text:
    No. 2177.
    City of New Orleans v. O. E. Hall.
    A party cannot mate an appearance lay rule to set asido a judgment by default on the ground that the proceeding against him was informal, and contrary to law; and at the same time urge the exception of want of citation.
    Alleged errors in the assessment roll must be proved, $nd it must be shown that the party complaining has in vain endeavored to have them corrected in the manner prescribed by law.
    from the Fourth District Court, parish of Orleans Théard, J.

      F. Michinard, for plaintiff and appellee, Olarlce & Bayne and Menshaw, for defendant and appellant.
   Howell, J.

This is a suit by special and summary proceeding for the collection of the taxes of 1867, in which a default was taken in the Fourth District Court for the parish of Orleans, on the sixteenth of January, 1869. On the thirtieth of the same month the defendant excepted “to the demand of plaintiff, on the ground that he has had no citation or notice as the law requires,” and he prayed that the suit be dismissed. On the same day the following rule was filed: “On motion of Clarke & Bayne and Renshaw, attorneys for 0. E. Hall, and on suggesting to the court that an exception has been filed herein by said Hall, it is ordered that plaintiff show cause on Monday the eighth of February, 1869, at ten o’clock, A, M., why the default , herein taken should not he set aside, the proceedings taken by the city of New Orleans herein, being informal and contrary to law.”

This rulo, after hearing evidence thereon, was discharged, and on the same day upon motion of counsel and filing an answer, the judgment by default was set aside. In the auswer the defendant, “reserving his exception heretofore filed and averring that he ought not to be compelled to answer over for want of due citation and statement of plaintiff’s demand, and by protestation, answers that said tax has not been lawfully assessed and is not duo from this respondent.”

Upon introducing in evidence the tax bill stamped, “published according to law, (signed) William S. Mount, Treasurer,” judgment was rendered against the'defendant, who appealed and who now contends that the law under which the plaintiff has proceeded (act of 1868, No. 197), does not authorize the city to proceed in this summary mode without citation in person or at the domicile, as the record does not show that a judgment for said taxes had been rendered against him, as contemplated by said act.

Admitting defendant’s construction of said statute to be correct, and that it does not authorize judgments to be rendered against defaulting tax payers for the taxes of 1867, upon simple publication of notice in the official journal without specifying their names, except in cases where judgments have been rendered in 1868, in courts which may be without jurisdiction thereof under the Constitution of 1868, upon which point we express no opinion, yet he may, in strictness of pleading, be held to have waived any objection on this score, as there is no evidence in the record that his excepta n for want of due citation has ever been overruled, or that he has demanded a trial thereof before proceeding to the trial of any other issue. The rule to set aside the default, on the ground that the proceeding against him was informal and contrary to law, is not an exception based on.a want of citation, and the suggestion therein that an exception had been filed is not a reservation of the exception. The rule asked that the default be set aside, while the exception asked that the suit be dismissed;'and, although the evidence adduced on the trial of the rule may have sustained its allegations (a fact immaterial to the question of pleading), yet in making an appearance to file and try it, he waived his exception and practically admitted having notice of the suit. He cannot thus make an appearance and at the same time urge a want of citation. 4 L. 91; 5 L. 258; 10 R. 13; 1 A. 323; 11 A. 195, 197. The taking of the rule is an unusual proceeding.

As to any errors in the assessment they must be specially alleged and proved, and it must be shown that the defendant has in vain endeavored to have them corrected in the manner prescribed by the law. 11 A. 69, 195, 251; Acts 1856, p. 151 et seq. §§ 63, 65, 77, 78, 81, 82, 94, 95.

Judgment affirmed.


source: Caselaw Access Project

author: Taliaeerro, J.

license: Public Domain

text:
    No. 1645.
    Succession of A. A. Duplantier, Deceased Wife of Thomas Peniston. — Opposition to Tutorship’s Account.
    from the Second District Court of New Orleans. Thomas, J.

      Poselius <& Philips, for opponent and appellant, Oypricm Du-four, for executor and appellee.
    REPORTER. — This caso was before the Supreme Court in May, 1867, and remanded to give the executor an opportunity of producing evidence to establish the correctness of the account which ho had filed on behalf of the deceased tutor. On the second trial no other evidence was offered than that which was before the court on the first trial. The judgment of the District Court was the same as the first. The questions involved in the decision are set forth in the first opinion of the Supremo Court, reported in 19 Annual, page 277,
   Taliaeerro, J.

The circumstances attending this case are peculiar and anomalous. A natural tutor who had under his administration for nearly eighteen years a large estate belonging to his minor child, died towards the close of the year 1862, without ever having presented an account of the tutorship. Shortly after the death of his father, the minor was emancipated and required from the executor of the estate of his father an account of the tutorship. An account was presented but owing to its informal character and the necessarily tedious examination of a' mass of papers accompanying it, the court referred the account to auditors. Pending the investigation by the auditors and before they were prepared to report, the whole of the vouchers and papers of every Mnd relating to the tutor’s administration were destroyed by the conflagration of the building in which they carried on their labors. The executor was called upon by an order of court to file another account. This he did stating the amount of the tutor’s indebtedness the same as in the account at first rendered, to wit: $64,135 31.

An opposition was filed on the part of the minor, and with it a detailed statement of the amount claimed to be due him for proceeds of property sold by the tutor, revenues received-by him from rent of houses, lots, etc., in Now Orleans and in the parish of Jefferson, interest on the money received, etc., the whole running up to one. hundred and ninety-nine thousand nine hundred and fifty-nine dollars and thirty-one cents.

This demand is stated in the form of an account running from year to year, with the balances carried forward, bearing interest aftor allowing various credits and the commissions of the tutor on the revenues of the minor.

Upon the trial ’of the case the opposition was overruled, judgment in favor of the minor was rendered for the sum stated by the executor, viz: $64,135 31. From this judgment the minor appealed, and the appeal was before the Supreme Court in May, 1807. See 19 Annual, page 277.

The court at that time noting the very great discrepancy between the sum set down by tho executor as due the minor and that claimed by the minor, and considering the loss of tho papers which the tutor had preserved as vouchers to support his ’account of tutorship, and that the executor might by resorting to secondary evidence supply to some extent the evident deficiency of proof-to establish the correctness of the tutorship account which he presented, reversed the judgment of the lower court and remanded the case.

No action whatever was taken by the executor to amend his proof; he filed the same account again and was met by the same opposition. The court below reiterated its judgment and apparently with stronger conviction of its correctness than when it passed upon it in the first instance. The opponent again appealed. We are left then to determine this controversy from tho incomplete data before us.

We have gone over tho ground under the- best lights afforded.. The claim of the minor-in our judgment is sustained by preponderating evidence. We can by no means believe the account of the executor authenticated, and without proof to the contrary for the production of which ample opportunity was granted and none offered, we cannot believe that the liability of the succession of the tutor can be placed at the low figure at which the executor has fixed it. We are told that the amount was fixed by the tutor himself shortly before his death, and that his book of accounts relating to the administration of tho minor’s property, together with the numerous vouchors accompanying, wore intrusted by him to a notary since dead, a gentleman of probity, to make out a regular and formal account. The counsel of the executor and tho judge a quo find much weight in the fact that the father of the minor himself stated the amount of his indebtedness to his child, and that it should be presumed right.

We regret that the evidence in the record does not enable us to concur with these views, so creditable to their charity. We find from the record that the tutor sold property of the minor to an amount exceeding one hundred and twelve thousand dollars, every dollar of which wo have no doubt he received.

On the twenty-fifth of April, 1857, real estate in Jefferson was sold for $25,140; on the tenth of May, 1858, slaves were sold to the amount of $3935; and in tho month of February, 1860, a further sale of real estate in Jefferson was made to the amount of $83,820. The inventories show in the minor ownership of various- houses and lots in New Orleans and lots of ground in Jefferson. Yoisin, a witness testifies that he was for six or seven years the agent of the tutor in the collection of rents. He says that the rents of houses and lots and of vacant lots for gardens, etc., amounted to from $600 to $800 per month, adding to this the interest on money in the hands of the tutor,. proceeds of the sales of property, the minor must have had a revenue of over ten thousand dollars per annum after 1857; and this must have increased after the large sale of his Jefferson property in 1800. From some accounts and memoranda of Voisin, in evidence, the cost of erecting buildings on lots of the minor on Apollo and Terpsichore streets in 1860, was $12,000. This, with repairs of buildings from 1858 to the end of 1862, makes the sum of $15,039 87. The rents, the witness states, immediately increased on the now buildings put up on Apollo and Terpsichore streets. The hire of the minor’s slaves before they were sold also helped to swell his largo revenue.

From aught that appears in the,evidence we must conclude that the income of the minor exceeded quite largely all the costs of repairs of buildings, the various other expenses of the property, and his own support, clothing and education.

As we have already said, the evidence preponderates in favor of the minor’s claim. "We think that judgment must be rendered in his favor.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled and reversed, and that the opponent Joseph Allard Peniston have and recover from the succession of his late father Thomas Peniston, the sum of one hundred and ninety-nine thousand nine hundred and fifty-nine dollars and thirty-one cents with interest thereon at five per cent, per annum from the first day of February, A. D. 1864, with legal mortgage, to be paid by preference. The costs to be borne by the succession.


author: Ludeling, C. J.

text:
    No. 2243.
    State of Louisiana v. George Muston.
    The bill of indictment for the orimo of embezzlement must designate the thing embezzled. Charging the accused -with the embezzlement of the sum of eleven dollars is insufficient to hold the prisoner.
    from the First District Court-of New Orleans. A bell, J.

      S. Belden, Attorney General, for the State; IS. Mllcul, for defendant and appellant.
   Ludeling, C. J.

This record shows that George Muston was convicted of embezzlement, that he was sentenced to eighteen months’ imprisonment at hard labor, and to pay the cost of the prosecution.

Our attention has been directed to several alleged errors apparent upon the face of the record. It will he necessary to notice only one of them.

The indictment recites “ that the prisoner did receive and take into his possession for and on account of the said O. E. Hall the sunn of eleven dollars so received as aforesaid, the said George Muston then and there fraudulently and feloniously did wrongfully use, conceal, dispose and otherwise embezzle contrary to the form of the statute.”

The defect is, the thing embezzled is not indicated. The statute declares “that in prosecutions for embezzlement or larceny of bank notes, checks, bills of exchange, promissory notes, gold or silver money, or of any other property of that kind, it shall not be necessary to set forth in the indictment a minute and detailed description thereof, but a general allegation of the amount, and the thing embezzled or' stolen1 shall be sufficient.” It is necessary to designate the thing embezzled. What is the prisoner charged in the indictment with embezzling ?■ The sum of eleven dollars. But the indictment does not inform us in what “the sum of eleven dollars” consisted; it is not alleged that the sum embezzled consisted in gold or silver dollars or in currency- — whether in two or more coins or treasury notes or bank bills. The defect is one of substance and not of form, and the omission vitiates the indictment. Acts of 1855, 5 82; 10 An. 230 ; 20 An. 49.

It is therefore ordered, adjudged and decreed that the judgment1 of the lower court be avoided and reversed, that the verdict of the jury be set aside, and that the case be remanded to be proceeded in according to law.


author:
Howe, J. LuDERXNff, Chief Justice,

      Taliaferro, J.,

text:
    No. 2292.
    The State, etc., ex. rel. C. Roman, President, etc., v. The Judge of the Sixth District Court for the Parish of Orleans.
    An. appeal bond is lawful and operative wlien signed by two or more sureties who bind themselves each for a stated sum or portion of the bond, the aggregate amount of th.o’ respective sums being the lull amount required by law.
    A PPLICATION for a writ of prohibition.
    A. (& M. Voorhies, for
    relators.
    Reporter. — The question of the validity of an appeal bond, where the sureties thereon limit their liability to a certain amount was first determined in the case of Bastable’s Heirs v. Succession of Denegre in the month of June, 1863, by the Supreme .Court organized under the Constitution of 1864. The question arose in that case on a motion to dismiss the appeal on the ground that the bond was invalid, the sureties having divided their liability. In that case it was hold that the sureties could limit their liability. That case which is still pending-in the Supreme Court forms a precedent for the decision in this case, Mr. Chief Justice Ludeling and Mr. Justice Taliaferro'dissenting from the majority of the Court.
   Howe, J.

The question to be decided in this case is whether a bond furnished for a suspensive appeal is lawful and operative when executed by two or more sureties who bind themselves each for a stated sum or portion of the bond. The aggregate amount of the respective sums being the full amount required by law.

This question was discussed and determined in the affirmative in the case of Bastable’s Heirs v. Succession of Denegre, decided on motion to dismiss in June, 1863, but which has not yet boon reported' for the reason that the cause has not yet been tried on the merits. We adhere to the opinion expressed in that case, and are therefore constrained to decide that the writ demanded herein must issue.

It is therefore ordered that a writ of prohibition be issued as prayed for, directing the respondent to proceed no further in the ease of M. Marinoni v. The Pelican Mutual Insurance Company of New Orleans.

LuDERXNff, Chief Justice,

dissenting:

In thpt cáse I concur in the decree, although I dissent entirely from, the yiews expressed by the court. The relator avers that in the suit entitled M. Marinoni v. The Pelican Mutual Insurance Company of New Orleans a judgment was rendered against the. company for $7500 with five per cent, per annum interest from twenty-second day of March, 1868; that within the legal delays he applied for and obtained an order for a suspensive appeal, and he executed an appeal bond for the amount required by law in favor of the clerk- of said court. He avers further that a motion wks made by the plaintiff in said suit to quash the sus-pensive appeal on the ground that the bond furnished was not such as the law required; that each of the sureties on the bond had limited his responsibility to a part only of the bond, instead of binding himself for the whole amount of the bond, and that the suspensive appeal was dismissed.

They aver that unless restrained by the mandate of this court the District Judge will continue to entertain usurped jurisdiction of the case and will permit the execution of the judgment notwithstanding the suspensive appeal. They pray for writs of prohibition and mandamus against the judge, sheriff and clerk.

The District Judge has acknowledged service of the petition for the writs Of prohibition and mandamus and waived service of the rule nisi; and he has furnished in writing the reasons for his decision.

fie says: “The point to be decided is whether an appellant can furnish bond for a suspensive appeal with two or more sureties, who obligate themselves, each for a stated sum or portion of the bond?” And I think he answers the question correctly in the negative. The law requires ‘the surety to be bound 'in solido; if there be more than one surety on the bond each one must be bound for the whole amount in favor of the payee. This is what article 2036 of the Civil Code, declares is to be bound in solido. Toul. vol. 6, No. 723; Path, on Obligations, No. 281. Article 575 of the" Code of Practice requires the appellant to give “a good and solvent surety, residing within the jurisdiction * * * as surety for the payment of the amount of the judgment.'”

The judicial Surety is bound absolutely for the debt. C. C. article 3014, 3035.

Whether the sureties may limit their liabilities by agreement among themselves is not a question for decision in this case. I think they can not bind themselves in a manner different from that in which the law says they shall be bound toward the payee of the bond. The appeal “ bond is taken with reference to the law and must be construed by it.” C. C. 3035; 3037 ; 2 La. 399 ; 9 R. 538; 4 An. 373; 7 An. 539, 570; 12 An. 69; 13 An. 604. The-principal in the bond is bound in the sum of eleven thousand five hundred dollars, and the conditions in the bond are as follows: “Whereas, the above bounden Charles Roman, President of the Pelican Mutual Insurance Company of New Orleans, this day filed a petition of appeal from a final judgment rendered against said insurance company in the suit of M. Marinoni v. The Pelican Mutual Insurance Company of New Orleans in the Sixth District Court for the parish of Orleaus on the-day of --;.

Now the condition o;f the above obligation is such/ that the above bound Charles Roman, President of the Pelican Mutual Insurance Company, shall prosecute his appeal and shall satisfy whatever judgment may be rendered against him as President, or that the same shall be satisfied by the proceeds of the salé of estate, real or personal, if he bo cast in the appeal, otherwise that the said surety shall he liable in his‘place. And then follows the signatures of the parties to the bond with different amounts, iu figures, after the signatures of the'sureties. In the case of Slocomb et al. v. Robert this court said: “It has been urged that, we have often said ‘ in whatever manner a man binds himself he shall remain bound.’” This may be’true in mere conventional obligations, but not in judicial bonds taken by a sheriff from persons in his custody. In such a case the -sheriff has no power to take any other bond but that which he is authorized by law to take. 'Any clause which is superadded must he rejected, -and any that is omitted supplied.” They offered themselves as sureties on an appeal bond, and their responsibility is fixed by the law. My opinion is that sureties on an appeal bond can not limit their liability to the appellee, and that they are bound in solido, as the law contemplated they should be, each for the whole debt, notwithstanding any attempt on their part to limit their responsibility. I think therefore that the bond is valid.

Taliaferro, J.,

dissenting:

When a party agrees to sign an appeal bond as surety he consents to bind himself as the law requires him to be bound, and he ought not to be heard to gainsay his obligation. The purpose of the law in requiring the parties to be bound solidarity is to secure the speedy and practicable execution of the judgment appealed from in the event of its confirmation on apx>eal. This 'purpose would be prostrated if .the appellant were allowed to “give a bond sighed by sureties bound each for a portion only of the amount of the bond. If this doctrine was admitted, an appellant might give an indefinite number of, sureties each bound for a minute part of the amount, and thus practically render the judgment against him nugatory after its confirmation by the appellate court.

“ I concur with the Chief Justice in dissenting from the opinion of the majority of the court.


author: Howell, J.

text:
    No. 1548.
    F. M. Fisk v. R. M. Montgomery.
    An application for a new surrender of an insolvent is a now suit and not a continuation of .tlio first proceedings against tko insolvent, and if not brought until after tlie passage of the bankrupt laws by the United States, cannot bo entertained by the State courts.
    The passage of the general bankrupt laws by the United States superseded all State insolvent laws. 19 An. 497.
    from the Fifth District Court of New Orleans, heaumont, J.

      T. A. Bartlette, for plaintiff and appellant. G. B. Bright, for defendant and appellee.
   Howell, J.

This suit was brought in June, 1806, to compel the defendant to make a new surrender of his property for the benefit of his creditors according to lawwas put at issue, and when called for trial on sixth November, 1867, the defendant pleaded the peremptory exception that Congress having adopted a general bankrupt law, the insolvent laws of this State are thereby superseded and no State law now exists to sustain the action. This exception was maintained and the plaintiff has appealed. He contends that the jurisdiction of the Fifth District Court over the subject matter had fully vested, and was not divested by the subsequent passage of the bankrupt law, and he cites, in support of this position, the cases of West v. His Creditors, 5 R. 261; 8 E. 123 ; Dwight v. Simon, 4 A. 493 ; Makins v. Their Creditors, 19 A. 497.

These cases go no further than to maintain the jurisdiction of the State courts where the surrender had actually been made and the insolvent proceedings were pending when Congress passed the bankrupt laws. Here the proceeding is to force a new surrender and before the surrender is ordered, the law under which it can be made and conducted is superseded or suspended (15 A. 602), and consequently the judge a quo did not err in dismissing the action to force the surrender which is authorized by the Code, admitting that any of the articles of the Code on the subject of the cession of property are now in force.

This suit cannot correctly be considered a continuation of the suit of E. M. Montgomery v. His Creditors, but is a new suit based on a course of action alleged to have arisen since the surrender was made, and is in express terms for a new surrender.

Judgment affirmed.


author: Wily, J.

text:
    No. 1954
    Mayor and Council of the City of Carrollton et als. v. Board of Metropolitan Police et als.
    The act of the Legislature of March 17# 1859# incorporating the city of Carrollton authorize* suit to he brought by the Mayor and councilmon for and on behalf of tho city.
    The affidavit of the Mayor that the interest of the city is above five hundred dollars is sufficient to give the Supreme Court jurisdiction of the appeal.
    Under the charter the city of Carrollton is dispensed from giving bond in case of appeal. Act approved seventeenth of March» 1859.
    The act of the Legislature of September If# 18C8, creating a metropolitan police district repealed so much of the charter of the city of Carrollton approved March 17, 1859, as gave to the Mayor of said city tho control and administration of the police.
    Tho act of the Legislature of September 14, 1868, look away all control over the police of tbo city of Carrollton from tbo Mayor and vested tho same in the Board of Metropolitan Police, and the Mayor and council in their representative capacity having no right in themselves to administer the police, they cannot question the constitutionality of the act of the Legislature vesting the power of policing the city iu the Board of Metropolitan Police.
    A party wishing to have the constitutionality of an act of the Legislature tested before the courts must disclose an interest in his individual or representative capacity that is affected by the statute of which he complains.
    That part of the act of tho Legislature of September 14, 18C8, creating a metropolitan police district and providing for the government thereof, which divests the Mayor and Council of the city of Carrollton from all control over the police of said city and vests the same in the Board of Metropolitan Police created by tbe act, is constitutional and valid.

      ly PPEAL from tlie Second District Court, parish, of Jefferson. Par-dee, J.

      P. G. Elliot and N. Coinvumdeur, for plaintiffs and appellants. J. ILawldns, for defendants and ax>pellees, F. Filleul on the same side.
   Wily, J.

Appellees move to dismiss this appeal on the following grounds, viz:

First — Because the city of Carrollton is not a party to this suit. The plaintiffs being “ one Mayor, six councilmon and five policemen of the city of Carrollton,” who sue in their official capacity.

Second — Because the plaintiffs and appellants have given no appeal bond.

Third — Because the record does not show that the interest of each and all the appellants in the matter in dispute exceeds five hundred dollars.

The section of the act approved seventeenth March, 1859, entitled “an act to incorporate the, city of Carrollton,” provides: That the affairs of said city of Carrollton shall he administered by a Mayor and eight councilmen, and in and by the name of Mayor and Council of the city of Carrollton. The said corporation shall he and is hereby made capable in law, to sue and he sued, plead and he impleaded, answer and he answered, defend and he defended in any court or courts of record or justice or other place whatever; hut in all judicial proceedings where, by existing laws, bond and security is required from litigants,.the city of Carrollton shall he dispensed from furnishing bond or security.” * * Act of 1859, 219, No. 277.

This suit is filed by the Mayor and six councilmen of the city of Carrollton in their official capacity. We consider the city of Carroll-ton the real party plaintiff in this suit. The act incorporating the city of Carrollton, a part of which we have just quoted, expressly declares that the city may sue and bo sued in the name of the Mayor and Council of the city of Carrollton.

The majority of the councilmen have the right to sue in the name of the board. 3. M. 495.

The city of Carrollton is dispensed from giving bond.

The Mayor has filed his affidavit in this court stating that the interest of the city of Carrollton in the matter in dispute exceeds five hundred dollars. This is sufficient to give this court jurisdiction.

It is therefore ordered that the motion to dismiss be overruled.

On the MERITS.

The city of Carrollton has enjoined the Board of Metropolitan Police from discharging police duty within the limits of their corporation, alleging that said board without the color of right, justice or law has assumed the administration of the police of that city, preventing by threats and violence the policemen appointed by them from acting in their capacity. They also allege that the act organizing the metropolitan police district and providing for the government thereof is unconstitutional in various respects.

The defendant moved to dissolve the injunction on the following grounds:

Mrst — That the injunction issued without any warrant or authority of law.

Second — That the corporation of Carrollton withdrew their police force then on duty under its charter, and allowed the force organized under the metropolitan police law to take charge of and police said city.

That — That the metropolitan police act authorized the defendant to control the police of Carrollton, and it repealed that part of its charter inconsistent therewith.

The court sustained the motion and dissolved the injunction.

Plaintiffs have appealed.

The right to administer their police was conferred on the plaintiffs by an act to incorporate the city of Carrollton approved seventeenth of March, 1859, the eighth section thereof providing: that in addition to 'other duties therein laid down the Mayor of said city shall superintend the police thereof,” etc..

• The corporation only derived its authority from the Legislature; it is the creature thereof and has no powers oyer the police except such as the law confers. The act of fourteenth September, 1868, establishing a metropolitan district and providing for the government thereof, embraces the city of Carrollton within the police district and confers on the defendant full powers to administer the police throughout tho district; it also repeals all laws in conflict with the provisions thereof, and took effect from and after its passage.

Then what right have plaintiffs to claim the jurisdiction or tho control of the police of Carrollton 1 All their powers over the subject mattor have been withdrawn by the same authority which conferred them and which gave life to the corporation itself.

Having no powers themselves to supervise the police of their city what interest have they in testing the constitutionality of the provisions of the act which do not concern themselves.

They say the act complained of confers judicial powers on the Metropolitan Police Board in violation of seventy-third article of the constitution } that it violates the ninth article which protects the rights of the people to bo secure in their property; that it inflicts strange and unusual penalties; that it confers power on said board to tax the people of Carrollton ; that it provides for the holding of an office and the paying of a salary to a person who already holds the . office of Lieutenant Governor, in violation of articles forty-one and one hundred and seventeen of the Constitution; that it violates article one hundred and fifteen by referring to various acts; that many of its provisions are contrary to and inconsistent with its title, in contravention of article one hundred and fourteen of the constitution, and that it violates the constitution of the United States.

Assuming that some of its provisions do conflict with the constitution, does the act violate any of the constitutional rights of the plaintiffs ? Does it impose a tax upon the corporation, infringe upon their rights of property or authorize the exercise of judicial powers by said board toward them ?

If the act subjects the people of Carrollton to unjust taxation and the strange and unusual punishment complained of, they have a remedy through tho courts by which to avert the infringement of their constitutional rights.

In all these matters the corporation of Carrollton, in the opinion of the Court, is without interest; it is not affected by any of the provisions of the act, which they say violate the articles of the constitution of this State and of the United States.

The court cannot entertain abstract questions of law, presented by parties without interest and wholly unaffected by the illegalities and unconstitutionalities complained of. Whether the title of the act is sufficiently comprehensive to embrace all its provisions is immaterial; it is certainly broad enough to coyer the provision making Carrollton ^ part of the police district, and also the provisions withdrawing police powers from the corporation of Carrollton and conferring the same on the defendants, the Board of Metropolitan Police. The provisions, at least, of the act divesting the plaintiffs and investing the defendant with police powers, are not violative of, article one hundred and fourteen of the constitution ; and that is the only interest plaintiffs can have in raising a constitutional objection.

In Diamond v. Cain, lately decided, where the same constitutional questions were presented, this court held that Diamond was without interest to injoin the Superintendent of the Metropolitan Police from the discharge of the functions of his office, and that if he had sufficient interest to inquire into the constitutionality of the provisions complained of, and even if they should be held to be unconstitutional, as alleged, that would not render the balance of the act unconstitutional.

We now undertake to pass upon the constitutionality of the act in question, only so far as the same is presented properly by the issues of this case. So far as that act affects plaintiffs or concerns their interests, we are decidedly of opinion that it is constitutional. We think it constitutionally divests the jdaintiffs of all police powers and confers the same upon the Board of Metropolitan Police.

We think therefore that the plaintiffs were wholly without interest in the matters complained of; that they injoined the defendant without any warrant or authority of law, and that the District Judge did not err in maintaining the motion to dissolve.

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


author: Wyj.y, J.

text:
    No. 753.
    E. Hollingshead v. L. Sturgis, Executor, and another.
    'i lie act by which a testamentary disposition is revoked must be made in one of the forms prescribed for testaments and clothed with the same formalities.
    A noncupative will by private acA, not having been read by the testatrix to the witnesses, nor by one of them to the rest, in her presence, is invalid as a testament, and will not operate as a revocation of a valid will,
    A letter written by the testator, posterior to the date of the last will, not clothed with the formalities required for a testament, will not operate a revocation of the last will and testament of the deceased.
    from the Fifth District Court, parish of East Feliciana. Posey, J.

      W. P. Kernan, for plaintiff and appellant. Gross, Hardee & Muse and Jí. T. Merrieh, for defendant and appellee.
   Wyj.y, J.

Mary Kelper, wife of the defendant, Louis Sturgis, died without issue, leaving considerable property in the parish of East Feliciana, and leaving her olographic will made in 1851, which was duly admitted to prohate and ordered to he executed.

In this will, after making certain special legacies, she devised tho mass of her estate to John E. Sturgis, the son of her husband, by a former marriage, reserving, however, to the latter the usufruct, use and habitation thereof during his life time and making him executor' of the will. . . ' ■'.

The plaintiff, E. Hollingshead, the mother and forced heir of the deceased, claims her property on the ground that the olographic will has been revoked by a posterior will, in nuncupative form, under private act, made in 1859, and also by a letter of the testatrix to her mother after the confection of the second will, informing her of the change in her testamentary disposition and that John 11. Sturgis,-her universal legatee in the olographic will, should not have one cent of her property.

The nuncupative will by private act was contested by Sturgis and adjudged to be null and void on the ground that the necessary formalities for a valid testament had not been complied with, the same having been written out of the presence of the witnesses and not read to them by the testatrix, nor read by one of the witnesses to the rest, in the' presence of the testatrix, as required by article 1575 of the Civil Code.

Plaintiff seeks to have the olographic will annulled and to receive the property as sole surviving forcéd heir of her deceased daughter on the ground that the letter which was dated written and signed by the deceased, and the posterior will, in nuncupative form, by private act, although invalid as testaments, are sufficiently formal, as revocatory acts, to set aside the olographic will. She 'demands, however, that if the olographic will be not annulled, that the legacies thereof be reduced to the disposable portion, and that she have judgment against the executor for the amount due her as forced heir.

This demand is denied by the defendants who declare that the nun-cupative will under private act being declared illegal and invalid for want of proper formalities, cannot revoke a valid will, and also that the letter of the twenty-ninth of September, 1859, cannot revoke the last will and testament of the deceased.

The court below rejected the prayer for the revocation of the olographic will, decreeing that the legacies thereof be reduced to the disposable portion and that plaintiff have judgment only for the amount due her as forced heir.

Plaintiff has appealed.

It is not pretended that the letter and nuncupative will are valid as testaments, but it is urged that they are acts clothed with sufficient formalities to revoke the olographic will under which the defendant, John R. Sturgis, claims the property of the deceased as universal legatee.

What are the formalities of acts of revocation 1 Article 1685 of the Civil Code declares that The act by which-a testamentary disposition is revoked must be made in one of the forms prescribed for testaments, and clothed with the same formalities.

The nuncupative will by private act was not clothed with the necessary formalities prescribed by article 1575, not having been read by the testatrix to the witnesses, nor by one of them to the rest in her presence.

It was a nullity under article 1588, which declares that the formalities to which testaments are subject “must be observed,” otherwise they are null and void.

If the nuncupative will upon which plaintiff relies in this suit to establish the revocation be invalid, as a will, for want of proper formalities, as has been decreed, it cannot be valid as a revocatory act, because the law prescribes for the latter the same formalities. C. C. 1685. The revocation of testaments mentioned in article 1684 of the Civil Code is explained by articles 1685, 1686, 1687,1688 and 1689, from all of which we collect that there are two modes of revoking a valid testament, the one by a written' instrument intended as a testament or last will, and the other by an act intended to take effect in the life time of the testator which is contrary to the disposition of the testament, such as a donation inter vivos or a sale of the property bequeathed.

If the testator elects the former he must pursue the rule laid down by article 1685 and clothe the instrument intended to take effect in the future with all the formalities of a solemn act. If, however, he desires the revocation to be effective in his life time he must conform to the mode indicated by articles 1688 and 1689.

The pretended nuncupative will does not conform to either of the modes indicated by law, and therefore produces no revocation whatever.

The decision in Fuselier v. Masse et al., 4 L. 427, upon which the plaintiff relies to sustain her position, that an instrument invalid as a will, on account of its informalities, may be valid as an act of revocation, was, rendered upon an instrument executed in 1799, long prior to the enactment of the Civil Code ; and we cannot regard that decision as a judicial interpretation of any of the articles of our Code to which we have adverted.

The letter written by the testatrix to the plaintiff on twenty-ninth September, 1859, was not a testamentary disposition. It was not a solemn act, although written dated and signed by her. It evidently was not intended as such. It contained no institution of heir, no dispositions causa mortis, nor any expressions indicating a last will. C. C. 1564.

It was merely an ordinary letter to her mother in which she expressed dissatisfaction with her universal legatee, saying, “ I told John if ho went back to Ms wife I would not give him one cent of my property. I have changed my will and he shant have one cent of it. I am satisfied with him,” etc.

This letter does not furnish evidence of that formal and solemn character necessary to establish the revocation of a will. C. C. 1564, 1563, 1453, 1455 and 1685.

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


author: IIowe, J.

text:
    No. 60.
    State of Louisiana ex rel. Eugene McCarthy v. William J. Manning.
    An appeal will not lie from an interlocutory judgment permitting a prayer for a jury to be filed and continuing the case, nor for sustaining a challenge to the array of jurors. If these orders have been improperly rendered they may be corrected on appeal from the final judgment. O. P. 5C6; 11 R. 4S6.
    ,1 \ PPEAL from tlie Sixth District Court for the parish of Orleans. Cooley. J.

      8. Belden, Attorney General, and A. P. Meld, for plaintiff and appellant, Hraughu <£- Ogden,, for defendant and appellee.
   IIowe, J.

The plaintiff’ in his petition of appeal “represents that on the decision and interlocutory judgment rendered in the foregoing case there is manifest error that works are -irreparable injury to the relator,” and he prays for the appeal which is now before us.

We find by the record that there were two orders or interlocutory judgments from which it seems that an appeal was thus sought to be taken, one permitting the defendant on the nineteenth June, 1869, the day the cause had been fixed for trial, to file a prayer for a jury and ordering tlie case to be continued to tlie second July, the other rendered on the second July, 1869, sustaining a challenge to the array of jurors, discharging them from further attendance and continuing the case.

The appellee has moved to dismiss the appeal on the ground that the orders appealed from do not work irreparable injury, and in our opinion the motion should prevail.

The law does not favor the bringing of a case before the appellate tribunal in fragments, and therefore provides for an appeal from interlocutory judgments only when the injury they cause may be irreparable. The orders complained of in this case are not of that character. If erroneous they may be corrected on appeal from the final judgment, in case that final judgment should be given against the relator. If the final judgment should be in his favor the alleged error will not affect him. The delay of which he complains is not such an injury as authorizes an appeal. 3 M. 325; 10 M. 442; 11 M, 276 ; 3 N. S. 25; 15 L. 521; 1 N. S. 599; 11 R. 486.

It is therefore ordered that the appeal herein be dismissed with costs


author: Taliaferro, J.

text:
    No. 36.
    C. Yale, Jr., & Co. v. Oliver & Drake.
    The affidavit of a party, received without objection, showing that a letter hook has been lost, which contains the correspondence between the defendants and their agent or depositary, is sufficient to authorize the introduction of secondary evidence to prove their contents.
    The agent or depositary of cotton, during the late war, cannot be held liable, where it is shown that it was destroyed by overpowering force.
    from the Twelfth Judicial District Court, parish of Ouach-ita. Crawford, J.

      J. & 8. Mc'Enery, for plaintiffs and appellants, Isaiah Garrett, for defendants and appellees.
   Taliaferro, J.

The plaintiffs bring this suit against the defendants for six bales of cotton, on the following ground. They allege that they are assignees of certain receipts of defendants given in February, 1862, to H. H. Howard for their receipt on storage of the six bales of cotton sued for, the defendants being at that time merchants in the town of Trenton, and keeping a warehouse for the storage of cotton brought to that place for shipment. Tlie receipts specify the marks and weights of the bales. From the widow of Howard, who died in 1864, the plaintiffs aver they received the receipts regularly assigned and delivered to them by one Townsend as the agent of the widow and natural tutrix of the decedent Howard.

The defendants in their answer admit that they received the cotton specified, and aver that soon after the receipt of the cotton the rebel authorities, then holding rule in this portion of the country, issued orders for the removal of all cotton lying near the Ouachita river, at least two miles back from the river, or burned. That defendants informed all their customers of the peril to which their cotton was exposed, and they were requested by Howard to have ]fia cotton removed, winch they did accordingly, and had it'placed under a shed, and employed a man to take care of it. That afterwards during the war this cotton shared the fate of all other cottons exposed in like manner to the vicissitudes of war; that it was lost by no fault or neglect of theirs, being destroyed by overpowering force and various agencies utterly beyond their power to control.

The defendants had judgment in tlicir favor, and the plaintiffs appealed.

A bill of exceptions was taken to tho ruling of the court admitting certain testimony objected to by plaintiffs on the ground — First, that parol testimony is inadmissible to prove the contents of instruments of writing disclosed in tho interrogatories and answers, the loss or destruction of which not having been first proved. Second, that the evidence sought to be introduced disclosed better and higher evidence than the parol testimony offered; which objections were overruled by the court.

The plaintiffs further objected to tho admission in evidence of a newspaper advertisement specifying the loss by the defendants of their letter book in which were copies of tlie letters that passed between defendants and Howard in relation to the removal of the cotton.

We think the objections were properly overruled. True, it appears that the advertisement was inserted in the paper after the institution of the suit. But we find the affidavit of one of the defendants in which ho swears to the loss of the lettey book containing the correspondence between Oliver & Drake and Howard who deposited the cotton with them. No objection to this affidavit was made. We think, under the state of the facts shown, the defendants were authorized to introduce the secondary evidence.

The proof fully sustains the defendants, and we are satisfied that the judgment of the lower court has done justice between the parties-8 L. R. 517.

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


author: Howe, J.

text:
    No. 62.
    John C. Rogers et al. v. C. H. Morrison, Executor, et al.
    The Parish Court is without jurisdiction ratione materia in a suit to annul a sale, when tho property involved exceeds in value the sum of ñve hundred dollars. Constitution of 1868, art. 87.
    “Where the evidence shows that tho testamentary executor has been recreant to his trust, and has administered the estate with a total disregard of the interests of the creditors and heirs, he will be removed from office, and a dative testamentary executor will be appointed according to law. C. C. 1149.
    In a suit by the creditors against the executor to remove him from office, evidence offered by the executor, impugning the motives of tho attorneys who bring the suit, is irrelevant to the matters at issue, and not admissible.
    XJL PPEAL from tbe Parish Court of Ouachita. 2lay, Parish Judge.

      Stubbs & Gobb, for plaintiffs and appellants, Morrison & Farmer, for defendants and appellees. '
   Howe, J.

The plaintiffs, as ordinary creditors of John Liles, Sr., deceased, instituted this suit against the testamentary executor and A. Levi, the purchaser of the property hereinafter mentioned, to annul the sale and to cause the executor to he removed from his office.

The decision recently made in the case of Swan v. Gayle will dispose of this case so far as it is a demand for the annulment of the sale and against the defendant Levi, since the property involved appears to be of value largely exceeding the sum of five hundred dollars.

We will proceed therefore to examine the case upon its merits, only upon that branch which concerns the demanded removal of the executor.

John Liles, Sr., died in the parish of Ouachita on the twentieth of November, 1867; on the twenty-sixth of November, 1867, his testamentary executor having qualified, obtained an order for an inventory of the estate, and the inventory was accordingly made. The item with which we are specially concerned consists of the plantation on which the deceased was residing at the time of his death, and also a tract known as the “Frantum Place,” which together are described in the inventory as containing five hundred and seventy and forty-three one hundredths acres, and are appraised at thirty-five dollars per acre; as the Frantum Place contains about two hundred and ten and ono-lialf acres it thus appeared that the home place contained about tlirco hundred and fifty-nine and one-half acres.

On the twentieth of March, 1868, the executor obtained an order to sell the property of the estate, and it was accordingly advertised. In the advertisement the five hundred and seventy and forty-three ono hundredths acres were described in two tracts as follows:

Mrst — “A plantation on the Ouachita river seven miles below Monroe, upon which deceased resided, bounded above by lands of R. W. Richardson, and below by lands of the heirs of Reuben Frantum, containing three hundred and fifty-nine and a half acres, more or less, with all the improvements thereon.

Second — “Another plantation known as the Frantum Place containing two hundred and ten and three one hundredths acres, more or less, with all the buildings and improvements thereon, bounded above by lands of the estate of Reuben Frantum, and below by lands of R. W. Richardson.”

At the first offering, on the fourth of May, 1868, only a quantity of personal property was sold, and the remainder of the property was advertiséd for sale at twelve months credit, by the same description. At the second offering the home place was adjudicated to the defendant A. Levi for the price of five thousand two hundred and fifty dollars.

The plaintiff's allege that this home place really contained about five hundred and ninety acres, instead of three hundred and fifty-nine and ft half acres; making a difference in value according to tlie appraisement of upwards of eight thousand dollars; that this excess consisted of a tract of two hundred and thirty-four acres conveyed to Liles by John F. Parker February 9, 1850; that the executor failed to have this large tract placed on the inventory, although he was aware that it belonged to the succession, and formed a part of the home place; that he was informed before the final adjudication to Levi that the tract so adjudicated contained also the tract of two hundred and thirty-four acres; and that he caused the place to bo advertised by metes and bounds not fixed in the inventory as three hundred and fifty-nine and a half acres, more or less, the effect of which would of course be to convey to the bona fide purchaser, if the sale was valid, the whole number of acres contained within the bounds given, even if much more than three hundred and fifty-nine and a half acres.

They make many averments of fraud on the part of the executor and Levi, and of collusion between them.

We think it established by the record that the home place really contained about five hundred and ninety acres, and that its sale for five thousand two hundred and fifty dollars, if maintained, would result in a great loss to the estate. And leaving out of view the questions of fraud and collusion, which will come before the proper tribunal in case another action is brought to annul the sale, wo are constrained to decide that the executor has been at least so grossly careless in respect to this matter that his removal from office is properly demanded. C. P. 1013, 1019; C. C. 1149.

It appears that he has been recorder of this parish; that he was a neighbor and intimate friend of the deceased; that he was a witness to the act of sale from Parker to Liles of the omitted tract; that this act was recorded and indexed at the time the inventory was made; that as the attorney of Liles he had occasion to know that during the last year of his life the decedent rented three hundred acres of cleared land of the home place to Hardy, and cultivated himself about one hundred and forty acres; that, at the first offering of the property, he was admonished by Judge Kichardson that the place contained upwards of five hundred acres; and that lie was under the impression himself, as appears by his own evidence, that the plantation contained more land than the advertisement described; and yet, under such circumstances as these, without making a secrecy, he causes the place to be sold per aversionem, in such way that (if the sale be not hereafter annulled) the defendant Levi will secure five hundred and ninety acres instead of the three hundred and fifty-nine and a half acres which were inventoried and advertised.

The executor states that he caused the sale to be made per aversionem to avoid litigation. If he had feared that there might bo less than three hundred and fifty-nine and a half acres in the tract we could see the force of this argument in his behalf; hut under the circumstances we have detailed, the very method of the sale seems to he weighty evidence of a disregard for the interest of the succession and the creditors.

■ It is objected that the claim of the plaintiff Rogers is invalid, and that he is without interest to prosecute this case, hut as there is no such objection to the claim of the other plaintiffs, H. G-erson, Jr., & Co., we do not find it necessary at this time to pass upon this point.

The defendants reserved a hill of exceptions to the refusal of tho court a qua to allow evidence concerning the motives of one of plaintiffs’ attorneys in bringing this suit. The court did not err in its ruling. Tho testimony was irrelevant to the issues presented.

For the reasons given it is ordered and adjudged that the judgment of the Parish Court he avoided and reversed.

It is further ordered that the demand of the plaintiffs against the defendants for the annulment of the sale he dismissed for want of jurisdiction in the Parish Court and without prejudice.

It is further ordered that Charles H. Morrison, testamentary executor of the succession of John Liles, Sr., he, and he hereby is, removed from his office; that he file an account of his proceedings as executor of said succession; that a dative testamentary executor he appointed to execute the provisions of the will of the said decedent, and to settle the affairs of said estate according to law, and that tho costs he paid by Morrison, executor, the appellee.

Rehearing refused.


text:
    No. 17.

    James W. B. Melson v. William Sandel.
    ■Where tho certificate of tho clerk of the District Court to a transcript of appeal makes no mention of any testimony haying been adduced and there are no hills of exceptions or assignment of errors in the record tho appeal will he dismissed on motion.
    from the District Court, parish of Morehouse. Crawford, J.

      John Bay, for plaintiff and appellant, Todd & Brigham, for defendant and appellee.
   IIowe, J.

This is an appeal by defendant from a judgment by default. The citation was served February 13, 1805, a default was entered June 6, 1866, and was made final more than three days after, and the judgment was read and signed in open court on the sixteenth June, 1866. On tho eighteenth June the defendant filed a motion for a new trial based upon his affidavit that the fact of having been cited had escaped his attention; that he supposed the citation to be null and void for the reason that the clerk and sheriff were, at its date, professing allegiance to the so called Confederate government, and that he had a defense on the merits which is set forth in detail.

The appellee has moved to dismiss the appeal on the grounds—

Mrst — There was no testimony taken down by the clerk on tlie trial of this case, be not baying been requested to do so by either party. C.P. 601.

Second — -Neither the appellant nor his advocate, either before or after the appeal was taken, required the adverse party or his advocate to draw up jointly with him a statement of facts, and no such statement of facts was drawn up. C. P. 602.

Third — No statement of facts at the request of either party was made out by the court in this case. C. P. 603, 896.

The certificate of the clerk states that the record before us contains a full, true, complete and correct transcript of all the proceedings had, and all documents filed in the cause, but makes no mention of testimony adduced. There is neither assignment of errors nor bill of exceptions to be found in the record. C. P. 897.

The appeal must be dismissed, since the record does not enable us to examine the case upon its merits. The reason of this rule is well illustrated in this particular instance, as this is a case where the appellant makes an earnest appeal to the equitable discretion of this court to grant a new trial upon his statement of the merits of the case, but does not furnish us with any data to determine what showing the plaintiff made in the court below. 10 La. 38. '

It is therefore ordered that the appeal herein be dismissed with costs.


text:
    No. 69.
    A. Levi & Co. v. John M. Carter.
    Beceipta, "bearing date prior to the settlement of the x>arties by note, cannot be pleaded as a demand in compensation and reconvention against the note.
    A promissory note of a third party, due the defendant, cannot be set up in compensation against a demand of the plaintiff on the note of the defendant.
    from the Twelfth Judicial District, parish of Morehouse. Crawford, J.

      Todd & Brigham, for plaintiffs and appellees. I). C. Morgan, for defendant and appellant.
   Taliaferro, J.

The plaintiffs sue the defendant on a promissory note executed by him in their favor on the eleventh of December, 1861, for twenty-six hundred and fifteen dollars and fifty-two cents, payable on twenty-second of May, 1862, with eight per cent, per annum interest from maturity; and also on an account for one hundred and thirty-four dollars and fifty-two cents, with interest, alleged to be for plantation supplies furnished the defendant in the early part of the year 1862.

The defendant pleads compensation, and claims in reconvention from the plaintiffs, the sum of eleven thousand and seventy-six dollars and thirty-one cents, with eight per cent, interest per annum on the various amounts specified from the respective periods at which, aa he alleges, they severally became exigible.

Ón the fifth of July, 1806, a judgment was rendered in the court below in favor of the plaintiffs on the note, and a judgment of nonsuit against them as to the account.

A new trial was granted on the application of the defendant, and the case was tried a second time with nearly the same result, a judgment being rendered on the fifteenth of January, 1869, for the amount of the note in favor of the plaintiffs, and judgment of nonsuit against the defendant on his reconventional demand.

From the judgment so rendered the defendant has appealed.

In this court the plaintiffs have moved to amend the judgment of the lower court by rejecting the reconventional demand instead of confirming the judgment of nonsuit.

In regard to the pleas of compensation and reconvention we find that plaintiffs on the twenty-sixth of January, 1860, gave the defendant a receipt for eight hundred dollars in bank notes and sundry drafts on merchants in New Orleans, amounting to the sum of $4497 03 to be placed to his credit, and for two drafts and a note on E. A. Buel amounting in all to $1166 28 “for collection.” About a year after-wards, on the twenty-fourth of January, 1861, the plaintiffs gave their receipt to the defendant for six hundred and twenty dollars, cash, a sight draft of Tullís on Janies Watts & C!>. for $2043 and a promissory note of G. M. Brown, in favor of defendant, for $2750, with eight per cent, interest from twentieth January, 1860. This receipt does not express the disposition that was to be made of these assets.

The note of the defendant upon which the plaintiffs bring suit is dated December 11, 1861, nearly a year after the last receipt was given and nearly two years after the first. It is fair to suppose that, if before the liquidation of the plaintiffs’ accounts by note, these various drafts and notes and the money specified in the plaintiffs’ receipts were to compensate their accounts, there would have been a settlement between the parties and a balance struck. There is no showing in the record tliat Such compensation was intended in regard to the plaintiffs’ account settled by note on the eleventh December, 1861. In fact the defendant seems to roly chiefly upon the notes of Brown and Buel to offset the note sued upon by the plaintiffs, leaving the inference that the money and drafts mentioned in the first receipt were applied to previous indebtedness of the defendant. These notes it seems were not transferred to the plaintiffs, for the defendant, in his own testimony, qn the last trial, says, speaking of the Brown note, “I have no recollection of having indorsed it — I consider that the note is mine. I left the note With A. Levi & Co. for the money to be paid there when it became due, and placed to my credit or subject to my draft.” Chapman, a witness whose testimony was taken under commission, in February, 1867, says' that Levi told him during “ the last winter that he had made arrangements with Brown, and would take his note and give Carter (the defendant) credit for the amount of the indebtedness.”

A letter from the plaintiffs to the defendant under date of eleventh of September, 1865, is introduced in evidence. In that letter the defendant is informed that the note of G. M. Brown was placed in the hands of attorneys for collection about two months previous, and that one of them had gone to see Mr. Buel. The writer adds : “I have not heard of the Buel note, although I have written some time ago to the attorney at Natchez. I will do so again in a few days, and will then inform you of the result.” If under any obligation to collect these notes, which is by no means established, it would seem that the plaintiffs were not inattentive to the matter. • It is not made to appear that they ever received anything on these notes, nor that any injury has resulted to the defendant by their laches in failing to prosecute the claims. The statement of Levi to the witness Chapman, in a casual conversation, somewhere, as he says, in New Orleans, or on a boat, we cannot consider conclusive, especially when taken with the general drift and bearing of the evidence, which, on the whole we think does not entitle the defendant to a credit on the note upon which this suit is brought, and the more so, as after having obtained a new trial and a delay of more than two years he has failed to make out a clear and satifactory claim against the plaintiffs.

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


author: IIo.we, J.

text:
    No. 55.
    Thomas H. Brown v. Augustus H. Brown, James W. Wilson, Administrator, Intervenor.
    Wlicre there is no answer to an amended petition containing matters of substance, nor default taken, all subsequent proceedings are irregular and Will be set aside on appeal, and the cause remanded to be proceeded with according to law.
    from the Eleventh Judicial District Court, parish of Claiborne. Crawford, J.

      John Young, for plaintiff and appellant. A. Ji. George, for intervenor, appellee. .
   IIo.we, J.

The plaintiff sued for the possession of a promissory note for $9828 85, of which he claimed to be owner, alleging that it had been deposited with tliii defendant for safe keeping.

James AY. AYilson, administrator of the succession of Leonidas C. Perrill, intervened, alleging that the note had been deposited with the defend mt by Perrill to be delivered up to the maker, Chalaron, upon certain conditions, which had not been fulfilled, and that it should be returned to the succession.

Upon the trial, after the plaintiff had closed his evidence, the inter-venor moved to amend his petition and the court.granted permission. The amended petition alleged simulation and fraud in the transfer from. Perrill to T. H. Brown, under which the plaintiff claimed title. The plaintiff reserved a bill of exceptions to the ruling of the court in permitting the amendment, but we think the court did not err. The intervenor, so far as we can discover from the record, was first informed of the circumstances under which the note was. transferred to the plaintiff, by the plaintiff’s testimony at the trial. This was of such a nature that justice required the amendment to he allowed. The substance of the demand ” was not changed. It was still a demand for possession -of the note. 12 Ann. 59; 8 N. S. 298. No issue was joined upon this amended petition either by answer or default, but the trial being proceeded with there was judgment for the intervenor. Under the facts, as disclosed, we regret the necessity of disturbing this judgment ; but we think it well settled that where there is no answer to an amended petition nor default taken, if the amendment be one of substance, and not of form, all subsequent proceedings are irregular and will be set aside. If there be no answer or default there is no contestatio litis which is the very foundation of the suit. Hughes v. Hamson, 8 N. S. 298; Heirs of Ballie v. Prudhomme, 8 N. S. 338 ; Caldwell v. Fales, 2 La. 130; Allain v. Preston, 2 La. 392 and 4 La. 13; Knight v. Knight, 12 Ann. 60.

In such a case the cause should be remanded that the contestatio litis may be formed and a new trial had.

It is therefore ordered and adjudged that the judgment appealed from be avoided and reversed, and that the cause be remanded to the District Court to be proceeded with according to law, and that the appellee pay the costs of the appeal.


text:
    No. 24.
    Gillis & Ferguson v. R. H. Cuny.
    The appointment of an advocate to represent the absenteo in an attachment suit may be made before service of citation.
    from the Twelfth District Court of the parish'of Caldwell. Orawford, J.

      Thomas J. Sough, for plaintiffs and appellants, John Sag, for defendant and appellee.
   Ludeling, C. J.

A motion to dismiss this appeal has been made on the ground that the certificate of the clerk to the transcript filed in this court is defective, in this, that it does not certify that the record contains all the documents filed, evidence adduced and proceedings had on the trial of the case. The certificate is that “the foregoing is a true copy of all the proceedings had, all the documents filed and evidence adduced in the case of Gillis & Ferguson v. R. H. Cuny,” etc. We think the certificate sufficient. If the certificate be true, all the proceedings had, documents filed and evidence adduced on the trial are contained in this record. The motion is refused.

The plaintiffs, alleging that the defendant was a non-resident, sued out an attachment against his property. The advocate appointed to represent the defendant filed. an exception to the proceedings on tho ground that the defendant had not been legally cited.

It appears that a copy of the petition, citation and writ of attachment were issued by the clerk in January, 1866, and that an inventory of property attached was made on the thirteenth of February, 1866, There is nothing to show that the citation and attachment were served, and the sheriff who made the attachment having died, the plaintiffs, caused another writ of attachment and citation to he issued on the twenty-eighth of September, 1866.

The second citation and writ of • attachment were served by the sheriff by posting them at the door of the court house. This was a compliance with the requirements of the law, and the defendant was constructively cited. C. P. article 254. , The law does not declare that the appointment of an advocate before service of the citation shall be null, and we can not perceive^any good reason for deciding the appointment void. The object of the law in requiring the appointment of an advocate to represent the absentee is that the legal rights of the defendant should be protected, and this object would be as well attained whether the appointment were before or after the posting of the citation.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, that the exception be overruled, and that this case be remanded to the District Court to be proceeded with according to law. It is further ordered that the appellee pay the costs of appeal.


text:
    No. 42.
    William M. Guice v. Sheriff Sanders et al.
    The precarious possession of personal property carries with it the presumption of simulation, C. C. 2456, 16 An. 5, hut this presumption may he disputed by the vendee showing the reality of the sale.
    Where the evidence shows that the sale of personal property was real and hona fide the injunction will he perpetuated against the seizing creditor of the vendor.
    from the Twelfth Judicial District Court, parish of Franklin. Grmuford, J.

      II. P. Wells, for plaintiff and appellant, Thomas J. Hough, District Attorney, for the State, et al., appellees.
   Howe, J.

The defendants seized under execution, issued upon a judgment in favor of the State, a number of horses, mules and other stock as property of Moses S. Guice. The plaintiff, William M. Guice, enjoined, claiming the property.

The defendants answered that Moses S. Guice was the owner of the property, had been in possession of it for five years past, and that any pretended transfer thereof to the plaintiff was a simulation. There was judgment for the defendants, and plaintiff lias appealed.

If Moses S. Guice was in possession of the property after the alleged sale and at the time of the seizure, the evidence shows that he was so by the leave of the plaintiff. The possession was precarious (C. C. 3522), and the sale would therefore be presumed to have been simulated. C. C. 2456 ; 7 N. S. 675; 4 R. 437; 16 A. 5. But this presumption is not a conclusive one, it may be disputed by the vendee showing the reality of the sale,

A careful examination of tlie testimony lias satisfied us that the sale was a reality, and as the question whether or not it was a simulation is the only one now before us, we feel it our duty to reverse the judgment and perpetuate the injunction.

It is therefore ordered and adjudged that the judgment appealed from be avoided and reversed, and that there be judgment in favor of the plaintiff perpetuating the injunction issued herein with costs.


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    No. 47.
    Allen Greene v. Mayfield Johnson, Sheriff, et al.
    Au injunction can not issue to stay execution on grounds which, might hayo been pleaded in defense before judgment.
    Execution can not legally issue on a judgment rendered on default until after notice of judgment has been served on the defendant. C. P. 575, 624; 6 R. 20.
    from the Eleventh Judicial District Court, parish of Jackson. Crawford, J.

      John Bay, for plaintiff and appellee, J. & 8. JD. Mo-JSnry, for defendants and appellants.
   IIowe, J.

On the eighth April, 1857, John G. Randle & Co., a firm of which Allen Greene, the plaintiff, was junior partner, executed their note to C. Yale, Jr., & Co. for $2533 45 at nine months. One liundred dollars was paid on account of the note, and about the nineteenth March, 1858, certain notes and accounts were handed to the agents of C. Yale, Jr., & Co., as collaterals, amounting to $2709.

On the note first named suit was instituted by C. Yale, Jr., & Co. in September, 1858, in which judgment was rendered October 1, 1858. Execution having been issued on this judgment against property of Allen Greene, the plaintiff in the case at bar, he sued out the injunction now before us, on two grounds:

First — That the note had been settled by John G. Randle, one of the firm, who delivered to C. Yale, Jr., & Co. the collaterals above mentioned, which collaterals,” the petition continues, “ are now in possession of D. R. Thompson, Esq., or at least so much of them as the balance uncollected, all of which petitioner avers ought to have been and would have been collected but for the negligence of the said C. Yale, Jr., & Co. Petitioner further avers that these collaterals were delivered to C. Yale, Jr., & Co. some time previous to the insolvency of the said John G. Randle, and but for the negligence of plaintiffs and their retention of the notes and claims placed in the hands of plaintiff’s petitioner, could have had said debt paid in full.”

Second — That no judgment notice, as required by law, had ever been served on the petitioner.

Tliere was judgmont for plaintiff in injunction, reciting that the judgment in favor of C. Yale, Jr., & Co. had been compensated and extinguished, and decreeing that the injunction be perpetuated, and the defendants have appealed.

We are unable to perceive the first ground alleged for an injunction, and the evidence adduced upon that branch of the case', furnish any basis for the judgment appealed from. If the note of April 8, 1857, was “settled” by Randle, that fact should have been pleaded and proved before the judgment complained of—a judgment rendered some months after the alleged settlement. An injunction can not issue to stay execution on grounds which might have been pleaded in defense before judgment. 6 Rob. 17. Nor do the allegations and proof show that the judgment against the petitioner has been compensated and extinguished. The claim alleged by petitioner to result in Ms favor from the laches of C. Yale, Jr., & Co. in realizing upon the collaterals, is not liquidated; and a debt not liquidated can not be offered in compensation of an execution. 9 R. 137; 10 Ann. 734; 7 L. 564; 9 La. 22; 14 A. 333. The-evidence does not establish this claim of petitioner with any exactness, if indeed it establish it at all.

The second reason for the injunction has more force. The judgment was by default, and execution can not legally issue in such case until notice of the judgment has been served on the defendant. C. P. 575, 624; 3 La. 237; 6 R. 20. The-clerk of the court testified that he-knew of no notice of judgment ever having been issued or served in the case of Yale v. Randle, and could find no evidence among the papers of such notice ever having been issued or served. We think this a sufficient showing on the part of plaintiff in support of his negative averment to shift the onus upon the defendants and require them to make some ■proof of a service of notice.

The injunction issued in this case should have been perpetuated so as to restrain the execution of the writ of fi. fa., but the court erred in declaring the judgment compensated and extinguished.

‘ It is therefore ordered that the judgment appealed from be avoided and reversed so far as it declares the said judgment of C. Yale, Jr., & Co. v. John G. Randle & Co. to be compensated and extinguished, and that in other respects the judgment be affirmed, without prejudice to the right of the judgment creditors to issue execution after due notice given. It is further ordered that the defendant pay the costs of the District Court, and that the plaintiff and appellee pay the costs of the appeal.


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    No. 63.
    William S. McIntosh, Administrator, v. D. McLeod, Administrator.
    Citation of appeal must bo served on tbe appellee if be reside in tbe State, and on tbe advocate if be be a non-resident. C. P. 682. Service on tbe agent is net good.
    A * PPEAL from the Twelfth District Court of the parish of Franklin. Crawford, J.
    JT. P. Wells, for plaintiff and appellant. John Bay, for defendant and appellee,
   Ludeling, C. J.

D. McLeod, administrator of tlie succession' of Alexander McLeod, was sued for $2000, with eight per cent, per annum interest from fifth of February, 1861. ,

The defendant appeared by his counsel, who filed an answer and conducted the defense until final judgment in the District Court.

The' plaintiff applied by petition for an'appeal, and he caused the citation to be served on John McLeod, who, he says, was the agent of D. McLeod, administrator. A motion to dismiss the appeal for want of citation has been filed.

The motion must prevail.

The sheriff must serve the citation on the appellee, if he reside in the State, or on his advocate, if he reside out of the State, by delivering a copy of the same to such appellee or to his advocate, or by leaving it at the place of their usual domicile. C. P. article 582; McMicken v. Smith, 5 N. S. 428; 4 La. 317.

It is therefore ordered that the appeal be dismissed.


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    No. 37.
    Mary A. Warfield v. A. J. Bobo et al.
    A notarial transfer by the husband to the wife of property in payment of her judgment against him, cannot be canceled, and annulled by a subsequent agreement between them.
    Contracts between the husband and wife are forbidden except in the cases specially enumerated in article 2£21 of the Civil Codo.
    "Where the transfer of real estate is absolutely null and void the creditor may proceed against the property as though it had not been interposed. 12 An. ,173.
    The prescription of one year cannot be invoked by a party holding under a void title.
    from the District Court, parish of Morehouse. Orcnoford, J.-

      Isaiah Garrett, for plaintiff and appellant. John T. Ludeling and S. G. Parsons, for defendants and appellees.
   Howell, J.

The plaintiff, separate in property from her husband; AV. J. Knox, enjoined certain executions, issued by J. R. Temple, upon judgments obtained by creditors against Temple & Knox, a firm onco composed of said J. R. Temple and W. J. Knox, upon the ground that she is the owner of the property seized, by purchase from her husband. The defense is that the pretended transfer from Knox to his wife is a simulation and fraud perpetrated by them to screen the property of Knox, who was insolvent, from the pursuit of his creditors; that prior to the date thereof all the claims of the wife against her husband were satisfied and extinguished, and that the said transfer is an absolute nullity, being made by parties incapable of contracting.

Judgment was rendered dissolving the injunction, declaring the act of sale of the property in question simulated, null and void, and condemning the plaintiff and her surety, in solido, to pay J. R. Temple $319 80 general damages, two hundred dollars as attorney’s fees and costs, from which they have appealed.

In an injunction suit based on the ground that the property seized does not belong tp the judgment debtor, buf to tbe plaintiff in the injunction, the .question 'of ownership is the only one which can he examined. 12 A. 172, 181. Hence the judge a quo did not err in not permitting the amended petition to he filed hy the plaintiff.

It is shown that plaintiff obtained a judgment against her husband, the amount of which, except' $316 23, she received, in a contest with his creditors, and in satisfaction and payment of said balance of $316 23, she subsequently accepted from her husband a notarial transfer of notes, judgments and accounts belonging to him and amounting to $3317 22, less the sum reserved out of them sufficient to pay a debt of one hundred and seventy dollars garnisheed in the hands of the husband’s attorneys. Two years after this, and in the act of sale of the land in question to plaintiff, the parties declared that they canceled and annulled the foregoing transfer, thus leaving, as stated in the act, the husband indebted to his wife on said judgment in the said sum of $316 23, with legal interest as allowed thereon and to pay which and the further sum of two hundred and twenty-five dollars, acknowledged in the act to have been advanced to the husband by the wife, to purchase the land from the government, the husband transfers said land to his wife.

It is clear that this act did not accomplish what the parties seem to have proposed, for it is legally certain that the sum of $316 23 was not due the wife. She had formally accepted a notarial transfer of property in full payment of her judgment and the parties were totally' incompetent to rescind said transfer by any act between themselves and revive the judgment. And we are not prepared to admit that they could enter into a contract of loan and make' the husband a debtor of the wife as was attempted. It may here be remarked that the record shows that the land was entered by a military warrant. By the Code contracts between husband and wife are forbidden (article 1784), except in those cases only which are specially enumerated in article 2421. Out of these enumerated exceptions. all attempted contracts between them are nullities. 1 A. 301; 2 A. 483; 4 A. 65. The contract under consideration is not within these exceptions. It proposes to undo a settlement of the wife’s paraphernal rights and to create a debt, against the husband, which is not permitted, and hence there was no consideration for the pretended transfer.

It is a contract without legal existence, and as to creditors is a more shadow on the title of the husband, and they may proceed against the property as though it had not been interposed. 12 A. 173. As a necessary consequence, the prescription of one year filed in this court does not apply. 2 A. 483; 4 A. 71.

The views herein adopted render it unnecessary- to' pass on the bills of exception on the question of evidence.

Each party has asked an amendment of the judgment for damages.The two sums allowed do not together amount to twenty per cent, on the value of the land assumed by .the District Judge, which is the average of the estimates made by the sheriff and by a witness, aad we have no means of making a more accurate estimate than the judge of the first instance.

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

Mr. Chief Justice Ludeling recused.


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    No. 70.
    D. H. Williams v. D. B. Douglass, Sheriff, et al.
    A frrit of injunction issued by the clerk of tlie District Court before the adoption of the Constitution of 1868, did not become void on the adoption of the constitution. Article 160 of the constitution continued the laws in force in relation to the duties of officers until the organization of the government under the constitution, although contrary to it.
    An agent of an absentee holding & general power of attorney is competent to make the ne'ces-sary oath to obtain a writ of injunction on behalf of his principal.
    The inotion to dissolve the injunction on the ground that the allegations in the petition aro not true, must be referred to the merits.
    A party applying for an injunction need hot allege technically that “ he will he injured.”
    frotíi tbe Twelfth District Court óf tbe parish of Morehouse^ Crawford, J.

      D. C. Morgan, for plaintiff and appellant. Morrison <fc Farmer, for defendants and appellees.
   Ludeling, C. J.

On the twenty-first day of April, 1866, Warren & Crawford obtained an order of seizure and sale against the property of D. H. Williams, an absentee, and they were proceeding to sell said property when the plaintiff in this suit obtained a writ of injunction to prevent the sale.

The defendant moved to dissolve the injunction, with damages, on several grounds. We will notice only those insisted on in this court, iu their order.

First — That the injunction was granted by the clerk of the District Court, who was prohibited by the’ Constitution of 1868 from exercising judicial functions. The writ was issued on the sixth day of June, 1868, anterior to the organization of the government under the constitution of 1868. And by the one hundred and fiftieth article of said constitution, the laws in relation to the duties of officers remained in force until the organization of the government under it, although contrary to the provisions of the constitution. '

Second — That the agent was not authorized to make the affidavit.

The affidavit was made by D. C. Morgan, one of the attorneys-at-law, who signed the petition for the injunction, and the agent of the plaintiff. The affidavit states these facts. The power of attorney declares that D. II. Williams, of the county of Navarro, State of Texas, has made constituted and appointed D. C. Morgan' his agent and attorney in fact in the State of Louisiana to represent him fully in allmatters wherein he is interested, and he specially empowers him to do all the acts of ownership specified in article 2966 of the Civil Codo.

We'think tlie power of attorney authorized the agent to make the affidavit.

The fourth and fifth grounds are that the allegations of tne petition for injunction are not true. They should have been referred to the merits.

Sixth — The sixth objection is that the plaintiff does not allege that he will be injured. This is not sacramental.

He avers that the note, which is the basis of the order of seizure and sale is prescribed. It is manifest therefore that he will be injured if his property be sold to pay a debt which has been extinguished.

The motion to dissolve the injunction should have been overruled.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, that the motion to dissolve the injunction be refused, and that this case be remanded to be proceeded with according to law. It is further ordered that the appellees pay the costs of appeal.


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    No. 28.
    B. F. Crownover et al. v. Thomas W. Randle.
    A sale of a tract of land by one of three joint owners will bind the other two, or either of them, if it is shown that they or either of them were present at the sale and made no ol> jection thereto, but on the contrary advised and urged the sale.
    The sale of an undiyidod tract of land by ono of the three joint owners is null as to the interest of the party who wüb not present at the time and afterward refused to ratify the transaction.
    from the Eleventh Judicial District Court, Parish of Claiborne. Watkins, J.

      J. 0. Egan, for plaintiffs and appellants. George & Sandlin and L. E. Watkins, for defendant and appellee.
   Taliaferro, J.

This is a petitory action to recover two undivided shares of one-third each in a tract of land. The plaintiff claims one of those shares in his own right and the otlier in right of a deceased brother’s mipor child, to whom the petitioner is tutor. The facts as we gather them are these: At a probate sale of their mother’s estate which took place in February, 1859, the plaintiff and his brothers, John and William, the latter being the father of the minor represented by the plaintiff, purchased jointly a tract of land lying in the parish of Claiborne. It seems ¡that the tract of land went into the possession of John Crown-over, who, on the twenty-sixth of December, 1862, sold it to the defendant by regular notarial act, and the purchaser went into possession by himself or his agent. The plaintiff filed this suit early in the year 1866, praying to he decreed owner of one undivided third part of the land, that the minor he represents be recognized as owner of another undivided third part in right of her father, William Crown-over, deceased. He also prays that á partition by limitation he made of the land between himself, the minor and the defendant.

The answer is a general denial. The defendant specially denies ownership either in the plaintiff or the minor of any portion of the land sued for. He avers that his vendor, John Crownover, before selling to him had acquired title to the shares of B. P. and William Crown-over ; that at the time of the execution of the deed of sale from John Crownover to defendant the plaintiff and William Crownover were present and cognizant of the sale; that by acts and words they assented to it, and represented the property sold as belonging to John Crownover and influenced and.induced him to purchase it. That the plaintiff acts fraudulently in setting up a pretended title to the property, which to his own knowledge and with his assent defendant acquired in good faith, and gave for it a valuable consideration. There was judgment in the court below in favor of the .defendant, and the plaintiff appeals.

A bill of exceptions was taken to the ruling of the court admitting evidence to prove that the consideration paid by Randle to John Crownover was Confederate money or illicit currency. It is not important to the decision of this case that we should consider this bill of exceptions, and therefore omit it.

A scrutiny of the evidence brings us to the conclusion that as to William Crownover the defendant has fully established his allegations. The testimony is abundant that he was present at the time the sale was entered into; was cognizant of the purpose and intention of the contracting parties and assented to it, if not directly yet expressing by his manner a tacit assent. It is shown that he was present at the time the deed was read and signed and the money paid, and made no objection to the sale. The notary before whom the sale was passed testifies that at the time the deed was executed William Crownover was present in the room, that he did not protest or object to the sale nor claim any interest in the land sold. Qui tacit, consentiré videtur. Qui potest et debet vetare, jubet. Story’s equity jurisprudence, section 385; 5 An. 67, and cases there cited.

It has been well remarked that “when a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to remain silent.”

In regard, however, to B. F. Crownover, we think the defendant has failed to show any acquiescence in the sale under consideration. He was not present when it was consummated. It is not shown that he ever in the slightest degree assented to it. He resided ten miles off in another parish. It is shown by defendant that plaintiff frequently passed near the place in going to and returning from Minden, and that on one occasion before the sale, in answer to an inquiry as to what he was going to do with his share in the land, he said that he and his brother William had concluded to let John Crownover have their interests in the land. This is alb the evidence defendant adduces to show assent and ratification of the sale, and we think it insufficient. No title is shown in John Crownover to the other shares of the land. It results then in our view that William Crownover by his tacit assent to the sale ratified it so far as relates to his share, and that there is not in any manner shown a divestiture of B. F. Crownover’s title to his undivided third part of the property.

The defendant shows that he has put upon the premises improvements worth two hundred dollars. One-tliird of this sum, or eighty - three dollars and thirty-three cents, must he paid by plaintiff to the defendant as the enhanced value of plaintiff's interest in the land produced by the defendant’s labor and at his costs.

It is therefore ordered, adjudged and" decreed that the judgment of the District Court so far as it recognizes the defendant’s right and title to the one undivided third part of the tract of land in controversy, formerly owned by William Crownover, be and the same is hereby affirmed, and as to the recognition of title in defendant of the share and interest claimed byB. F. Crownover, that it be annulled, avoided and reversed. It is further ordered that B. F. Crownover be and he is hereby recognized as the owner of an undivided one-third part of the tract of land in controversy, and more especially described in his petition, and that he enter upon and take possession of the same on paying to the defendant eighty-three dollars and thirty-three cents, the enhanced value of his proportional share of the property. It is further ordered that a partition of the property as prayed for by the plaintiff be made between himself and defendant, joint owners of the land sued for, the claim of plaintiff as tutor to the minor. heir of William Crownover being by this decree rejected and disallowed. It is also ordered that this case be remanded to the lower court in order that-it may be proceeded with according to law and a partition of the property effected. It is ordered that the defendant and appellant pay costs o"f this appeal.


author: Lodeling, C. J.

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    No. 66.
    Willis Wood, Administrator, v. L. C. Calloway, H. K. Carter, Third Opponent.
    A merchant has a privilege on the crop for the necessary supplies furnished to make it. Act of 1843, amending article 3184 of the Civil Code.
    No privilege is allowed on the crop for money advanced to the planter.
    from the District Court, parish of Union. WatMns, J.

      Stubbs & Cobb, for opponent, appellant. A. JB. George, for defendant and appellee.
   Lodeling, C. J.

In 1865 Willis Wood, administrator, attached on the plantation of L. C. Calloway forty-one bales and twenty-two hundred and fifty pounds of cotton belonging to said Calloway. During the pendency of the suit the cotton was sold- under an order of Court >pid -the proceeds were held to abide the final decision of the court.

II. K. Carter made opposition to regulate tlic effect of the seizure, contending that he had a privilege on the cotton or its proceeds superior to plaintiff’s, being for necessary supplies furnished to Calloway, and he prayed for a judgment against Calloway for his debt and for a recognition of his privilege on the cotton or its proceeds.

There was judgment in favor of Willis Wood, administrator, and against H. K. Carter rejecting his demands. From this judgment H. K. Carter has appealed.

The evidence satisfies us that the necessary supplies for the plantation of Calloway, to the extent of one thousand and ninety-five dollars and eighty cents, were furnished by II. K. Carter to make the crop of 1861, and that the cotton attached was raised on the plantation in 1861.

Calloway says in answer to interrogatories on facts and articles: “I received supplies necessary for the use of my plantation from II. K. Carter to the amount of one thousand and ninety-five dollars and eighty cents.”

In Hollander v. His Creditors this court said: “The act of 1843, amending article 3184 of the Code, provides that debts due for necessary supplies furnished to any farm or plantation shall be entitled to a privilege on the crop for the making of which those supplies were furnished” (p. 668). There is nothing in the cases of Shaw v. Knox, 12 An. p. 41; McCutcheon v. Wilkins, 12 An. 483; or Shaw v. Grant, 13 An. 52, which militates against this position. The privilege of Carter for necessary supplies should have been allowed. His pretentions for a privilege for any sums of money advanced to Calloway were properly disallowed. But there should have been judgment against L. C. Galloway for the full amount of the note made in favor of H. K. Carter as the debt was duly proved.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed. It is further adjudged and decreed that there be judgment in favor of H. K. Carter against L. C. Calloway for the sum of six thousand, seven hundred and fifty-eight dollars and forty-five cents, with eight per cent, per annum interest thereon from the twenty-eighth day of April, 1862, till paid, and costs, and that his privilege on the proceeds of the cotton attached and sold in the suit of Willis Wood v. L. C. Calloway be recognized and enforced for the sum of one thousand and ninety-five dollars and eighty cents. It is further ordered that Willis Wood, administrator, pay the costs of the opposition and of this appeal.