author: Ilsley, J.

text:
    No. 79.
    Charles Gallagher v. Phœbe Tyson and John J. Tyson.
    Notice of protest, enolosed in a letter addressed to tlie endorser, sent by mail to a post-office in rim parish of his residence, is a good notice, in the absence of any proof tha t there was another po.-d office nearer to his residence.
    A PPEAL from the Tenth District Court, Parish of Tensas, Farrar, .1.

      Buchanan £ Gilmore, for plaintiff and appellee.

      T. P. Parrar, for defendants and appellants.
   Ilsley, J.

This is an appeal from a judgment of the District Court of Tensas, against John J. Tyson, one of the defendants, as the endorser of four several promissory notes, all drawn in Tensas parish, and duly protested at their respective maturities, in 1859, at New Orleans, were they were made payable. Notices of protest in due legal form were duly served on the endorser, by letters addressed to him by the notary at Kirk’s Ferry, a post office in the parish of Tensas, and put in the post-office at New Orleans.

It has been repeatedly held by this Court that a notice to an endorser-, sent by mail to a post-office in the parish of his residence, is a good notice in the absence of any proof,' that there was another post-office nearer to the endorser. Medley v. Norris, 2 A. 141; Yeatman v. Erwin, 5 La. 266, and Knox v. Buhler, 7 A. 12.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellants.


source: Caselaw Access Project

author: HoweiiL, J.

license: Public Domain

text:
    513.
    Cyrus W. Field & Co. v. New Orleans Delta Newspaper Company.
    An absenteo having properly in the State, or withm the jurisdiction of the Court, liable to seizure by his creditors, may be brought into Court by a curator m 1 hoc, without attaching his property.
    The process of attachment if? one mode by which the creditor may pui’sue his debtor, in tho cases specified by law, but is not exclusive. In cases where the absent debtor leaves liis properly without an administrator or agent, the creditor may cause him to be cited through a curator tul hoi, and a judgment, rendered contradictorily with the curator n't ho<\ in such cases, is binding on the absent debtor.
    A PPEAL frem the Second District Court of New Orleans, Whitaker, J.

      Marlin Blache, for defendants and appellees:

      W. W. Handlin’s brief, for plaintiffs and appellants, on rehearing.
    —It is necessary, on the trial of this exception, to assume certain principles, which must be granted, in order to arrive at the true issue raised by the pleadings. Tho defendants must be considered as absentees. “Absentee is the person who has resided in the State, and has departed without leaving any one to represent him. It means also the person who Dever was domiciled in the State, and resides abroad.” It must be granted also, that all the facts set forth in the petition, and not denied by the exception, are to be taken as true, on the trial of the exception. “On the trial, of such an exception, which is in the nature of a demurrer, all averments of the petition are taken as true.” 2 New Hen. Dig., 1169 el seg. The only two point's, then, raised by the exception, are: 1. That there was no property attached; and, 2. That there was no personal citation, or citation at the domicile; and he relies on ihe case of Bupuy v. Hunt. Without reviewing all the decisions, at present, I refer to my original brief, and will only remark, that in the ease of Tudor v. Thayer, 6 A. 27, to cancel a mortgage there was neither citation on the defendants nor attachment.
    But leaving aside the correctness of the decisions of the Supreme Court (for which I have great reverence) on this subject, I shall content myself with the authority of the Code of Practice.
    Article 116 provides, that “ if the person intended to be sued be absent, and not represented in the State, the plaintiff must demand that a curator ad hoc,he named to defend the suit, ” not the attachment. “If the minors, the interdicted, or absent persons, against whom the suit is brought, had no tutor or curator, and the plaintiff has had a special curator appointed to defend them in the suit, the service must be made on that curator.” 195.
    “ Tho above provisions shall not be so construed as to prevent persons having claims against a minor, or person absent, from pursuing the same, previous to a curator or tutor having- been appointed, as above proscribed; but, in such cases, the person claiming must in his petition, pray the Court to which it is addressed fco appoint a tutor or curator ad hoc to defend the minor or absent person in- the action.”' 961.
    In remedies, the lex fori must govern. Story’s Con. jj 556. Rent says: “But on this subject of conflicting laws, it may be generally observed that there is a stubborn principle of jurisprudence, that will often intervene and act with controlling efficacy. This principle is, that when the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land. In tali conflictu magis esl, nljus nostrum, quamjus alienum servem.us. Kent Com. 39, p. 461, 3d ed.
    Reporter.—The judgment in this case was rendered on a rehearing, an opinion having been had on the first hearing, affirming the judgment of the Court below. ' The final judgment was rendered by Howeli, J.
   HoweiiL, J.

Plaintiffs allege that the New Orleans Delta Company, composed of H. J. Leovy, D. Daponte and P. E. Bonford, of New Orleans, is indebted to them in the amount of three promissory notes, signed by said Leovy, as the Business Manager, drawn to his own order, and endorsed by him and the other two members, and duly protested; that the said defendants are absentees; that they have no known agents in the State; that no curator has been appointed for the administration-of their property, and that they have property in New Orleans, out of which their claim can be satisfied. They pray that a curator ad hoc be appointed to defend said absentees in this suit, and for judgment against them in solido.

Martin Blache, Esq., appointed curator ad hoc, excepted to the jurisdiction of the Court, on the ground that no property of the defendants had been attached, and no personal service made. This exception was maintained in the lower Court, and on appeal the judgment was affirmed by this Court. A rehearing was granted, and plaintiffs’ counsel strenuously contends that, under the express provisions of our law, an absentee, having property .in the jurisdiction, .may be brought into Court by a curator acl hoc without attaching his property, and in support of this position he relies on Article 57 C. 0., and Articles 116, 195 and 964, C. P.

Article 57, C. C., in the chapter treating of the curatorship of absentees, provides that, “if a suit be instituted against an absentee, who has no known agent in the State, or for the administration of whose property no curator has' been appointed, the Judge before whom the suit is pending, shall appoint a curator ad hoc to defend the absentee in the suit.”

Article 116. C. P., in the chapter treating of the persons “against whom actions may be brought,” declares that, “if the minor, whether under or above the age of puberty, against whom one intends to institute a suit, has no tutor nor curator ad litis, the plaintiff must demand that a curator ad hoc be named to defend the suit. The same course must he pursued, if the person intended to he sued he absent, and not represented in the State.”

Article 195, in the section treating “of petition and citation,” provides that, “if the minors, the interdicted, or absent persons against whom the suit is brought, had no tutor or curator, and the plaintiff has had a special curator appointed to defend them in this suit, the service must be made on that curator in person, or at his domicile. ”

Article 964, in the section treating “ of the appointment of tutors and curators of minors, interdicted and absent persons,” declares that “the above provisions ” (prescribing the rules for the appointment by the Probate Court of such tutors and curators) “shall not be so construed as to prevent persons having claims against a minor, or a person absent, from pursuing the same previous to a curator or tutor having been appointed as above prescribed ; but in such cases, the person claiming must, in his petition, pray the Court to which it is addressed, to appoint a tutor or curator ad hoc to defend the minor or absent person in the action.”

Those articles are plain, and, as said in the case of Dupuy v. Hunt, 2 A. 562, they “presuppose that the absentee has property in the State, which, of itself, would give a court jurisdiction,” and, in our opinion, piovide the mode in which a creditor may enforce his right in a case where an administration by a tutor or curator has not been ordered, as provided for in the codes, on the principle that the omission to have the property or estate administered in due form, shall not prevent a creditor from making the property liable for his claim.

We understand that all these articles must be taken together, and construed with reference to the subject-matter treated of in those portions of the codes in which they are found, and that they provide that where there may be a curatorship or tutorship, but none has been obtained or demanded by any one entitled to it, a creditor may have a tutor or curator ad hoc appointed to represent his debtor in the particular suit, which is in effect a special tutorship or curatorship pro hoc vice.

The process of attachment is one mode by which a creditor may pursue iu the cases specified by the law, but is not exclusive. There may be oases of absent debtors, where the creditor may not be able to take the oath or give the bond, and yet have a remedy, as provided in these articles, by which he can have his debtor served in the person of a substitute or representative in law. In the case of Dupuy v. Hunt, cited above, this Court recognized three contingencies, in which a curator ad hoc may be appointed: “ If the absentee leaves his properly without an administrator or agent, if it be attacked at the suit of a creditor, or if the absentee becomes a necessary party to a suit between other persons lawfully iu Court, in the furtherance of justice the law authorizes a curator ad hoc to represent him. There is then, something on which the jurisdiction of the Court is based, and the judgment rendered would be within the recognized and ordinary prerogatives of the judicial power.” This case may be classed in the first category.

Under this view of the law, and the allegation in plaintiffs’ petition, that the debtors, who are absent and not represented, have property in the jurisdiction of the Court, we think a proper case is presented, for the appointment of a curator ad hoc, and that service upon him is sufficient.

No question is raised as to whether there should be a curator to each absentee, the allegation being that the three composed a newspaper company, and the notes sued on and endorsed by them were given for paper furnished to them. It should also be remarked that the suit was brought in the Court vested with probate jurisdiction.

¥e think our conclusion conflicts in no manner with the doctrine established or enunciated with others, in the case of Dupuy v. Hunt, upon which the curator ad hoc relies for sustaining his exception.

In that case Hunt, the defendant, was a resident of Mississippi, and the property in reference to which the controversy arose, was alleged to he in his possession. There was nothing upon which the jurisdiction of the Court could be based. Here the allegations of the petition (which for the purposes of the exception are taken as true) show that there is property, which plaintiffs, through a curator ad hoe, can subject to their claim. In that ease the, point decided was, that a Court in Louisiana could not render a judgment against a resident of another State or country, who was never in the State, had no property in it,' and was entirely unconnected with a pending or possible litigation, by the appointment of u curator ad hoo to represent him, in which decision we concur. Nor can the decisions in the other oases quoted be considered antagonistic with the ruling here recognized.

We think the provisions of law under our consideration are plain and positive, and that the doctrine, sometimes broadly stated, that a party can be brought into Court only by his property, or by legal service of citation, must be understood as subject, in certain circumstances, to their operation, and that in the contingency provided for by them an attachment of the iH'operty is not essential. The law does not say that creditors in such cases, shall resort to the attachment process, and have property attached in order to prosecute their claims.

It is therefore ordered that the decree heretofore rendered by us be set aside, and it is now ordered that the judgment appealed from be reversed, that the exception be overruled, and the case remanded to be proceeded in according to law. The defendants and appellees to pay the costs of appeal.


author: Labauve, J.

text:
    No. 1170.
    John Bronson, Jr., et al. v. Balch, Warden et al.
    The appeal will not be dismissed on the ground that the appeal bond was given in favor of the wife, the surviving partner in community, as tutrix to her minor children, and not in her own right. The tutrix is ex oficio administratrix of the estate, and the judgment appealed from is the property of the estate ; so is the appeal bond.
    The administration of the succession involves with it the administration of the community, and the administrator may rightfully cause the community property to be sold to pay the debts of the succession.
    A PPEAL from the Fifth District Court, Parish of Iberville, Posey, J.

      A. Talbot and F. S. Goode, for plaintiffs and appellants.

      Barrow di Pope, for defendants and appellees.
   Labauve, J.

The petitioners represent that they are the legitimate and only children of John. Bronson, and being residents of the State of Louisiana, and loyal citizens of the Confederate States of America, and are entitled to the property of the said John Bronson, who resides in the State of New York, and against whom proceedings of confiscation, have been instituted, and in which, under act of Congress of Confederate States, petitioners have intervened; that petitioners are the owners of a certain tract of land situate in the parish of Iberville ; that the defendants have obtained an order of seizure and sale against said tract of land; and that the proceedings are invalid, null and void, on various grounds, which they enumerate in detail.

They prayed for and obtained an injunction arresting the sale.

The defendants appearing, peremptorily excepted to the petition, on the ground that said parties had no interest in the subject-matter of the said suit, they being in no way the owners of said land, but the same belonging in truth to said John Bronson.

They prayed that the injunction may be dissolved, with damages on the bond of injunction.

The Court dissolved the injunction and allowed damages.

The plaintiffs applied and prayed for a devolutive appeal by petition, in which they alleged that Timothy Young, one of the defendants, has died since the rendition of the judgment, leaving a surviving widow in community, Ann Young, and two minor children, Julia and Thos. Young, and to whom their mother has qualified as natural tutrix, and who should be made parties to the appeal.

They prayed for a devolutive appeal, and that Ann Young, in her own right, as partner in the community with her deceased husband, and as tutrix of her minor children, be made parties to said appeal.

Mrs. Ann Young was duly cited, and served in her own right and as tutrix.

The plaintiffs and appellants executed a bond, with a surety, for one hundred dollars, in favor of Samuel Warden, Joseph H. Balch and Ann Young, tutrix, and Michael Oredon, executors, administrators and assigns.

The objection is, as it is perceived, that the bond is not given in favor of Ann Young, in her own right, and that, therefore, she is not a party to the appeal.

The defendants and appellees rely on the authority in the case of Clark v. Hebert, 14 An. 183, where this Court said :

“ This suit has been brought against the defendant in her capacity of widow in community and tutrix to the minor children of Vineent Kirkland, deceased ; and the defendant, in her capacity of tutrix, has set up a re-conventional demand. The appeal bond is executed by the plaintiffs in her favor, in her individual capacity only. The appeal is defective in not making the defendant a party iii her capacity of tutrix.”

In that ease, the Court properly dismissed the appeal; the defendant had become a plaintiff as tutrix in her reconventional demand, and she was essentially a party as appellee, and no bond was given in her favor. In the present case it is the reverse ; the bond is executed in favor of the tutrix, who, as ex offiaio administratrix, represents the estate which is presumed to be accepted under the benefit of an inventory, the heirs being-minors. 2 A. 462. 10 A. 534. 5 A. 180. 7 A. 134. 12 A. 457. The judgment appealed from belongs to the estate, so does the bond; the x>roceeds of the judgment, or of the bond, would inure to the benefit of the community, but they must pass through the succession before they reach the widow in community; until a liquidation and settlement, and payment of the debts of the succession, the community is but a name, a hope. After the death of the husband, the community debts are generally set up against his succession. 17 L. 238. At the dissolution of the marriage, the wife or her representatives can clairg nothing until debts be paid, and cannot sue for half the price of any specific property acquired during marriage, when a liquidation of the community does not show any gains to be divided. 1 B. 378. 2 A. 30.

The administration of the succession of the deceased husband involves with it the administration of the community, and the executor or administrator may rightfully cause the community property to be sold to pay the debts of the succession. 12 A. 222.

We are of opinion that the bond is sufficient, and covers the interest of all parties, including the widow in community. 1 B. 258.

The motion to dismiss is overruled.

On the merits, we are of the opinion the District Court did not err in dissolving the injunction; the petition represents that the land seized was the property of John Bronson, plaintiff’s father, residing in the State of New York, and that plaintiffs, being residents of Louisiana, were entitled to the property of said John Bronson. This allegation shows that the plaintiffs were not the owners.

But we have looked in vain in the record to find evidence of the amount of the judgment, to serve as a basis for the damages and interest allowed by the Judge on the. dissolution of the injunction; it was the duty of the defendant to introduce in evidence the judgment enjoined, or other legal proof to fix the damages and interest.

We'are bound to reverse the judgment, and render such decision as is authorized by the record.

. It is therefore ordered and decreed, that the judgment of the District Court be annulled and reversed, and it is further ordered and decreed that the injunction be dissolved, and that the plaintiffs and appellants pay costs below, and the defendants and appellees those of this appeal.


author: Hhvian, C. J.

text:
    No. 1226.
    Richard Mason, Administrator, v. The Executors of Hauler Nutt.
    When an appeal is taken from an interlocutory order, in an appealable case, and the parties are before the Supreme Court, it is not incumbent upon them to dismiss the appeal pcc of/kio, even though it is not shown that an irreparable injury will be done.
    An administrator has not authority beyond the limits of the State that appointed him.
    He must be confirmed in his administration by the Courts of the State, in which property is situated, or debts are owing, before he can administer the property or sue therein for the debts.

      k BPEAL from the District Court of the Parish of Tensas, Farrar, J.

      Mayo & Spencer, for plaintiff and appellee.

      Aroni & Collier, for defendants and appellants.
   Hhvian, C. J.

In the transcript in the above named suit, we find two orders of appeal.

One is from an or. er of the clerk of the District Court, ordering the registry, recording and execution, of the will of Caroline M. Williams, deceased.

There is no certificate that the transcript contains the evidence adduced on the trial of the application for the order of registry and execution of tlie will. There is no statement of facts nor bill of exceptions. There has not been filed in this Court, within the delay allowed bylaw, an assignment of error of law as appearing on the face of the record.

The appeal, therefore, from the order of the clerk, ordering the registry and execution of the will, must be dismissed. See Code of Practice, Articles 896 and 897.

The other order of appeal is from a decree of the Court overruling defendants’ exception, wherein they deny the right of plaintiff to sue them, for debts alleged to be owing by them to the estate of Caroline M. Williams, deceased.

The plaintiff sued the defendant as the administrator of the estate, by the appointment of the Probate Court of Adams county, State of Mississippi, and defendants, in their exception, averred that he had not been recognized administrator of the succession by authority of this Stato, that the succession had not been opened herein, and that plaintiff had no authority to sue them, and prayed that the suit might be dismissed.

The amount claimed in this case, gives us jurisdiction as appellate Court from a decree of the lower Court, but the decree from which the appeal is taken is interlocutory, and it is not shown that the same may cause an irreparable injury to the defendants, the appellants, and had the plaintiff, the appellee, moved to dismiss the appeal from this decree, we would have dismissed it.

We do not think that it is incumbent on us to dismiss the appeal without a motion for that purpose, as we really have appellate jurisdiction of the case, and the parties are before us.

The exception of the defendants was well taken, and the suit should have been dismissed.

The plaintiff was appointed in the State of Mississippi, and, by its authority, administrator of the estate of Caroline M. Williams, deceased; but he has not obtained a confirmation of his appointment in our courts, and, before so doing, he has not the right to sue the defendants in this State, for debts owing by them to the estate.

An administrator of an estate has not authority beyond the limits of the State that appoints him.

He can neither administer the property of the estate situated in another State, nor collect debts therein owing to the estate. 8 La. 508. 17 An. 15.

He must be confirmed in his administration by the courts of the State in which the property is situated or the debts are owing, before he can administer the property or sue therein for the debts.

Plaintiff has referred ns to several decisions of this Court, wherein this Court has su stained suits of administrators appointed by authority of other States, without their appointments having been confirmed by authority of this State, for the recovery of the possession of property brought to this State from the States that appointed them, and he relies oh those decisions to sustain this suit.

The decisions are only confirmatory of the doctrince announced in 2 N. S. p. 20, “that he who is answerable to another for a thing placed in his possession, has such a special property in it as to enable him to maintain an action for its possession, if taken by a stranger.”

The plaintiff is not suing the defendants to recover from them the possession of property belonging to the estate of Caroline M. Williams, and. which was under his charge by virtue of his appointment of administrator by authority of the State of Mississippi, and of which he has been dispossessed by defendants, or any other person; but he is seeking to recover of defendants a sum of money by process in our courts, on evidence of indebtedness, of which he has the possession and control.

It is decreed that the appeal from the order of the clerk, ordering the registry, recording and execution, of the will of Caroline M. Williams, deceased, be dismissed, at the costs of the appellants.

It is further decreed, that the judgment of the District Judge, overruling the defendants’ exception, be avoided and reversed, that the exception be sustained, and that the suit brought by plaintiff against defendants, styled Richard Mason, Adm’r, v. Executors of Haller Nutt, be dismissed, plaintiff to pay all the costs of said suit.


author: InSLEY, J.

text:
    No. 1185.
    Citizens Bank v. Wm. W. Pugh.
    Where tho mail service, between two points, is suspended or broken up, a notice ot protest, deposited in the post-office by the notary at one place, addressed to an endorser, who resides in another, is not good; the post-office affords a saf e means of conveyance, but not a legal place of deposit for notices.
    Notice of protest, addressed to the endorser, sent by mail, must be addressed to the nearest post-office to his residence, unless it is shown that he is in the habit of receiving his letters and newspapers from one more distant.
    The acts of the Legislature of 1821 and 1855, do not change the general commercial law, in regard to the diligence to be used in serving notices of protest; these acts merely provide a new mode of proving such diligence.
    Where the mail service cannot be usod as a means of conveying notice, the holder of commercial paper is not excused if he does not use ail other practicable means of bringing home notice to the party whom he wishes to charge.
    A PPEALfrom Fourth District Court, Parish of Assumption, Beauvais, J.

      Hyams <& Jonas, Bush & Goode, and Miles Taylor, for plaintiff and appellant.

      Nicholls £ LeBlanc, for defendant and appellee.
   InSLEY, J.

The defendant, who is sued as the endorser of a promissory note made payable at the Citizens’ Bank, New Orleans, which was protested for non-payment at its maturity, on the 20th December, 1862, resists the payment of it for the want of notice of protest.

He contends, 1: “That the notice was not sent to him at the post-office, where he was in the habit of receiving his letters, etc., nor to the one nearest to his residence.

2. That the mails at the time of the protest had been interrupted, and that it was the duty of the holder to send the notice by some other means.

The following facts were proved on the trial of the case: That the notary, who made the protest on the day of its date, deposited in the post-office at New Orleans, a notice of protest, etc., and addressed to tho endorser at NapoleonviUe, Louisiana;

That, at the time when the notice was put in the post-office, all mail communication between New Orleans and the parish of Assumption, wherein the defendant then resided, was broken up iii consequence of the war;

That.the Albemarle post-office was the one nearest to the defendant’s residence, and that that was his post-office, and that he was not in the habit of receiving- his letters, newspapers, etc., at the post-office at Napoleonville.

Under ordinary circumstances, the existence of such a state of facts would, by the commercial law, as it is interpreted by our Courts, discharge an .endorser, and we have now to determine whether in view of the political state of the country, when the protest was made, he is, for the causes assigned, equally exonerated.

It is a rule- of the commercial law, that want of protest, etc., is excused by proof that these requirements were prevented by inevitable casualty or superior force; and, also, that if the political state of the country renders it impossible for the holder of negotiable instruments to act, they will not be required. Chitty on Bills, 360 and 480. Edwards on Bills and Promissory Notes, 458, 392 and 492. Story on Bills, sec. 286. The doctrine rests upon the maxim, impossibiliwn nulla obligaiio esl.

We must, therefore, ascertain whether the holder of the note sued on, having at his command some practicable and ready means of giving to the endorser notice of the protest, at the earliest moment after the protest, should not have resorted to it, to hold him liable. The writers on mercantile law inform us that there are three modes of serving notices of protest: 1st, by mail, 2d, by ordinary conveyance, and 3d, by special messenger. The usual mode is by mail; but when, as in the present case, it was publicly known, that the whole mail seiwpe above New Orleans was broken up, it was a vain thing to put the notice into the post-office. This Court, in Laperte, v. Landry, 5 N. S., lays down a sensible rule. It holds that where notice may be conveyed by mail, it suffices to put it in time, properly directed, in the post-office; but where the notice cannot be conveyed by mail, it is idle to put it into the post-office; for the post-office affords a safe means of conveyance, but not a legal place of deposit for notices. See also Union Bank v. Campbell, 2 An. 759. When the law requires steps of diligence to convert conditional into absolute obligations, it will not permit, as a substitute for such steps, vain and idle ceremonies. The law merchant, which recognizes the mail as a legal means of serving notices, supposes it to be a practicable one; and it requires, if there is no mail, that the notice be sent by the earliest conveyance. Chitty on Bills, 516, 522, 504, 506, 518, and Edwafds on Bills, pages 572 and 573.

Was it impossible, or even impracticable, to serve a notice of protest on the defendant at or within a reasonable time-after the protest, in any other way than by depositing it in the post-office?

All that district of country, in which lies the parish of Assumption, was occupied and controlled by the United States forces from October, 1862, until June, 1863, when it was occupied temporarily by the Confederate army. At the time when the protest was made, commercial intercourse between the inhabitants of New Orleans apd those of the parish of Assumption, was not unlawful; for, on the 16th of August, 1861, by a proclamation of the President of the United States (issued in pursuance of the fifth section of an act of Congress, approved 13th July, 1861), it was declared, “that the inhabitants of the State of Louisiana, and other States mentioned (except the inhabitants of that part of the State of Virginia, lying west of the Alleghany mountains, and of such other parts of that State, and the other States as may maintain a loyal adhesion to the Union and the Constitution, or may be from time lo time, occupied and controlled by forces of the United States, engaged in the dispersion of said insurgents) are in a state of insurrection, and that all commercial intercourse between the same and the inhabitants thereof, with the exception aforesaid, and the citizens of other States, and other parts of the United States, will remain unlawful until such insurrection shall cease or has been suppressed.”

There was, therefore, no legal impediment at that time, nor could it have been contrary to public order, to serve a notice of protest on an endorser, residing in th.e parish of Assumption. Nor in point of fact, was it then impossible, or even impracticable to serve a notice on such endorser, either by ordinary conveyance or by a special messenger, for there was then free communication for loyal citizens of theUnited States, between the city and the residence of the defendant, and there was no lack of public conveyances plying between these two points, and passing directly before the defendant’s house, by means of which any notice addressed to him would unquestionably have reached him.

But the plaintiff invokes the maxim impossibilium nulla obligaiio esl, and says, that he was not obliged, under the circumstances, to give notice at all, and he refers us to authorities which recognize the maxim; but all those authors suppose a physical or moral impossibility as an excuse for omitting to give notice of protest to a party, and we have seen that there was neither the one nor the other in the present case.

He further contends that, the Legislature having prescribed the manner of giving notice of protest, the holder is not compelled to adopt any other, and he refers us to the act of 9th March, 1855.

The provisions of this act, in relation to the mode of serving protests by a notary, and the effect that the law attaches to his certificate, are not different, in this particular, from the provisions of the act of 1827, and it has been repeatedly held, in regard to this last act, that it did not change the general commercial law, in regard to the diligence to be'used in serving notices' of protest, and that that law, merely provided a new mode of proving such diligence. ” See the numerous cases collected in 1 Hen. Dig., p. 200, l 4, and 209,’\ 5.

If that means can be resorted to, the law deems it sufficient, and clothes the notary’s certificate as to the manner in which he served notices with legal authenticity; but, if that mode cannot be used at all, the holder of commercial paper is not excused, if he has not otherwise used any other practicable way of bringing.home notice to the party whom he wishes to charge, and, as such practicable means was readily available, we concur with the decision of Vechton v. Pruyn, 3 Kernan, 549, that “ as the mail could not be used, it was the duty of the holder to adopt some other means which would be the most certain to bring the .notice home to the endorser.”

In any contingency, had the notice put: into the post-office been duly transmitted by mail, it would not have been legally served upon the endorser, for it was not properly addressed to him at Napoleonville, as the post-office of that place was neither the one nearest to his residence, nor that at which he was in the habit of receiving his letters, newspapers, etc.

This Court has frequently recognized the rule of the commercial law, with regard to notices of protest, that so far as it requires notices to be sent to the nearest post-office, subject to many exceptions, one of which is where the party to be notified is in the habit of receiving his letters at a more distant post-office, or by a more circuitous route, and that that fact is known.

The great object of the law, says the Court, is to give notice in as speedy and a convenient manner as can be done, and when there is a reasonable compliance with this rule it is sufficient.

Recognizing these principles of the commercial law, we are satisfied, from a careful examination of the whole evidence in this case, that the defendant does not come within any of the exceptions to the rule which requires notice to be sent to the nearest office.

There is much analogy between the present ease and that of Beenel v. Tournillon, 6 Rob. p. 500.

The briefs of both counsel, for the plaintiff and defendant, are ably prepared, but the argument of the plaintiff has not brought us to a different conclusion from the one reached by the Judge of the lower Court, who rendered judgment in favor of the defendant.

The evidence offered by the defendant during the progress of the trial, to prove that Albemarle and not the Napoleonville post-office was his post-office, was' objected to by the plaintiff on the ground that there was no allegation in the answer to let in the proof, and to put him upon his guard ; but the Court having received the evidence, a bill of exooptions was reserved.

The evidence was clearly inadmissible, under the general issue, (Pollard et al. v. Cook, et al., 4 Rob. p. 199), and the objection to it properly overruled.

It is, therefore, for the reasons above stated, ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed, at the costs of the appellant.

Labauve, J. recused.


author: IxjSIjEY, J.

text:
    No. 1180.
    O. L. Blanchard v. H. H. Luce.
    [n a suit for the settlement of a general commercial partnership between the partners, a mandate of sequestration is the only conservatory remedy to which the plaintiff can resort. The property is owned jointly, and is undivided, and as the plaintiff is entitled to an equal share with the other partners, of every portion of it, the whole of it must be sequestered.
    Points not raised in the lower Court, will not be noticed in the Supreme Court, unless a formal written assignment of errors has been made.
    A PPEAL from the Third District Court, Parish of Lafourche, Gates, J.

      Taylor Beattie, for plaintiff and appellee.

      Glay Knobloch, for defendant and appellant.
   IxjSIjEY, J.

This is an appeal from the judgment of the District Court of Lafourche, in a suit for the general settlement of a commercial partnership, overruling a motion on the part of the defendant to set aside a mandate of sequestration, on the following grounds :

' 1. The writ of sequestration was not the legal remedy.

2. That the affidavit is false.

3. That the affidavit does not disclose any specific sum as due to the plaintiff.

4 That the security on the bond is not solvent.

5. That the lease of the coffee-house was in the name of Luce only.

G. That no cause for the writ is shown, and that it is a harsh measure.

I. The Court did not err in granting, upon a proper showing, the mandate for the sequestration of the partnership effects. The property was owned jointly, and W'as undivided, and as the plaintiff was entitled to one-half of every portion of it, it was necessary that the whole of it should be sequestered. Art. 275 C. P. $ 2. Seyno v. Sorel, 11 La. 144

In Joor v. Graig, 3 An. 268, the Court said: “The Code of Practice provides remedies for any contingency which may accompany the property in litigation, and sequestration was the only conservatory remedy to which, in this case, the plaintiff could have resorted. There is no conflict between the opinion expressed, in the case of Shropshire et al. v. Russell, 2 An., and our ruling on this point.

II. Facts stated in an affidavit for a mandate of sequestration, are, by legal presumption, taken prima fceeie as true, on the oath of the affiant, until the contrary is shown by sufficient proof (see the case of Carter v. Lewis, 15 An. 514); and no counter-proof was adduced by the defendant.

III. Article 275 of the Code of Practice does not require an oath as to the amoimt due. This is essential in certain provisional orders, but not in the conservatory act of sequestration, in a case like this.

IV. The solvency of the surety on the sequestration bond, which is in due legal form, is shown satisfactorily.

The fact of his being the principal obligor on a bond of administration, for a large amount, is no proof of insolvency. It is conditional, and the law presumes he will do his duty as a fiduciary agent.

V. It is in proof that the plaintiff was a joint tenant of the coffeehouse.

YI. We are satisfied, from our inspection of the record, that the plaintiff was legally entitled to the mandate of sequestration.

Another ground is urged in this Court, for the first time, for dissolving the writ; but, as was held in Carter v. Lewis, 15 An. 575, new points cannot be made on appeal in this Court, especially when there has been no formal written assignment of errors.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at the costs of the appellant.


author: Tabiabebbo, J.

text:
    No. 58.
    R. C. Wickliffe, Governor, v. F. M. Dawson et al.
    Tlie husband having: signed the bond with his wife, his authorization is implied.
    A married woman, properly authorized, may bind herself ns surety for any other person tnan her husband.
    Á PPEAL from the District Court, Parish of Madison, Farrar, J.

      James Nolan, for plaintiff and appellant.

      R. D. Jordan and F. Fuseleir, for defendants and appellees.
   Tabiabebbo, J.

This is a suit against E. M. Dawson, sheriff of the parish of Madison, for arrearages on his collection of taxes, alleged to be $21,649 52. His bond was signed by Samuel Anderson, Henry S. Dawson and his wife, Prances E. Dawson, as sureties. Suit was instituted on the bond against principal and sureties, the latter being bound jointly. The plaintiff prays judgment for the whole amount against the principal, and for judgment likewise, for the same sum, against Prances E. Dawson, the wife, and Samuel Anderson, jointly, alleging the insolvency of Henry S. Dawson at the time of the execution of the bond, and averring the wife to be the real surety, and that her husband subscribed the act merely as authorizing his wife to obligate herself.

Anderson and Henry S. Danson, in their separate answers, set up various illegalities in the bond, denied that they were bound by it, and if bound at all, it was only to the extent of one-fourth each of the liability. Mrs. Dawson, in her answer, averred that the obligation was without consideration; that she signed the bond withoirt the authorization pf her husband, and that she is not bound by it.

Judgment was rendered in the Court below, for the whole sum, against the principal,'and against Henry S. Dawson and Anderson, for one-third of the sum each, with interest, as set forth in the judgment. The plaintiff appealed.

We think the judgment of the lower Court erroneous, in exonerating Mrs. Dawson as one of the sureties. The husband having signed the bond with her, his authorization is implied. The obligation is one of suretyship, and it is joint. The disability under which, as a general rule, the wife is placed by our law, to contract for or with her husband, unless it be shown that the obligation inures to her benefit, does not incapacitate her from contracting, as in this case, in favor of third persons. In the case of Farrel v. Yoe et al. 2 An. 903, it was decided that a married woman, properly authorized, may bind herself as surety for any other person than her husband. This decision was reaffirmed in the case of, Roberts v. Wilkinson, in 5 An. 370, by Chief Justice Eustis, after an elaborate review of the Spanish and French laws, and of the jurisprudence of France on this subject.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be amended, so as to include the defendant Prances E. Dawson, against whom judgment is hereby rendered for a like sum with that adjudged'against the other two sureties, viz ; seven thousand two hundred and sixteen dollars and fifty cents, with interest at the rate of two peí- cent, per month, from the 1st clay of December, 1858, until paid.

It is further ordered, adjudged and decreed, that the costs in the lower Court be paid, in solido, by all the defendants, the costs of this appeal to be paid by Mrs. Frances E. Dawson, defendant.


author: Taliaferro, J.

text:
    No. 1214.
    Eugene W. Blake v. Winchester Hall—And Matters Relating to the Succession of Celeste Belanger, deceased.
    The absence of the requisite United States internal revenue slampson letters of administration, and the papers in the proceeding for the appointment of the administrator, is fatal to his appoinl-
    The prohibition of parol evidence, against or beyond the contents of an act, only extends to the persons -who were parties to it.
    In caso of an insolvent estate, the oath of. the several parties creditors is prima fade proof, as requirod by law, to entitle such creditors to vote in the election of a syndic.
    A PPEAL from the District Court, Parish of Terrebonne, Gales, J.

      li. B. Jordan and E. W. Blalce, for Tanner’s heirs.

      Taylor Beallk, for Abel Russell.

      Winchester Hall and Louis Bush, for opponents.
   Taliaferro, J.

These cases are somewhat interwoven with each other, and counsel having consented that the evidence taken in the first shall apply to the last, it will be convenient to consider them together.

The succession of Mrs. Celeste Belanger, deceased, lato widow of Lemuel Tanner, deceased, was opened in the parish of Terrebonne, in the summer of 1864. In October of the same year, J. F. Thompson petitioned for the administration of the estate. An inventory was made, without an order of Court, and no further proceedings were taken, until the 8d day of August, 1865, when Winchester Hall filed an application to be appointed administrator, predicating it upon Thompson’s waiver of liis right, and, as he alleges, at the instance of several creditors of the succession, having claims against it. Notices of this application were posted up at three different places in the town of Houma, there being at the time no newspaper published in the parish. He filed his bond, which was accepted, and letters of administration were granted to him on the 16th of August, without the requisite internal revenue stamps being affixed to any of the official papers. Louis Bush deposited stamps for this purpose in the clerk’s office, on the 24th of August, but they were not affixed. Blake, the plaintiff in this suit, acting (as he avers) at the instance of several of the heirs of the estate, filed an opposition to Hall’s appointment, on the 19th of August, and declares that the proceeding of Hall was taken against the wishes of the heirs, and without notice to them. He prayed to be appointed administrator, and that the appointment of Hall be annulled.

Francis L. Mead, by Winchester Hall, his attorney, opposed Blake’s ■pretensions, setting himself up as a creditor, and praying that Hall be .continued as administrator.

The case came on for trial on the 14th of September. Judgment was rendered, decreeing the appointment of Hall a nullity, and awarding- the administration to two of the heirs of Mrs. Tanner, Elizabeth Jordan, wife of R. D. Jordan, and to Eranklin Tanner, jointly, “ upon their compliance with the law in such cases.” Hall filed a motion for a new trial. On the 25th of September, the motion for a new trial being overruled, Hall, by motion in open Court, appealed, and filed his appeal bond. Ten days having elapsed in the meanwhile, without the appointees, Jordan and Tanner, having given security, two motions were filed in Court—one on the port of the two heirs who had received the conditional appointment, to be continued in their office jn'ovisionally, until the appeal should be determined ; the other by sundry creditors, asking the removal of the heirs, and the continuance or appointment of Hall as administrator. On the first of these motions, the Court retained Jordan and Tanner, extending the time for furnishing security to thirty days, and overruled the other motion.

Prom the judgment decreeing the extension of time to the joint provisional administrators, Mead, one of the creditors, alone appealed. This appeal, forming one branch of this litigation, is now before this Court, and will be disposed of separately.

The controversy now assumed a different aspect. The creditors became clamorous. A writ of sequestration was sued out by J. I. Adams & Co., against the property of the estate, and it was taken into the hands of the sheriff. The heirs appointed in September, 1865, had caused an inventory and appraisement to be made of the whole estate, in November of that year, by which, it appeared, the entire property was estimated to be worth thirty-three thousand dollars ; whereas, about a year before, the appraisement of the same property, taken on Thompson's proceedings for the administration, amounted to over one hundred and ninety thous- and dollars. At the May term, 1866, of the District Court for the parish of Terrebonne, various creditors united in a petition to the Court, representing that there was no legal representative of the estate, the property in a precarious conditionj’that the persons named as administrators had failed to furnish the required security, and that a state of things existed which required that the estate should be declared insolvent, a meeting of the creditors called, and a syndic appointed. An order in consonance with the prayer of the petition was rendered by the Court, and a meeting of the creditors called for the 13th of July, 1866. The creditors convened pursuant to the order. ’Winchester Hall and Robert C. Moore were voted for in the election of syndic. By the return of the notary, who presided at the meeting, it appeared that Moore had received votes carrying the majority in amount. At the ensuing November term of the Court, an opposition was filed to the homologation of the proceedings, complaining of various illegalities in the election, and praying that Hall be recognized as the choice for syndic. The opposition was overruled, and Moore was decreed to be duly elected. A motion for a new trial was overruled, and Thompson and other creditors making the opposition have appealed.

Before entering into the review of the proceedings of the meeting of creditors, it is proper to remark, that about a month previous to the term of Court at which this case was tried, Hall wa's appointed provisional syndic, and that this appointment was made at the instance of a number of the creditors.

Against the opposition and application, of the plaintiff Blalce, for the administration of the estate, the defendant Hall filed an exception, the substance of which is, that the action is revocatory in its character, and can only be conducted by astrict observance of all the formalities required in a regular suit, such as entry of default, judicial delays, etc. The exception being overruled, he answered by averring that he had been regularly appointed administrator, after having complied with the requirements of law; that the proceedings were all regular, and that no cause for his removal existed.

It was shown on the trial, that no internal revenue stamps had been affixed to any of the papers forming the record of proceedings in relation to the estate, and that the notices of his application had not been posted up at three different places in the parish, in the manner required by law, in cases where there is no newspaper published in the parish. By the ulterior proceedings in the sequel of the controversy, it is shown that the defendant was appointed provisional syndic ; that he accepted the office, and took an oath to discharge its duties. He received a large vote at the meeting of the creditors, for the office of syndic, and he is now by counsel before this Court, contesting the right of his competitor to that office, and asking to be recognized either as administrator or syndic.

It is urged on the other side, with much force, that the acceptance by the defendant of the office of provisional syndic, and claiming to be elected syndic, is virtually an acquiescence in the judgment decreeing the nullity of his appointment as administrator. That judgment, we are satisfied, was properly rendered. The want of the revenue stamps was fatal to the defendant’s pretensions to the office of administrator. With the fact before his eyes, that neither the bond, appraisement, or letters of administration had stamps upon them, the judge could not do otherwise than treat the appointment as a nullity. The bare inspection of the instruments w7as conclusive. The revenue laws of the United States declare “that it shall not be lawful to record any instrument, document or paper, required by law to be stamped, unless a stamp or stamps of the proper amount shall have been affixed; and the record of any such instrument, upon which the proper stamp or stamps shall not have been affixed, shall be utterly void, and shall not be used in evidence.” U. S. Statutes at large, vol. 13, p. 292, ?¿ 152. Bonds for the performance of the duties of any office, and letters of administration, are required to be stamped. Same volume, pages 299 and 300.

In the concurso of creditors, when the election of syndic came on, a strong opposition was made to votes being given on certain promissory notes, purporting to have been drawn by Washington Tanner, as the agent of his mother, the late Mrs. Belanger. It was objected against these notes, that they were executed after the mandate given by Mrs. Belanger to Washington Tanner had expired, and that they have no binding force as debts of her succession.

The mandate was executed before the recorder of the parish of Lafourche, in regular notarial form, on the 9th of January, 1857. It confers general powers to manage the affairs of her plantation, a large sugar estate in the parish of Terrebonne, to seE and dispose of the crops, and apply the proceeds to pay her debts, and defray the expenses of the family and plantation. To facilitate tlie mandatory in the performance of the various acts which he was authorized to perform, Mrs. Belanger granted to him the express power to draw, in her name, all drafts or notes necessary in the liquidation of her debts, and in carrying' on the business of the plantation.

This act of procuration was accepted by the same public act, one clause of which is in these words: “It is agreed further, that this agency shall last at least three years, and as much longer, on the same terms, as the parties may mutually agree.”

It is admitted by the counsel, maintaining the validity of these promissory notes that most, if not all of them, were executed more than three years after the execution of the mandate. By the conditions of the grant of power, it might continue after the expiration of three years, if the parties should mutually agree to its extension. Parol evidence of the continuance of the power was introduced and admitted. A bill of exceptions was reserved by the opposing counsel. The objection is, that the extension of the agency cannot be proved by parol.

The rule, we apprehend, applies only to the parties, to the act. “ The authentic act proves against a third person rent iptsam, that is to say, that the transaction which it includes has intervened. Pothier on Obligations, vol. 1, p. 427, No. 704. The same author afterwards says, (No. 76C, same volume) it remains to observe that the prohibition of parol evidence against or beyond the contents of an act only extends to the persons who were parties to it. It cannot affect third parties. This doctrine is laid down, and elucidated by Judge Porter in the case of Barry v. Louisiana Insurance Compang, 11 Martin, p. 630, and it has been frequently recognized in subsequent decisions of this Court. 2 L. 157; 3 An. 464; 4 L. 29.

The exception, we think, was not well taken.

The next objection is to the vote of R. C. Moore, who made oath that he is the owner of two notes deposited by him in the Canal Bank, as collateral security, and were not for that reason then in his actual possession. The vote of L. L. Holcombe is contested on the ground that the claim he offered to represent belongs to his wife, an interdict, without a curator; her husband, up to th'e time of the meeting, not having qualified in that capacity. Mrs. Holcombe, it appears, is one of the heirs, and it is claimed that she has a tacit mortgage against the property growing out of her rights in her father’s estate.

The view we have taken of the claims of Hall, to the administration of the estate, renders it unnecessary to pass upon the opposition to the votes of Pugh, Bruff and Roussel.

The correctness of these different claims, supported by the oaths of the several parties, and, in the case of the notes executed by Washington Tanner, as agent, by some evidence of the extension of the agency, we think the prima facie proof required by law, to entitle claimants to vote in the election of syndic, has been made by the parties; and the more so, because we find in the record no testimony of any kind of a rebutting character. Were the votes of Holcombe and Moore excluded, the entire amount would still largely preponderate in Moore’s favor.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court rendered on the 14th of September, 1865, be affirmed so far as it annulls the appointment of Winchester Hall, administrator of the estate of Celeste Belanger, deceased; and it sufficiently appearing that the appointment of Elizabeth Jordon and Franklin Tanner, as coadministrators of said succession, has become nugatory through their failure to furnish security according to law, for the faithful discharge of the duties of administrators, and their appointment being, suspended by the proceedings in insolvency, it is further ordered that the said judgment, as far as it relates to the appointment of said Elizabeth Jordan and Franklin Tanner to said office, be annulled, avoided and reversed, the appellees paying the costs of this appeal, and the appellant the costs in the Court below. It is further ordered, adjudged and decreed, that the judgment of the District Court, rendered on the 80th of November, 1866, homologating the proceedings of the meeting of creditors and appointing Robert C. Moore syndic, be affirmed, with costs in both Courts.


author: Hyman, C. J.

text:
    723.
    Benoist Keller v. Theodore Blanchard, Sheriff, et al.
    Whenever the thing sold remains in possession of the vendor, the law presumes that the sale is simulated, and as against third persons this presumption must be rebutted by proof.
    The payment of a price less than that stipulated in the act of sale, does riot make a simulated sale.
    Defendant cannot seize real property sold, by his debtor, after the authentic act of sale is recorded; and, when enjoined by the purchaser from selling the property, sot up the defense that the sale was fraudulent; in such a case his defonse is confined to the .auestion of simulation. He must resort to the direct action of nullity, to set aside the sale on account of fraud.
    A PPEAL from the District Court, Parish of Iberville, Posey, J.
    . S. Matthews, for plaintiff and appellee.
    O. Lauve, for defendant and appellant.
   Hyman, C. J.

Xavier Lambert, having a judgment against Philip Heelein, issued execution thereon, caused to be seized by Theodore Blanchard, sheriff, under the authority of the execution, a lot in the town of Plaque-mine, parish of Iberville, known as the “Iberville Hotel,” and also a frame building in front of the lot, occupied as a post-office and warehouse, and was proceeding to sell the same as the property of Heelein.

Benoist Keller, the plaintiff, obtained an injunction prohibiting Lambert and the sheriff from selling the property seized, on the ground that he was the owner of the same by a notarial act of sale made to him by Heelein, on the 9th day of August, 1860. He prayed that the property might be released from seizure, etc.

The defendant, Lambert, averred in answer that the sale was simulated and fraudulent, and prayed for the dissolution of the injunction, and for damages.

The District Judge rendered judgment against the defendants, perpetuating the injunction, and ordering the property seized to be released from seizure.

Frqm this judgment the defendant, Lambert, has taken an appeal.

The evidence shows that Philip Heelein continued to remain on the property after the act of sale was passed.

Whenever the thing sold remains in the possession of the vendor, the law presumes that the sale is simulated, and as against third persons, this presumption must be rebutted by proof. C. C. 2156.

The price that plaintiff bought the property for was, in the act of sale, stated to be three thousand dollars. The act declared that hepaid $1,668, cash, as a part payment of the j>rice, and that for the remainder of the price, say $1,332, he bound himself to pay a mortgage of that amount on the property sold.

The act of sale made plaintiff responsible for this sum of $1,332, -which he was bound to pay, and if the statement of the payment of $1,668 was ■untrue, this assumption of the payment of $1,332 was a consideration, a price. Even if below the value of the property it was no less a price for the property sold, and there is proof that he paid a part of this price.

The payment of a price for a thing sold, less than that stated in the act of sale, does not make a simulated sale.

A simulated sale of a thing results when parties pass a formal act of sale of the thing, for which no price is given, nor intended to be given.

The evidence proves that there was a real sale of the property in controversy, by Heelein to plaintiff.

Defendant contends that the sale could produce no effect against him until the act of sale was recorded in the office of the Recorder of the parish of Iberville.

This position cannot be denied, (see the act entitled an act in relation to registry, approved March 15, 1855) but the act of sale was recorded in the office of the recorder (as shown by his certificate) on ihe 2d May, 1861.

The law considered that, as to third persons, the property was Heelein’s until the act of sale was recorded in the office of the recorder, and, therefore, any rights or. liens that a third person had acquired on the property, as against Heelein, before the act of sale was recorded, are valid.

There is no proof that defendant acquired any right or lien, by seizure or otherwise, on the property sold to plaintiffs, previous to the recording of the act of sale. Indeed there is no proof of seizure, except what the allegations of plaintiff establish, and they do not show that the seizure was made before the act of sale was recorded.

Defendant cannot seize real property sold by his debtor after the authentic act of the sale of the same is recorded, and when enjoined by the purchaser from Selling the property, set up the defense that the sale was fraudulent. Under such circumstances, his defense is confined to the question of simulation. He must resort to the direct action of nullity to set aside the sale because of fraud.

Judgment of the District Court is affirmed.

Labauve, J. recused.


author: Labátjve, J.

text:
    No. 1168½.
    John H. Fleetwood v. Charles Bordis et als.
    The legal or tacit mortgage, existing in favor of minors against their tutor, cannot b8 erased or canceled, without substituting^ special mortgage in the stead thereof, in the manner prescribed by the act of the Legislature of 11th of March, 1830, re-enactod in 1855.
    The law has created the tacit mortgage in favor of minors; and its provisions, to cancel it by substituting a special one, must be strictly observed.
    A PPEAL from the District Court, Parish of Assumption, Beauvais, J.

      J. J. Homan, for plaintiff and appellant.

      A. Gentile, for defendant and appellee.
   Labátjve, J.

This case involves but one question purely of law ; it is this :

Can the general mortgage, in favor of minors against their tutors, be caneéled and erased, without being replaced by a special one, as prescribed by act of 11th March, 1830, re-enacted in 1855 ?

After the death of his wife, who loft five minor children, issue of their marriage, Chas. Bordis caused a portion of the community property to be adjudicated to him, at the price of estimation, as provided by Art. 338 of the C. C.; among that property was the undivided half of a certain town lot and buildings, in the town of Thibodeaux, jointly owned by said community and Dr. Dominique Durac, which lot the said Bordis and Durac subsequently sold for $4,500, payable in five installments, to John H. Fleetwood, the said Charles Bordis binding himself, in the act of sale to have erased and canceled, within a reasonable delay, the tacit mortgage bearing on said property in favor of his minor children.

Pursuant to this agreement, he applied to the District Court of the parish of Assumption, by a petition, in which he alleged the said sale, that he had bound himself to procure the erasure of the tacit mortgage bearing on the undivided half of said lot, in favor of his minor children; that by reason of the losses sustained by him during the late war, in slaves and certain debts, he is not able to procure to his children a good education, without the sum due him by said Fleetwood ; that his only son (Gaston) is now nineteen years old, and petitioner desires to afford him the benefit of a liberal education, so as to enable Mm to become the supporter of his younger sisters ; that he desires, likewise, his daughters to receive a liberal education ; that there is, belonging to the succession, a lot of ground situated in Thibodeaux, valued in the inventory at $1,000; that the dwelling-house thereon was destroyed by soldiers and contra-bands, and that said property is now unproductive ; that petitioner, if permitted to recover the amount due by Fleetwood, would be able to put some buildings on said lot and make it produce revenue, and thereby also increase the security of the rights of the minors.

That petitioner would desire the calling of a family meeting of his children, for the purpose of deciding whether it would not be for the best interest of the minors, after due consideration of the facts above stated, that the sale from petitioner to Fleetwood be ratified, and that the tacit mortgage in favor of said minors, on the lot of ground sold, be raised.

Wherefore, your petitioner prays that said family meeting be called, and that Ozimé Mélancon, the under-tutor, be notified to attend the same.”

This family meeting being duly ordered, ajopeared together with the under-tutor, before O. Carmanche, recorder, and, after mature deliberation, declared that they were unanimously of opinion that it was for the greatest interest of the minors that the sale mentioned above be ratified, and that the tacit mortgage in favor of the minors, bearing upon the lot of ground sold, be raised, giving many reasons in detail, including those alleged-in the petition.

Upon a petition being presented to the judge to that effect, he ordered the homologation of said deliberations ; that the said sale be ratified ; that the special mortgage which may have resulted from the adjudication of said lot to Charles Bordis, and the tacit mortgage bearing against him as tutor, in favor of his minor children, be annulled and raised. This judgment was rendered and signed on the 10th July, 1865.

John H. Fleetwood, the purchaser of said property, alleging his interest in this matter, took an appeal from said judgment, on the 9th June, 1866.

The history of this case shows that there existed on this property two mortgages—one special, resulting from the adjudication to the father, and a tacit one from the tutorship. Civil Code, Arts. 338 and 3282.

Charles Bordis, the natural tutor, never offered to give, nor did he give, a special mortgage, as prescribed by act of 11th March, 1830, and reenacted in 1855, p. áái, where it is provided that the surviving father or mother, becoming tutor or tutrix, may give a special mortgage for the security of the rights of their children, and for the' faithful discharge of their functions, provided a family meeting shall declare that the property offered to be specially mortgaged, is, in their opinion, of sufficient value to secure the rights of the minors, in capital and interest. % 1.

That, in case of adjudication made, under Art. 338 C. C., a special mortgage may be given on real property, not slaves, and shall have the effect of annulling the mortgage arising from such adjudication. § 8.

Notwithstanding the family meeting- may have found the property sufficient, it is made the duty of the judge to cause the property offered to be mortgaged to be appraised by experts ; and the judge shall in no case accept the mortgage, unless the value of the property exceed, of ail prior liens, the amount of the debts or rights of the minors, by at least twenty-five per cent, the amount due the minors, to be ascertained by a previous liquidation, to be made according to law, and including all interest which will probably accrue. § 13.

It is perceived that these formalities were not and could not be complied with in these proceedings, for the simple reason that no property was offered to be mortgaged specially. But Charles Bordis contends that the present case is governed by that of Fontenette v. Oezay, 1 An. 236. It appeared in that case, that the house in which the natural tutrix lived with her children, was rapidly falling into decay and ruin ; that it was in a condition which endangered the lives of herself and children, and that, unless it was soon repaired, she would be without shelter-for herself and family, and she owned no other dwelling, and was destitute of pecuniary means with which to make the necessary repairs, and she prayed to be authorized to sell, free from the mortgage of the minors, a sufficient number of town lots to defray the required expenditure. A family meeting advised the sale of a specific quantity of land to meet the expenses of the masonry, another to cover those of the wood-work, etc*.

This Court, in that case, said :

“ The act of 1830 presents no obstacle to the release of the tacit mortgage in favor of minors, in cases like the present, nor has it reference to such cases. Among the duties which devolve upon tutors are those' of providing for the maintenance, health and personal safety of their wards, in the execution of which the property of the minor himself may be sold, and, if necessary, the capital may be used. In the present instance, property subject to the minors’ mortgage has been sold, for the purposes for which their own might have been validly alienated, and with the further view of promoting the security for their estates from being diminished, by selling a part, and reinvesting the price in valuable improvements upon the remainder. Here has been a mere mutation of the property, by which the rights of the plaintiffs were secured, and made with an apparent necessity for the change.”

We must confess that the case, although it is not parallel with the one at bar, is very strong; but it is the only one known in our jurisprudence, and must make an exception, whilst the case before us is one of ordinary occurrence-: where a natural tutor wants to sell, oi* has already sold, a property which is mortgaged to his children, and he needs his money, like everybody else ; all that he has to do, to evade the law, is to allege that he wants it to educate, maintain and support his children, and to make some improvements on other property; but the money is his property, and he may do what he pleases with it after it is received. This is the case before the Court. If we depart from the law quoted above, enacted to protect and secure the minors’ rights, there is no stopping place; the law would become a vain thing.

The law has created the tacit mortgage in favor of the minor, and its provisions, to cancel it by the substitution of a special one, must be strictly observed. Lesassier v. Dashvill, 17 L. 194. In the present case, there is a total absence of the formalities prescribed by law.

We are of opinion that the judgment appealed from is correct in the ratification of the adjudication of the lot to the father, at the price of estimation, but is illegal and unauthorized as to the annulling and erasing of the special and tacit mortgages in favor of the minor.

It -is therefore ordered and decreed, that the judgment rendered below be affirmed, so far as it ratifies the adjudication of the lot at its appraised value, and that it be annulled and avoided so far as it cancels and erases the special and tacit mortgages, and that the appellees pay costs in both Courts.


text:
    No. 1207.
    Estate of Thomas Mille, and of his Wife, Pauline Dupuy; Marie Eugenie Braud and Husband v. Michel Hebert—A. Bonanchand, Clerk, Garnishee.
    A draft or note filed in a suit may, by garnishment process, and interrogatories served upon the clerk of the Court, in whose custody it is, be attaohed in a suit instituted in another Court; and if his . answers disclose possession of the draft the service is good.
    To make a valid seizure of tangible property, the shoriff must take aotual possession of it.
    Delivery to the sheriif of property, under seizure, is necessavy to enable him to make a valid salo.
    A PPEAL from the District Court, Parish of Pointe Coupee, Cooley, J.

      Barrow <6 Pojge, and P. A. Roy, for plaintiffs and appellants.

      Zenon Labauve, for defendant and appellee.
   Ilsley, J.

A judgment creditor of the defendant, having caused a writ of fieri facias to be issued, and while the writ was in the sheriff’s hands, she filed a petition of garnishment on the clerk of the Seventh Judicial District Court, for the parish of Pointe Coupée. The garnishee, in answer to interrogatories propounded to him, states that he has, as clerk of the District Court, property in his possession belonging, as it appears from the pleadings in suit No. 585, to Michel Hebert; and, further, that the suit No. 585, entitled Michel Hebert and Eugénie Braud v. John and Alcide Chastant, is on file on the records of said Court, also that the notes described in the petition in garnishment are among the papers of said suit, and that they are in his possession as clerk aforesaid, and he annexes a copy of the same. As no legal sale of the said notes could be made by the sheriff until that officer obtained the corporeal possession of the same, the plaintiff, basing his motion on the clerk’s answer, asked the Court that an order be granted directing the clerk and garnishee to deliver to the sheriff the notes, that he might proceed to sell the same.

The Court below overruled and discharged the motion, holding that it had no power to order the clerk to give up the notes, deeming, however, the possession of them by the clerk to be that of the sheriff, and at the same time ordered the clerk to retain the notes until further orders, so that the rights of the plaintiff, the seizing creditor, might not be prejudiced, and from this judgment the plaintiff has appealed.

The question submitted to us is not a novel one, having been frequently presented for solution to our predecessors, who do not seem to have doubted the right of the Court to grant such an order as the one in this case sought to be obtained. See Stansbury v. McCall, 8 An. page 9, and Price v. Emerson, 7 An. 237. They hesitatéd, however, to lay down any definite rule in regard to the interfering with the possession by the clerks of Courts, of records and documents of which he was the legal custodian, being- apprehensive that evil consequences might result from it.

In the case of Price v. Emerson, 7 An. 237, it was intimated that if in that case the apparent title to the notes was in the defendant in execution, the validity of the seizure, under a writ of fieri facias, would have been recognized, and an order for the delivery of them would have been granted.

.In a subsequent case, Woodworth v. Lemmerman, 9 An. 524, the Court said that without an actual seizure, or a citation in garnishment, there could be no attachment, and that service of a mere notice on the clerk, who is the legal custodian of the records of his Court, or even on the debtor against whom a suit is pending (the course pursued in the case of Price v. Emerson), has no more effect than publication in a newspaper would be.

In a late case, Edler v. McAlister, 14 An. 821, the Court adopting the view taken in the Woodworth v. Lemmerman case, as to the effect of a proceeding by garnishment, which the plaintiff in the case now before us has adopted, held, unequivocally, that a draft filed in a suit may by garnishment process, and interrogatories served upon the clerk of the Court in whose custody it is, be attached in a suit instituted in another Court, and that if the clerk’s answer disclose possession of the draft the seizure is good.

To make a valid seizure of tangible property, the sheriff must take actual possession of it (6 A. 531, 581. 4 A. 369); and a copy of the uotes in this case seized, if taken by that officer, would be nugatory. Scott v. Wiblet, 6 A. 182.

It is necessary, therefore, that a delivery of them be made to the sheriff', in order that he proceed to the sale of them under the writ in his hands.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; audit is further ordered that the clerk of the District Court deliver to the sheriff of the parish of Pointe Coupee the notes filed in Court in the suit of Michel Hebert and Eugénie Braud v. John and Alice Chastant, No. 585, on the docket of the said District Court (retaining collated copies thereof), to be sold and disposed of according to law, to satisfy the writ of fieri facias, in his hands, issued from the District Court of Iberville, in the suit of Eugénie Brand and Husband v. Michel Hebert, in the matter of the succession of Thomas Mille.

It is further ordered that the costs of the appeal be taxed as costs in the said suit, in which execution issued.

Labauye, J. recused.


author: Iukdey, J.

text:
    No. 1212.
    William White, Administrator, et al. v. Eliza Blanchard and Husband, F. Cooney et al.
    The action of separation of the patrimony of the deceased from that of the heirs, is prescribed in three months from the date of the express or tacit acceptance of the heirs. C. O. Art. 14C9.
    Article 1005 of the Civil Code is in harmony with the articles thereof specially applicable to tlie payment of the debts of the succession. The remedy awarded by the former Article lasts as long as does the action for the separation of patrimony, and no longer.
    Piaintiffs'being mere ordinary creditors of the succession, thoir action is a personal one against each one of the heirs, to recover from him his virile share of his ancestor’s debt, and plaintiffs have no legal right to stay, by injunction, the defendant’s order of seizure and sale. Even privilege or mortgage creditors cannot arrest execution, but must resort to the remedy by third opposition, to stay the proceeds of sale in the sheriff’s hands until the conflicting rights of preference to the fund can be determined.
    The x>!ea of prescription, of five years, on a promissory note, will be maintained when the evidence shows no interruption for that length of time.
    A PPEAL from the District Court, Parish of West Baton Rouge, Posey, J.

      Barrow & Pope, for plaintiffs and appellants.

      Favrot & Lamon, for defendants and appellees.
   Iukdey, J.

The petitioners in the present injunction suit claim to be creditors of the succession of Elize Bret, widow of Zepherin Blanchard, who died intestate in the year 1858, leaving (heirs of her body) twelve children, and a succession, consisting of a sugar plantation, slaves, movables, etc.

All her children being above the age of majority, accepted her succession purely and simply, and took possession of her whole estate, without any legal formality.

On the'6th February, 1859, four of the heirs of Widow Zepherin Blanchard sold to the remaining eight, for the consideration of $18,000, part in cash and the balance in installments, represented by notes, payable in 1860, 1861 and 1862 (four notes of $3,333 33>£, each year), all their right, lille, claim and interest, to the said property, real and personal, particularly described in the act of sale ; and the better to secure the full and punctual payment of the said notes, the said property, land, slaves, etc., remained specially mortgaged to the vendors, or any holder of the said notes, and until the full and final payment thereof ; it being, moreover, understood, that the purchasers should pay all the debts of their deceased parents. The object of the plaintiffs’ injunction suit was to arrest proceedings under the defendants’ order of seizure and sale, and to obtain security for their claims, and, in default of such security, to provoke the ax>pointment of an administrator to administer the succession of the Widow Zepherin Blanchard, according to the provisions of the section relative to the benefit of inventory, all in accordance with Article 1005 of the Civil Code.

The defendants moved to dissolve the injunction on the face of the papers, for the grounds stated in the motion, with twenty per cent, damages on the sum enjoined, and special damages, five hundred dollars for attorney’s fees. The defendants in injunction answered ; admitted that they are a part of the heirs of Elize LeBert and Zepherin Blanchard, their father and mother, deceased ; that they accepted the succession left them by their parents purely and simply, and kept the property thereof undivided until they sold their shares to tlieir co-heirs, on the 16th February, 1859 ;

That the plaintiffs acquiesced in the sale, and in the assumption of the purchasers to pay the debts of their deceased parent;

That, if the plaintiffs have any right of action, it is to prosecute against the heirs of Elize LeBert, jointly, under their acceptance pure and simple of her succession, and against each for his virile portion thereof.

The motion and the merits were tried together, and the District Court rendered a judgment in favor of the plaintiffs, and against all the heirs of Elize LeBert, Widow Zepherin Blanchard, for the amount claimed ; recognized the debt as one of the succession of the said widow, dissolved the injunction, and gave judgment in favor of the defendants against the plaintiffs, in the sum of five hundred dollars for attorney’s fees, costs, etc., and from this judgment the plaintiffs have appealed.

The question to be now solved under the pleadings is, whether the ordinary creditors of Elize Bert, Widow Zepherin Blanchard, whose children of lawful age, having accepted her succession purely and simply, and against whom and their creditors, the action of the creditors of the succession, for the separation of the patrimony of the deceased from that of the heirs, is prescribed under Art. 1409 of the Civil Code, have any other than a personal action against the heirs ; and, whether the patrimony of the deceased is to be specially subjected to their claims against the succession, notwithstanding the blending together of the two patrimonies, i.e. that of the succession and those of the heirs ?

Article 1370 of the Civil Code accords to the creditors of a succession three kinds of action, to cause themselves to be paid the debts due them by the deceased, to wit :

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

2. An hypothecary action against the detainers or possessors of the property mortgaged for their debts ;

3. And the action of the separation of the patrimony of the deceased from that of the heir.

The last of these actions for a separation of patrimony, can only be resorted to within three months from the express or tacit acceptance of the heirs. After the expiration of this term it is not admitted. Article 1409, Civil Code.

“ In the interval between the opening of the succession and the three months allowed for the institution of the suit for the separation of patrimony, the heir cannot alienate, affect nor sell the effects of the succession, nor any of them, to the prejudice of the creditors ; and if he does it, the creditors may cause the acts to be declared null, as done in fraud of their right. It is the reverse, after the expiration of the three months. ” See 1141 C. C.

The filing in Court of the plaintiffs’ injunction suit, which virtually claimed a separation of patrimony, was long subsequent to the expiration of the delay, computing it from the date of the tacit acceptance of the succession of Mrs. Zeplierin Blanchard by the heirs. See 982 and 986, Civil Code.

Article 1005 of the Civil Code is in harmony with the articles thereof specially applicable to the payment of the debts of a succession. The remedy awarded by the former article lasts as long as does the action of the separation of patrimony, and no longer, otherwise there would be no limit to the exercise of the action “ of the separation of patrimony.”

The plaintiffs being mere ordinary creditors of the succession, their action was, when they instituted it, a mere personal one against each of the heirs, to recover from him his virile share of his ancestor’s debt, and they stand upon the same footing as do the creditors of the heirs.

Marcadé, commenting on the Articles of the Napoleon Code, in regard to the separation of patrimony, explains the legal effect produced by the blending of the two patrimonies—-that of the deceased with that of the heir, and also the effect which the law attaches to the separation of these patrimonies.

He observes : ‘1 Nous avons vu sous l’art. 802, que l’héritier (tout en acceptant cette qualité pour en invoquer le bénéfice, s’il y a lieu) peut suspendre actuellement les effets ordinaires de l’acceptation, c’est-a-dire la transformation légale en celle du défunt, et la confusion qui en resulte entre les deux patrimoines; en sorte que les deux masses de biens restent séparées, tout comme si le défunt vivait encore. Or, ce droit aceordé a l’Iiéritier de maintenír séparés l’un de l’autre les deux patrimoines, est également attribué aux créanciers par notre article 878, et il est étundu aux légataires par Particle 2111. Ainsi, de méme que Phéritier pent obtenir la séparation des patrimoines, quand il craint que la succession ne lui apporte plus de dettes que de biens; de méme les créanciers et légataires peuvent la demander aussi, quand ils craignent que l’héritier n’ait plus de passif que d’actif, et que la confusion des deux patrimoines en un ne diminue la somme qu’ils doívent recevoir sur les biens laissés parle défunt.—Ainsi, quand le défunt laisse 60,OOOf. de biens et50,0QQf. de dettes, et que Phéritier, au contraire, n’a que 20, OOOf. d’aetif pour un passif de 50,OOOf. également, la confusion des patrimoines ne donnerait ti tous les créanciers, soit de la succession, soit de Phéritier, que 80 pour cent; tendis que la séparation de ces patrimoines donnera aux créanciers héréditaires un actif plus que suffisant pour l’acquittement intégral de leurs créanees. Si nous supposons qu’avec 50, OOOf. de dettes le défunt ne laisse qu.e 30, OOOf. de biens, la séparation sera encore utile aux créanciers héréditaires puisqu’elle leur assurera 60 pour cent; tandis que la confusion produirait un actif total de 50,000f., pour un passif total de 100,000f., c’est-a-dire, 50 seulement pour cent. Yol. 3, p. 276, $ 391.

It results from the examples put with such pertinence by the learned commentator that the mingling together of patrimonies, places the ordinary creditors of the succession, and of the heir, upon an equal footing. ‘ ‘Il est vrai qu’il y a désormais confusion des patrimoines, en sorte que tous sont tombés au rang des créanciers personnels de l’heritier : il n’y' a plus qu’une seule masse de biens, qu’un seul débiteur qu’une seule classe de créanciers,” 397, ib. En un mot, il n’y aura alors qu’une seulo classe de créanciers ayant tous le méme débiteur, et parmi tous ces créanciers, on appellera, comme en toute autre circonstance; 1. Les priviligiés, s’il y en a: 2. Les hypothécaires; 3. Enfin les créanciers chirographaires, ib. | 397.

As mere ordinary creditors of the heirs of Widow Zepherin Blanchard, the plaintiffs had no legal right to stay by injunction the proceedings under the defendants’ order of seizure and sale, although the property seized had been the patrimony of the plaintiff’s debtor, the defendants’ mother.

Even privilege or mortgage creditors cannot arrest executions, but must resort to the remedy of third opposition to stay the proceeds of sale in the sheriff’s hands, until the conflicting rights of preference to the fund can be determined.

The plea of prescription of five years is urged against the plaintiffs’ action on the notes sued on. It is shown that interest was paid on the note for $2,420, held by William White, administrator up to the 3d March, 1862, and on the note for $550, held by his co-plaintiff, up to the 6th March, 1860.

The first note was not prescribed, but we find nothing in the evidence to show that prescription was suspended as to the note on which interest was paid, on the 6th March, 1860, and as service of,process in this case was only made on the 3d January, 1866, more than five years had elapsed between the date of the interruption and that on which service of process was made on the defendants.

In this particular, the judgment of the lower Court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, so far as it condemns the defendants, the four children and heirs of Widow Zepherin Blanchard, to pay the plaintiffs, Joachin Aillet, the note for five hundred and fifty dollars, with interest, etc., be and the same is hereby annulled and reversed; and it is further ordered, adjudged and decreed that, as regards the said note, judgment be rendered in favor of the defendants.

It is further ordered, adjudged and decreed, that in every other particular, the judgment of the lower Court be and the same is hereby affirmed, at the costs of the appellant.


author: Howell, J.

text:
    No. 1213½
    Mrs. M. B. Harp v. Duncan F. Kenner.
    Where the holder of a promissory note seeks to bind the endorser.it must be shown that due diligence has been used in making demand, and giving notice; and the impossibility of giving notice at an earlier date.
    A PPEAL from the District Court, Parish of Ascension, Beauvais. J.

    IV. II. JRigMor, for plaintiff and appellant.

      Johnson, Denis, Beraull and Legendre, for defendant and appellee.
   Howell, J.

This suit is brought against the endorser on the following note:

“$2,000. Richmond, Va., 23d February, 1862.

In all March next (1863) we or either of us promise to pay in solido to the order of Duncan F. Kenner, at the office of the recorder of the parish of Ascension, La., two thousand dollars, for value received.

(Signed) L. D. Nichols.

(Endorsed) Pay Mes. H. B. Harp, or order.

(Signed) Duncan F. Kenner.”

Plaintiff alleges that at the maturity of said note the maker was dead and unrepresented; the holder was within the military lines of the United States forces, and the endorser, Kenner, was in Richmond, Va., within the lines of the Confederate forces, and, consequently, demand could not be made nor notice given to the endorser; that at the close of the war the endorser was in foreign countries, but as soon as plaintiff was apprised of his return, and as soon as demand could be made of the legal representative of the maker, she gave notice of demand and non-payment to, demanded payment of him.

The defendant, besides the general issue, sets up special defenses, that no consideration passed between him and the maker or holder; that the obligation is inchoate, the plaintiff having taken the note from said Nichols with the knowledge that the endorsement would be void, if the note was not signed by another solidary obligor with said Nichols; that said note has not been duly presented for payment, protested for nonpayment, nor notice thereof given to defendant as required by law.

It is shown that Nichols died in-1862 ; that his widow obtained letters of tutorship in the parish of Ascension, on 31st July, 1865, and the first session of Court held in that parish in the same month ; that the recorder’s office in said parish, where the note falling due on 1st April, 1863, was made payable, was burned in October, 1862, and reopened on 29th March, 1865 ; that plaintiff, in 1863, resided in Ascension; that Kenner, during the war, was a representative in the rebel Congress, went to Europe at the close of the war, and was seen in New Orleans in October, 1865; that demand of payment was made of the representative of Nichols’s estate, in the latter part of January or first of February, 1866, and notice thereof given to, and payment demanded of, Kenner within two weeks thereafter. The estate of Nichols is admitted to be insolvent.

From these facts it is evident that a demand might have been made at the recorder’s office, where the note was payable, as early as March or April, 1865, and of Mrs. Nichols, tutrix, in August of that year, and in the year 1863, as widow, and notice could have been given to Kenner in October or November, 1865. Neither was done until the end of January, and in February, 1866, The facts do not, in our opinion, excuse the delay in making a demand and giving notice. It was incumbent on plaintiff, even under her own allegations, to show the impossibility of complying with those requisites at an earlier date than she did, which she has failed to do.

Judgment affirmed, with costs.