first decree. On the one side, it is contended that this proceeding was unwarranted.by law, and that the judgment once signed is beyond the control of the Judge who has rendered it, and that he has no power to correct or modify it in any subsequent proceeding; and on the other, that the interpretation of the decree by the Judge who rendered it, is of the highest authority and furnishes the best evidence of what was intended thereby.

We think that when a judgment has once been signed by a court, that it should be interpreted by that court, (as well as by all others,) as foreign writers say, objectively ; that is, it should be construed with reference to the pleadings and subject matter of the controversy, according to the natural and legal import of the terms, without reference to any subsequent explanation of the court of what was its intention or in its mind at the time.the decree was rendered. In other words, this court will disregard any forced construction placed by the lower court upon its own decrees,’ although it may be pretended that such conclusion was in the intention of the court rendering the decree.

But if we apply this rule to the case before us, we find the decree upon the rule in accordance with the first judgment. That judgment orders certain debts to be paid in a certain order, and we understand the decree to make no reservation of a part of the fund in order to pay the administratrix, in preference to the creditors named in the decree, her one-half of the community. She is therefore bound by the decree to make payment in conformity to it, even if it should exhaust the entire fund in her hands, and leave nothing with which to pay herself the amount she has placed to her own credit on the tableau.

On the other point, it is manifest that the District Court was without jurisdiction to determine what effect the execution of the judgment should have upon the appeal. That was a question which the District Court could not determine adversely to the appellee, as appears to have been done by the unqualified manner in which the rule was made absolute. Without inquiring whether this part of the decree can prejudice the appellee or not in this court, we think she is entitled to a correction of it in this particular, and the execution of a judgment should be suffered to produce whatever effect, if any, the law gives to the same.

It is, therefore, ordered, adjudged and decreed by the court, that so much of the decree rendered upon the rule, on the 12th day of December, 1855, as makes the said rule absolute without prejudice to the appeal of said Mrs. Fanny Gutter, be reversed and avoided, and that the said decree be, in other respects, affirmed. Said appellee to pay the costs of the appeal.

SAME CASE ON. A RE-HEARING.

Buchanan, J.

After the judgment and appeal which form the subject of the case No. 4324 in this court, just decided by us, a rule was taken by Mrs. Fanny Gutter to show cause why the administratrix should not be ordered to pay oyer the amount allowed the said Mrs. Gutter by the judgment appealed from, without prejudice to her fwrther rights upon her sand appeal. After hearing, this rule was made absolute.

The judgment upon this rule, as it stands, is a peremptory and unqualified judgment against the administratrix of the estate and appellant herein, for a sum of nineteen hundred and seventy-eight dollars and thirty-three cents, that being the amount allowed Mrs. Gutter by the previous judgment from which she had appealed.

But the administratrix has brought to our notice that the judgment from which Mrs. Gutter had appealed, approved and homologated the account rendered by the administratrix, so far as not specifically amended; and that one of the particulars in which the account was not amended by the judgment, was the amount in the hands of the administratrix for distribution, say four thousand one hundred and eighty-onq dollars and thirty-eight cents.

Now, the judgment in question (that upon the oppositions to the account of administration) decreed, that the fund in hand, as aforesaid, should be distributed :

1st — To the payment of Clerk’s fees..................................
“ “ Sheriff’s fees.......................... $176 OS
“ “ privileged claims, according to the tableau, which amount to..................... 821 00
2d — Claim of Bmjne, assignee of Kolm, Dan-on & Go., amounting, in capital, to....................................$3718 86
And in interest to date of judgment, to considerably over......................................... 2000 00 5718 86
3d — Claim of Miller's Syndic, as the same figures on the tableau, say 1613 56
4th — Mrs. Fanny Gutter..................................... 1978 33

It is obvious, from this statement, that, under the judgment upon the account of administration, Mrs. Gutter could have nothing to receive from the fund in the hands of the administratrix, according to the account, which fund would have been entirely exhausted by the two first classes of preferred creditors. The judgment of the court upon the rule was therefore unfounded in any right conferred upon Mrs. Gutter by the previous judgment of the District Court, and injurious to the administratrix, by imposing upon her a liability beyond that judgment.

It is, therefore, adjudged and decreed, that the judgment heretofore rendered in this cause be set aside and annulled; and it is further decreed, that the judgment appealed from be reversed, and the rule taken by the appellee, Mrs. Fanny Gutter, on the appellant, Mrs. Regan, administratrix of William Regan's succession, on the 5th December, 1855, be dismissed, without prejudice to Mrs. Gutter's rights under her appeal; and that the appellee pay the costs of said rule in both courts.


source: Caselaw Access Project

author: Spofford, J.

license: Public Domain

text:
    P. H. Morgan v. James Brown.
    "When an attorney’s fee is contingent upon his success in collecting money for liis client, the fee not being exigible until the money is collected, prescription against the attorney’s demand does not begin to run from the date of the judgment he has obtained for his client.
    Appeal from the Sixth District Court of New Orleans, Cotton, J.

      Mamner & Moynes, for plaintiff.

      Smiley & Perrin, for defendant and appellant.
   Spofford, J.

This is a suit for attorney’s fees, alleged to have been earned under a special contract.

The defendant denies that he employed the plaintiff.

The proof is that the defendant gave to one JDempsy P. Gain a power of attorney, “to sue or otherwise collect all his claims” against the estate of one Witherspoon, and agreed to divide the proceeds with him. This power of attorney implied the power to employ counsel and to stipulate fees to he paid out of the proceeds of the claims.

Cain, in pursuance of this mandate, employed J. M. Elam as an attorney to investigate the claims. He resided in Baton Rouge, and finding it advisable to institute proceeding in the United States Circuit Court at New Orleans, he made a special contract with T. ff. Morgan (of whom the plaintiff is assignee) to bring and conduct a suit in that court against Witherspoon’s representatives, for a fee of ten per cent, upon the amount eventually collected, contingent upon the collection. Morgan brought the suit and obtained a judgment in the Circuit Court at New Orleans. A writ of error was sued out from the Supreme Court of the United States, and the judgment of the Circuit Court was affirmed. The amount of the judgment ($14,000) and large arrears of interest has now been, realized. Out of the one-half going to Cain, Morgan was paid ten per cent, by Cain’s assignees. This suit is to recover the ten per cent, due upon Broion's half.

Both Cain and Brown were notified of the employment of Morgan to conduct the suit in Brown’s name before the Circuit Court. Their acquiescence is a ratification of his engagement by Elam.

Elam testifies that he contracted with Morgan for the contingent fee of ten per cent. It is urged that, as the sum exceeds five hundred dollars, this evidence is insufficient. We find a corroboratory circumstance in the fact that Morgan was paid ten per cent, out of Cain’s portion of the judgment by Gain’s assignees without opposition.

The plea of prescription is interposed. As the stipulated reward for the services was contingent upon the success of Brown in collecting the money, the fees were not exigible until the money was collected. This suit was brought immediately after the collection of Brown's share. Moreover, three years had elapsed since the voluntary payment of the first instalment on the part of Brown’s agent, through his assignee.

The fact that Brown employed other attorneys for special duties in collecting the money does not impair the claim of Morgan for compensation, for he was at all times ready to do whatever was requisite to he done in enforcing the judgment he had obtained in New Orleans.

The losses experienced by the defendant in consequence of his haying selected unfaithful agents or made injudicious contracts with them, furnish no sufficient ground for relieving him from the obligation of paying the attorney who appears to have performed his duties with fidelity and success.

This is not a case for damages as for a frivolous appeal.

Judgment affirmed.


author: Buchanan, J.

text:
      W. D. Miller v. C. & G. B. Tate.
    The defendants, the factors of the plaintiff, effected insurance on their stock of tobacco and other merchandize in four different insurance companies. Some of the insurances were for six months, others for a year, and at different rates. The rate of insurance was equal to one-eighth of one per cent, per month. The plaintiff, in the accounts rendered of sales of tobacco, was charged one-fourth of one per cent, per month for insurance. Held: That the defendants were not to be considered as plaintiff’s agents in the insurances they had effected, but they are to be considered as being themselves the insurers of the plaintiff at the rate of one-fourth of one per cent, per month, and as having re-insured at the best terms they could obtain in the different insurance offices in the city.
    The plaintiff’s tobacco having been lost by fire, the defendants are not entitled to charge commissions on sales not actually made. Their liability to the plaintiff is that of insurers.
    APPEÁL from the Fourth District Court of New Orleans, Reynolds, J.

      Semmes & Ediowrds, for plaintiff.

      Elmore & King, for defendants and appellants.
   Buchanan, J.

.The plaintiff, a tobacco manufacturer in Lynchburg, Virginia, sues defendants, commission merchants in New Orleans, for the alleged value -Hi certain tobacco shipped by the former at various times to the latter, for sale comifnission, and of which the petition states that the defendants have refused to render an account, although frequently requested so to do, under a ¿reience that the tobacco has been destroyed by fire.

The defendants complain, with great apparent reason, of the unfairness of ■..itbijstatement of the plaintiff’s cause of action. In truth the defendants appear,to have rendered various accounts to plaintiff; the latest some five or six 'months previous to the institution of this suit, embracing the whole of the balance on hand of plaintiff’s tobacco at the time of a fire which actually occurred on defendant’s premises about two months previous to the rendition of of that account.

The real subject of dispute between the parties is the value of said balance of plaintiff’s tobacco in defendant’s hands at the time of the said fii’e and the correctness of certain charges in defendant’s last account for commissions, &c.

As much of the argument has turned upon the insurances effected by defendants in five different insurance offices, to the aggregate amount of fifty thousand dollars upon their stock, composed of tobacco and other merchandize, in the store consumed by the fire of the 16th March, 1854-, and upon the settlement made by the defendants with those insurance companies, it is proper that we should premise by declazlng that, in our opinion, the defendants are not to be viewed as plaintiff’s agezrts in effecting those insurances.

Some of those insurances are for six months, others for a year; the former at three-fourths of one per cent, premium, the latter at one and one-half per cent, premium. That rate of premium is equal to one-eighth of one per cent, per month. But defendants charge plaintiff one-fourth of one per cent, per month for insurance in the several accounts rendered; said insurance being calculated upon each lot of plaintiff’s tobacco sold by defendants to the day of sale. It is clear, therefore, that the defendants became themselves the insurers of the plaintiff at the rate of one-fourth of one per cent, per month, and re-insured on the best terms they could obtain in the different insurance offices in the city.

The rate of premium charged by defendants to plaintiff appears to be the same as that charged to their other numerous customers, and by uninterrupted acquiescence on the part of plaintiff, has become binding upon him by this time, even supposing that he may have had the right to object to it originally.

It is particularly to be observed that plaintiff makes no objection to his factors becoming themselves the -insurers of his tobacco.

The insurance account of defendants with plaintiff is obviously in the nature of an open policy with an uncertain term, of which the former are the underwriters. The insurances effected by defendants with the Home, the Sun, and other insurance companies, were, on the contrary, particular fire risks, with a specified term. There was no privity of contract between plaintiff and those insurance companies.

Considering, then, the defendants as the insurers of plaintiff, we are next to inquire what is the proof of loss ?

At the time of the fire in defendant’s store, there were in said store, unsold, belonging to plaintiff:

1 Box tobacco, Natural Bridge, weighing 100 pounds.

137 Boxes tobacco, E. Lipscomb, weighing 13,700 pounds.

28 Boxes tobacco, Miller's Best, weighing 728 pounds.

17 Boxes tobacco, G. W. Norwood, weighing 1700 pound:

90 Boxes tobacco, Norwood & Sbt'eet, weighing 9000 poum

To ascertain the value of these several brands of tobacco per poud are two methods indicated by the evidence, namely, the last.sales of eath brand previous to the fire and the estimation of merchants trading in the article of the market value of each brand at the time of the fire.

We find no sales of Natural Bridge proved.

The last sale of the E. Lipscomb was on the 9th March, 1854, -one week before the fire, one box at 16 cents per pound.

The last sale of the Miller's Best was February 4th, 1854, one box at 25 cents per pound.

There is no evidence of sales of the G. W. Norwood and Norwood & Street brands.

Two merchants in the tobacco trade, E. A. Bmolins and A. Glenn, have given a certificate, which is in evidence, of the .cash value per pound, previous to the damage from the fire, of several brands of manufactured tobacco, estimated from samples saved from the fire in defendants’ store.

Among the brands contained in that certificate are only two of those for which compensation is claimed in this suit, namely, E. Lipscomb and Norwood & Street. The former is estimated in the certificate at thirteen cents & pound and the latter at eight cents. Both of the signers of that certificate have been examined on the trial of this cause as witnesses, and the result of their examination is far from satisfactory as to their means of judging correctly in relation to the value, before the fire, of the tobacco submitted to their inspection, and even in relation to the identity of the brands mentioned in their certificate. Those brands are thirty-six in number.

Mr. Rawlins states: “Made the appraisement a week or ten days after the fire. The tobacco was piled up in tiers — should say there were 1500 to 2000 boxes of tobacco there. There were many of the boxes badly burnt — some of them mostly burnt. Some had the brands visible and distinct. There were probably fifteen or twenty brands in the lot which they could identify. Examined a box of each particular brand, as witness thought. There were many of the brands which could not be identified by them.” This witness does not specify what are the brands identified. But ho says “that he was not acquainted with the Norwood & Street brand,” and “cannot say that he ever examined the Norwood brand.”

Mr. Glenn says: “This tobacco was badly burnt. There was only a portion of the tobacco that had boxes on it. Between 400 and 500 packages had boxes on it. There were about 2000 packages in their original state, without then’ boxes; the balance was loose tobacco in piles. The whole of the 400 or 500 boxes which he speaks of had one head burnt off, and some had two or three sides burnt off. A tobacco box has four sides and two heads. Could not decipher the marks or brands. There were between three and six of the brands which he could identify by having the smoke washed off with soap. The outside of the tobacco was changed, and the inside was badly damaged by being in the fire.”

Mr. Glenn, no more than Mr. Rawlins, could specify the brands which he had identified.

Another certificate, made by two merchants at the instance of defendants, is in evidence as to the value of the Norwood & Street brand on the 28th November, 1853, between three and four months previous to the fire. It is stated to be 13 cents a pound.

The only other evidence of the cash value of these tobaccos at the time of the fire is that of defendants’ clerk, Smith, who declares that he considers the same to be correctly stated in account No. four, being as follows:

Natural Bridge, 18 cents per pound.
B. Lipscomb, 9 cents per pound.
Miller's Best, 10 cents per pound.
Norwood and Norwood & Street, 8 cents per pound.

But this witness corrects himself immediately afterwards, by saying that he considers the Norwood & Street brands worth ten cents instead of eight. As there were no sales of this brand during the three months that elapsed from the date of Twitty and Oliver's certificate, and as plaintiff did not think fit to examine either of those gentlemen to contradict Smith’s testimony as to the value of the Norwood & Street brands at the time of the fire, (although both Twitty and Oliver were in court as witnesses on the trial of the case,) we may infer that he could not have done so successfully.

On a review of the whole case wc find actual sales of two of the brands proved, the Lipscomb and the Miller's Best. Those sales, extending through a period of many months, show a great uniformity in the market price of those brands — the former at fifteen and the latter at twenty-five cents. xYctual sales are the surest criterion, and must outweigh the opinion of the clerk of defendants, as expressed in his testimony quoted above. It is true that Goodman, another witness of defendants, has placed even a lower estimate on the Miller’s Best brand than Smith; but Goodman himself proves a sale by defendants of the whole lot of this brand to himself at twenty-five cents. He returned it indeed, having found one box inferior to sample. But he does not prove any other of the twenty-eight boxes but that one to have been so; neither does Smith prove anything of the sort, although the lot was in the store of defendants for some months afterwards, and five boxes were sold at different times, and all for twenty-five cents a pound, without any reclamation being made. We will, therefore, assess this brand at the value affixed by the judgment of the District Court, with the exception of one box, proved by Goo&mwn to have been mouldy, and which we value at the price affixed to the brand in the defendants’ account and Smith’s testimony, say ten cents. The Millers Best was in small packages of twenty-six pounds each.

The Lipscomb brand, as we have said, was sold in small lots at various times, running through the period of a year or more, at a very uniform rate of fifteen cents, reaching on two occasions as high as sixteen. But it evidently was very heavy at that rate; and there is in evidence a letter of plaintiff to defendants, dated 6th March, 1854, and which must have come to hand just about the time of the fire, in which defendants were instructed to close out this brand at ten cents a pound or ship it to Boston. It is probable from the evidence that defendants might have closed out the Lipscomb at ten cents, in conformity to those instructions, had not the fire intervened. We shall, therefore, assess this brand at that rate.

Upon the value of the Natural Bridge brand there is no dispute; and for . reasons expressed above we adopt Smith’s estimation, ten cents, as the value of the Norwood and of the Norwood & Street brands.

Defendants cannot be allowed commissions except upon actual sales made by them. It is a mere fiction to treat the destruction of the tobacco as a sale. And as to the auctioneer’s sales of tobacco damaged by the fire, there is not the slightest proof of the identity of any of the lots sold by that officer with the tobacco of plaintiff. The number of packages of manufactured tobacco in defendants’ store at the time of the fire was certainly over four thousand, of which only two hundred and seventy-three belonged to plaintiff.

The auction sales comprise twelve hundred and seventy-seven boxes, divided into fifty lots, and fourteen lots of loose tobacco. No marks or brands of any kind are affixed to any of the lots.

Eor the same reason the maturity of payment fixed by defendant’s account, (November 5th, 1854,) seems -purely fanciful and not binding upon plaintiff. Defendants liability for the plaintiff’s tobacco destroyed by fire is that of an insurer. Supposing defendants to have been entitled, in that capacity, to sixty days delay for paying the loss, jn the absence of any stipulation to that effect, yet the sixty days had elapsed long before the institution of this suit, and there appears no foundation for the charge made in defendants’ account of two per cent, discount for anticipated payment.

We allow the charges of one-quarter per cent, per month premium for insurance, and six cents a box per month storage, as calculated upon the whole of the plaintiff’s tobacco sold and burnt, to the dates of the several sales and of the fire, in defendants’ account No. two in the record.

We state the account between the parties, according to the foregoing principles, under the evidence and the agreements of counsel on file, in a schedule hereto annexed, showing a balance in favor of plaintiff of eight hundred and sixty-three dollars and twenty-three cents.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and. that plaintiff recover of defendants eight hundred and sixty-three dollars and twenty-three cents, with interest on three hundred and twenty-eight dollars and twenty centsfrom March 16th, 1854, andón five hundred:and thirty-five dollars and three cents from 3d November, 1854, with costs of the District Court, those of appeal to he borne by plaintiff and appellee.

schedule..

Wm. D. Miller, Dr., to O. & G. B. Tate:

To balance per account current rendered July 20th, 1853...........$2425 83

To balance from W. D. M. in final settlement....................... 863 23

$3288 56

Or.

By nett proceeds tobacco sold per account sales June 5th, 1854...... $391 97

“ “ “ “ “ June 6th,. 1854....... 392 24

Nett value of tobacco burnt March 16th, 1854, as follows:

1 Box Natwral Bridge, 100 lbs., © 18 c................ $18 00

137 Boxes IApseomb, 13,700 lbs., @ 10 c.................1370 GO-

27 Boxes Miller’s Best, 702 lbs., © 25 c................ 175 50

1 Box MilWs Best, 26 lbs., © 10 c................... 2 60

17 Boxes G. W. Norwood, 1700 lbs., @ 10 c............ 170 00

90 Boxes Norwood & Street, 9000 lbs., @ 10 c........... 900 00

$2636 10-

Rive-per cent, off for cash............................... 131 75

- $2504 35

$3288 56

Spofeokd, J.,. absent..


author: Mekuick, J.

text:
    Peter Lafiton, Administrator, v. Elien Doiron et al.
    The first section of the Act of the'Legislature of the 10th of March, 1847, conferring upon administrators and other representatives of a succession, the power of acting as auctioneers in the sale of the property of the succession, was not abrogated by the Act of the 7th of April, 1847, directing the Judge of the court to order the sale to be made by the Sheriff of the parish or such auctioneer as the parties might name.
    The two Acts passed at the same session are not so uttefly inconsistent with each other as to be wholly irreconcilable.
    Although the action for a reduction of the price of land on the ground of deficiency in quantity be prescribed, it may nevertheless be setup as a means of defence against a demand for the price.
    Appeal from the District Court of West Baton Bouge, Robertson, J.

      H. M. Favrot, for plaintiff.

      Edwards & Barrow, for defendants and appellants.
   Mekuick, J.

On the 29th day of June, 1850, under an order of court, Louis Laffiton, as administrator of the succession of Widow Elizabeth Lejeune, deceased, sold at public auction the property of her succession. Among the effects sold, was a tract of land described as “ the plantation whereon the deceased resided,, at forty arpents from the river Mississippi, measuring one arpent front by forty arpents in depth, between parallel lines, bounded above by land of Flien Doiron and below by lands of Me Galop, Felix Ba/rnard, and others,” which was sold to the defendants, Zonguepée and Doiron, for $1,000 (according to the terms of sale), on a credit of one, two and three years, the purchasers furnishing three notes bearing eight per cent, interest after maturity. The purchasers did not sign the adjudication nor give their notes. The prooes verdal of the sale was signed by the administrator alone and two witnesses.

The first administrator having died without obtaining the notes of the purchasers, the present administrator applied for and obtained an order of seizure and sale in April, 1865, against the purchasers, to enforce the payment of the price. The defendants did not oppose the sale, and the land was sold for $500, July 7th, 1855.

The present action is brought to recover $814 08, the remainder of the price, with eight per cent, interest from August 4th, 1855, until paid. Judgment was rendered by default against Zongupée, as a debtor in solido, for the amount claimed. .Doiron answered, and judgment having been rendered against him for the like sum, he has appealed.

His counsel contends:

1st. That in 1850, there was no law authorizing an administrator to act as auctioneer in the sale of the property of a succession. The first section of the Act of 10th March, 1847, p. 62, expressly conferred this power upon administrators and other representatives of a succession. The power was not abrogated by the Act of 7th of April, 1847, p. 73, directing the Judge of the court, where the succession is opened, to order the sale to be made by the Sheriff of the parish or such auctioneer as the parties, may name; because the two Acts were passed at the same session of the Legislature, and they are not so utterly inconsistent with each other as to be wholly irreconcilable. Moreover the provision in the Act of 10th of March was recognized and continued by the proviso in the 7th section of the Act relative to auctioneers, approved March 16 th, 1848, p. 97. We think, therefore, the Judge could, in 1850, empower an administrator to sell property. It is unnecessary to consider whether the administrator could, by his adjudication, bind the purchasers to pay the price, they never having signed the notes or adjudication; for the defendant Doiron has substantially admitted the sale in his answer, to say nothing of his acquiescence in the proceedings under the order of seizure and sale. See Arts. 2586 and 2601 O. O. 6 Rob. 26 and 9 Rob. 416.

2d. It is urged that the Judge of the District Court erred in refusing to receive the defendants’ proof in regard to the alleged deficiency in the quantity of the land sold. The reason for the refusal, we learn from plaintiff’s brief, was that the action for the reduction of the price was barred by the prescription of one year. In this the District Judge erred. Although the defendants’ action, were he to sue, is barred by one year, yet as a means of defence, the exception endures as long as the plaintiff’s action exists, and may be used as a shield against the action. Quae temporalea, sunt ad agendum, sunt perpetua ad excipiendum. Davenport v. Foster, 3 N. S. 695; Bushnell v. Brown, 4 N. S. 500.

3d. It is further contended, that the court erred in condemning Doiron, as a debtor in solido with Zonguepée, to pay the remainder of said price. The purchase of property in the joint names of Longuepée and Doiron only created a joint obligation for the payment of the price. If the mortgage, the accessory obligation in a purchase of this kind, be considered as indivisible, it does not follow that the primitive obligation is of the like nature. See 9 An. 421. C. C. 2807, 2844, 2088, 2108, 1382. C. P. 66, 66 and 67.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court as to the said Elien Doiron be avoided and reversed, and that this cause be remanded to the lower court for a new trial, with instructions to receive testimony tending to show a diminution in the quantity of the land sold, and to be governed by the views herein expressed, and in other respects to proceed according to law; the plaintiff and appellees paying the costs of the appeal.


author: Merrick, O. J.

text:
    State v. Lazarre and Leopold Reiss.
    The Sheriff has no authority to receive moneyas security for the appearance of persons accused of
    Parties admitted to bail under bond, are, as it were, transferred from the custody of the Sheriff to the friendly custody of the sureties in the bond, who may at any time surrender the accused in discharge of the bond.
    Courts of justice will not aid parties to enforce or relieve them from the effects of contracts made in violation of law.
    Appeal from the District Court of Iberville, Robertson, J.

      Z. Labaure, for appellee.
   Merrick, O. J.

Lazwre and Leopold Reiss were arrested under a charge of larceny.

On a hearing, under a writ of habeas corpus, the District Judge ordered that the parties he-admitted to bail upon their executing their several bonds in the sum of five hundred dollars each with good and sufficient security, with a condition for their appearance at the next term of the District Court.

On behalf of Laztwre Reiss one Felix Reiss deposited cash and drafts in the hands of the Sheriff, amounting to the sum of five hundred dollars, as security for the appearance of Lazwrre Reiss, before the Sixth District Court in and for the parish of Iberville, to answer the charge.

The Sheriff signed the receipt for the money in his official capacity, and it seems enlarged Lazwre Reiss.

An indictment was preferred against both defendants, and Lazarre failed to appear to answer the same.

After this failure of Lazwre Reiss, Felix Reiss assigned his claim to the money in the hands of the Sheriff.

The present proceeding was commenced by a rule taken by the assignee of Felix Reiss upon, the Sheriff, to show cause why the money should not be paid to him. The State of Louisiana intervened in the rule, nevertheless it was made absolute, and the State has appealed.

There is no law which authorizes a Sheriff to receive money as a security for, the appearance of persons accused of crime. Where parties are admitted to bail under bonds and recognizances, they are not absolutely discharged, but are (as it were) transferred from the custody of the Sheriff to the friendly custody of the sureties in the bond or recognizance. 6 Mod. R. 231. These new keepers have the right to surrender the party accused in discharge of his bond to the Sheriff or his deputy, in open court or in the four walls of the prison. This right of surrender implies the right of arrest as an incident to it. Rev. Stat. p. 110, sec. 60; Ibid, p. 12, sec. 1.

Aside from the positive provisions of' law on the subject of bail in criminal cases, if is evident, to say nothing of its liability to abuse, that the deposit of money with the Sheriff, as security for the appearance of the accused, would not be so likely to secure the end proposed as that provided by the statute.

We think, therefore, the delivery of the money to the Sheriff and his release of the accused upon the same, clearly illegal and against the policy of the law.

The assignee of Felix Bern has not acquired any greater right than Beiss himself had. Courts of justice will not aid parties to enforce or relieve them from the effects of contracts made in violation of law. See Davis v. Holbrook, 1 An. 178.

The rule ought to have been discharged, but as the State alone has appealed the only decree we can render in accordance with our views of the law, is to dismiss the appeal.

Appeal dismissed.


author: Voorhies, J.

text:
    Joseph T. Landry, Administrator, v. C. L. Landry, Executor.
    To sustain an order of seizure and sale at the suit of the administrator of a succession, authentic evidence of the plaintiff’s appointment as administrator is necessary.
    It is too late to supply that evidence after the appeal from the order is granted.
    Appeal from the District Court of Iberville, Bobertson, J.

      F. W. Bobertson, for plaintiff.

      Z. Labauve, for defendant and appellant.
   Voorhies, J.

This is an appeal from an order of seizure and sale obtained by the plaintiff, as administratior of the succession of the late Tal'er'e Lan&ry, on an act importing a confession of judgment.

The absence of .authentic evidence of the plaintiff’s appointment as administrator is assigned by the defendant and appellant as an error apparent on the face of the record.

It appears that the proceedings in this case were filed on the 5th of April; the notice of seizure and sale was issued on the 1th, and served on the 8th of April; and the order grantingthis appeal was signed by the Judge on the 10th of the same month. The plaintiff offered to file, after the granting of the order of appeal, authentic evidence of his appointment as administrator, but the Clerk conceiving he was without authority refused to file the same.

We consider the error assigned as fatal. After the notice of seizure and sale had been served, and an appeal taken by the defendant, it was then too late to supply the evidence, which was essential to authorize the issuing of the order of seizure and sale ; such evidence should have formed part of the proceedings, via exeouUm, on file, to sustain the fiat of the Judge.

It is, therefore, ordered and decreed, that the fiat of the Judge a quo, granting the order of seizure and sale, in this case, be set aside and avoided, the plaintiff and appellee to pay the costs of both courts.


author: Voobhies, J.

text:
    J. H. Martin v. W. S. Jones.
    The appointment of a tutor by a court of competent jurisdiction cannot be questioned collaterally; such appointment must be avoided by a direct action, or in the mode pointed out by law.
    APPEAL from the District Court of Carroll, Farrar, J.

      J. B. & C T. Bemiss, for plaintiff and appellant.

      Short & Parham, for defendant.
   Voobhies, J.

This is an injunction suit. William S. Jones was appointed dative tutor to the minor children and legal heirs of the late Bidden Jones, whose succession was opened in the parish of Carroll. As such tutor, he obtained a judgment against the succession of the late B. J. Chambliss for the sum of $1,217 33 with five per cent, per annum interest thereon, from the 29th of May, 1847, until paid, and costs. A twelve months’ bond for the sum of $1,721 34 was given by the defendant in execution in satisfaction of this judgment on the 5th of August, 1854. An execution, issued thereon, was enjoined by the administrators of the estate of Chambliss, on the ground that the District Court of Carroll was without jurisdiction to appoint WilUamS. Jones as tutor, inasmuch as the minors had removed to the State of Texas, where guardians had already been appointed to them; and hence his appointment and the judgment thus rendered in his favor as such tutor were mere nullities.

William 8. Jones died shortly after the injunction was sued out. James A. YorTe then filed a petition in the District Court of Carroll, setting forth his appointment as guardian of the minors since the death of Jones, by one of the county courts of the State of Texas, and prayed to be recognized as such. His prayer was granted on the 12th of May, 1856. Thereupon he made himself a party to the suit and moved to dissolve the injunction, with damages.

There was judgment in his favor dissolving the injunction, allowing him additional interest and damages, and the plaintiffs appealed.

"We do not think there is any error in the judgment of the court below. It is clear that the appointment of a tutor by a court of competent jurisdiction cannot be questioned collaterally; such appointment must he avoided or set aside by a direct action or in the mode pointed out by law.

The plaintiff’s objection to the admission of the judgment recognizing YorJe as guardian was properly overruled. As the validity of that judgment was not in question Yorh was clearly not bound to offer the evidence upon which it was rendered.

There is no equitable ground of defence urged by the plaintiffs in this case. On the contrary, the chcumstances disclosed by the record have fully convinced us that this injunction was sued out solely for the purpose of obtaining delay. We are, therefore, of opinion that the defendant ought to recover additional damages as prayed for in his answer to this appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be amended, by increasing the damages from one hundred and thirty-five dollars to three hundred and forty-two dollars; and so amended, that said judgment be affirmed, with costs.


author: Merrick, C. J.

text:
    John Hunsicker et al. v. William Briscoe et al.
    The Legislature may constitutionally delegate to Police Juries authority to pass all such ordinances as they may deem necessary relative to roads and levees.
    The Police Jury may, in order to avoid the expense of expropriation of property, authorize the owners of the soil over which the road passes, to keep up gates by which the right of way may be secured to the public with the least injury to the owner.
    APPEAL from the District Court of Tensas, Pm-rcvr, J.

      A. Snyder, Beeves, Briscoe and Alexander, for plaintiffs and appellants.

      T. P. Pcm-rm', S. B. Shcno and F. Walton, for defendants.
   Merrick, C. J.

This suit is brought to recover damages on account of, and to abate as nuisances, certain gates across a road in the paiish of Tensas.

The point of law raised for our decision by the appeal is thus stated by the appellants, viz:

“The main question for the consideration of this court is, the power of the Police Jury of the parish of Tensas to authorize the erection of gates or other obstructions across the public highways, for if such power is vested in the parochial authorities legally, this cause is at once disposed of in favor of the defendants; for we admit that the defendants erected the obstructions complained of under the sanction and by the authority of the Police Jury.”

The argument of the appellants is, that “All legislative power under the Constitution of this State, is vested in the Senate and House of Representatives, and they have no power to delegate their authority to another body, for, if the proposition be admitted that the Legislature can delegate a part of its power, the same proposition would hold good as to all powers conferred by the Constitution. Police Juries are subordinate to the will of the Legislature, and whenever they are sustained in the exercise of legislative privileges, they become co-ordinate departments of the government, and cease to be subordinate.”

The third Article of the Constitution is in these words: “ The legislative power of the State shall be vested in two distinct branches, the one styled the ‘ House of Representatives, ’ the other the ‘ Senate, ’ and both together the General Assembly of the State of Louisiana.”

We do not understand by this Article of the Constitution that the General Assembly is required to legislate upon all subjects, whether of a general or local nature, and that it has no power to delegate any legislative authority to municipal and parochial authorities and other inferior jurisdictions.

We think it was intended merely to define in what bodies the supreme legislative power should be vested. It was not intended as a restriction upon the sovereignty of these bodies. The Article is but a sequence of Article one, which declares that “The powers of the government of the State of Louisiana shall be divided into three distinct departments, and each of them to be confided to a separate body of magistracy, to wit: those which are legislative to one; those which are executive to another, and those which are judicial to another.”

The State of Louisiana being sovereign, it must follow that the General Assembly, in all that concerns the law giving power, is supreme, except in those particulars in which it is expressly restrained by the Constitution. 9 Rob. 411; 11 An. 370. There is no express restriction on the power of the Legislature, prohibiting it from conferring such a part of its power upon the Mayors and Aldermen of towns and the Police Juries of the parishes, as may be suited to their immediate wants. On the contrary, the Constitution recognizes these subdivisions of the State, and it is to be presumed that it was the intention of the framers of that instrument to adopt with it the construction which had been placed by every department of the State government upon the like provision in the two former Constitutions. 3 Martin’s Dig. 290 ; 2 Moreau, 240 ; Bullard & Curry, 640; C. O. 420; 7 N. S. p. 5.

The Act of 1855 conferred upon the Police Juries of all the parishes of the State, authority to pass all such ordinances as they may deem necessary relative to roads and levees. Acts 1855, p. 394.

This is a subject upon which the local authorities are much more competent to legislate than the General Assembly, inasmuch as they are easily convened and can readily adopt such regulations and changes as the immediate wants of the neighborhood or parish at large may require. We think the Legislature had the power to confer this authority upon the Police Juries.

As the Police Juries have power to make roads, we see no reason why this power conferred is not complete, and why the Police Jury may not, in order to avoid the expenses of the expropriation of property, authorize the owners of the soil over which the road passes, to keep up certain gates, as was done in the case before us, thus securing the right of way for the public, with the least injury to the owner. The Police Jury had the power to abandon the road altogether, as well as to open it; and if they have determined that the public shall not exercise the right of way, except as subject to the gates of owners, they have only refrained from exercising all the power with which they are invested.

Any gate which the Police Jury have authorized to be placed upon the road, is not an obstruction prohibited by the Statute of 1818, sec. 10 ; see Rev. Stat. p. 507, sec. 138. The Statute is intended to prevent obstructions to roads after they have been laid out and constructed as directed by the Police July. What they have sanctioned as pertaining to the road forms a part of the same.

The judgment of the lower court is, therefore, affirmed, with costs.


text:
    L. D. Miller v. R. Stewart.
    In an action by an overseer for his wages, a plea in reconvention may be set up by the defendant, claiming damages for the unlawful killing of one of the negroes by the overseer.
    An overseer is not permitted to chastise the slaves of his employer with unusual rigor, nor to maim or mutilate them, or to expose them to the danger of loss of life.
    Appeal from the District Court of Carroll, Farrar, J. Tried by a Jury.

      L. Selby, for plaintiff.

      JS. Sparrow, Short & Parham, for defendant and appellant.
   Voorhies, J.

The plaintiff sues to recover the sum of $800 for services alleged to have been rendered by him as overseer on the defendant’s plantation, at the rate of $400 per annum, from the 18th of March, 1853. He alleges that he was discharged and sent away by the defendant, without any good cause, previous to the expiration of the last year, to wit: on the 18th of June, 1854, and is, therefore, entitled to the whole of his salary.

The defendant, in his answer, after a general denial, pleads specially that he had not only good, but urgent cause for discharging the plaintiff as overseer; because said plaintiff, on the 8th of June, 1854, in total disregard of his duties as such overseer, most wantonly and cruelly whipped to death one of his negroes, named Tom, of the value of $1250, which he claims as damages in reconvention; and also pleads payments made by him on account of the plaintiff’s demand.

Upon the issues thus presented by the pleadings, the cause was tried by a Jury, who gave a verdict in fiivor of the plaintiff for the sum of $344 15. The defendant, after an unsuccessful attempt to obtain a new trial, took the present appeal from the judgment rendered on said verdict against him.

The fact that the slave Tom was chastised by the plaintiff with unusual and excessive rigor, is, we think, conclusively shown by the evidence in the record. All the witnesses concur in their testimony as to the extreme severity of the whipping; one of them says that he had been very badly whipped ; that from his neck to his heels, there were stripes on him so close together, that the witness could not put his finger between them; that the witness was a planter in the neighborhood, and had had a good deal to do in the management of negroes, and had seen a good many bad ones, but had never before seen one whipped so badly as the one in this case, whose punishment appeared to him to be unusually severe. There is not a scintilla of evidence showing that the slave Tom was vicious or that his character was bad; nor was there any attempt to show the nature of the offence which brought upon him such severe punishment. The 'plaintiff in his letter to the defendant merely states that it was for abusing his wife. The overseer may correct and chastise the slaves of the planter who employs him, but he cannot do so “ with unusual rigor, nor so to maim or mutilate them, or to expose them to the danger of loss of life, or to cause their death.” 3 An. 618. There were two physicians at the post mortem examination. One of them thinks that the death of the negro was produced by over exertion and exhaustion, and the other by the whipping or treatment of the overseer; that he did not see from his examination anything to induce him to believe that he died from disease; that, in some cases, excessive whipping will produce death by exhaustion. Whether the chastisement in this instance was the immediate or remote cause of the death of the negro, it appears to us to be quite immaterial. If he died of exhaustion, the plaintiff was, under the circumstances, certainly guilty of gross negligence in not taking proper care of him when he retired to his cabin. In the case of Kennedy v. Mason, 10 An. 519, similar in its features to the present, we held the overseer bound. See also Humphreys v. Switzer, 11 An. 320.

Under the circumstances of this case, the defendant had the clear right to discharge and send away the plaintiff, as overseer, before the expiration of the year.

We are of opinion that the defendant is entitled to recover from the plaintiff the sum of $1200, which is proved to be the value of his slave, deducting therefrom $344 as the balance due the plaintiff on his salary as overseer.

The Judge a quo did not err in overruling the plaintiff’s objection to the plea of reconvention. The plea was clearly connected with and incidental to the main action.

It is, therefore, ordered and decreed that the judgment of the court below be avoided and reversed; and it is further ordered and decreed that the defendant recover of the plaintiff the sum of eight hundred and fifty-six dollars, with legal interest from the date of the present judgment, and that the plaintiff and appellee pay the costs of both courts.


author: Merrioic, C. J.

text:
    Sharpley Owen v. Gersham Brown et al.
    A recovery against and payment by either of two persons severally bound therefor, of the value of a slave unlawfully carried away, vests the title to the slave in the one from whom, the damages were claimed and received.
    APPEAL from the District Court of Carroll, Fao’rar, J. Tried by jury.

      FT. B. Oaldwell, for plaintiff.

      L. Selby, for defendants and appellants,
   Merrioic, C. J.

The motion for a new trial in this case ought to have been granted.

The plaintiff sued the defendant, Brown, for damages for harboring three runaway negroes, and for consenting and permitting one of them, by collusion, to go aboard of a flatboat descending the river to New Orleans, from whence, he escaped to Cairo, and thence to Pittsburg in Pennsylvania.

The jury gave a verdict in favor of the plaintiff for $1300, the value of the slave Tom, and $160, the value of the services of the two other slaves whilst in the possession of the defendant.

After the rendition of the verdict, the defendant, having discovered that the plaintiff had received from the owners of the steamboat Niagara six hundred dollars, in a compromise in full for the price and value of said slave, which was carried away by said boat, moved the court for a new trial, and thereupon the plaintiff entered a remittitm’ of $000 upon the price of the slave, and the motion for a new trial was overruled.

We think the new trial ought to have been awarded, notwithstanding the remittitm'. Although the defendant and the owners of the steamboat might be bound each for the value of the slave, still a recovery against and payment of the value of the slave by either, vested the slave in the one from whom the damages were claimed and received. If the plaintiff had already claimed and received the value of the slave from the owners of the steamboat, this Ktis (estimatio, like a sale, has transferred the property in the slave to the persons so paying. See Dig. VI, 1; Leges 21, 46, 47 and 63 ; see also the case of the Succession of Samuel Martin, 7 An. 45.

The plaintiff, if those circumstances are proven, was divested of his property in the slave, and he cannot be permitted to recover his value a second time from another, who, while he pays the price of the slave, can not become the owner.

The judgment being reversed as to Gersham Brown, must also be reversed as to said Edmund Brown.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is further ordered that this case be remanded to the lower court for a new trial, there to be proceeded in according to law, and it is further- ordered that the plaintiff pay the costs of the appeal.


author: Lea, J.

text:
    Thomas P. Simpson v. Mills & Cleveland.
    The Article 1988 of the Civil Code* which deities the revocatory action to a creditor when the contract of'his-debtor, which he seeks to set aside* was entered into before his debt accrued, has no application to cases of pure simulation.
    Where an apparent ownership of property has, in reality, no actual existence, no action is necessary to set aside the simulated ownership. The creditor can proceed at once against the property of his judgment debtor.
    The fact of a title having been acquired at a judicial sale, does not affect the question of simulation.
    APPEAL from the District Court of East Feliciana, Bailiff, J.

      Preston Pond, Jr., for plaintiff.

      Bowman & Delee, for defendants and appellants.
   Lea, J.

The defendants, judgment creditors of Thomas Albritton, having caused to be seized, in execution of their judgment, a negro woman, have been restrained from proceeding further herein by a writ of injunction obtained at the suit of plaintiff, who claims the negro woman as his property. The only issue which can he presented in such a case, is one of fact. Was the slave seized in execution the property of the plaintiff or of the judgment debtor ?

The evidence shows that the slave Lucy was, on the 10th January, 1848, at a probate sale of property belonging to the succession of Ellis Gore, adjudicated to the plaintiff T. P. Simpson. The evidence, however, appears to us to establish conclusively the fact that the plaintiff never pretended to exercise any right of ownership over her, and that Albritton paid for her, and moreover, that, from the day of the sale until she was seized in execution, she was apparently the undisputed property of the judgment debtor.

The District Judge rendered a judgment perpetuating the injunction, on the ground that “ the defendants could not maintain the plea of fraud and simulation, even if fraud and simulation were proved, as they did not become creditors, of Albritton until some years after the adjudication to Simpson, and that they were, therefore, concluded by the provisions of Article 1988 of the Civil Code. This Article of the Code has, in our opinion, no application to cases of pure simulation. Where an apparent ownership of property has in reality no actual existence, no action whatever is necessary to sot aside the simulated ownership. The creditor of the real owner can proceed at once against the property as that of his judgment debtor. See Erwin v. Bank of Kentucky, 5 An. page 1; also 6 An. p. 717.

The fact that the plaintiff acquired his apparent title at a judicial sale, does not preclude the seizing creditor, from showing that the plaintiff had in fact no interest in the purchase, and merely held it for the benefit of their debtor, and we think the evidence establishes this fact, in the case a.t bar.

It is ordered, that the judgment appealed from be reversed; that the injunction be dissolved and set aside, and that the slave Lucy be decreed to be the property of Thomas Albritton, and as such, subject to seizure in the execution issued herein, and that the defendants do have and recover of the plaintiff $75 as damages. It is further ordered, that the plaintiff and appellee pay costs in both court.


author: Voorhies J.

text:
    A. B. James v. W. B. Thompson—Rule on P. Labarre, Sheriff.
    ■ The Sheriff may, in the exercise of a sound discretion, levy an execution on property apparently belonging to a third person, when he has good reason to believe that the property is held for the purpose of sheltering it from the legal pursuit of the creditors of the debtor in execution, but he renders himself liable for damages if he seizes any other property than that of the defendant in execu-
    A bond of indemnity tendered to the Sheriff, neither lessens nor adds anything to his obligations or duties, nor will it justify him in making an illegal seizure.
    The mere failure of the Sheriff to make a return of the execution within the legal delay will not subject him to the payment of the amount specified in the writ, if circumstances are shown to excuse his failure.
    Appeal from the District Court of Jefferson, Burthe, J.

      W. J. Vason, for plaintiff and appellant.

      Pwrvis & Bugué, for'defendant.
   Voorhies J.

The plaintiff seeks to make P. Labwrre, Sheriff of the parish of Jefferson, liable to him, under the Act of 1826, for the full amount specified in the writ of fieo'i facias directed to him in this case, on the ground of his failure to make the return within the legal delay. The motion applies to both the original and alias writs offieri facias which had been issued.

The following letter in relation to the first writ was addressed to the Sheriff by the plaintiff’s attorney:

“A. B. James y. W. W. Thompson.
To the Sheriff in and for the parish of Jefferson,
Sir — -In the event that the defendant does not pay to you the amount of the execution in this case, upon demand made by you, nor point out sufficient property to satisfy the same, I am authorized by the plaintiff to direct you to levy the execution upon the house and lot in which the defendant with his family resides, situated in Rickerville, fronting the Carrollton Railroad, and advertise the same for sale. Should you wish a bond of indemnity, the plaintiff will give you one upon being obliged to do so by you.
Respectfully, &c.,
W. J. VASON,
Attorney for plaintiff.”
New Orleans, 17th July, 1855.

The writ to which this letter refers, was returned on the 29th of January, 1856, the same day on which the alias was issued. Both writs were returned ■after the expiration of the legal delay, nulla liona, by J. O. Wilson, as Deputy Sheriff.

The Deputy testifies that he called on the plaintiff’s attorney to point out the property of the defendant in execution, and that he did not seize the property described, because he was satisfied, after having examined the books of the conveyance office, that it did not belong to the defendant Thompson, and so informed Mr. Vason. Ho further states, that in a consultation between Mr. Vason and the Sheriff, he heard the latter positively decline to seize the property.

The Sheriff’s return on the alias writ is as follows, to wit: “ No money, no property found, after search and demand.”

The insolvency of the defendant Thompson, we think, may be fairly inferred from the evidence.

There is an admission in the record, that the Sheriff promised, on receiving the alias writ, that he would levy it on the property, but, that he afterwards refused to do so on the advice of Messrs. Purvis & Dugué.

The title to the property in question appears to have been vested in Irma Delavillebeuvre, wife of Theodore Rion, by virtue of a donation, intm' vivos, made to her by her brother, Jean Ur sin Delavillebeuvre, on the 20th of December, 1850.

The Sheriff, in the exercise of a sound discretion, may, undoubtedly, in certain cases levy an execution on property apparently belonging to a third person, where he has good reasons to believe that such property is held for the purpose of sheltering it from, the legal pursuit of the creditors of the debtor in execution. But, in making such levy, he must necessarily take upon himself whatever consequences may flow from it, he cannot, it is clear, except at his peril, seize any other property than that of the defendant in execution. Hence it follows, that a bond of indemnity can neither lessen nor add anything to the obligations or duties which the law imposes on him, nor will it justify him in making an illegal seizure.

In the case of Lay v. Boyce, 3 A. 622, where the Sheriff was also sought to be made hable to the plaintiff, under the Act of 1826, it was held, that that Act did-not impose upon the Sheriff the payment of the amount specified in the writ oi fieri facias, as a penalty for his mere failure to make the return within the legal delay; that, when he was sought 'to be rendered liable, under that Act, he might show any circumstances which would excuse him from the failure to return or execute the writ. This construction of the Act has already received our concurrence. (See the case of Miller v. Roy, 10 A. 744.) The reenactment of that statute subsequent to the decision of the case of Lay v. Boyce witnout any change in its provisions, affords, we think, a sufficient indication of the concurrence of the legislative will in the construction thus given to it. Session Acts of 1855, p. 477.

We are of opinion, that the proof in this case is insufficient to hold the Sheriff liable under the statute.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.


author: Spoítord, J.

text:
    A. Montan & Brothers v. R. H. R. Whitley.
    When an appeal bond is not large enough for a suspensive appeal it will sustain a devolutive appeal.
    An agent is a competent surety on an appeal bond.
    In a sale of a family of slaves, the avoidance of the sale as to one child affords no reason for avoiding the whole sale.
    Appeal from the District Court of Bast Baton Rouge, Robertson, J.

      T. G. Morgan and J. Joor, for plaintiff.

      J. W. Seymour, for defendant and appellant.
   Spoítord, J.

The appellees have moved to dismiss the appeal, for the insufficiency of the appeal bond.

If the bond is not large enough for a suspensive appeal bond it will sustain a devolutive appeal, and, under the late decisions, we are, therefore, authorized so to entertain this appeal.

Falhner was a competent surety. He has no interest in the case, and is only a party in his capacity as agent for the defendant Whitley.

The motion to dismiss is, therefore, overruled.

The plaintiff seeks the redhibition of the sale of a slave man and his three children, which were sold together for the sum of twenty-three hundred dollars. The defendant has appealed from a judgment avoiding the entire sale.

Waiving all the technical points, as immaterial, we find that there is no evidence sufficient to establish the existence of any redhibitory vice at the date of the sale, in any of the slaves, except the youngest child Alexina,. The death of this slave, within a year after the sale, of a disease of which the symptoms showed themselves prior to the sale, notwithstanding proper medical attention, makes out a prima facie case for redhibition, which has not been rebutted. But, although the family was sold together, the avoidance of the sale as to one child affords no reason for avoiding the whole sale. The case does not fall within the principle of Article 2818 of the Civil Code; see Audrey v. Fry, 6 M. 696; 7 M. 33; Bertrand v. Arcueil, 4 An. 430. The value of the deceased slave is stated by one of the witnesses to have been $375 had she been sound. We think this a fair estimate of her relative value, as considered by the parties when the sale was made. Twenty-five dollars were expended by plaintiff upon her in medical and burial expenses. There is some evidence of a tender and no evidence of any objection, on the part of the defendant, to the form in which it was made, or of such response by him as he ought to have made.

As to the alleged vice of. the slave John, it was not even set up until more than sixteen months after the sale, and the evidence of its existence at the date of the sale is of the most flimsy character. The girl Zavinia is still living, and there is no evidence of her being incurably diseased. No complaint is made of unsoundness in the girl Eaxriet who,' from her age, was the most valuable of the lot

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and, proceeding to render such judgment as should have boon rendered, it is ordered, adjudged and decreed, that the sale of the slave child Alexina, from the defendant to the plaintiff, on the 2d January, 1855, be avoided and set aside, on account of the redhibitory vices and maladies with which the said slave was then affected; and it is further ordered and decreed, that the plaintiffs recover of the defendant the sum of four hundred dollars, with five per cent, interest from judicial demand, for the price of the said slave and the expenses incident to her diseased condition, the said sum to be credited by the defendant or his agent, the garnishee in this cause, on one tof the notes now in possession of the defendant, and given him by the plaintiff, as part of the price of the slaves sold on the 2d January, 1855, as appears by the notarial act, of which a copy is on file in the record: it is further ordered, that in all other respects there be judgment for the defendant and for the garnishee; the costs of the District Court to be paid by the defendant, and those of the appeal by the plaintiffs and appellees.


text:
    S. B. Wiggins v. P. Guier.
    *When the return day mentioned in a commission for taking testimony has expired, testimony taken under it is taken without authority and cannot be received.
    An order extending the return day, made after it had already expired, would not render testimony admissible which had been taken without authority.
    A public officer ought not to be permitted to testify as to the contents of documents in his office, without annexing copies of such documents to his deposition. The witness may annex to his answers the entries made in books and explanation of erasures.
    Appeal from the District Court of Carroll, Farrar, J.

      Goodrich & EeFranee, for plaintiff.

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

This is a petitory action. The plaintiff claims the land in controversy in virtue of a patent from the State of Louisiana. He alleges that the land was selected by the State of Louisiana, under the Act of Congress approved 4th September, 1841, granting 500,000 acres of land to the State of Louisiana for internal improvements, and the location approved by the Secretary of the Interior.

The defendant claims under an alleged preemption claim of one Elijah Eempsy, of whose estate he is administrator, a contest before the Register and Receiver, a decision in his favor, and a patent from the government of the United States. The plaintiff replies that that patent was fraudently obtained; that he has also acquired by purchase by mesne conveyances the improvement of the said Elijah Eempsy, deceased, upon the land in controversy. The judgment of the lower court was in favor of the plaintiff, and the defendant appealed.

The first question presented by the record is as to the admissibility of the testimony of L. J. Sigur, taken under a commission. The return day fixed in the commission was the 21st day of May, 1855. The testimony was taken and the commission executed the 23d day of May, 1855. On the 30th of the same month an order was entered on the minutes in these words: “Return of commission to take the testimony of L. J. Sigur, fixed the first day of the next term of the court.”

We do not think the commission which issues under the provisions of the Code of Practice an idle form. On the contrary, we consider it the power under which the officer taking the testimony is enabled to act, and without which his acts would be null. When, therefore, the return day mentioned in the commission had expired, the authority conferred by it was also at an end, and the testimony taken under it was taken by one without authority. O. P. 425, 433.

A subsequent order could not give vitality to that which was already null. Had the order been made before the expiration of the return day, or the testimony been taken after the renewal of the return day, it would have presented a different question. The order made by the Judge or Clerk, fixing the return day and granting the commission in the delay after the filing of the interrogatories, is not to be confounded with the commission itself. See 3 Rob. 13; 1 An. 325.

We think, therefore, the testimony of the witness ought to have been rejected. If this testimony is excluded, we do not think sufficient appears in the record to entitle the plaintiff to recover, but we think justice requires that the case should be remanded to the lower court for a new trial.

We further remark, that this witness ought not to be permitted to testify as to the contents of documents in his office, unless he annexes copies to his depo-^ sitions. Certified copies are better evidence of what such documents contain. We see no objection to the witness annexing to his answers the entries made in books and his explanations of erasures, &c.

We further remark, that unless the plaintiff can show an approval by the Secretary of the Interior of the selection of the tract of land in controversy by the State of Louisiana, he must fail in his action unless he can further show that the defendant was under some obligation to hold the title acquired by him for the benefit of the plaintiff, or committed some fraud, not merely towards the United States, but towards Mm in obtaining the patent.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for a new trial, and there to be proceeded in according to law, the appellee to pay the costs of the appeal.


author: Spoitoed, J.

text:
    Ira E. Orcutt v. R. Berrett, Administrator.
    The acknowledgment of a debt by a married woman in the presence of her husband, and tacitly assented to by him, will interrupt prescription.
    APPEAL from the District Court of Iberville, Robertson, J.

      E. W. Blaine and E. W. Robertson, for plaintiff.

      A. Talbot and A. Petit, -for defendant and appellee.
   Spoitoed, J.

Conceding that the debt sued for became exigible, and that prescription therefore began to run the 1st of April, 1843, we are of opinion that prescription was interrupted by the debtor’s acknowledgment of the creditor’s right, on the 9th March, 1850.

The evidence of KUenpeter is positive, and sufficiently identifies the particular debt. If there was any other mortgage debt due by the defendant’s deceased wife to Olivier Arnandez, the mortgage repords would show it, which it is not pretended they do.

The testimony of Klienpeter is corroborated by the cotemporaneous writing which embodied a contract between himself and the deceased, touching the property on which the plaintiff’s mortgage was admitted to rest.-

The husband of Mrs. Berret was present when she made this acknowledgment, and tacitly assented to it; he also acknowledged the debt to be due himself. He was, moreover, a party to the written contract with Klienpeter.

The cases referred to by the appellant’s counsel, in 6 An. 121, and 10 An. 332, were cases of renunciation of prescription by a married woman unauthorized. This is a case of inte/rruption of prescription.

Judgment affirmed;


text:
    John Hill v. Andrew Matta, Executor.
    -In an action for the liquidation of the affairs of a partnership, when one partner, the plaintiff, sets up a claim under express contract for compensation for extra services or labor, testimony is inadmissible to prove the value of the services of the other partner under a claim by reconvention on a quoAiiv/ni valebant

    No partner is entitled, unless under a special agreement, to any compensation, commission or reward for his services while employed in the partnership business.
    APPEAL from the District Court of East Baton Rouge, Robertson, J.

      T. O. Morgan, for plaintiff and appellant.

      J. M. Elam, for defendant.
   Merrick, O. J.

This suit is brought for the purpose of liquidating the affairs of a partnership in an iron foundry at Baton Rouge between the plaintiff and the deceased Stephen Henderson.

The controversy grows out of a claim of the plaintiff to one hundred dollars per month, exclusive of his share of the net profits, as an extra compensation agreed upon by the parties. The claim amounts to $4806 56.

The contract of partnership was by parol.

The defendant in his answer admits the partnership, but denies that it contained a stipulation that Hill should receive for his services $100 per month, or any other sum. The defendant, by way of reconvention, alleges that the services of Henderson were W'ell worth eighty dollars per month, amounting with interest to $4022 82, for which he prays judgment.

The suit was cumulated with the mortuary proceedings of Henderson’s sue. cession. The plaintiff’s demand was rejected, and he has appealed.

Our attention is first called to the bill of exception taken on the trial by the plaintiff. He offered to prove, by a witness on the stand, that at or about the time the copartnership between him and the deceased was entered into, he (the plaintiff,) told the witness that, by the terms of the agreement, he was to receive one hundred dollars per month in addition to an equal share in the profits. This declaration, it is contended, forms a part of the res gestee, and was, therefore, admissible. It does not appear that Henderson was present when the declaration was was made, and it was properly excluded by the District Judge.

It also appears by bill of exception that the defendant offered John R. Dufroeq and others as witnesses to prove the value of the services of Stephen Henderson, as set forth in the answer and the account annexed to the petition and opposition, which testimony of the witnesses the plaintiff objected to, on the ground that “one partner cannot claim for .services unless the same was provided for by the contract or agreement of co-partnership.” The Judge overruled the objection, and admitted the testimony, adding- that “the proof of the personal services of Henderson was allowed in equity, as offsetting or rebutting the services of Hill, the other partner.”

The testimony was improperly received. The right of the plaintiff to recover •depends on his proof of the contract which he has alleged. The defendant -claims for services in the answer on a quantum valebant, and not on an express “contract.

The law on this subject is well laid down by Judge Story in his work on partnerships, 'in section 185. He says: “On the other hand (as we have seen) no partner is entitled, unless under some special agreement, to any compensation, commission or reward for his skill, labor or services while employed in the partnership business. The nature of the contract implying that each partner shall gratuitously give and exert all his skill, labor and services, so far as they may be properly required, for the due accomplishment and success of the partnership operation. If any allowance is intended to be made for extra services or labor, it is a fit matter, to be adjusted in the articles under which the partnership is formed.

The testimony, therefore, of these witnesses was inadmissible under the pleadings to offset the plaintiff’s demand, and ought not to have been received for that purpose.

The plaintiff relies upon the testimony of a single witness and corroborating circumstances as his means of recovery. The testimony of Dufrocq and others would be admissible for the purpose of rebutting and weakening the force of the corroborating circumstances relied upon by the plaintiff. What will amount to sufficient corroborating circumstances must depend upon the facts of each individual case, and these are submitted to the sound discretion of the Judge.

As we do not know whether the Judge may not have compensated the services of Hill by those of Hendm'son, or whether, from his knowledge of the witness, he considered his testimony not sufficiently corroborated, we think that justice requires that this case shall be remanded for a new trial.

We take occasion, however, to remark, that it is singular that the partnership books, which are likely to bo decisive of this controversy, have not been produced.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this cause be remanded to the lower court for a new trial, with instructions not to receive the testimony of John H. Dufrocq and other witnesses to prove the value of the services of Stephen Henderson as a reconventional demand, or as a set-off to the plaintiff’s demand, and in other respects to proceed according to law; the said executor and appellee paying the costs of the appeal.


text:
    S. H. Lurty, Administrator, v. J. A. Maryman.
    Where the answers of a witness to cross-interrogatories are imperfect and evasive, the deposition cannot be rejected on that account. The objection goes to the credibility of the witness alone, if all the cross-interrogatories have been answered.
    Appeal from the District Court of West Feliciana, Waterston, J., presiding.

      Brewer S Collins, for plaintiffs.

      Lacy & Hudson, for defendant and appellant.
   Spofford, J.

The case of Baker v. Voorhies, 6 N. S. 313, relied upon by tho appellee, only justifies the rejection of a deposition when the cross-interrogatories have not been answered at all.

In the present case there were responses taken down by the commissioner to all the cross-questions propounded; the complaint is that these responses are imperfect and evasive. This goes materially to the credit of the witness, but does not authorize the entire rejection of the deposition as inadmissible in law, any more than evasive answers by a witness, under cross-examination on the stand, would authorize the court to strike out the results of his examination in chief.

But on looking into the facts, and ascertaining from his deposition that the witness was the pretended vendor of the account made out by himself against the deceased person represented by the plaintiff in this suit, that the transfer was made in order to enable the defendant to off-set the plaintiff’s claim with a large claim which is sought to he established by the evidence of the transferror alone, and on finding that the witness, testifying under a release, will not state that any specific price was paid him by the transferree for the large claim that he pretended to sell, and alse evades other pertinent and searching questions regarding this singular contract, we do not think the evidence sufficient to authorize a different judgment from that which has been rendered.

The judgment is, therefore, affirmed, with costs.


text:
    Lucy McRae v. B. M. J. Brown and the Sheriff.
    Where the plaintiff in an injunction seeks to restrain the execution of a judgment, on the ground that the property seized does not belong to the judgment debtor, but to the plaintiff in injunction, no other issue can be made but that of ownership. An affidavit that the Sheriff had “ seized ” the individual property of the defendant, without any description of the property seized, or statement of its value, is too vague to authorize an injunction, and the petition which is not sworn to cannot supply the defect.
    The fee of counsel for the defendant should be assessed as damages on dissolving the injunction, although it was not shown to have been actually paid. The liability to pay it, is sufficient.
    Appeal from the District Court of East Feliciana, Wate-rston, J., presiding.

      W. F. Kernan, for plaintiff and appellant.

      J. O. Fuqua, for defendant.
   Lea, J.

In this case the plaintiff sued for and obtained an injunction staying the execution of a judgment against her husband, 3. B. Ifunn, on the ground, with others, that the property seized in execution is her individual property. Where the plaintiff in an injunction seeks to restrain the execution of a judgment, on the ground that the property seized does not belong to the judgment debtor but to the plaintiff in the injunction, the question of ownership is the only one which can be examined.

The plaintiff in such a case is without interest, and therefore without right, to provoke any other issue; and with reference to the issue thus presented, the affidavit should be such as to disclose a distinct pecuniary interest, sufficient to authorize the application for a writ of injunction. The allegations of the petition in this case are not supported by the affidavit. The affidavit merely states that the Sheriff had “seized the individual property of the deponent.” There is no description whatever of the property seized, nor any statement of its value. Such an affidavit is too vague to form the basis of an injunction, and the court is not at liberty to refer to the petition, which is not sworn to, for the purpose of supplying by conjecture the defects of the affidavit.

The District Judge was right in dissolving the injunction. The fee of the defendant’s counsel was properly included in an assessment of damages. It is not material to show that it had been actually paid; it is sufficient that a liability has been incurred for its payment. 3 An. 588.

Judgment affirmed.


text:
    Austin Sumner & Co. v. A. T. Dunbar.
    The summary proceeding by rule can have place only in those cases expressly provided for by law.
    In the case of a respite, which differs essentially from a surrender, one creditor cannot, by rule, contest a judgment and mortgage resulting from the recording of it, of another creditor. He must, . for such purpose, resort to an ordinary action.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      W. 8. Stansbv/ry, for plaintiffs and appellants.

      Durant <b Honor, for defendant.
   Merrick, C. J.

The plaintiffs having instituted suit in the Fourth District Court against the defendant, upon two promissory notes, the judgment was pronounced thereon on the 9th day of January, 1855, and signed on the 13th day of the same month. In the interval between the rendition of the judgment and its signature, viz, on the 12th day of January, the defendant presented his petition for a respite to the Sixth District Court, and obtained an order from the Judge for a meeting of the creditors and a stay of all judicial proceedings against his person and property. It does not appear whether this order of the Judge was or was not notified to the plaintiffs before the judgment which they had obtained against the defent was signed.

The plaintiffs caused their judgment to be recorded. The respite was granted by the creditors, and the plaintiffs received under it the first installment of their debt according to the terms granted their debtor.

The present proceeding is a rule taken by the defendant against the plaintiffs to show cause why their judicial mortgage should not be erased and cancelled, because the judgment was signed after the order granting a stay of proceedings was obtained, and because the plaintiffs have asquiesced in the respite by receiving the first installment under the same.

To this summary proceeding Austin Sumner <& Oo., the defendants in the rule, except, on the ground, among others, that the defendant cannot contest the judgment and the mortgage resulting from the recording of the same, except in an ordinary action.

It appears to us that the District Court erred in overruling the exception and proceeding to decide the case on the merits.

Perhaps in a case under the forced or voluntary surrender, any creditor interested might, in a like case, proceed under a rule. 2 An. 650, Bank of Louisiana v. Delery. But a respite differs essentially from a surrender. The surrender is based upon the supposed insolvency of the debtor ; the respite upon the supposed solvency and in the confidence of the creditors in the debtor’s honesty and ability to pay.

In the one case, the order of the Judge accepting the surrender and ordering a stay of proceedings, vests the property of the debtor in his creditors sub modo, who are in court for the purpose of ascertaining their rights upon the property surrendered by their debtor. Revised Statutes, p. 253. In the other case, the property remains in the debtor, saving to the creditors the conservatory acts to prevent their debtor from selling his effects to their prejudice. 7 Toul., No. 240 ; 2 N. S. 330, In the one case, the surrendered effects are managed by a syndic, the agent of the creditors. In the other, the property of the debtor is administered by himself. The parties, therefore, stand in a different relation towards each other. In the respite, the debtor in proceeding to compel his creditor to erase a mortgage on the ground of the alleged nullity of the judgment, appears to be acting in his own interest solely against the creditor. The creditor, on the other hand, has a direct interest in maintaining his judgment and mortgage. They are apparently his property by the action of a court between these parties. How then can they be annulled except by an appeal or a direct action ? The summary proceeding by rule can have place only in those cases expressly provided by for law. We have not been shown any such exceptional legislation as applicable to the case before us. 6 An. 485.

It is, therefore, ordered, adjudged aud decreed by the court, that the judgment by the lower court be avoided and reversed, and that the rule taken by the said A. F. Duriba/v against said Austin Smnner & Go. be dismissed as in case of a nonsuit, and that said Dunbar pay the costs in both courts.


author: Spoitord, J.

text:
    W. S. Thompson, Agent, v. Chauncey Parrent et al.
    When the homologation of the report of experts is opposed, the trial of the opposition involves the hearing of evidence on such questions of fact as are distinctly put at issue by the opposi-
    There was error in the Judge’s refusal to hear evidence, on the ground that it rested merely in his discretion, and that he was satisfied of the correctness of the report from its face,
    After the report of experts is homologated, the matters decided by it are not open to investigation in the same court.
    As between the parties to a building contract, the privilege of the builder may exist without registry.
    Appeal from the First District Court of New Orleans, Bobertson, J.

      T. W. Gollins and Larue & Whitaker, for plaintiff.
    Wcml, Da/y and Sunt, for defendant.
   Spoitord, J.

The homologation of the report of the expert, Stuart, was formally opposed by the plaintiff Upon the trial of the rule he offered witnesses to prove the facts stated in his opposition. The testimony was rejected by the court, on the ground that it rested merely in the discretion of the Judge of the first instance to hear evidence upon an opposition to the homologation of the report of experts or not, and that the Judge in this case was satisfied of the correctness of the report from its face.

In this we think the Judge erred. His discretion is not an arbitrary one, but he is to try the opposition summarily on its merits. The trial involves the hearing of evidence on such questions of fact as are distinctly put at issue by the opposition. O. P. 457. The cause must be reversed for this reason.

After the report is homologated, the matters decided by it are not open to investigation in the same court. We are not called upon, therefore, to notice several of the bills of exception taken after the judgment of homologation.

The hill of exceptions to the refusal of the Judge to examine two of the witnesses apart from each other, does not disclose such a state of facts as would authorize us to disturb the ruling on that point.

The Judge erred in attempting to ascertain the value of a Texas land warrant from any source outside of the testimony in the cause.

As between the parties to the building contract, the privilege of the builder may exist without registry. The registry is required for the protection of third persons only.

Without the evidence on the opposition of plaintiff to the homologation of the report of the experts, it is impossible to pronounce finally upoji the merits of the case.

It is, therefore, ordered, that the judgment of the district court be avoided and reversed, and the cause remanded for a new trial, with instructions to the District Judge to receive evidence to establish the allegations of the opposition filed by the plaintiff to the homologation of the report of the expert Stewart; the costs of this appeal to be borne by the defendants and appellees.


author: Spopporb, J.

text:
    New Orleans, Jackson and Great Northern Railroad Company v. R. W. Estlin.
    The Statute of 1852, which declares that “ the prescription of all other open accounts, the prescription of which is ten years, under existing laws, shall be prescribed by three years,” is not applicable to the case of a demand for balance of subscription to the capital stock of a corporation.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      George W. Olwisty, for plaintiff.

      O. T. Ratlin, for defendant and appellant.
   Spopporb, J.

The defendant is sued for the balance of his subscription to the capital stock of the New Orleans, Jackson and Great Northern Railroad Company.

He admits that he subscribed for eighty shares at twenty-five dollars per share and has only paid one hundred dollars.

The plaintiff has proved that all the installments have been called for, pursuant to the articles of the company, and that due publication has heen made of the calls.

The defendant relies solely upon a plea of prescription to defeat the collection of the installments of five per cent, due May, 1852 ; of ten per cent due September, 1852, and of ten per cent, due December, 1852.

The second section of the Act “relative to prescription,” approved March 5th, 1852, (Session Acts, p. 90,) declared that “the prescription of all other open accounts, the prescription of which is ten years under existing laws, shall be prescribed by three years.”

But the defendant was not sued upon an open account. The demand is based upon an express and written contract. The defendant’s subscription hound him to pay a liquidated sum. The money was to be paid only in installments it is true, and these were to he fixed by the action of certain officers who were the agents of the defendant and his associates in the company. Certain prescribed notices were to be given as conditions precedent to the right of the company to enforce payment.

But these stipulations did not transform the defendant’s express contract to pay the amount subscribed into an “open account.”

The statute upon which he relies is, therefore, inapplicable to the case.

Judgment affirmed.

Mr. Justice Lea recused himself on the ground of interest.