author: Wyly, J;

text:
    No. 685.
    Alexander Sellers v. Emile Sellers et al.
    A possessor of property under an authentic act is not bound to establish the verity of the sale where it is attached by a creditor on the ground of simulation.
    The burden of showing simulation falls on the party attaching, when the purchaser is in possession.
    from the Eighth .District Court, parish of Lafayette. Bailey, J.

      M. JS. Girard for plaintiff and appellee. William & B. Mouton for defendant and appellant.
   Wyly, J;

Plaintiff seeks to recover from tlie defendant, Emile Sellers, the amount of a note made by him, and also to have a contract of sale by public act from Emile Sellers to his son, Camile Sellers, passed June 11, 1363, declared simulated and void.

lie alleges that said act of sale is regular in form, and the property pretended' to be conveyed consists of six hundred and fifty-four and eighty-nine hundredths “ acres of a fine body of well timbered land in St. Landry with all the improvements thereon, a branding iron marked thus "6, with its pretensions of horned cattle and horses branded therewith without reservation, and also two hundred and fifty head of sheep.” * * * He alleges that the act was a simulation, that no consideration whatever passed between the parties, and that its object was to defraud a portion of the father’s creditors and keep so much of the property in the hands of the son.

He further alleges, That the property thus attempted to be screened by the father and only son from the just rights of the father’s creditors, and which is the bulk of the father’s property, is really worth more than twice the sum stipulated in the simulated act.” The prayer is for judgment for the amount claimed, and that the pretended sale may be declared null.

Both the defendants joined in an answer, denying the allegations except the signature to the note, and averring that the sale was bona fide and lor a “ valid consideration.”

The District Judge rendered judgment in favor of plaintiff for tíre amount claimed, and decreed the nullity of the sale from Emile Sellers to Camile Sellers, passed before William Bryant, Recorder, on the eleventh July, 1866.

The deiendants have appealed.

This is purely an action en declaration de simulation, not a revocatory action proper, or actio pauliana. Its purpose is not to have an actual sale annulled for fraud, but to have the declaration that the act purporting to be a sale, was not a real sale, but only a shadow cast upon the title, a mere simulation.

The consideration of the sale, as appears by the notarial act, was $1310, $400 thereof cash, and for the balance, $910, the purchaser assumed and obligated himself to pay the debts of his vendor, as follows : “ a debt of $400 to the succession of Joseph Le Blanc, a debt of $250 to Bellom Bourdeau, a debt of $200 to Sessin Le Blanc, and a debt of $60 to the succession of Don Louis Oliden Broussard.

It does not appear in the evidence, nor was it alleged, that the vendor continued to hold possession of the property after the act of sale was passed. There is nothing in the record to show that any ownership over the property was afterwards exercised by the vendor. Indeed, it appears that both the vendor and vendee lived together on a different tract situated in the parish of Lafayette, which one of the witnesses, Broussard, believed was not owned by them. The defendants reside in the parish of Lafayette, as the plaintiff alleges; the tract of land sold was situated in the parish of St. Landry. Where there is no evidence to the contrary, we are bound to consider the vendee, by notarial act duly recorded, in possession of the property.

The sale is not presumed simulated, the purchaser being in possession, and the latter is not bound to establish the verity of the sale. C. C. 2456.

The plaintiff must make/ out his case. lie has introduced a considerable amount of evidence of a negative character. The witnesses did not know that Camile Sellers had money or that he had enterprise.

The rebutting testimony shows that he was employed before the war and since in driving cattle for one of the witnesses, that he received wages therefor at the rate of two dollars per day in' United States currency, or one dollar and fifty cents per day in specie; it is also in proof that he owned sonic cattle, and that he had sold some before he made the purchase.

We do not think the purchaser holding, by recorded title, property, not in the possession of the vendor, is bound to establish the verity of the sale. If is only where the vendor retains possession by precarious title or otherwise, that the law presumes simulation and puts the onus probancli ot the reality of the sale on the purchaser. C. C. 2456.

There is no fraud proved against either'the vendor or the vendee. The record shows the vendor owns other property; it does not show that he is embarrassed or in failing circumstances; it does not show that the vendee was even aware of the existence of plaintiff’s claim.

On the whole we think the plaintiff has failed to make out his case; and that a notarial title, followed up by possession, should not be disregarded upon the mere suspicion of a creditor and upon negative testimony of the character adduced in this case.

It is therefore ordered, that the judgment appealed from be amended by rejecting the demand of plaintiff to have the sale from Emile Sellers to Camile Sellers declared simulated and null. As thus amended, it is ordered that the decree of the Court a qua be affirmed.

It is further ordered, that plaintiff pay the costs of appeal, and that Emile Sellers pay the costs of the Court below.

Itehearing refused.


source: Caselaw Access Project

author: Wydy, J.

license: Public Domain

text:
    No. 681.
    Edward Moore, Tutor, et al. v. B. B. Simms, Administrator.
    The affidavit of the District Judge, filed in the Supreme Court in 1867, stating that an appeal was granted in open court m 1862, is not sufficient to maintain the appeal in the absence of an order of appeal in the record.
    A PPEAL from Thirteenth District Court, parish of Avoyelles. Ovl-lom, J.

      M. S. L. Taylor, for plaintiffs and appellees. T'J. Philips and A. B. Irion, for defendant and appellant.
   Wydy, J.

The appellees move to dismiss this appeal because there never was an order of appeal on motion entered on the minutes of the court and no appeal was granted on petition. We find no order of appeal in tlie record.

The judgment was signed on nineteenth December, 1302, but the transcript was only fded in this court on fourth September, 1807. .On the same day the affidavit of tlie judge was filed, stating that the appeal was granted on motion in open court, and if not entered on the minutes of the court it was an omission of tlie clerk. If the clerk omitted to enter tlie motion and order of appeal on the minutes of the court, the appellant could have caused the entry to be made, nano pro tune, at a subsequent term of the court. 6 A. 707. It does not appear that this has ever been done, and the motion must therefore prevail.

It is ordered that this appeal bo dismissed at appellant’s costs.


author: Ludeling, C. J.'

text:
    No. 720.
    Fannie Satterfield, Executrix, and Husband, v. B. P. Delavalade.
    A party who received a note for collection and afterward returned it to tlie party from whom lie recoived it, cannot be heid-resp visible on proof that another party gave him notice wlule it was in his possesion that he was the owner and would hold him responsible if he did not deliver the note.
    A PPEAL from the District Court, parish of Avoyelles. Millar, J. Zjl

      Oullom efi Thorpe, for plaintiffs and appellees. Henderson Taylor, for defendant and appellant.
   Ludeling, C. J.'

The plaintiffs sued the defendant for twenty-four hundred and thirty-five dollars and forty-three cents, with legal interest thereon from the fourth day of November, 1866, being tlie amount of a, promissory note, inventoried as the property of the succession of S. M. Wells, and alleged to have been collected by the said Delavalade.

It appears from the record that tlie note was placed in the bands of Delavalade by Edward H. Satterfield for collection, and that Delaval-ade returned the note to said Satterfield, who surrendered it to A. T. Norwood, tlie executor of one of the makers of the note, in consideration of the sum of fifteen hundred dollars paid to the said Satterfield, it is true, that it is proved that a letter was written to Delavalade informing him that the note was the property of the succession of Wells, and that he would be bold responsible for its amount unless lie returned >t to the executrix; but we are not prepared to admit that this fact made it obligatory on him to deliver the note to any one but Satterfield, from whom he had received it for collection.

The evidence satisfies us that Satterfield was not acting as the agent of Delavalade when 'ho received the money from Norwood; and that Delavalade is not responsible to the plaintiffs for the amount claimed.

It is therefore'ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that the plaintiffs’ demand be rejected with costs of both courts.


author: .Ludeling, C. J.

text:
    No. 718.
    Louis Leon v. Hermina Bouillet et als.
    Citation served on a party whose native language is French, when the petition is only written in English, will interrupt prescription.
    The exception that the petition is only written in the English language, when the mother tongue of the defendant is French, must he pleaded in limine litis.

    The rule laid down in article 2269 of the Civil Code, that the husband cannot be a witness for or against his wife, etc , is without exception, and is applicable to all cases in which either of them are directly concerned, without reference to the time that such relation commenced.
    A sole heir, having accepted the succession of her mother purely and simply, has the right to take possession of the property, and her husband, by administering it with her permission, does not become personally responsible for the debts of the succession.
    from the District Court, parish of St. Mary. Gates, J.

      Oliver & Dumartel, for plaintiff and ajipellee. Simon & Voorhies, for defendants and appellants.
   .Ludeling, C. J.

This action is based oh the following obligation : “$2000 Paroisse Sainte Marie, Avril 2, 1861.

“Nous pfomettors solidairement de payer á Monsieur Louis Leon ou a son or'dre la somme de deux mille piastre avec l’interet de huit pour cent l’an depuis cette date jusqu’a parfeit paiement pour valeur rogue.

“VV.E. G. BOUILLET,

“Pr. B. MARTEL,

“THE. ARMELIN.”

The plaintiff alleges that Burmina Bouillet', wife of B. Martel, is the sole heir at law of her mother, G-, Bouillet, and that she and her husband haye taken possession of the property of the succession of G-. Bouillet. He sues Hermina Bouillet, her husband, B. Martel, and Theodore Armelin, in solido, for the amount of the obligation above describid.

The defendants filed ah exception to the proceedings on the grounds that their maternal language was French, and that copies of the petition and citation in French should have been served on them.. The judge. a quo sustained the exception as to B. Martel and Theodore Armelin, but overruled it as to Hermina Bouillet. It was admitted that the mother tongue of all the, defendants was French. The exception should have been sustained as to all the defendants. But the record shows that copies of the petition and citation in French were served on' the defendants before further proceedings in the ease were had.

The plea of prescription has been filed in this court; and it is contended that the citation in English, served ou the defendants on the fifth day of October, 1865, did not interrupt prescription.

Article 3484 of the Civil Code declares that prescription is interrupted “when the possessor has leen cited to appear before a court of justice, on account either of the property or the possessionand article 3516 of the Code provides that the prescription releasing debts is interrupted by all such causes as interrupt the prescription by which property is acquired.” See also articles 3517, 3518. Were the defendants cited on the fifth of October, 18C5 ? In Thomas v. Bailie this court said: “The article 172 of the Code of Practice enacts ‘that the petition, when either party speaks the French language as a mother tongue, must bo drawn in the French and English languages.’” The same expression, “must be," is applied to all the required forms and particulars of a petition, such as the names, surnames and places of residence of the parties. But the Code does not pronounce the absolute n-ullity of a petition defective in these particulars. The nullity is therefore only relative; and the defendant has undoubtedly a right to require the petition and citation to be in both languages, on showing that his native language is French; but it does not follow that the suit must be dismissed. 7 La. p. 415. The citations and returns thereon, in the case at bar, being regular on their face, would have authorized judgments by default to be taken and made final, if the exception had not been urged in limine litis. We must conclude therefore that the defendants “ had been cited to appear before a court of justice,” and id)at prcscrijition was thus Interrupted. Baker v. Thomas et al. 4 La. 418; 4 R. 258; 12 La. 539; White v. McQuillan, and Flower et al. v. O’Connor, 17 La. 218.

On the trial of the cause, interrogatories on facts and articles were propounded to B. Martel to prove that he was authorized by widow G. Bouillet to sign the obligation sued on for her. Hermina Bouillet objected to the interrogatories and the answers, on the ground that said B. Martel is her husband, and he is prohibited by law from testifying for or against his wife. The objection was not sustained, and she retained a bill of exceptions to the ruling of the judge a quo.

Article 2260 Civil Code is peremptory. “ The husband cannot be a witness either for or against his wife,” etc. “ It makes no difference at what time the relation of husband and w-ife commenced, the principle being applied in its full extent whenever the interests of either of them are directly concerned.” Greenleaf’s Evidence, § —.

“This rule is believed to be without exception,” 11 An. 628. The evidence as to her should have been excluded. There is no legal evidence in the record to show that B. Martel was authorized to sign the name of G. Bouillet, consequently no debt is established against the succession of G. Bouillet. The judicial admissions and the evidence in the record show that Hermina Bouillet, wife of B. Martel, is the sole heir of G. Bouillet, deceased, and that, by her acts, she has accepted the succession of her mother purely and simply. She had a right to take possession of the succession property,.¿ind to permit her husband to administer it, and the husband did' not, by administering the property, render himself responsible for the debts of the succession.

It is therefore ordered, adjudged and decreed that the judgment of the District Court against the appellants be avoided and reversed; and it is ordered that there be judgment of nonsuit on the demand against Hennina Bouiliet, wife of B. Martel, and that tliere be judgment in favor of the defendant, B. Martel, on the demand against him, and that the appellee pay the costs of both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 695.
    L. F. Generes et als. v. Edward Simon
    A party holding a mortgage entitling him to executory process to enforce it, may proceed via ordinaria against the mortgagee, either in the parish of his domicile and residence, or in the parish where the mortgaged property is situated. C. P. 103.
    All petitions addressed to courts are required to be written in the English language, hut where a portion of a petition, not essential, and without which the cause of action would still remain, is written in the French language, the petition will not he dismissed because it is not entirely written in the English language,
    from the District Court, parish of St. Mary. Gates, J.

      MeMülan & Mossy, for plaintiffs and appellees. PePlane & Perry, A. L. Tucker, Gary & Pournet, for defendant and appellant.
   Howell, J.

The plaintiffs, holders of several promissory notes, made by the defendant, a resident of the parish of St. Martin, and secured by an hypothecary act importing a confession of judgment, instituted this action by the via ordinaria in the parish of St. Mary, where the mortgaged property is situated, and asked that the defendant be cited and condemned to pay the amount of their respective claims, and that their mortgage be recognized and enforced against the property described.

Two questions are presented for our consideration by defendant’s exceptions:

First — That the action is exclusively a personal action, and as such ought to have been brought in the parish of St. Martin, at the defendant’s domicile.

The general rule in civil matters is, that one must he sued in the parish of his domicile, and shall not he permitted to select any other domicile or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law. C. P. 162. The next article (163), provides .expressly for actions like this, in which the hypothecary rights are sought to be enforced. It says:. “In actions of revindication of real property, or where proceedings are instituted, in order to obtain the seizure and.the sale of real property, in virtue of an act of hypothecation, importing confession of judgment, the defendant may be cited, whether in the first instance, or in appeal, either within the jurisdiction where the property revindicated or hypo-thecated is situated, though he has his domicile or residence out of that jurisdiction, or in that where the defendant has his domicile, as the nlaintiff chooses.”

TIio application of this article to suits of this character has been fre quently recognized. See 2 N. S. 374; 4 L. 240; 3 A. 637; 15 A. 346.

Second — That in disregard of the provisions of cur constitution a considerable portion of plaintiffs’ original petition is written in the French language.

Article 103 of tho constitution of 1864, relied on by defendant, provides that tho laws, public records and the judicial and legislative written proceedings of the State shall be promulgated, preserved and conducted in the language iu which the constitution of the United States is written.” The portion of plaintiff’s petition in French is the description of the property, as contained in the. act of mortgage, and tho question is, does this conflict with the above article 9

The word proceeding, in its general acceptation, means tho form in which actions are to be brought and defended, the manner of intervening in suits, the mode of deciding them, of opposing judgments and of executing them. The forms are different in ordinary, executory and summary proceedings. C. P, 146. The form in the ordinary proceeding is by petition and citation.

“A petition is a written document, which the plaintiff addresses to a competent judge setting forth the cause of the action which he intends: to bring against the defendant, and praying to be permitted to cite that defendant before him, that he may bo ordered to do or to give a certain thing.” C. P. 171.

Tho petition, setting forth the cause of action, must be in tho English language; but if a plaintiff chooses to insert in it any part of the evidence of his demand, the petition will not be defective because that part is in the French language. If omitted, the petition would still contain the object of the demand and the cause of the action — the written proceedings iu the case would be in the English language. If the petition in all its essential parts, the citation and the other material portions of the proceedings were in French only, and not in English, the objection of defendant would apply. But if in English and also in Fiench, the constitutional provision invoked would be complied with. We cannot see that the proceedings In this case have not been conducted in the English language. The exceptions were properly overruled.

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


author: Wyly, J.

text:
    No. 707.
    James G. Hayes v. James M. Thompson.
    Proceedings against a party alleged to have usurped or intruded into an office, must he brought by the District Attorney, or District Attorney pro tem. of the parish in which the case arises, in the name oí the State. Acts of 1SGS, No. 156, page 260, t 2.
    from tlie Eighth District Court, parish of St. Landry. Porter, J.

      John II. Overton, Henri/ I. Garland, Moore & Morgan, Bailey & Bstilette, and B. A. Martel for plaintiff and appellant. John JG. King,and George li. King for defendant and appellee. George TF. Hudspeth, District Attorney. Thomas II. lewis, District Attorney pro tem.

   Wyly, J.

Plaintiff alleges that at the April election of 1863, he was duly elected sheriff of the parish of St. Landry; that subsequently, to wit; on twenty-ninth July, 1868, he entered on the duties of his office after being duly commissioned, and after giving bond and being qualified according to law. He alleges that since then, to wit: on twelfth July, 1869, the defendant, James M. Thompson, pretending that he has been appointed and commissioned by the Governor, as sheriff of said parish, has illegally entered into and usurped the office of sheriff of the parish of St. Landry, and unlawfully exercises the dirties thereof; that the petitioner has given, information to George W. Hudspeth, District Attorney, and to Thomas H. Lewis, District Attorney pro tem., of the said intrusion and usurpation, and has requested them to institute suit against said Thompson under act No. 156, passed in 1868, but that they have refused to do so. He prays that said Hudspeth and said Lewis, in their official capacities, “be ordered to institute and carry on, by joining your petitioner in this suit against said Thompson, the proceedings provided for by act No. 156 of the acts the Legislature of 1863.”

He further prays that judgment be rendered in Ms favor recognizing him as sheriff of St. Landry, and decreeing -the said Thompson to be an usurper and intruder; and that he have judgment against him for $1000.

This was evidently intended as a proceeding under act No. 156, known as the “ intrusion act.” Its purpose was to give the plaintiff possession of the sheriff’s office, and to have the incumbent, Thompson, ejected as an intruder and usurper.

On referring to the act in question, we find that actions of this character can only be brought in the name of the State by the District Attorney, or the District Attorney pro tempore, and in the parish of Orleans by the Attorney General.

The second section of said act makes it the duty of the District Attorney, or the District Attorney pro tempore, of the parish where the case arises, to bring suit against the offending party when so required to do.

The fourth section thereof provides that when the action is brought on the relation or information of any person interested, the name of such pérson sh^ll be joined with the State as plaintiff..

The State feeling an interest in her officers and desiring that none of her offices shall be filled by usurpers and intruders, lias enacted this law, which is very plain, requiring proceedings of this character to be brought in the name of the State, but permitting a person interested to “ be joined with the State as plaintiff.”

.Although no objection has been made by the defendant to the form of the action, we cannot permit the plaintiff to stand in judgment in an action which the law declares shall be brought only in the name of the State. It was made the duty of the District Attorney and District Attorney pro tempore to institute the action when so required; if they failed or refused to do so, as it appears they did, the plaintiff could have applied to the District Court for a writ of mandamus to compel them to discharge their duty.

In the case of Wickliffe v. Delassize, 21 A. —, we held that a proceeding under the “intrusion act,” (act No. 156 of the session of 1J6S), could only be brought in the name of the State. We still adhere to that view of the law.

It is therefore ordered, that the judgment appealed from be avoided and annulled 5 and it is now ordered that this suit be dismissed at plaintiff’s costs in both Courts.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 633.
    Richard G. Eastin v. Edgar Ducrest.
    I’ayment of a promissory note cannot loe enforced wken. the consideration is shown to be the piocuriDg, by the holder, a detail ior the maker to enable him to keep oat of active military service in the rebellion.
    from the Third Judicial District Court, parish of St. Martin. Gates, J.
    Gan/ di Fournet for plaintiff and appellee. De Blanc & Berry for defendant and api>ellant.
   Taliaferro, J.

The plaintiff sues on three several promissory notes, amounting in the aggregate to $963 principal, besides interest claimed irom the maturity of each note. The judgment of the lower Court, predicated upon the verdict of a jury, was in favor of the plaintiff, and the defendant has appealed.

The defendant, it appears, in order to keep out of active military service of the insurgent authority, contracted with the plaintiff to procure him a “detail.” We understand by a detail of this sort an obligation upon the party detailed to perform service in the interest of the rebellion in some other department than that of bearing arms. Contracts of this character war-regard as illegal and null, and this Court will not extend its aid for their enforcement.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court he annulled, avoided and reversed. It is iurther ordered, that this suit he dismissed at plaintiff’s costs.


author: IIowell, J.

text:
    No. 715.
    John French v. William A. Riggs, Administrator.
    An open account for moneys paid on a judgment, for materials, labor and carpenter work done, and improvements in repairs and improvements on the premises, is prescribed by three years. * ‘
    Charges for board, lodging, and support of another are prescribed by one year.
    from tlie District Court, parish of Iberia. Train, J.

      Simon & Toorhies for plaintiff and appellant. Joseph A. Breaux fox defendant and appellee.
   IIowell, J.

.This is an action against the representative of the succession of plaintiff’s mother, upon an account running from the first of September, 1856, to the twenty-second of June, 1867, for the support of the mother, at a fix til price per month ; for the amount of a judgment paid by him, in favor of A. Voorhies, for materials, labor and carpenter’s work done and furnished in repairs and improvements on the premises of the deceased, in the years 1858, 1859, 1861, 1862, 1865 and 1866 ; for taxes on her property from 1856 to 1867 paid by him on her account, and for funeral expenses. -

The defense in the lower Court was the prescription of three years, which was sustained, and the plaintiff has appealed. In this Court the defendant has filed the prescription of one year also. Citation, in the Court below, was served on thirty-first day of May, 1869.

In the particular manner in which plaintiff has set out his demand, we must consider it based on an “open account” and subject to the prescriptions pleaded, except the item for funeral expenses ($25), which were necessarily incurred and paid alter the twenty-second of June, 1867, and which being proven by the evidence admitted in the Court below, must !>•> allowed. The other items of the account, within the three years, being for the hoard, lodging and support of'plaintiff’s mother, are prescribed by one year.

It is therefore ordered that the judgment appealed from he reversed: and proceeding to render such judgment as should have been given by the Court a, qua: It is ordered that plaintiff recover of William A. Riggs, administrator of the succession ox Mary Stine, deceased, the sum of twenty-five dollars, with legal interest from judicial demand, to be paid in due course of administration; and it is further ordered, that there ho judgment in favor of the defendant on all the balance of plaintiff’s account sued on in this action.'. Costs in both Courts to be paid by defendant, the administrator.


text:
    No. 713.
    Valsain A. Fournet v. Rodolphe Beer.
    Where the evidence shows that a lot of sugar has been sold, and a portion of the price agreed upon has been paid in Confederate notes, no action will lie to enforce pajineut of the balance of the alleged price. Constitution, Art. 127.

      li. PPEAL 'from the Third. J udicial District Court, parish of St. Martin. Train, J.

      Gary & Fournet, for plaintiff and appellee, Simon & Voorldes, for defendant and appellant.
   Taliaferro, J.

The plaintiff alleges that in August, 1803, lie sold to the defendant seventeen thousand nine hundred and forty-seven pounds of sugar, at sixty-five cents per pound, amounting to $J 1,005 55. That he received from the defendant on account $8000, and that the defendant owes him the balance, $3005 55, for which he brings tbis suit and prays judgment. The suit was commenced by attachment, the defendant being deemed an absentee. He appeared by his attorney who moved to sot aside the attachment; failing in which, he filed an answer to the merits. He avers that if he owes the plaintiff anything it can only be in the Treasury notes of the -so-ealled Confederate States, or the equivalent value thereof in January, 1803, in legal currency, that plaintiff’s sugar was sold for Confederate Treasury notes, in which notes plaintiff received in part payment for his sugar eight thousand dollars. Defendant prays that the plaintiff’s claim be rejected in whole or in part at his costs.

There was judgment for the plaintiff for the amount claimed with lien on the property attached.

The defendant has appealed.

It is in proof that at the time the sugar was sold the article was selling at Niblett’s Bluff where the plaintiff’s sugar was sold at twelve cents per pound in specie, and from sixty to sixty-fivo cents per pound in Confederate money. It exceeds all power of belief that a merchant and business man, as it appears the defendant was at the time of the purchase of the sugar, would obligate himself to pay sixty-five cents per pound in gold or silver, or in United, States currency for sugar when he could purchase the article for twelve cents per pound in silver. The plaintiff introduced himself as a witness and on cross examination said: “Confederate money was not the consideration for the sale of the sugar which I made to Mr. Rodolphe Beer. The sum of $SD0!) credited in petition was paid in Confederate money. The price of sugar at the time was sixty-five cents per pound more or less in Confederate money.”

If the contract had been on a specie or legal currency basis, and the parties so understood it, it is not easy to see why the plaintiff received in payment of more than two-thirds of the price, Confederate money. The plaintiff’s own evidence is contradictory. He admits that he received the payment of eight thousand dollars in Confederate money and this raises a strong presumption that the whole price was to be paid in the same currency. The whole testimony, taken together, points unerringly to the transaction as one in which the parties contracted the one to give and the other to receive Confederate money in discharge of the obligation. The plaintiff by receiving the $8000 in Confederate money, and giving his receipt at the time to be credited on the net proceeds of the lot of sugar, gave credit to the illegal currency.

It is therefore ordered, adjudged and decreed that the judgment of-the District Court be annulled, avoided and' reversed.

It is further ordered that this suit be dismissed, the plaintiff paying costs in both courts Rehearing refused.


text:
    No. 701.
    Succession of Cornelius Voorhies. Opposition to Tableau of Administrator.
    A mitten agreement to pay a certain amount of money to another, styled a. bond, falls under the class or denomination of promissory notes, and is prescribed by the lapse oí five years from maturity. Bank of Louisiana v. Williams, ante page 121.
    A payment made by a security will not interrupt prescription as to the principal debtor.
    from the Parish Court, parish of St. Martin. Fontelieu, Parish Judge.

      Simon & Voorhies, for appellee, JDeBlanc d Perry,\ for appellant.
   Howell, J.

On the twenty-second of December, 1863, the administrator of the succession of Cornelius Voorhies, deceased, alleging that he had no funds to be distributed, filed what is termed “ a tableau of classification of said succession,” setting forth the amount of the inventory and the amounts of the mortgage, privilege and ordinary debts, which he prayed might be published and homologated.

Mrs. Cidal.ise Mouton, surviving widow, opposed the homologation on the grounds that no administration was necessary, as the property was all community property and had already been adjudicated to her lit the price of estimation; that if the said adjudication should be invalid, she should be placed on the tableau as a creditor for $30,000, paraphernal funds secured by mortgage; that should said above rights be null and void, then she should be placed on the tableau for $2000, instead of $1000 as a homestead; and she opposes all the claims on the tableau except the privileged claims, as being prescribed by one, two, three, four, five and ten years, and especially declares that the. mortgage claim of the Bank of Louisiana is prescribed by five years, and the mortgage itself is extinguished for want of reinscription.

The Bank of Louisiana also filed an opposition, alleging that the active mass of the estate should be increased by certain amounts specified; that the surviving widow, having used said amounts to pay debts inferior in rank to certain claims sot up as privileged, said claims should be disallowed, and that other claims classed as privileged, except the clerk’s bill, and all other debts, except that due tbe bank itself, are not due, and if due, are not payable out of tbe price of tbe property mortgaged to tbe bank.

Subsequently tbe said bank filed an answer to tbe opposition of tbe surviving widow, asking that tbe adjudication to ber of tbe community property on tbe twenty-second of October, I860, be declared null and void, because, at tbe time, tbe succession was and still is largely in debt, and specially contesting añ other matters sot up in said opposition.

After bearing the parties, tbe Parish Judge rendered judgment sustaining tbe opposition of Mrs. Monton, widow, etc., to tbe effect that tbe claim of the Bank of Louisiana be rejected from tbe tableau with costs of its opposition and condemning tbe estate to pay costs of tbe widow’s opposition.

From this judgment tbe bank has appealed.

Tlie first question presented for solution is the prescription of the bank’s claim which was sustained by the court a qua.

Tbe claim is based on a written instrument signed by Cornelius Voorhies and wife, and denominated a bond, and is exactly similar to tbe one sued on in the case of the same bank against D. P. Williams and wife (21 A. 121), and declared subject to tbe prescription of five years.

It is contended that the prescription of five years does not apply; that if it does, it was suspended by tbe war and interrupted by payments and an extension of payment.

Tbe two first points are settled adversely to the pretensions of the bank and we see no reason for unsettling them.

Tbe bond” or note is for $25,000, and was due on tbe fourth of June, 1859, and secured by act of mortgage, in which B. 0. Vignaud intervened and bound himself and bis firm of Menard & Vignaud to pay said obligation in case of default on tbe part of tbe mortgagers, and waived discussion. At tbe above date a payment of $5000 on the principal, and of tbe interest up to fourth June, 1860, was made. On tbe first July following, to wit, 1859, Cornelius Voorhies died. Joseph Menard, a witness for tbe bank, testifies that tbe firm of Menard & Vignaud were tbe commercial agents and commission merchants of Judge Cornelius Voorhies, and after bis death continued as such for widow Cornelius Voorhies; that on tbe fourth June, I860, tbe interest to fourth June, 1861, was paid by Menard & Vig-naud, and that in 1861, the bank extended the payment of interest on the bond to June, 1862. To tbe last direct interrogatory propounded to him, be says: Tbe last payment made by the firm on the bond-referred to, was on the fourth of June, 1860. Since then I have no other recollection of any other payment having been made on said bond for account of Mrs. Voorhies.” There is no other evidence as to tbe alleged extension.

Mrs. Voorhies, as a witness, denies that Menard & Vignaud were authorized by her to make any payment for her to the Bank of Louisiana, or that she had any dealings with 'them as her factors after they sold the crop of 1859. The firm therefore was without authority to make the payment on the fourth June, 1860, or procure the alleged extension to J une, 1862, for the debtors. The payment on the fourth of June, 1860, of the' interest to fourth June, 1861, would not, if authorized, affect the plea of prescription, as more than five years intervened between that i date and the acknowledgment of the administrator on the twenty-sixth of March, 1867. The hank however contends that Menard & Vignaud, being hound with the debtors, had an interest in effecting the extension of the payment of interest to the fourth of June, 1862, and that it being an acknowledgment Of the debt due at that date, interrupted prescription as jfco the principal debtors.

It is only the acknowledgment of one of the debtors in solido, that interrupts prescription as to the others. C. C. 8517. Solidarity is not presumed, and as Menard & Vignaud did not expressly bind themselves in solido, with the mortgagers in the act of mortgage, they are simply the security of the latter, and their acknowledgment does not have the effect claimed for it. Article 3518 C. C. says, that the acknowledgment of the principal debtor interrupts prescription on the part of the surety; but the converse is not.declared, and as there qre no other modes of interrupting prescription than those established by the Code, wo cannot apply the interruption of prescription in behalf of the security. The judge a quo did not err in sustaining the plea, and consequently the bank, the only appellant, is without interest to in-. quire into any other questions involved in the oppositions, and no one else complains, who can be heard.

Judgment affirmed at costs of appellant.


author: IIowe, J.

text:
    No. 723.
    Succession of Hortense Patin.
    In 1831, before emancipation, a number of slaves was sold at probate sale and purchased by tlio heirs. In 1867, after emancipation, the administrator filed bis account debiting each one of the heirs with the amount’of his purchase for slaves, which had not been paid into the succession, against which *bc oppo-ed the amount of their respective inheritances, crediting or charging them with the difference, as the case might be. The heirs opposed the homologation of the account. Held — that under the settled jurisprudence of the State, the obligations contracted by the heirs in 1861, bn account of their purchase of slaves, being null and void, could not be an element in either conlusion or compensation; nor couldthat portion of the proceeds, for the sale of slaves, forma part of the assets ot the estate, and that the administrator tnust account to the heirs for their portions without taking into account the sale of slaves as assets, and without charging the heirs with the amount of their purchase for slaves. . •
    from the Parish Court, parish of L:ifayette. Moss, Parish Judge.

      William Monton, for appellant. M. JE. Girard, lor ap-
   IIowe, J.

Hortense Pabia died in 1361, and on tlie twenty-eighth

December, of that year, a sale of the effects of her succession was made. At this sale certain slaves were purchased by the heirs — one by Marcel Begneaud, for $2040; one by Alice Begneaud for $2430, and two by Emma Begneaud, widow of J. M. Dugas, for $3060.

In February, 1867, Onezime Mouton, the administrator, presented an account and tableau, with prayer for advertisement, citation an 1 homologation. The heirs above named filed their oppositions alleging that they were illegally charged with the amount of their purchases of slaves, the effect of which was to bring them in debt to the succession, after receiving credit for their inherited shares. The account was at first homologated so far as not opposed, and after trial of the oppositions the court a qtia gave judgment that the oppositions so far as the inheritance of each was concerned be rejected, that amount being decreed to be settled by confusion” to the extent of their purchases. The oppositions were maintained for the balance due the succession for the purchase pric^ of slaves.

The opponents have appealed.

We are constrained to think that the judgment was erroneous. Under the jurisprudence of the State, as well, settled, the obligations contracted by the heirs by their purchase of December, 1861, being null and void, cannot be an element in either confusion or compensation. To recognize them as such would be, practically, to enforce them. IS) Ann. 234; Constitution, article 128 ; C. C. 2205, 2214.

It is therefore ordered that the judgment appealed from be avoided and reversed; that the oppositions of the appellants be maintained; that the items of $2040 charged against Marcel Begneaud, of $2430 charged against Alice Begneaud, and of $3660 charged against Emma Begneaud, widow of J. M. Dugas, be stricken out both from the list of debts due by them respectively and from the list of assets with which the administrator is debited, and that the cause be remanded in order that the account may be amended and homologated aepording to law. Costs of the appeal to be paid by the succession.


text:
    No. 734.
    Adolphe Hartman v. H. C. Rentrope, Administratrix, et al.
    The Parish Court is without jurisdiction ratione materia in a suit where the amount involved is above live hundred dollars. Swan v. Gayle, ante page 478.
    The nullity of a judgment resulting from want of jurisdiction ratione materia may be urged at any time.
    from the Parish Court, parish of St. Mary. Handy, Parish Judge.

      A. L. Tucker, for plaiutiff and appellee. J. G. Oliver & Dumartrait and DeJBlanc & Perry, for defendants and appellants.
   Wyly, J.

The defendants, the legal representatives of the successions of Valsin H. Rentrope, deceased, and Henry Knight, deceased, have appealed from a judgment rendered against them by the Parish Court of the parish of St. Mary for $1333 33, based upon the promissory note made by said Rentrope and Knight on fifteenth January, 1859. The first objection to the judgment urged by the appellants is that the Parish Court was without jurisdiction ratione materice, the amount involved being over five hundred dollars.

It appears that the suit was brought in the District Court before the organization of the Parish Court, but that it was tried in the Parish Court, and the appeal has been taken irom that court.

In the cases of Swan v. Gayle, and Calderwood v. Calderwood, decided at the Monroe term, this court held that the Parish Court is without jurisdiction to try a suit where the amount in dispute exceeds five hundred dollars. Article 87, constitution.

We see no reason to'depart from the views expressed in those decisions.

The judgment of a court without jurisdiction ratione materice is a nullity which may be urged at any time. C. P. 92, 609, 612.

It is therefore ordered that the judgment appealed from be avoided and annulled and it is now ordered that this cause be remanded to the District Court where it was instituted, to be proceeded in according to law, and that appellee pay costs of the Parish Court and of this court.


author: Taliaferro,- J.

text:
    No. 711.
    Pierre H. Lefevre v. Evelina Haydel et al.
    An appeal "will not be dismissed on tbe ground that the record was not filed on or before tbo return day, wben it is shown that there was no term of the court held at the time fixed, provided it was filed on the first day of the first meeting of the court after the appeal was
    A. mortgage given by an heir on her individual property to secure her one-'fifth interest in an annuity created by her father for the purchase of a lot of slaves, of which she inherited the one-fifth, is an accessory to the principal obligation, to wit, the price of slaves, and cannot be enforced, Wainwright v. Bridges, 19 An. 23i; Constitution, article 128.
    from tlic Third Judicial District Court, parish of St. Mary. Gates, J.

      J. G. Oliver, for plaintiff-arid appellee. F. Fuselier, for defendants and armellants.
   Taliaferro,- J.

The plaintiff and appellee moves the' court to dismiss this appeal on the grounds—

First — That the transcript of record was not filed in the Supreme Court on the return day of the appeal, nor within three judicial days thereafter.

Second — That the surety on the appeal bond is not solvent.

The order of appeal was granted on the eighteenth of May, 1867, and the transcript of appeal ■ was filed on the first Monday of September, 1869 — being the first day of the term.

There was no term of the Supreme Court held at Opelousas for the years 1867 and 1868. This ground is therefore not tenable. 18 L. 374-

The second ground is also untenable. See the case of Gray v. Lone, 9 An. page 478.

The motion to dismiss is therefore overruled.

On the twelfth of October, 1850, P. II. Lefevre' sold to George Ilaydel twenty-four slaves for the consideration of six hundred dollars, to be paid annually during the natural life of the vendor, with the reservation of a mortgage on the slaves sold.

Evelina Ilaydel, heir for one-fifth part of the estate of her father, George Haydel, the original vendee, then deceased, executed a mortgage in favor of Lefevre on her own estate called Gorantin, to secure the payment of her own fifth part of the life annuity due to Lefevre, principal and interest being one hundred and twenty dollars, due by her for her annual share of the life annuity due by her father, G. Hay-del, to Lefevre. Subsequent to the execution of this mortgage, Evelina Haydel, the mortgager, sold the mortgaged premises to her sister, •Annette Haydel. This suit is brought against Evelina Haydel in per-sonam, for nine hundred and sixty dollars and interest, being her share of said annuity for eight years at one hundred and twenty dollars per year from the first of March, I860, and against Annette Haydel in the form of the hypothecary action.

There was a declinatory exception in the record filed on the part of Evelina Haydel, alleging her residence to be in the parish of Terre-bonne. Wo do not-deem it important to consider this exception. Both defendants filed peremptory exceptions setting forth that the plaintiff had no cause of action, and Annette Haydel filed an answer alleging that the consideration of the contract sued upon was the price of slaves. ♦

Judgment was rendered in favor of the plaintiff and defendants appeal.

The act executed by Evelina Haydel does not purport in any manner to alter or modify the oiignal contract of annuity. On the contrary, it studiously refers to it as being the contract under which the party is bound. It shows no other interest than to secure the obligation already existing by a new and additional mortgage on her own property. It is an accessory obligation to the principal one, which' it recognizes and confirms.

The consideration then being- a proportional amount of the original consideration, which was the price of slaves, the contract cannot bo enforced. Wainwright v. Bridges, 19 An. 234; State Constitution, article 128.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed at plaintiff’s costs.


text:
    No. 621
    Mary E. Taylor, Wife, etc., v. Augustus W. Littell and H. M. Wackerhagen, Testamentary Executor.
    Tlie objection, that the petition does does not state the full name and residence of the plaintiff, must bo made in limine litis by dilatory exception.
    The objection, that the plaintiff was not properly authorized to prosecute the action, must be pleaded specially in the court below.
    The maker of a negotiable note has no interest in raising the question of the right of the payee to indorse it, as a p •■yment to the indorsee and holder will protect him,
    A judgment that has been rendered without, a judgment by default being first taken is illegal ind null.
    "Where a final judgment has been rendored on default, and appeal taken therefrom, the cause will not be remanded on the allegation without evidence that the consideration oí the note sued on was the pi ice ot a slave
    from the District Court, parish of St. Landry. Bailey, J.

      King & Mart n, for plaintiff and appellee. Dupree <& Garland, for defendant's and appellants.
   IIowe, J.

The defendants have appealed from a judgment by

default on a promissory note,,and have presented a number of points lor our consideration. They urge that the petition does not state the residence of tho plaintiff nor her full mame. This objection (il not entirely frivolous), should have been pleaded in limine, by dilatory exception. Parmely v. Bradbury, 13 La. 353.

They also object that plaintiff docs not appear to have been properly authorised to prosecute the action, hut this defense should also have been specially pleaded in tho court below. Cochrane v. Miller, 10 Ann. 140.

They further contend that, as the note was made to the order of Eliza M. Taylor, tutrix, the payee had no right to indorse and transfer it to the plaintiff; hut whether this right exist or not, we think they have no interest to raise this question. A payment to the plaintiff, indorsee, and holder, would sufficiently protect them. C. C. 2141; Bacon v. Smith, 2 Ann. 442; Nicholson v. Chapman, 1 Ann. 222.

The same answer may properly he made to the objection that the suit should have been brought by the plaintiff’s-husband.

An examination of the record shows, however, that no default was ever taken against the defendant, Mrs. Wackerliagen, and the judgment therefore, purporting to have been made final after default, is, as against her, irregular and illegal, for want of issue joined. The counsel for appellee states that it was rendered by mistake.

The default against Littell seems to have been regularly entered and confirmed after the legal delays. The appellants assert in their brief that the obligation sued upon was given for the price of slaves, and urge that tho cause he remanded, as to both defendants, in order that proof, of which there is-none in the record, may be made on this point. Wo had occasion at the term lately held at Natchitoches, to considei this question in tlie case of the succession of Tauziu, and held that under such circumstances the case could not he remanded.

For the reasons given, it is ordered and adjudged that the judgment appealed from, as to the defendant, Augustus W. Littell, be affirmed with costs; that, as to the defendant, Mrs. II. M. Wackerhagen, the said judgment bo avoided and reversed, and the cause, as to her, be remanded to be proceeded with according to law.


text:
    No. 706.
    Demosthenes Nunez, Administrator, v. Thomas S. Winston.
    On a motion to dismiss an appeal, tlie Supreme Court will not notice documents not forming a part of tlie record.
    Jiotes given for the price of slaves cannot be enforced. Constitution, art. 123.
    from the District Court, parish of Vermilion. 'Bailey, J.

      I). 0. Bryan for plaintiff and appellee, Oliver efi Dumartrait for defendant and appellant.
   Howell, J.

A motion is made to dismiss this appeal on the ground that, before the filing of the appeal bond, the judgment was voluntarily executed by the appellant, and the appellee’s counsel refers us to four documents annexed to his brief to-establish the tact.' Besides tlie objection that we cannot receive now evidence in this Court, or notice documents not forming a part of the record, these documents are not filed. We find no legal evidence of an execution of the judgment, and the motion must,"therefore, be denied.

Up.on the merits, a reference to the evidence in the record shows that the notes sued on were given for a part, of the price of slaves, and hence their payment cannot be enforced.

it is therefore ordered, that the judgment appealed from be reversed and annulled ; and it is further ordered, that there bo judgment in favor of defendant, with costs in both courts.


author: Howell. J.

text:
    No. 714.
    Succession of Desire Beraud. Opposition to Appointment of V. A. Fournet as Administrator.
    The first applicant among creditors is entitled to the appointment of administrator, without reiereuce to the amount or dignity of their claims against the estate. C. C. 1039.
    from the Parish Court, parish of St. Martín. FonteUeu, Parish Judge.

      Smon é VoorJUes for appellant, Gary & Fournet for appellee.
   Howell. J.

On the fourth day of July, 1868, the application of Valsin A. Fournet for letters of administration of the succession'of Desiré Béraud, deceased, was published, aud on the eleventh of the same' month Richard T. Eastin filed an opposition, claiming a bettór right to the administration of said succession, on the ground that he is a creditor for a larger sum than the said Fournet, and a creditor with mortgage. The Parish Judge decided in favor of the first applicant, and the opponent has appealed.

We concur in the decision of the Judge a quo. By the terms of art. 1117 C. C. the Judge must give the administration to him who first': made a demand, if'the. contestants have equal rights thereto; and this equality of right does not depend on the amount or dignity of the debts due them respectively, but upon the classes to whom the law assigns preference successively. C. C. 1114; 2 A. 97.

The act of 1854, p. 51, has amended art. 1116, C. C., so as to require the judge to appoint one of the several applicants to act as curator or administrator. No necessity is shown for more than one in this case.

It is therefore ordered, that'the judgment, appealed from be affirmed-with costs


author: Ludeling, C. J.

text:
    No. 716.
    Pierre Pecot & Co. et als. v. Armelin Brothers et als.
    "Where suit is brought by a judgment creditor against third parties to annul a sale, and a datien enpoiemeni of property made by the judgment debtor to them, and they have not been made parties to tbe original suit, they may controvert tbe demand, although it be liquidated by a judgment, iu the same manner ’that the original debtor might have done before judgment, audit' the account on which the judgment is founded is prescribed, the plea will prevail as to them notwithstanding the judgment:
    The purchase ol lands at the succession sale oí the estate of their mother by the heirs, and their subsequently pian.iug m partnership, does not constitute them partners in the lands.
    A partnership which has lor its object the acquisition of'real estate must he in writing. C. C. 2307. '
    The mortgage of the wife attaches to the interest of the husband in the lands held in common before partition, to secure her claim for her paraphernal property received by him, and a ‘ datien enpaiement to her in satisfaction of her claim is authorized. C. C. 2367, 2421.
    The iact that a party owes more than his property will sell for, does not prevent him from selling, anda sale made under such circumstances will not be‘avoided unless fraud is shown.
    from tbe District Court, parish of St. Mary. Train, J.

      J. Q. Oliver & Dumartrait for plaintiffs and appellees, Simon & Voorhies and Gibbon & Wilson for defendants and appellants.
   Ludeling, C. J.

P. Pecot & Co. ot als., syndics of the insolvent firm of Darby & Tremoulet, judgment creditors of tbe Armelin Brothers, sue to annul the partition of certain lands among the Armelin Brothers, the sale by Theodore and Aristide Armelin to Emile Perret, and the datien en paiement made by Charles Armelin to liis' wife, Marie E. Perret.

The defendants, Emile Perret and Marie E. Armelin, have pleaded, in this Court, the prescription of three years against the account, which formed the basis of the judgment in one of the suits against their vendors and transferer. Article 1971 of the Civil Code accords this right: “ When the defendant, in the action given by this section, has not been made a party to the suit against the original debtor, lie may controvert the demand of the plaintiff, although it be liquidated by a judgment., in the same manner that the debtor might have done before the judgment.’' 12 La. 200; 4 An. 135, Fox v. Fox.

The account of Darby v. Tremoulet was due twenty-second August, 1862. The Armelin Brothers were cited on the fifth of October, 1865. The claim was, therefore, prescribed. The account was not an acknowledged or stated account (compite arreté) as contended for by the plaintiffs’ counsel.

But the plaintiffs have another judgment, under which also they are proceeding, and to the extent of that debt they are interested in avoiding the sales and transfer aforesaid, if the same be in fraud of their rights. This necessitates an examination of the case on its merits. It is alleged that the land which was partitioned between Charles, Theodore and Aristide Armelin, belonged to the partnership of Armelin Brothers, and that they could not partition the property among themselves before the debts of the partnership had been paid. We have searched in vain to find any proof of the existence of a partnership of any sort before the purchase of the land. And the purchase by them, at the sale of the property, which belonged to the succession of their mother, did not create a partnership. Nor does the fact that they subsequently planted in partnership make the land bought by them the property of the partnership. There is no proof in the record to show the existence of a partnership which had for its object the acquisition of real estate, or which was intended to embrace such property. The Civil Code requires such partnerships to be in writing. Art. 2807; 2 An. 822; Cora A. Slocomb v. De Lizardi, 21 An. p. 355. The property was the joint property of the Amerlin Brothers — C. C. 2777; and they had a periect right to partition it. The mortgage of the wife of Charles Armelin attached to his interest in the lands even before the partition; and the datien en paiement to her, in satisfaction of her claim for para-phernal property received by Mm, was authorized by law. C. C. 2367; 2421; 2402.

The evidence in this case does not satisfy us that the sale to Perret was fraudulent. There is nothing whatever to show his want of good faith; and his vendors, Theodore and Aristide Armelin, offered to transfer to the plaintiffs the notes, secured by mortgage on the property sold, which Perret had given for the price. This certainly does not indicate a fraudulent intent on their part. The mere fact that one happens to owe more than his property will sell for, does not prevent him from lawfully selling his property.

This view of the case makes it unnecessary to notice the bills of exceptions taken by the defendants.

It is therefore ordered, adjudged and decreed that the judgment of the District C.ourt be avoided and reversed; and that there be judgment in favor of the defendants rejecting the plaintiffs’ demand, with costs in both courts.


author: Howe, J.

text:
    No. 709.
    Charles H. Walker v. Edward Simon, Jr., Administrator, etc. J. Montgomery et al., Intervenors.
    A clork of the District Court is not disqualified on account of his office from "becoming surety on an appeal bond iu an appeal from a judgment from the court of which be is clerk.
    If the clerk commit a cleric d error of imp irtance in issuing citation to the appellee its only eficct would be to íequire t me to be given for a correct citation. *
    The filing of a transcript of appeal on the first day of the meeting of the Court after the appeal is taken is sufficient. A party does not lose his right of appeal because of failure of the Supreme Court to hold the next regular term after it is taken.
    An intervenor must establish the correctness of his own claim before he can oppose prescription to the plaintiff's demand;
    A -.1L PPEAL from the District Court, parish, of St. Martin. Gates, J.

      MciU.llan & Mossy, for intervenors, appellants, DeBlane & Perry, Gibbon & Wilson, for appellees.
   Howe, J.

A motion has been made to dismiss the appeal on five grounds which we are required to consider seriatim.

I. That the bond given to secure the costs was signed and approved by the clerk of the District Court of the parish of St. Martin from the decision of which the appeal is asked. The bond is signed by V. A. Fournet as surety and attested and filed by L. P. Briant, deputy clerk. The record does not inform us that Y. A. Fournet was at this time, M ly 28, 1863, clerk of the court, but if ho was he could become a lawful surety, at least where, as in this case, he did not approve the bond. 10 L. 423.

II. That the citation of appeal was issued on the twenty-eighth of May, 1863, and the sheriff made a return of the same at the citation on the second of May, 1863. The record plainly shows that this was a clerical error for the second June, 1868.

III. That the citation was made returnable on the third Monday of August, 1863.

By the citation the appellees were summoned to appear ‘‘at the next regular term of the Supreme Court.” The fact that the clerk added in error, that the term would be hold on the third Monday of August could mislead no one. 5 Martin 50Ó. It certainly did not mislead the ap-pellees in this case, who had counsel learned in the law. But if this clerical error was of importance, its only effect, since it was not the fault of the appellant, would be to cause time to be given for a correct citation •, and this, in the view wo have taken of the case, as will be seen hereafter, would be a vain thing.

IV. That the appeal was granted in May, 1868, but the transcript was not returned and filed in the appellate court on the third Monday of August, 1868, nor on the first day of the next term of the Supreme Court, as appointed and fixed by law, nor within three judicial days thereafter, nor within fifteen months after the citation of appeal was issued.

It is well known tliat tliere was no court lield here in 1868. The three judicial days after the return day of this appeal did not begin to run till the court was opened at the present term (1869), and the transcript was filed September 6, 1869, on the first judicial day. This was sufficient.

V. That the intervenors (appellants), have neither offered nor introduced any testimony to show that they are in any way interested in the judgment of the lower court from which this appeal was taken.

This allegation would seem to refer more properly to the merits of the intervenors’ claim, which, the motion to dismiss being overruled, we will now proceed to consider.

This action was instituted upon certain mortgage notes held by the plaintiff The defendant, as administrator, admitted, by his answer, the validity of the claim.

The intervenors alleged in their petition as follows:

“ That they are the owners and holders of certain notes drawn and indorsed by Edward Simon, Sr., the intestate, and secured by conventional mortgage on the property described in plaintiff’s petition, which mortgage on its face appears to rank next inferior to that of plaintiff, while in law, and in fact it has a superior rank, and ought to be paid in preference to that of plaintiff, as it is specially averred that the notes sued upon are prescribed, and which prescription they plead5 and they pray that plain tiff’s claim be rejected.”

There was judgment rejecting the demand of the intervenors, and in favor of plaintiff, and the intervenors appealed.

Upon the trial in the District Court, the intervenors offered no evidence. The notes they claim to hold, and which are so vaguely described in their petition, were not produced; the mortgage by which they allege these notes to be secured was not exhibited, and we are unable to say that they have in any way established their debts in such form as to lay a foundation for their plea of prescription. They claim that the administrator’s account, introduced by him, establishes that they have an interest as creditors to plead prescription; but au examination of the account does not justify this theory. . Upon the account the intervenors figure as persons who claim to be creditors, but their claims are disputed by the administrator. In regard to them, the account declares: Suits are pending in the District Court of the parish of St; Mary * * * in regard to the claims herein classed, * * * and the administrator still persists in disputing those claims. They are classed in his account, not that he acknowledges their existence, but for no other purpose than that of retaining in his hands, subject to and until the decision of the suits above referred to, the amount which the holders of those claims will be entitled to in case their suits be decided in their favor.”

The account, if relied upon to establish the intervenors’ claims, must, as to such claims, be taken as a whole, and so taken, admits nothing in their behalf.

It is doubtful if the plaintiff’s claim is prescribed. It ’is doubtful if the plea of prescription by the intervenors is made in proper form) there being no intimation given in their petition of what prescription they invoke among the many classes established by the Code. Mansfield v. E. E. Norton, 21 Ann. p. .195. But however this may be, it seems certain that the intervenors have not established a sufficient interest to enable them to oppose prescription to the plaintiff’s demand. C. C. 3429.

It is therefore ordered, that the judgment appealed from be affirmed at appellant’s costs. .


text:
    No. 632.
    Faustin Bordelon, Administrator, v. Joseph D. Coco et al.
    A party having purchased property at probate sale during the war, cannot set up in defense to the payment of his obligations that the sale was made on the basis of the value of Con’ federate notes at the time of sale, and obtain a reduction of-the price bid to that extent.
    from the Seventh Judicial District Court, parish of Avoy-elles. Lewis, J.

      Wacldill & Harbin, for plaintiff and appellant, Gullom & Thorpe, for defendants and appellees.
   Taliaferro, J.

The defendant Coco, at a probate sale of succession property of the estate of Jean P. Bordelon, in February, 1863, became the purchaser of a lot of hogs at the price of five hundred dollars, and in conformity with the terms of sale executed with the other defendants two promissory notes each for one-half the price, and payable respectively in one and two years from the day of sale, with interest at eight per cent, per annum from maturity of each note. In 1866 the plaintiff, as administrator, brought suit to enforce payment of these notes, and the defendant set up in his answer that the stock purchased was not worth more than one hundred dollars in gold,- that Confederate money was the only currency used in this country, and that it was expected by all parties that these notes were to be paid in Confederate money, which was then worth only twenty cents on the dollar. 'The judge of the lower court gave judgment for $125 in gold, or its .equivalent in current funds, with interest, etc. From this judgment the plaintiff has appealed. There is error in the judgment, in this, that it recognizes the right of the parties to deal in and, consequently, give credit to an unlawful paper currency. It assumes that they contracted with especial reference to the discharge of the debt by the payment of this illicit paper issue, and thence proceeds to ascertain the value in gold, at the time of the contract, of five hundred dollars of that currency and finds the correlative value to be $125. This is not in express terms rendering judgment for tlie payment of live liundred dollars in Confederate paper money, but it is in substance the same thing. If the parties contracted, the one to pay and the other to receive the debt in question in that issue, as the judge a quo by his judgment determines they did, the contract was null ab initio and the suit slioul 1 have been dismissed. This should have been done if such were found to bo the case; if not, judgment should have been rendered for the whole amount. Wo find ■no such array of facts in this record as leaves no reasonable doubt upon the mind that the parties contracted with reference to payment in the so-called Confederate money. There is nothing to warrant the conclusion that the administrator, acting as he did in a fiduciary capacity, agreed with the defendant to receive-payment in that currency. The terms of sale were fixed by the advice of a family -meeting, and they certainly gave no authority to the administrator to 'receive payment for the minors’ property in a worthless and constantly depreciating currency. If, as a witness stated, the administrator did on one occasion receive in payment a small sum under the cash limit, in paper of that character, it was at his own risk, as he was without authority to do so. There was no declaration made at the sale nor any intimation whatever given that the currency in question would be received in payment of the property of the succession. It may bo reasonably supposed that the parties acting in behalf of minor children looked through the vista of two years and saw in the distance the final explosion of the paper currency then in vogue, and in which oven then all conli-.dence was lost. One witness swore that in 1303 there was gold and silver in the country; that cotton was bought with gold, and that he refused to take Confederate money in payjpent of debts contracted before the war.

The defendant executed his two promissory notes in conformity with the terms of sale, and bound himself to pay five hundred dollars to the estate in one and two years. If he bound himself under the’ belief that he was to discharge his obligation by the payment of valueless currency he wronged himself. There is nothing we find in the record that justified him in that belief.

' It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled avoided and reversed. It is further ordered that the plaintiff have judgment against the defendants in solido for five hundred dollars with interest on one-half of that sum at eight per cent, per annum from the thirtieth day of March, A. D. 1801, and like rate of interest on the other half from the thirtieth day of March A. D. 1805. The defendants to pay all costs of suit.

OPELOUSAS, .SEPTEMBER, 18tí9. C73 Francois Arceueaux et al. v. St Clair de Eenoit et al. No. G13. — FiíANCOis ArceneAux-et al.'*. St. Clair de Benoit et aí. The several act3 of the Legislature passed in 1SG4, 1865 and 1806, providing for the return of appeals to the Supreme Court, were enacted in the liberal spirit of reinstating the right oí appeal in all bases in which it ¿ad been lost or suspended by the disorganization of the courts and the utter confusion and derangement oí judicial proceedings consequent upon a state of war. These statutes should be construed liberally. Appeals granted since the first of September, 1800, end filed at the proper places of return, on or before the return day for such appeals, are in time, although the return he made subsequent to the first Monday of March, 1863, to which time the right of appeal had been extended by the act of December, 1865. The act of March 22, 1806, is, in its spirit, an extension of t ;e time beyond the first Monday of March, 18G0. A surrey under the Spanish Government, when Louisiana was a province of that Kingdom, not made in conformity with the forms and requirement of the order, and never approved or confirmed by the Spanish authorities, is merely an inchoate title. The land embraced by such survey passed by the treaty of cession to the United States as part of the public doraaiu, the title to which vestecl in the new sovereign. 'Where a party having such inchoate title, with partial confirmation by the United States Government, and in order to obtain a further concession under His claim, enters into an agreement with contiguous proprietors by which they renounce their right to bacic concessions under the acts of Congress of 1811 and 1826, and he recognizes the full extent of their claims, he is estopped thereby, in an adjustment of boundary, from claiming limits which would conflict with those of the other party, under the pretense that his claim, under the original order of survey, has been fully confirmed by the United States. The action of boundary cannot be prescribed against. Civil Code, article 823. Gary cC Fournet and JDeBlanc é Ferry, for defendants and appellants. Taliaferro, J. In tliis case tliere is a motion to dismiss the appeal on the ground that it was not brought up in accordance with the provisions of the acts of 'the Legislature directing the manner of returning certain appeals; one of which acts was passed in 1864, and the other in December, 1885. By the act of 1864 it was provided that all appeals should bp returned to the Supreme Court at New Orleans. The act of December, 1833, directs that in all cases in which appeals have been granted from judgments of the District Courts of this State, at any time since the first day of September, I860, tbe appellants are granted until the first Monday of March, 1866. The point made by the appellees is that the appeal in this case having been granted on the twenty-ninth of September 1860, and the transcript not having been filed at tbe proper place for returning the appeal, on or previous to the first Monday of March, 1866, the appeal is barred. It is contended that tbo act of December, 1865, was specially enacted, extending the time for bringing up appeals, and the appellants not having availed themselves of'the act cannot now prosecute their appeal. In reply to tliis it is urged that by a subsequent law, the act of the Legislature of March 1866, .the time granted by the former laws wás extended. That act provides that all appeals which have been taken since the first of June, 1860, from the District Courts of this State and which are now; pending and which have.not. been finally

determined on their merits shall he heard and determined by preference, at the places designated by existing laws, provided, the records be filed on or before the next return day after the passage of this act.”

We think a i>roper interpretation of these several acts authorizes the conclusion that the purpose of the law maker was, by liberal provisions, to reinstate the right of appeal in all case3 in which it had been lost or suspended by the disorganization of the courts and the utter confusion and derangement of judicial proceeding resulting from war in the country.

The construction of tho acts of 1361 and 1365, contended for by the appellees, wo think too stringent and not in unison with the spirit of the legislation on tho subject. We are inclined to regard the act oí 1866 as an extension of the time for bringing up appeals, and we find that the transciipt of appeal in this case was filed within the time allowed by the act.

Tho motion to dismiss is therefore overruled.

Coming to the merits of the case we find it to be an action of boundary, involving from its character, to some extent, questions of title.

The plaintiffs allege that they are the owners of several contiguous tracts of land which they designate by numbers and display their relative position in respect to tho defendants’ lands by maps and diagrams. They represent them as lying in township No. 8, south of range No. 5, east, in the southwest land district of tho State, and hounded on the west by the Bayou Vermilion, extending castwardly from the bayou the depth of forty arpents, where tlieir several tracts are bounded by the contiguous lands of tlie defendants, lying- oast of their hack liuoi. They allege their titles to these lands to he derived from regular confirmations by the United States government of Spanish grants. The answer is a general denial and an averment of ownership of tho lands in question. Tho defendants plead the proscription of ten, twenty and thirty years. They claim under an order of survey granted by Governor Miro to Madame Louise do Favrot on tho seventeenth, of March, 1790. In the year 1772, the Spanish government granted to Joseph Alexander Declouct a tract of land extending by diverging lines across tlie Bayou Teche forty arpents deep in a westwardly direction toward the Bayou Vermilion. In September, 1789, after tlie death of tho Chevalier Declouct, liis widow, Louise de Favrot, petitioned the government for a hack concession to the original grant, claiming an extension of tlie former tract forty arpents to tho Bayou Vermilion. We have already noticed tlie order granted by Governor Miro upon this petition. Tho order was executed by Gonsoulin, who appears to have been a surveyor of that time, on the twenty-fourth of April, 1796. This order of survey, it appears, was never returned or approved by the Spanish authorities. It seems never to have been proceeded with further than the location made by Gonsoulin. The title of the Spanish government ivas never divested, and consequently it passed by tbe treaty of cession to tlie United States as part of the public domain. The title under the order of survey was only inchoate and imperfect and subject totlie future action of the new sovereign. 4 An. 99; 7 An. 546; 11 An. 142. In 1811 the United States confirmed a part only of this claim, viz: Sixteen hundred arpents bounded by parallel lines. Of the disposition made of the remainder we shall speak further on.

The titles of the several plaintiffs are based on grants by the Spanish Government in 1781, with regular confirmations by the Board of Land Commissioners in 1811. These confirmations are for forty arpents in depth on each side of the Vermilion, the extent of the front lines varying. These several tracts, nine in number, lie contiguous to each other, and by a survey made about the year 1854, and approved by the Surveyor General of Louisiana, are shown to run back eastwardly from the Vermilion forty arpents. By this plot of survey introduced in evidence no confliction of these tracts is shown with ot.her.lands. It is however certain from the evidence, that if the survey of the back concession of Mrs. Favrot be extended forty arpents westwardly from the original grant to Declouet on the Teche, it must inevitably conflict with the surveys running eastwardly forty arpents from the Vermilion. It is this confliction of these claims, if both afe extended their full depth, that forms the gist of this controversy.

The defendants undertake to show that this difficulty has long since been settled by the ancestors oi the present litigants. They show a formal notarial act executed on the sixteenth of February, 1802, before Louis Charles DeBlanc, civil and military commandant of the post of Attalcapas, to which Alexander Declouet was a party on the one side, and Louis, Pierre, Alexander and Francois Arceneaux, Francis Car-mouclie, Joseph Breaux and Jeau Guilbeau were parties on the other side. By this act the parties agreed to establish a division line to be marked by indicia ot a permanent character, and obviate-for the future all cause of dissension on the subject of their boundaries. The last named parties acknowledged that on the east side of the Vermilion their claims “would reach and extend on the lands of Declouet.” Along.the division line agreed upon, roads were to be opened through the swamp, and mounds of earth were to be thrown up. At that time no surveys had been made of the several tracts claimed by the Arce-neaux and others, but it seems that the back line of the Declouet claim would have reached to within about fourteen arpents of the Vermilion. The surveyor, who, under an order of court pending this suit in the lower court, made a survey, found no certain traces or remains of this boundary line established by the act aforesaid; but several witnesses testified to the existence of two or three mounds in the vicinity of the supposed location of the line of division. Upon the inventories of the estates of Frangois, Pierre and Toussaint Arceneaux, tracts of land are described as having fronts on the east side of the Vermilion, and running fourteen arpents in depth. There is little room to doubt that there was a division line established-between the parties as the notarial act purports, and that it was placed at the distance of about fourteen arpents from the Vermilion.

We shall now revert to the final action of the United States Government upon the back concession of Mrs.-Favrot and to the position of the parties at that time. After having' accorded to them after the change of government, by virtue of this incomplete title from the Spanish government, sixteen hundred arpents of land,.the heirs of Mrs. Favrot again made application for a further confirmation under this claim, and upon it a favorable report was made to the Secretary of the Treasury by the Register of the Land Office at Opelousas,, on the first of October, 1825, Register’s Report A, No. 63. The claim was confirmed by act of Congress on the sixteenth of May, 1826.. A plot accompanies1 the report showing the relative position of the back concession to Mrs. Favrot and the lands of the plaintiffs. The direction in which, the back line of the Favrot concession would cross the several tracts of the plaintiffs is shown by dotted lines. Other lines shaded in blue indicate two portions of the area embraced by the lines of the back concession, and which touch, but do not conflict with any of the plaintiffs’ lands. One of these portions contains 715.06 acres, the. other 235.60 acres, making together 974.04 acres.

In 1820, the heirs of Mrs. -Favrot procured from the then owners of the several tracts belonging now to plaintiffs a renunciation of their rights to the back concession to their lands, accorded by law of Congress in 1811, and extended in 1820. And this renunciation was shown, in their application reported upon by the Register first of October, 1825, and is recited in the report. -It is in these words : -“We, the undersigned persons whose lauds front on the Bayou Vermilion and extend in depth to the.lands belonging to the legal representatives of the late Madame Louise Favrot, widow of Mr. Alexander Chevale.ur Declou.et, do hereby renounce expressly all right of .preference whatever which we might have under the pre-emption law of 1811, which has been revived by the act of Congress of the eleventh May of the present year; it being well understood by us and the neighbors in general that the lands back of our respective tracts was, or ought to have been embraced, in the concession made by Governor Miro to the said widow, of the. second depth of the laud which has been granted to her husband. For which reason we think it but just that the government of the United States do confirm the said heirs, etc., in their right and title to the said land, and we ask permission to recommend the renewal of the confirmation to them of the title to the vacant land lying south of the land of Mr. Jean Gilleau, and between the back lines of the land of. the said heirs and the left bank of the Bayou Vermilion, as an eguiva-lent for the interference of our lands with those of the said representatives, as set forth in the plot. Parish of St. Landry, twenty-eighth December, 1820.” [Here follow the signatures of the parties.] The report also recites that the Pavrot heirs “ expressly disclaimed apy intention or wish to disturb their neighbors in their possessions, and therefore have confined their claim to those parts represented in the said plot by the lines shaded-with blue.” ’

The land claimed in the. application for confirmation was represented as containing “about nine hundred and twenty superficial acres, American measure.” This is less than the contents of the two portions of the ar.ea of the front concession before referred to, by 54.04 acres.

The plaintiffs.hold that these acts of the defendants conclude them against any further claim under the order of Survey granted in 1790 by. Governor Miro as a back-concession to. Mrs. Pavrot; that they have, acknowledged the plaintiffs' claims, to their full extent, by obtaining the plaintiffs’ renunciation, in 1820, of their right of preemption to. their back lands — a renunciation made for the benefit of the.defendants — and by limiting their claims to the lands represented on tlje map by the lines shaded with blue. They further contend that the defendants, by the act of Congress .of sixteenth'May, 1826, have been accorded all the land they prayed for, and should not be allowed now to claim, by a third extension of the old order of survey, an additional quantity of more than- a thousand acres to be taken from the lands of the plaintiffs. A retrospect of the attitude and claims of the parties may now. not be out of place. And first we will look at the order of Governor Miro of seventeenth March, 1790. That order is as follows:

“New OeleaNS, March 17, 1790.

“The surveyor of this province, Don Carlos Larcau, Trudeau, will establish the party upon the second depth of land- which- is solicited and described in the widow’s memorial, it being well understood that the second depth shall not exceed forty- a-rpents, being vacant and not causing any prejudice to the neighbors, lie will extend his proceedings in continuation hereof, signing the same -with the aforesaid neighbors, and he will remit the same to me in order to provide the person interested with a title in form.’

(Signed) ESTEYAN MIRO.”

This order is clear and explicit. It contains conditions that the lands to be surveyed shall be vacant, and that the survey shall cause no prejudice to the neighbors. The grants to the -plaintiffs’ ancestors were made in- L781, nine years before the above ord.er of .Governor Miro, It is not shown that the plaintiff’s lands were surveyed at that time, nor that they might not have been located elsewhere on the Vermilion. The recommendation indorsed upon Madame Favrot’s petition states, that'the adjoining lands, except the front, belonged to the king’s do.main. The survey of Gonsolin was not made until April, 1796. Six years afterward the parties entered into the compromise before the notary.

In the absence of anything shown to the contrary it is not unfair to presume that these grants had a fixed place for. their location. At all events Declouet recognized them, and the Locus in quo was not questioned pr disputed. It may then be a matter of some doubt whether the location of the back concession was made upon vacant land or without prejudice toHho neighbors.” However this may be it is not now important to inquire, as the claimants of the lands on theYer-milion waived and yielded a portion of their lands in order to preserve peace and amicable relations with, as it may possibly have been, their more wealthy and influential neighbor. It is worthy of note the manner in which the United States government has dealt with this order of survey. It seems to have carried out, in every respect, the conditions fixed by Governor Miro. The original order does not direct the extension of the diverging lines, a rather unusual mode, under the the Spanish Government, of locating surveys. The order declares that the second depth shall not exceed forty arpents. The confirmation of the sixteen hundred arpents in 1811 gave that quantity within parallel lines, although in the rhomboidal form.

Next we see that the report of the Register’s No. 63, letter A, shows a disclaimer on the part of the applicants to disturb other parties or interfere with their limits, and also to show a formal renunciation by the persons having adjacent lands, their right to enter their back lands, by preference. The quantity, represented to be about nine hundred and twenty acres, was thus, as it clearly appears, confirmed by the act of Congress of May, 1826, under the belief and intention that the confirmation was to injure or interfere with the rights of no other person.

The lots or sections numbered 44 and 108, and marked Louise De Favrot, Register’s Report A, 63,” on the map marked J, introduced in evidence, gives the quantity of land claimed under the application forming the subject of that report, and leaves entire and free from conflietion the lands of the plaintiffs.

We think the law and equity of the case are with the plaintiffs, and that the defendants, from the course they have pursued in pressing a second confirmation upon the Government, have estopped themselves from claiming any portion of the plaintiffs’ lands under the order of survey. This being an action of boundary, the plea of prescription does not apply. The judgment of the lower court, with some amendments in the designation of boundary, should be affirmed.

It is therefore ordered, adjudged and decreed that the boundary between the lands of the parties be and the same is hereby established as follows, to wit: Beginning on the Bayou Vermilion at the southwest corner of the tract of Joan Gilbeau, and running thence southeast-wardly along the lower side line of said tract to the extremity of said line the depth of forty arpents more or less; and thence northwardly following around the end'linos successively of the several contiguous tracts as sho-wn by the line shaded with blue, to the point where the said line intersects the upper or norther^side lino of the tract of Joseph Breaux at the northeast corner of said tract; and thence westwardly along said side line to its extremity on the Bayou Vermilion. The lines, ■ corners, etc., hero designated, are given as the same appear upon the map marked J, introduced in evidence in the case.

It is further ordered that the defendants pay costs in both courts and it is further ordered that the judgment of the lower court, as thus amended, be affirmed.


text:
    No. 651.
    Francis P. Pitre, Senior, et al. v. William Offutt and others.
    A steamboat engaged in carrying cattle and other live st^ck from different ports of the country to How Orleans for market, is responsible for the loss of the cattle while on board, when it has occurred through carelessness or negligenco.
    It is no defense in case of loss while the stock is on board, for the boat to show a custom to the effect that they took no risk in case of losses of this kind. To make the defense good that such a custom provailed, it must bo shown that the shipper had lull knowledge oí the custom at the time of shipment, and that he delivered the stock on board with reference to the custom.

      .¡A. A PPEAL from the District Court,' parish of St.' Landry. Bailey, J.

      Moore & Morgan, for plaintiffs and appellees, Dapre & Garland for defendants and appellants.
   Taliaferro, J.

This is an action brought by the plaintiffs against the defendant and others, owners of the steamer “Aline,!’ for the value of eighty-seven calves shipped by them on the steamer destined to New Orleans, and which they allege the defendants failed to deliver according to their agreement. They claim eight hundred and seventy dollars, the value of' the stock and interest on the amount claimed.

The answer is a general denial of the plaintiffs’ allegations. Judgment was rendered in favor of the plaintiffs for five hundred and twenty-two dollars with legal interest from judicial demand.'

The defendants have appealed.

The facts seem to he that the cattle were shipped on the steamer at or near the town of Washington on the Courtableau, and that finding great difficulty at the low stage of water then existing to pass bars and other obstructions at a lower portion of the bayou called “Little Devil, ” the cattle were turned off the boat to lighten her. Tho country around for a considerable distance being low, marshy and uninhabited tbe cattle wandered oil without any'effort being made by the managers of the boat to have them taken care of.

It is shown that it is not usual for boats to give bills of lading for freight of this kind; it appears that boats wore in the lrabit generally of transporting boot cattle lto New Orleans on this route, and that the plaintiffs’ lot of calves was taken on board the Aline for (ho purpose of being carried to that market. A witness, formerly a clerk on board the steamer, testifies that the steamers “Ahne” and “Ferret” “never gave receipts for stock and never were responsible for the lives of stock shipped thereon.”

This he states further “ is a well understood regulation followed by itll 'steamboats in the cattle trade-,” and adds that he is sure the boats named never made an exception.

This is the only witness who mentions such a usage as the one he spoke of, and we are unable to find that a knowledge of the existence of such a regulation, even if available for the defendants, was brought home to the plaintiffs.

The officers in charge of the steamer received the stock on board with full knowledge of the impediments in the way of navigation, and of'the vexations which the “Little Devil” had in store for them. V/c see nothing in the defense which will justify an exemption of the dc-iendants from the responsibilities of common'carriers.

It is therefore ordered, adjudged and decreed that the judgment of the district Court be affirmed with costs. 10 An. 41-3; II An. 43, 427; 12 An. 783.


text:
    No. 728
    Blanchin & Giraud v. C. C. Pickett et als.
    Aü account stated and closed by the written acknowledgment of the other party, is ofily ‘prescribed by ten years. 14 An. 654; *¿0 An. 11G.
    Interroga? oriés that have not been answered on or-bfcfore the trial, will be taken as confessed, where there is no order of court requiring tlie defendant to answer in open court.
    An administrator is bound to answer interrogatories propounded to him in a suit against the estate he represents.
    Personal service of interrogatories on the party interrogated is not required. C. P. 1ST.
    from the District Court, parish of St. Landry. Porter, J

      Dupre & Garland, for plaintiff and appellee. John D. Kmj and G. 17* Hudspeth, for defendants and appellants.
   Howell, J.

The defendants are sued as owners of a steamboat lor the amount of an account. The defense is a general denial, with a special denial by one of tbe defendant's, T.C. Anderson, of his ownership/and by another tliat he notified one of the plaintiffs not to give credit to the said steamboat as he would hot' be' responsible !for the debt, and they all plead the prescription of one, two, three, four find five years.

By an amended petition interrogatories on facts and articles were propounded to all tlie defendants, wliieb, on tlie day of trial, were taken .as confessed, except as to defendant Anderson, and upon the introduction of further evidence, judgment was rendered against the other defendants, who have appealed.

The prescriptions pleaded do not apply, as the account is not open, hut closed by the written approval of C..C. Pickett, tho captain of the boat, and is prescribed by ton years. 14 A.,654; 20 A. 116.

It is objected that the interrogatories were erroneously taken as confessed, because—

First — There was no order of court to answer. This was not necessary, as tho defendants were not required to answer in opcii court. 11 A. 173 5 14 L. 260; 10 L. 546 ; 7 L.522.

Secondly — Because a failure, by one of the defendants, Hudspeth, sued as administrator, to answer, could not hind the estate. We know of no law to sustain this position. It has been hold that interrogatories, may he propounded to an executor (6 M. 730), and an administrator is no moro exempt. Tlie latter is presumed to know the property belonging to tho estate administered by him.

Thirdly — Because the service, on two of tho defendants, Pitro and Pickett, was constructive and not personal, and as to them, the judgment is erroneous.

■The service upon each was made in conformity to article 189, C. P. A personal service is not required. The case in 2 A. page 11, does not hold that personal service is necessary, hut that a special notice of the order (where one is required), and of the day fixed for answering, must he given to the party interrogated, and that a notice to answer on the day of trial, without specifying tho day, is insufficient. This authority does not apply to the ease at bar.

We find no error in the judgment.

It is therefore ordered that the judgment of the mstrict Court he affirmed with costs.

Rehearing refused.


text:
    No. 692.
    L. Rodichaux v. H. Bouillet, Wife, etc.
    Tlie holder of a promissory note cannot be permitted to prove by interrogatories propounded to the husband, in a suit against the wife, that the note sued on was signed by him as her agent.
    from the District Court, parish of St. Mary. Gates, J.

      J, G. Oliver & Thmartrait, for plaintiff and appellee, A. F. Tuelcer, [for defendant and appellant.
   Howell, J.

This suit is brought to recover the amount of a note subscribed in 1861, by Vve, G-, Bouillet per B. Martel,” from tile defendant, Ilermina Bouillet, wife of said B. Martel, and sole, unconditional lieir of said Vve. G. Bouillet, wlio died in 1802.

The answer is a general denial.

Our attention is first directed to a hill of exceptions taken by the defendant to the admission of her husband’s answers to interrogatories, as evidence against her, to prove his authority as agent of the deceased, to sign the note sued on. The objection of the defendant, that her husband could not be a witness for or against her, was well taken and should have been sustained. C. C. 2260; Simmons v. Sheriff, 21 A. 421.

Without this evidence there is no express and special authority shown in B. Martel to make and sign notes for the deceased, as required by article 2906. The plaintiff has consequently failed to make out his case.

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