text:
    Evariste Porche v. D. M. Lang et al.
    The article 888 of the Code of Practice only applies as between appellee and appellant, and not as between two appellees.
    Appeal from the District Court of the Parish of Terrebonne, Farrar, J.

      L. Bush, for plaintiff and appelllant. Belcher, Gonnelly <& Gooch, for defendants.
   Buchanan, J.

Evariste Porche, the plaintiff, sues Dimean W. Lang, Edwarcl M. Boykin, Urbain Aucoin, William J. Minor, Holden Wright ánd George E. Connelly, in an action of boundary of their respective lands.

• A surveyor was appointed to make a survey of the land in controversy, and to ascertain the various lines of all the tracts held by the several parties.

Aucoin pleaded prescription of ten, twenty and thirty years; that he and those under whom he claims, have held peaceable, public, and uninterrupted possession of the land claimed by him, according to existing boundaries, being the township line, for more than thirty years.

Connelly pleads that his is the oldest title; that his boundary has been - well ascertained an 1 fixed; that it is shown by a fence which has existed for over fourteen years; pleads the prescription of ten, twenty, and thirty years to this act! . i.

Plaintiff pleads prescription of ten years to a portion of land of 4.28 acres cl rimed by defendant Wright; and to another portion of 2.86 acres claimed by' defendant Aucoin.

All the parties, with the exception of Aucoin, hold under a common author, James Borne, the former owner of a large tract of land on Bayou Black, confirmed in the name of Bobert Martin. The conveyances from Bowie are three in number, in the following order of date: first, to John D. Smith; secondly, to'Isaac Thomas; thirdly, to Thomas Bernard.

Defendant Connelly holds under the oldest of these titles, that of Smith.'

Defendants Boykin and Lang hold under the second in date, that of Tliomas.

Plaintiff holds under the youngest title, that of Bernard.

The survey made under the order of court includes the whole Bobert Martin confirmation; with dividing lines traced between the three several tracts conveyed by Bowie, as above, and the superficial contents of each, as found by the surveyor. This survey also exhibits the lines claimed by the several parties. The Bobert Martin confirmation is located on both sides of the Bayou Black, which has a course from east to west; and the titles above enumerated are, located in their order running down the bayou, namely, that of Smith (Connelly) uppermost; that of -Thomas (Boykin and Lang) next descending; and that of Bernard (Porche) lowermost. The controversy between the plaintiff and all the defendants, except Minor, is about the boundary on the south side of Bayou Black. Minor adjoins plaintiff on the north side of the bayou, and within the Isaac Thomas title.

The District Judge, according to article 843 of the Code, (Lacour v. Watson, 12 Annual, 214) has commenced by giving Connelly his quantity; which, upon the plat of survey, is designated by a dotted red hue H I.

Boykin and Lang answer the appeal by claiming that the judgment be amended by giving them as a boundary the full red line E G. But this amendment cannot be allowed. The amendment would be at the expense of Connelly, who is also an appellee. And it is well settled that the article 888 of the Code of Practice only applies as between appellee and appellant, and not as between two appellees.

The District Court next adopts as the lower boundary of Boykin & Lang and of Minor, (Isaac Thomas’ title,) and as the upper boundary of the plaintiff Porche, a dotted red line upon the plat of survey designated by the figures 7, 3, 8, 10, 9: — 7, 3, 8 being the boundary south of the Bayou Black, or between plaintiff and Boykin <fc Bang; and its prolongation 10, 9, being tlie boundary north of the bayou, or between plaintiff and Minor. The reason given by the Judge for tlie adoption of this line is, that it is parallel to the line H I, which, as we have seen, is adopted by the court as the rrpper limit of the Isaac Thomas title; the said title calling for par-aEel lines, and the Thomas title, as the oldest, being entitled to its full quantity, at the expense of the younger title of the plaintiff and appellant.

Of this, plaintiff complains, because, in the suit of Dufief et al. v. Boykin & Lang, (a suit instituted by the heirs of the vendors of this land to recover its price,) the said Boykin & Lang pleaded in diminution of the price, that there was a large deficiency in the quantity of the land, as compared with that expressed in the conveyance.

Boykin & Lang held under Fowler, who sold them 1,000 arpents land by the following description: Twenty-five arpents front on each side of the Bayou Black, by twenty arpents in depth, also on each side of the bayou. They pleaded in defence of the action, “that the depth on the right bank is so limited by the back lines of the original concession, of which the land sold forms a part, that only 236.81 superficial arpents are embraced within the lines on that side of the bayou, which, added to 570.31 arpents, acknowledged to be found on the left side of the bayou, leaves a deficit in the quantity sold of 192.88 arpents, for which deficiency they claim a proportionate diminution of price. ”

The judgment of this Court maintained this plea, and awarded Boykin & Lang the diminution of price prayed for by them. The Court said (9 Annual, 297): “The testimony of Taylor, as applied to the plat of survey in the record and marked B, satisfactorily establishes that there is embraced within the calls of Fowler’s title, an area of only 807.12 arpents.” Now, in the plat of survey of Sulakowski, in the present record, instead of there being found an excess of land over that exhibited by the survey which was the basis of our judgment m the case just quoted, the area is less; for whereas the quantity of land on the right or north bank of the bayou, by Taylor’s survey (Dufief v. Boykin & Lang), seems to have been 236.81 superficial arpents within the Isaac Thomas title, it is only 225.96 arpents by Sulakowski’s survey. And although Sulakowski gives 813.16 arpents as the quantity in possession of Boykin & Lang on the left or south side of the bayou, yet it is to be observed that this quantity is not found within the calls of the Fowler conveyance, -which only extends to a depth of twenty arpents from the bayou, but includes the whole of the ■Isaac Thomas title on that side of the bayou. On the contrary, Sulakow-ski has drawn a line (designated by the figures 3, 4,) at right angles to the dotted red lines, given by him as the side limits of the Isaac Thomas title, and at the distance of twenty arpents from the bayou. And this line 3 - 4 includes, with the side lines between itself and the bayou, precisely the quantity of 570.31 arpents, given by Taylor’s plat as the quantity found on that side of the bayou. The complaint of appellant on this head is therefore unfounded.

We have been unable to detect any error to the prejudice of appellant in the assignment of the line K W on Sulakowski’s plat as the boundary between plaintiff and Aucoin; and of the line O Z as the boundary between plaintiff and Holden Wright. The line K W is part of the west line of township 17, range 17; and the Martin confirmation is bounded on that side by the township line, according- to the official and approved surveys of the Government.

It is, therefore, adjudged and deoread, that the judgment of the District Court be affirmed, with costs.

Yooehies, J., absent.


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    New Orleans, Opelousas & Great Western R. R. Company v. John Williams.
    The Board of Directors alone lias tlio power to make admissions in regard to the controversy which would bind the company, and no ordinary agent of the company would possess the power, unless expressly delegated.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.
    If. M. Oohen, for plaintiff and appellant. Clarice & Bayne, for ap-pellees.
   Buchanan, J.

Defendant sues plaintiff in reconvention for loss in weight of sugars in hogsheads transported on plaintiffs’ railroad from La-fourche landing to New Orleans, in the season of 1857, at various trips between the months of April and September.

These sugars, after being delivered by plaintiffs ;in New Orleans, were carried by steamboats to Nashville, where they were weighed, and the weights found to differ from those put upon the hogsheads by defendant’s agents on his plantation. The proof upon which defendant relies, to show that sugar was abstracted from the hogsheads while in plaintiffs’ custody, is entirely negative in its character, consisting of certificates of masters and clerks of the steamboats which conveyed the sugars up the river, that no sugar was taken from hogsheads on board steamboat; which 'certificates were ex parte and not sworn to. Plaintiffs’, counsel objected to the admission of these certificates; but they were admitted upon a supposed agreement of the secretary of the Bail Eoad Company.,

Supposing that a corporation is to be bound by the admissions or consents in a suit, of one who is neither its legal representative nor its counsel, (which strikes us as a very loose and objectionable practice at best, 11 An. 293,) yet here we find no proof that an agreement to admit the certificates was made by the officer mentioned. His testimony on the point has been taken, and is uncontradicted.

• .A bill of exceptions was reserved, which appears to us well taken.

Judgment reversed; and judgment of nonsuit upon the reconvention, with costs in both courts.

Yooehies, J., absent.


author: Laud, J,

text:
    D. W. Fellows v. Steamer R. W. Powell and Owners.
    The master oí‘ a ship or other vessel} has no general authority, as such, to sign a bill of lading for goods which are not put on board the vessel 5 and for the want of such authority, the owners of a ship are not responsible to parties takiug a bill of lading which has been signed by the master without receiving tho goods on board.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Mott <& Fraser for plaintiff. Lee & Mare, for defendants and appellants.
   Laud, J,

The plaintiff, a merchant at Camden, in Arkansas, instituted this suit against the owners of the steamer B. W. Powell, to recover the value of twelve bales of cotton which he alleges, he shipped on board said boat at Camden, consigned for sale to Fellows & Co. of this city, but which were not delivered to the consignees, and have been lost to Mm.

It appears from the evidence, that on a trip of the B. W. Powell to Camden, the clerk of the boat being at the counting house of the plaintiff, signed a bill of lading for the cotton which at the time had not been delivered on board the boat, but was at the warehouse of E. Hill & Co. at that place, with the understanding that the master of the boat would land at tints warehouse and take on board the cotton for which the bill of lading had been signed and delivered to tho'plaintiff. It,further appeaxs that the master of the boat landed at the warehouse of E. Hill & Co. in the night time for the purpose of taking on board tlxe cotton — but that it could not be found after a search by the clerk of the boat and by the shipping clerk of E. Hill & Co. (a large quantity of cotton being at the time around and in the warehouse); and that the Tí. W- Poicell proceeded on her trip to this city without the cotton. And it further appears that within a few days afterwards, the cotton was destroyed by fire in the warehouse of E. Hill & Co.

Upon these facts the question arises whether the owners of the boat are liable for the value of the cotton, on the bill of lading signed and delivered to tlxe plaintiff.

The master of the boat acted through his clerk, as the agent of the owners, and whether they are bound by the bill of lading, depends on the question whether the master had authority to bind the owners for the delivery of the cotton, before it was actually delivered to lxim.

It has been held both in England and in this country, that tho master of a ship or other vessel has no general authority, as such, to sign a bill of lading for goods which are not put on board the vessel; and that for the want of such authority, the owners of the ship are not responsible to parties taking a bill of lading which lias been signed by the master without receiving the goods on board. See Grant v. Norway, 2d Eng. L. & E. 337; Buckingham v. Freeman, 18 Howard U. S. R. 188.

Tlxis doctrine meets with our approval; and its application to this case defeats the plaintiff’s action. *

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendants, with costs in both courts.

Vooebxes, J., absent.


author: Land, J.

text:
    E. H. Barton et als. v. City of New Orleans.
    a Sanitary commission, appointed by tbe Board of Health, cannot recover for services rendered when that Board had no authority to establish a commission. If they acted as agents for the city, the law presumes that their services were rendered gratuitously; if they acted as officers for the city, they then accepted a public trust to which neither fees nor emoluments were attached by any ordinance of the city,
    Appeal from tbe Fifth District Court of New Chileans, J.

      JS. H. Dwell, for plaintiffs and appellants. J~, J. Michel, for defendant.
   Land, J.

The plaintiffs, who composed the late Sanitary commission of this city, by appointment of the Board of Health, instituted this suit to'recover the sum of seventeen thousand dollars for services rendered in the discharge of their functions.

The Board of Health had no authority to establish the Sanitary coni-missiou of which the plaintiffs were members; — But if it be conceded that the establishment of the Commission was recognized and ratified on the part of the Common Council of the city, still we are of opinion that the plaintiffs cannot recover; first, because if they acted as agents for the city, the law presumes that their services were rendered gratuitously; secondly, because if they acted as officers for the city, they then accepted a public trust to which neither fees nor emoluments were attached by any ordinance of the city ; and thirdly, because there was no agreement between them and the city, either before or after the rendition of services, for 'the payment of fees or other compensation.

Under these circumstances, the plaintiffs have no cause of action which can be recognized and enforced in a court of law.

It is, therefore, ordered, adjudged and decreed, that the jrtdgment of the lower court be affirmed, with costs.

Vooehxes, T., absent.


author: Voorhies, J.

text:
    E. J. Cooper and Husband v. Maunsel White et als.
    Besides proving the genuineness of a lost or destroyed deed, it is incumbent upon the party, who holds under it, to prove its contents in a most satisfactory manner.
    Appeal from the District Court of East Feliciana, Mb Vea, J.

      D. B. Sanford, W B- Kenner, and J. M. Boieris, for plaintiffs. Me Vea c& Hunter and Glarlie <& Bayne, for defendant and appellant.
   Voorhies, J.

The defendant, Maunsel White, claims title to the land in. controversy through mesne conveyances, from Benjamin Curtis, the plaintiff’s ancestor. The main question, therefore, is whether there lias been any transfer or sale by Curtis to the defendant’s vendors.

The existence of such a document, it is contended, is shown ; but that it. has been either mislaid or destroyed.

The evidence of the loss or destruction of that instrument is not of the most satisfactory kind, admitting its existence to have been proven. But sucli is not tbe case. Tbe evidence does show that there was a private deed of sale purporting to have been made by B. Curtis to John Breed, but there is not the least evidence as to the genuineness or execution of the instrument.

The rule, which admits proof of the contents of a private deed, either lost or destroyed, does not dispense with proof of its execution.

The evidence introduced is not precise as to the date of the deed in question; nor is it very ample as to the contents of the instrument. From it we gather that, at some indefinite time, running some twelve or fifteen years, Curtis, by private act, conveyed the Stockdale property to John Breed. Not a word about the price, nor whether any was stipulated.

Besides proving the genuineness of a lost or destroyed deed, it is incumbent upon the party, who holds under it, to prove its contents in a more satisfactory manner.

Judgment affirmed.

Merrick, C. J., recused himself.

Laud, J., absent, concurring.


author: Dumeii, J.

text:
    Mary Spencer v. John Rist et al.
    Where a judgment of separation of property was rendered contradictorily, on due proof, and not upon the confession of the husband — Held: That the plaintiff was regularly separated in property with her hus-baud, and that the decree of separation carried with it a dissolution of the community. The decisions in Dawclc v, D’Arcy, 6 R. 342, and Holmes v. Bardin, 15 An, 553, re-aiflrmed,
    Appeal from the Dist. Court of the Parish of EastFeliciana. Me Vea, J.

      Batliffe & Laey and B. J. Boimncm, for plaintiff and appellant. J. H. Muse and F. Hwrclesty, for defendant.
   Dumeii, J.

This suit commenced by an injunction.

The defendant having become the purchaser, at the probate sale of Luke Drury, of a judgment obtained by said Drury against Joel Spencer, the husband of the plaintiff, in the District Court of the Parish of East Feliciana, on the 22d of April, 1842, sued out a writ of ft. fa. on the 12th of January, 1859, under which writ the Sheriff seized two slaves named Bob and Charles.

The plaintiff injoined the sale, claiming the slaves as her own, under a Sheriff’s deed of sale made to her on the 7th of September, 1844, at her suit against her husband, for a separation of property, &o., and pleaded tbe prescription of five, ten and fifteen years; and she produced her judgment in separation, the writ of execution and Sheriff’s return. She also attacked the judgment of Drury.

The defendant charges, in his answer, that the pretended judgment of the plaintiff was obtained through fraud and collusion with her husband, and is simulated, illegal and void on its face; that the judgment was rendered by consent, and did not therefore dissolve the community between the plaintiff and her husband Spencer.

The case was submitted to a jury, wbo returned a verdict in favor of the defendant.

The evidence shows that the plaintiff and her husband, Joel Spencer, have not lived together, asman and wife, since 1839; that Joel Spencer left the State permanently for Texas in 1839; has since made five or six casual visits to this State; that the plaintiff has, during the whole of that period, resided in the Parish of East Feliciana, and has been in possession of the slaves seized from the date of the Sheriff’s sale, in 1844.

The suit of the plaintiff against her husband was for .$8,600. She claimed judgment for that amount, and for a separation of property; and in order to secure her legal mortgage, she injoined the sale of certain landed property attached and seized at the suit of various creditors of her husband, among others Luke Drury. The agent and attorney in fact of Joel Spencer admitted his indebtedness in the answer; and Robert Perry, claiming to be the assignee and owner of the judgment obtained by Luke Drury as aforesaid, intervened, denied all the allegations of the wife, required strict proof, and prayed “that said suit may be dismissed with costs, and that the proceeds of the property injoined, as well as the ne-groes which remain unsold, be applied to the payment of the debt due him as aforesaid. ” This last petition is signed by the attorney who had obtained the judgment in favor of Luke Drury, and who had, it must be inferred, sued out the fi. fa. injoined.

The only evidence found in the record of the suit of the plaintiff against her husband, is the testimony of witnesses taken under commission in the State of Mississippi, showing that the father of the plaintiff had (he being at the time a resident of the latter State) donated to her certain slaves in 1821, after her marriage, and setting a value on said slaves. There is no note of evidence, and non constat that no other evidence was adduced on the trial below. It is, however, evident that the judgment in the case, which bears date April 30th, 1844, was rendered contradictorily and not on the confession of the husband, for it only decreed to the plaintiff $1,800, the value of the slaves donated as aforesaid, with privilege and mortgage on all the property of the husband, “ the mortgage, however, not to operate on the lands once owned by her said husband in the Parish of East Feliciana. ”

From the above facts, we are of-opinion that the plaintiff was regularly separated in property with her husband, and that the decree of separation carried with it a dissolution of the community. Davock v. Darcy, 6 R. 342; Holmes v. Harbin, 16 An. 553.

The facts that Robert Perry, as assignee of Luke Drury’s judgment, was a party to the proceedings, had caused to be issued the writ of fi. fa. on the judgment of Drury, and that the lands seized were sold under this and other writs, are binding on the present defendant, who cannot question those acts and proceedings under his pleadings.

We will not, consequently, examine the sufficiency of the proof adduced in the suit of the plaintiff against, her husband, nor the validity of the judgment of Luke Drury and its transfer to the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the injunction sued out by the plaintiff be perpetuated at the costs of the defendant, John Rist, in both courts.

Voobeuss, J., absent,


author: Buchanan, 3.

text:
    John J. Jones v. Alvin S. Britton.
    Wlioro there is a suggestion of the account and settlement of the administration, and discharge of the administrator, under the Act of 1855, page 78, the immediate dismissal of a suit against the administrator will not ho authorized. According to that statute, the proper practice seems to be, that the cause be continued for the making of the heirs parties, if that be practicable.
    Appeal from the District Court of East Baton Rouge, Avery, 3.

      J. W. Burgess, for plaintiff and appelllant. A. M. Bunn, for defendant.
   Buchanan, 3.

Plaintiff and McWhorter were in partnership in a newspaper called the Baton Rouge Gazette. McWhorter sold out his interest in the establishment to plaintiff on the 29th April, 1856, for twenty-five hundred dollars, in the two notes of the purchaser to the order of the seller, for twelve hundred and fifty dollars each, payable respectively one and two years after date of sale. The seller and purchaser were to be jointly liable for the debts of the concern.

McWhorter died before either of the notes became due; and defendant, A. S. Britton, was appointed his administrator. On the 6th December, 1856, the administrator, “for the purpose of liquidating the partnership affairs of McWhorter & Jones in the Gazette office, which partnership was dissolved by the death of said McWhorter,” purchased of Jones “ all his right, title, interest and claim in and to the Gazette printing- office, ” for' the sum of $3,500, payable as follows: $2,500 in the surrender of Jones’ two notes, favor McWhorter, “ the balance to be paid at the time of the side of the printing office. ” Moreover, the purchaser binds the estate administered by him, to pay the outstanding debts of the concern; and, in ease the proceeds of sale and of collection shall exceed $7,000, purchaser binds the estate to pay the seller oné-half of the excess.

Plaintiff brings this suit on the 19th February 1858, upon the last mentioned contract. He prays that defendant make an exhibit and render an account of his actings and doings, and pay to plaintiff such sum as shall be found due, under the contract.

Defendant filed for exception, that on the face of the papers, plaintiff bad no right of action until a final settlement and full administration of McWhorter’s estate, or of the Gazette concern.

Pending this exception, the defendant Britton died; and Buffington was appointed and qualified, as administrator of McWhorter’s estate, in his stead. Buffington made himself a party to this suit, and renewed Britton’s exception.

On the trial of the exception, defendant, Buffington, offered proof that the representative of Britton’s estate had rendered an account of Britton’s administration, which had been homologated; also that Buffington, administrator of the succession of McWhorter, had rendered a final account of his administration, which had been homologated by judgment of court, and the said administrator discharged from his trust, and his bond can-celled.

The plaintiff objected to this evidence, as inadmissible under the exception pleaded. But the objection was overruled,-and the suit dismissed for the reason that there was no party defendant iu court.

Plaintiff appeals.

The suggestion of the account and settlement of the administration, ¡and discharge of the administrator, and proof to sustain such suggestion, were improperly received by the Court. After such rendition of account iind discharge, the administrator was no longer competent to represent the estate; but the Act of 1865 page 78, section 1st, does not authorize the immediate dismissal of the suit, on account of discharge of the administrator. According to that statute, the proper practice seems to be, that the causo be continued for the making of the heirs parties, if that be practicable.

It is therefore a 1 judged and decreed, that the judgment appealed from be reversed; and that this cause be remanded, for the purpose of making the heir', of George 0. McWhorter parties defendant, on the motion of any party interested, and for further proceedings according to law; and that appellee pay costs of this appeal.

Land, J., absent, concurring.


author: Dunned, J.

text:
    N. R. Jennings v. R. F. Hodges, Sheriff, et al.
    The remedy by a sale a la folie enchere, is a harsh one, which must ia all cases, be strictly preceded by an observance of all the forms of law known in commutative obligations; and the putting in dofanlt, by a tender of a formal deed of sale, is a condition precedent to a recovery of damages.
    Appeal from the List. Court of the Parish of St. Helena, Wilson, J.

      Ilennen & Marlin, for plaintiff and appellant. Eussell & .Ellis, for defendants.
   Dunned, J.

The plaintiff having become the adjudicates, at a partition sale made by the Sheriff, of a certain tract of land, and having failed to comply with the terms of the adjudication, tho Sheriff re-advertised and sold the property to another party, at the risk of the first purchaser, as provided by the Code, Art. 2689.

The plaintiff enjoined the Sheriff and all the parties in interest, from completing the second adjudication by the execution of a regular deed of sale, for the avowed purpose of defeating any recourse on him for the difference in the price of the two sales, as he does not, unless compelled judicially, propose to take the land on the terms and conditions of the first adjudication. Apart from specific informalities charged by him as having preceded the first sale, and which, under the view we have taken of the case, do not require our attention, the plaintiff contends that he is not responsible for the difference in the price of the two sales, because he was not legally put in mora.

The injunction, it is palpable, issued improvidently, and of this opinion was the plaintiff himself, for he formally abandoned and dismissed it in the lower court.-

It is equally clear that the intervention of the plaintiff was premature; but inasmuch as the vendors have, by their plea in reconvention, joined issue, on the point made by the plaintiff, by claiming the difference of the two adjudications, we are necessarily called upon to review this branch of the case.

The evidence informs us, that on the day of the first adjudication, the Sheriff demanded twice of the plaintiff a compliance with the terms of the sale, and that a day was fixed for that purpose. No deed was ever formally tendered or drawn up, but the Sheriff informed the plaintiff that he was ready to comply with his part of the obligation. The plaintiff did not, however, appear on the appointed day.

On the first interview the plaintiff stated “that he had a partner in with him, and that the land had been run up very high on him, and that .if his partner was not satisfied, he did not know whether he would or could comply with the terms Of sale;” and at the second interview, the plaintiff “ made a conditional promise to attend at the time appointed. The condition was, that if his partner would go into the arrangement with him. He made no other objection.”

■ It appears, however, that the vendors took the matter into their own hands; for the Parish Recorder informs us, that after the sale, they and the plaintiff “came into my office in Greensburg, and stated that they wished a day fixed for the partition of the land; and that on that day he (Mr. Jennings) would comply with the terms of sale. I am Recorder of St. Helena Parish. Mr. Jennings said that on the day fixed for the partition the terms of the sale would be complied with, and that he would be present himself, or Mr. Ashford Addison would represent him. The partition was not had or made. On the day fixed for the partition, neither Mr. Jennings, Addison, or any one else appeared before me to comply with the terms of the sale, &c.”

The other testimony bearing on this point refers principally to statements made by the plaintiff, on or after the day of the second adjudication, and could not supply the want of a formal default, or dispense the vendors from making a tender of a valid title. The same remark applies to the averments contained in the petition of injunction.

Those declarations, by giving to them their utmost effect, only amount to a passive breach, O. 0. 1925, 1927; hence we must determine, from the above synopsis of the evidence, if the plaintiff was legally put in default.

Our predecessors have, on more than one occasion, declared that the remedy by a sale, á la folie encTiere, is a harsh one, which must, in all cases, be strictly preceded by an observance of all the forms of law known in commutative obligations; and that the putting in default, by a tender of a formal deed of sale, is a condition precedent to a recovery of damages. 0. 0. 1906, ’7 and ’8,1927, 2588, 2589; Stewart v. Spaulding, 6 L. R. 152; Municipality No. 2 v. Hennen, 14 L. R. 559; Hodge v. Moore, 3 Rob. 401; Petit v. Laville, 5 Rob. 117; Guillotte v. Jennings, 4 An. 242.

It cannot, it seems to us, be seriously contended, that the plaintiff was, under the above authorities, put in mor&.

The failure of the plaintiff to meet his ajDpointment with the Sheriff did not; in our sense, amount to a legal default; and in fact this arrangement was superseded by the subsequent one made with the vendors in person; and we have seen by the testimony of the Recorder that all the parties faffed to attend.

Our above view of this case, we are satisfied, operates harshly against the recomeners, but it is the consequence of their omission, and we are not permitted to disregard a now well settled principle of law to give effect to tlie equity of a particular ease.

Tlie appellees’ demand for an amendment of tlie judgment, by an allowance of special damages for the wrongful issuing of the injunction; was not filed in time. C. 3?. 890.

It is, for the reasons assigned, ordered and decreed, that the judgment of the District Judge he avoided and reversed, and that there he now judgment against the plaintiffs in reconvention, as in case of nonsuit, they paying the costs of their reconventional demand and of this appeal, and the plaintiff the other costs of the lower court.

Voobhtgs, J., absent.


text:
    John T. Grant & Co. v. Micajah Harris et als.
    The Sheriff’s return in relation to sales made by him under execution, is only prima fade evidence of the facts stated in it between the parties, and is subject, like other presumptive evidence, to be rebutted by contrary proof.
    Appeal from the Fifth District .Court of New Orleans, Hgglesion, J.

      T. G. cC* A. J. Semmes, for plaintiffs and appellants. Hace Foster, for defendants.
   Land, J.

This suit was instituted to annul a judicial sale at the suit of Watson & Kavanaugh and of William McMichael against T. C. Bates & Co., of two certain orders, each for ten thousand dollars, drawn by John T. Grant & Co. upon, and accepted by the New Orleans, Jackson & Great Northern Railroad Company, and to recover back the price of adjudication, on the ground that the orders were never, in point of fact, seized by the Sheriff, and were not the property of the defendants in execution at the time of the pretended seizure and sale, but belonged to third parties.

The defendants deny that the plaintiffs were the purchasers at the judicial sale, and specially aver that the adjudication was made to Thomas B. Lee, who never perfected the sale by a payment of the price; and further specially aver, that the Sheriff’s return on the writ of execution is erroneous, false, and not in accordance with the facts and proceedings under the writ.

On tlie trial in the court below, the defendants offered in evidence the sales-book of the Sheriff, and the testimony of certain witnesses to prove the allegation in them answer, that is to say, that the adjudication had been made to Thomas B. Lee in person,- and not as agent for plaintiffs or anyone else, but the evidence was rejected by the Judge a quo, on the ground that it tended to contradict the return of the Sheriff, which, under the circumstances of the case, concluded the defendants.

A bill of exceptions was reserved to the ruling of the Judge rejecting the testimony offered to prove the averments in the answer; and the defendants insist in this court that their bill of exceptions was well taken, and that the testimony should have been received on the trial of the cause.

If tlie plaintiffs were not, in point of fact, tlie purchasers at the judicial sale, they have no right to maintain this action on the grounds alleged in their petition, that is to say, on the grounds that the orders wore never seized by the Sheriff, and were not the property of the defendants in execution at the time of the pretended seizure and sale, but belonged to third parties; and whether the testimony offered was admissible under the pleadings, depends on tlie question whether the defendants were concluded by the Sheriff’s return on the writ of - execution, which declared that the adjudication of the orders seized had been made to Thomas B. Lee, as agent for John T. Grant & Co., the plaintiff's in this suit.

The defendants in this suit, M. Harris and Harris & Levi, were plaintiffs in execution against T. C. Bates & Co., by virtue of an assignment, and subrogation entered upon motion in open court, prior to the judicial sale; and the question presented is, whether a plaintiff in execution is concluded by the Sheriff’s return on his own writ, from contradicting the facts ■ therein stated.

The Sheriff’s return in relation to sales made by him under execution, is only grima facie evidence of the facts stated in it between the parties, and is subject, like other presumptive evidence, to be rebutted by contrary proof. ■ Lafon v. Smith, 3 L. 476; Succession of Goodrich, 6 R. 107; Lawrence, Syndic, v. Young, 1 An. 297,

The plaintiffs’ counsel, however, contend that the defendants are es-topped from contradicting the Sheriff’s return, by the recitals in an act of sale of certain railroad stock made by the plaintiffs to them, the defendants.

It is true that the act of sale contains a recital to the effect, that the two orders were purchased by tlie plaintiff's at the judicial sale, but if the act can be considered as an estoppel as to the defendants, it would be equally so as to the plaintiffs who are parties to it, and preclude them from recovering in this ease.

We are of the opinion that the Judge a quo erred in rejecting the testimony offered for the purpose of proving the alleged error in the Sheriff's return.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court bo reversed; and that this cause be remanded for a new trial, and further proceedings according to law, the appellees paying tlie costs of this appeal.

Voobhies, J., absent.


text:
    Benjamin Barner v. George W. Gorden.
    It is no good ground for a dismissal of an appeal that garnishees were not made parties thereto. It does not in any wise affect their rights, being neither for nor against them.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Reynolds & Davidson, for plaintiff. G. A. Breaux, for defendant and appellant.
   Land, J.

The motion made to dismiss the appeal in this case, cannot be sustained.

Tlie suit was commenced by attachment, and judgmont was rendered against the defendant, recognizing a privilege on the property attached. During the proceedings prior to the judgment against the defendant, certain parties were cited as garnishees, but no judgment whatever was rendered either for or against them in the suit.

From the judgment against him, the defendant appealed;' and the plaintiff has moved to dismiss the appeal on the ground that the garnishees were not made parties to the appeal.

The garnishees have no interest in maintaining the judgment against the defendant, because it does not in any wise affect tlie-ir rights, being neither for nor against them.

It is, therefore, ordered, adjudged and decreed, that the motion to dismiss the appeal in this case be discharged.

Vooehies, J., absent.


author: Vooehies, J.

text:
    Mrs. Eliza A. Vanwickle et al. v. Andrew Matta.
    ■When an hoir conveys to the administrator liis interest in the property, the latter does not act in his fiduciary capacity, and cannot he assimilated to a vendor when he disposes of it.
    The general rule is that all persons arc capable of contracting j the incapacity is the exception; and it should not be extended beyond the clear import of the law.
    The objection which applies to an adjudication in due course of administration, does not arise in a private transaction between the executor and one of the heirs. But even as regards judicial sales, the law has been modified by allowing parties in interest, who happen to be administrators or executors, to become purchasers. Acts 1840, p. 128 ; 1854, p. 155.
    With regard to all contracts between tlie tutor and the ward who has become of age, the text of the law is explicit: these are null and void if not preceded by a full settlement of the tutorship. C. C. 355, 1465, 1466. But as regards other ii luciary trusts, the prohibition is not so goneral, and for obvious reasons.
    The party’s relief in cases uf fraud is obtained uudor articles 1814 aud 1841 of the Civil Code.
    Appeal from the District Court of East Baton J.

      Bard &HaTl and George W. Helm, for plaintiff and appellant. Dunn iC Herron, for defendants.
   Vooehies, J.

The question presented in this cause is, whether an executor, whose administration is not at an end, can purchase the undivided interest of one of the heirs in some specific property belonging to the succession. In other words, does the prohibition contained in articles 1139 and 1784 of the Civil Code, strike such a contract with nullity?

In a case decided in the month of February last, (Peylon v. Enos et als.) we stated that, if the sale was null and void, the nullity was relative, and could avail only the heir or other party interested adversely to the administrator or curator; but the Court, on that occasion, declined expressing an opinion upon the question of the prohibition.

The object of the prohibition is to prevent the fiduciary from abusing his trust to the detriment of the estate entrusted to his administration. Ho cannot bo a vendor and a vendee at the same time; and, having provoked the judicial sale of the property, and, to a certain extent, having the supervision of the whole proceedings, it was but proper that lie should be precluded from becoming a purchaser, whether directly in his own name, or indirectly through the interposition of some one else.

But when an heir conveys to the administrator his interest in the property, a different case is presented. The latter does not act. in his fiduciary capacity, and cannot be assimilated to a vendor.

The general rule is, that all persons are capable of contracting; the incapacity is the exception, and it should not be extended beyond the clear import of the law.

The prohibition against purchases made by executors relates to property entrusted to their administration; and the law evidently contemplates that they shall not be tempted to avail themselves of their position in order to become the owners of such property. The objection which applies to an adjudication in dire course of administration, does not arise in a private transaction between the executor and one of the heirs. But, even as regards judicial sales, the law has been modified by allowing parties in interest, who happen to be administrators or executors, to become pur-ehasers. Acts 1840, p. 123; 1854, p. 155.

With regard to all contracts between the tutor and the ward, who has become of age, the text of the law is explicit: these are null and void, if not preceded by a full settlement of the tutorship. C. C. 355, 1465, 1466. But, as regards other fiduciary trusts, the prohibition is not so general, and for obvious reasons.

There is no suggestion of fraud in the present case; but, had there been, the question under consideration would stand unaffected. The party’s relief would be obtained under articles C. C. 1814 and 1841.

Judgment affirmed.

Land, J., absent, concurring.


author: Duefeii, J.

text:
    Henry McGuinn v. Michel Peri.
    Where one-fourth of the owners of lota fronting on a street do not join iu a memorial to have the street paved, the Common Council have no right to contract for its paving ; and such a contract will bo in valid against the property-holders.
    Appeal from the Fifth District Court of New Orleans, JSggleston, J.

      Whittaker & Fellowes, for plaintiff and appellant. Oollens & Wool-ridge, for appellees.
   Duefeii, J.

The required number of the owners of real property fronting on Carrollton Avenue, petitioned the Common Council of the City of New Orleans for the shelling of said Avenue, from Common street to Orleans street, and also for the shelling of Orleans street, from its junction tion with Carrollton Avenue to the Metairie Boad.

The above request was based on the 119th section of the Act of the Legislature approved March 20th' 1856, entitled: “An Act to amend an Act entitled 1 An Act to consolidate the City of New Orleans, and to provide for the government of the City of New Orleans and the administra-■tkm of the affairs thereof,” p. 136.

The Common Council ordered, by resolution, the shelling of said avenue and street, and the contract was adjudicated to the plaintiff, who, having performed the work, now sues the defendant, who owns a lot fronting on Orleans street, for his quota of the costs of said work.

The memorialists claim to be owners of real property fronting on Car-Avenue, and the evidence shows that none of the property holders of Orleans street, which latter street crosses the Carrollton Avenue at right angles, signed the memorial.

The Common Council, acting in virtue of the section 119 above cited, could, under the memorial, only order the shelling of the Carrollton Avenue, for the very obvious reason that, under the City Charter, the Orleans street could not be paved at the expense of the owners of lots front on the same, without a petition to that effect signed by one-fourth of said owners; and we have seen that no such petition was presented.

From our above view of the case, we conclude that the owners of real estate on Orleans street were not bound to take any notice of the petition of the property holders on Carrollton Avenue, and of the action of the City Council thereon; whence it follows, that no right of action lies against the defendant.

It is therefore ordered, that the judgment of the District Court, which is in favor of the defendant, be affirmed, with costs.

Land, J., absent, concurring.


text:
    Indian McCaleb et al. v. George Douglass et al.
    The affirmative answer of a testator to the question whether this was his will, is not equivalent to the “ presentation ” of the will to the witnesses as required by the second paragraph of articlo 1574 of the Civil Code. Without such presentation, the will must be declared void and of no effect.
    Appeal from the District Court of the Parish of Tensas, Farrar, J.

      Farrar, Snyder & Lewis, and A. JSr. Ogden, for plaintiffs and appellants. L. V. Beeves, H. B. Shaw, O. Boselius and T. W. Collens, for defendants.
   Buchanan, J.

This is a suit by certain heirs at law of Archibald Douglass, deceased, to set aside the will of the said Archibald Douglass, purporting to be a nuncupative will, under private signature, upon the following grounds:

1. That said Douglass was not of sound mind, at the time when said pretended instrument purports to have been executed; and from insanity and mental imbecility at that date, was utterly incapacitated to make any testamentary disposition whatever.

2. That said pretended will is not signed by said Douglass, with his own proper signature and name.

8. That said pretended will was neither written by the testator himself nor from his dictation; nor did the said Douglass present the paper purporting to contain his will, to the witnesses, and declare the same to contain his last will.

It only becomes necessary to examine the third of these grounds.

The wiE in question is attested by six subscribing witnesses. Of these four have given their evidence, on the trial of this cause. We subjoin so much of their testimony, taken down by the Clerk on trial, as bears upon the ground of nullity under consideration:

Samuel W. Dorsey, sworn, says: He was acquainted with the ]ate Archibald Douglass, deceased; became acquainted with him in 1841, and then up to the time of his death. Mr. Archibald Douglass died in 1856. Witness being shown the will of A. Douglass, says: On the day before Douglass died, I heard that he was very sick, and wanted to see me. I went over to see him about three o’clock the same day. The first person I saw was Mr. Bland, who told me he and Mr. D&uglass were anxious for me to write the will of Mr. Douglass, and that ho, Mr. Bland, also desired it.

He told me that I had heard of Mr. Douglass’ intentions, and what they had previously been. Mr. Bland said that he was very anxious that he should leave his property as he intended to do, and therefore wanted me to write his will. Mr. Bland’s remark to me, as well as I recollect, was, that he had raised those two boys, and took great interest in them. I then went into the room where Mr. Douglass was lying in bed. I asked him the question how he was; his reply was, that he-was very sick, and was very anxious to make a will. His chief object was to dispose of his property to his two nephews, James and George Douglass, and to provide for a negro woman, who had been very attentive to him whilst sick, and for some time. Don’t know that he mentioned how long, nor do I know how long. I then asked him the question; what negro woman ho meant. His reply was, that she was the daughter of a Mr. Cammack, residing some six miles off. He then asked me if ho could make her a present, of the sum of five or six thousand dollars, I do not recollect which. My reply was, as far as I recollect, that I supposed she was the slave of Mr. Cam-mack, and a donation of that kind would not invest the proceeds of the draft in her. His reply was, that she was either manumitted, or that she was about being sent out of the State to be manumitted. That was about the amount of the conversation I had with Mr. Douglass. He requested me at that time to write his will for him, and I was also asked by Mr. Bland and others to do so. I replied that Mr. Douglass was at that time very nervous, and that if I did so, I woirld like to have some form book. I wrote the will the next day. I remarked to his friends, Mr. Bland and others, that X would return the next morning, and went in to see Mr. Douglass before I left, and promised him to return in the morning. On the following morning I returned, between eight and nine o’clock. I then had an interview with Mr. Douglass. He was at that time much more calm and collected than on the previous evening, and expressed a great desire to have his will written. He informed me that Mr. Bland had suggested to him that he should leave a certain number of smaE legacies to other members of the family, who would be gratified by the same.

After I had been standing by his bedside for some time, Mr. Bland came in, and the subject was then mentioned about some legatees who were in indigent circumstances, and that it would be a great favor to them to do so; to which Mr. Douglass assented. He had mentioned the subject before to me, and after Mr, • Bland came, -it was repeated in his presence. I then procured some ink and some paper, and went to a room immediately opposite the room Mr. Douglass occupied, and wrote this will, on several times visiting Mr. Douglass, and asking him if I understood him aright as to how those legacies were to he made, and in reference to the freedom of some negroes. There was no one present in the room ■while I was writing the will, though persons would occasionally step in for a few moments, except on one occasion Mr. Bland stepped in and commenced reading the will, and made some suggestions to some parts of it, and I told him I was writing Mr. Douglass’ will, and not at his, Mr. Bland’s, dictation. His reply, as well as I recollect, was, his anxiety about James Douglass and George Douglass, the principal legatees. Mr. Barton, one of the subscribing witnesses to the will, was present in the room at the time Bland came in. I then took this will to Mr. Douglass’ bedside, and .told hi a I had written his will, and wanted him to be particular and see if it was according to his dictation and direction, in the presence of witnesses, and he mentioned to me that I had omitted the name of a woman named Iieziak, and wanted her name inserted, and I filled the name in; then, at his suggestion, a blank having been left in the will for that purpose, I filled in the name in my own handwriting. After the will was read and approved of, sentence by sentence, by Mr. Douglass, he raised up in bed and signed his name to it. I read the will fully and audibly, so that all the witnesses could hear it, my object being to comply fully with the law. When I had read this will to Mr. Douglass, I told him I wanted him to be certain it was his last will and testament; and Mr. Douglass answered to my question, yes, after each sentence being read, and then answered yes to the last sentence. Myself and the other witnesses signed the will, in Mr. -Douglass’ presence. The signature to the ■will is the signature of Mr. Douglass. I saw him write it with his own hand. Mr. Bland did not dictate to me the terms of this will at the time I was writing it, nor did he dictate it to me at any other time. Whilst I was engaged in writing the will, I do not recollect ever asking Mr. Bland to go into Mr. Douglass’ room and ask him about the clauses in it. I recollect distinctly that I did not ask Mr. Bland to do so. Mr. Bland did not pass back and forth from Mr. Douglass’ room to give me any instructions about the will. Mr. Bland may have walked into the room while I was writing in the room, but I only recollect distinctly his coming into the room once, as before stated. I wrote the will in my own language, to express the wishes of the testator, as communicated to me by him, and not in the language of Mr. Bland. Mr. Bland remarked to me that morning, that Mr. Reeves was coming. I remarked to Mr. Bland that Mr. Douglass was in great anxiety to write the will. It was during the writing of the will that Mr. Reeves came; I do not recollect the precise time. I recognize the signature of each of the witnesses, signed by the witnesses in my presence, and that of the testator. All the witnesses were residents of the Barish of Tensas at that time. The place of the execution of the will was at the residence of Mr. Douglass, in this parish.

Mr. Douglass directed me to insert this provision in his will in relation to the legacy to Sally Wright. I endeavored in writing this will to express the wishes of the testator. The provisions were certainly communicated to me by Mr. Douglass.

Gross-examined.

The words were mine, and I used them to express the intention of the testator. He expressed to me the exact amounts he wished to leave to each one, as I asked him about them at that time.

Witness says he cannot recollect whether Mr. Douglass dictated the terms consecutively about the legacy to Sally Wright. The witness is asked by the counsel for plaintiffs. Witness being asked whether, before the wiH was read in presence of the witnesses, the testator had presented the paper to the witnesses, declaring that it contained his will, or whether, before the reading of the will, the testator had declared that the paper about to be read contained his last will, witness answers, “that he does not recollect that eU7ievwa,s done.”

In the questions asked by him of Mr. Douglass in the making of his will, there was no suggestion made by witness to Douglass about any testamentary disposition to any person. That his questions in relation to the testamentary dispositions were only made to ascertain more clearly the wishes of the testator, so that he could express them more definitely.

Oross-examined.

On witness’ first interview with Mr. Douglass, the day before the will was written, does not recollect his saying any thing to him about any testamentary disposition to Mrs. Wright. The next day Douglass told him that Mr. Bland had suggested the propriety of making some particular legacies. Mr. Douglass told him that Mr. Bland had suggested the amounts, and Mr. Douglass said he had no objection. Witness does not recollect, in calling over the legacies, whether Mrs. Evans’ or Mr. Prior’s names were mentioned or not.

Witness was extremely anxious to carry out the wishes of the testator, and make a good and valid will; and witness’ whole attention was directed to this object. Witness’ impression is that he remained at Mr. Douglass’ about an hour or an hour and a half after the will was made.

John Y. Sevier, sworn by defendant. He is a resident of the Parish of Tensas. Was a resident in 1856; was acquainted with A. Douglass, deceased. Examined the last will marked (A), recognizes the signatures of the witnesses to it. Recognizes Mr. Douglass’ signature thereto; he saw him sign it. Witness states that the will was read over to Mr. Douglass, in an audible voice, in the presence of the witnesses, before Mr. Douglass signed it. Mr. Douglass requested to be held up in bed, to sign the document. Mr. Douglass requested him to witness the will. After the will was written, and Mr. Dorsey had read it to Mr. Douglass, and asked him if it was his last will and testament, he said it was. It was in the presence of all the witnesses, and immediately after that, that Mr. Douglass signed the will. Witness signed the will, together with the other witnesses, in presence of each other, and in presence of Mr. Douglass.

L. L. B. Barton, sworn, says, he is a resident of the Parish of Tensas; was there during the year 1856. Being shown the document marked (A), says he recognizes his signature to it, also the signature of John Y. Sevier, and saw Mr. Douglass sign the will. Says he would not recognize Mr. Douglass’ signature ordinarily, but that he saw Mr. Douglass sign that will. The will was read over to other persons outside of Mr. Douglass’ room; and witness is positive that it was read over to Mr. Douglass before he signed it.

Question. “Did or did not Mr. Douglass, in presence of the witness jiind the other subscribing witnesses, and before signing document (A), declare that it was his last will and testament; and if not, what did he say in relation to it? ”

Witnes s answers, he does not recollect the exact words of Mr. Douglass; but the purport of it was, that it was his last will. He had some corrections made in it before signing it.

This witness and the other subscribing witnesses signed this will, in the presence of Mr. Douglass, and in the presence of each other. Witness was in the room when Mr. Dorsey was writing the will; and while writing it, when Maxwell W. Bland came into the room, that Mr. Bland asked Mr. Dorsey if he had got to the describing of the property, and Mr. Dorsey told him to go away, — that he would read the will to him after it was done; that Mr. Bland did not, in the presence of witness, dictate any legacies to Mr. Dorsey, or any part of said will.

Gross-examined.

Witness says that Mi'- Bland was in the room when Mr. Dorsey was writing the will, once or may be twice. Witness thinks Mr. Douglass declared that it was his will, but is not sure. Witness being asked, “whether he, Mr. Douglass, made a voluntary statement that it was his will,” says that Mr. Douglass did so, only by signing it. The correction of interlining the name of Keziali was all the correction that witness saw made in the will.

Examination by Plaintiff Resumed.

Witness says — I think that Mr. Douglass did say, at the time of signing that will, that it was his will, or words to that effect.

H. C. Sevier, sworn on his voir dire, says: Witness is a brother-in-law of one of the defendants in this ease. Witness says he does not know but ■what he does feel an interest in the result of this suit; witness is not directly or indirectly interested pecuniarily in the result of this suit, and the interest he feels in it would not prevent him from testifying the truth; that he would not be made richer or poorer by the result. Witness lived in the Parish of Tensas in December, 1856; witness being shown the docl ument “A,” recognizes his signature, and the signatures of the other witnesses. Saw Mr. Douglass sign the will in the presence of the witnesses whose names are to the will; witness and the other witnesses signed the will in the presence of Mr. Douglass, and in the presence of each other. The will was read over in an audible voice to Mr. Douglass, in the presence of the witnesses, before Mr. Douglass signed it; Mr. Douglass declared that the document was his will when Mr. Dorsey read it over to him. Mr. Dorsey asked Mr. Douglass if that was his will, and he answered, “ Yes;” by which witness understood him to declare that it was his last will.

■As to the mode in which this will was prepared and written, there is the evidence of another witness in the record, who was not a subscribing witness of the will, but whose testimony is very important. This witness is the Mr. Bland, so often mentioned in the previous testimony. The following is his deposition, taken under a commission:

Answers of If. W. Bland to Interrogatories and Oross-interrogaiories. ,

(The interrogatories and cross-interrogatories found on pages 85, 86 and 87 of the record. The answers on pages 89, 90, 91, 92, 93, 94, 95 and 96 of the record.)

Answer to 1 si interrogatory. I know them all, and have known them for the last fifteen or twenty years.

2d. I am the step-father of the defendants, James Stewart and George Douglass and Mrs. Wright, and of course am connected with Mr. Prior and Mrs. Evans, their uncle and aunt, and Mrs. Indian McCaleb, their cousin.

3d. I knew him well and intimately.

4th. I knew him from the year 1838 till his death, a period of about eighteen years, in Louisiana and Mississippi.

5th. I married his deceased brother’s widow, Mrs. Emeline Douglass, the mother of George and J. S. Douglass, the defendants.

6th. I have examined the document. I saw the original written, and most of it is in my own language. The original was written by S. W. Dorsey, Esq., of Tensas parish, at the house of Archibald Douglass, on the 28th of December, 1856, and there is where I first saw it. It was intended for the last will and testament of Archibald Douglass, who was lying very ill, in a dying condition, at his house, in a room near to which the will was written. No one was present in the room where the will was being written, except Mr. Dorsey and myself. While Mr. Dorsey was in the act of commencing the will, he requested me to step into Douglass’ room and ask him something about the legacies, if he did not want to give something to his other relatives. I did so, and named most of the other relatives, and Douglass answered “well;” and when asked how much to give them, he answered, “ you say. ” With this answer, I returned to the room where Dorsey was writing, and had the will written according to my idea what Douglass ought to do. At no time, to my knowledge, did Douglass dictate any portion of that will to Mr. Dorsey. That portion of the will which gave Cornelia Cammack $5,000 was modified, at the suggestion of Mr. Dorsey, with the condition that she should be manumitted by her master, Y. Cammack. I suggested the legacy and its amount, and Mr. Dorsey, being a lawyer, suggested the conditions of it. After the will was written out, L. V. Reeves, Esq., arrived at the house, and came into the room where Mr. Dorsey and I were. Mr. Dorsey then read the will over to Mr. Reeves, and he, Reeves, said it was better for him to write the will over again, as he was afraid it was not right, and might give rise to trouble. But I told him it was then too late, as Douglass was fast sinking, and I refused to let him write it over. Mr. Douglass’ mental and physical condition was very low, and the will had to be written very rapidly. I hurried Dorsey several times, and told him to lose no time. Mr. Dorsey acted as scribe, and wrote down the various legacies, as I stated them, and frequently in my own words. I had had frequent conversations with Douglass when in health previously, and had a tolerable notion of what his views were as to the disposition of his property. When I did not recollect them, I dictated the will in accordance with what I thought was right and just. In relation to the legacies to Mrs. Wright, Mrs. McCaleb, and the two young Evanses, I fixed them at about what these two ladies owed, and enough to school the Evanses. I intended to place Mrs. Lucinda Evans in the will as a legatee, but was in such a hurry that I entirely overlooked her.

7th. I saw, as I said before, the will written. I have stated in the preceding answer the circumstances under which it was written. After it was written, Dorsey took it into Douglass’ room, and the other witnesses being called, Douglass was propped up in bed, and either Dorsey or Reeves read the will over. Douglass seemed to pay as much attention to the reading as a man in his deplorable condition could do. There are conditions, however, attached to some of the legacies in the will, which Douglass, even in health, could not understand or appreciate, much less in his then condition. He appeared to assent to what was done and said in the will, as he had always been in the habit of doing in his business matters, which I had managed for the last ¡ten or twelve years of' his life. When the reading was finished, a pen was placed in his hand, when he scrawled upon the paper, “A. Doglass,” being unable to spell his own name correctly. After this act, Douglass wont immediately into a deranged state of mind, which continued until his death. A few moments before Dorsey and I went out to make the will, the slaves Harry Truman, Wash, Columbus, Caroline and Keziah, or most of them, came into Douglass’ room, and called his attention to a previous promise to emancipate them, when he said, “I did,” and made some remark to the effect that he would free them. When the will was read, Keziah’s name had been left out, and she, having heard the reading, burst out weeping, when Douglass exclaimed, “ and Keziah! ” and her name was then inserted.

8th. I have already stated that Douglass did not dictate the will, but that I dictated nearly the whole of it, and Dorsey wrote it.

9th. I have already answered this in my previous answers.

10th. I believe I have stated all I know that I can now recollect distinctly about the writing and execution of the will.

The evidence of these witnesses does not accord in every particular; indeed, there are material contradictions between the testimony of Dorsey and that of Bland.

But it is evident from the testimony of each and'every witness exam--ined, that the will of Archibald Douglass was neither dictated, as proscribed in the first paragraph of Art. 1574 of the Civil Code, nor presented by the testator to the witnesses, as irroseribed in paragraph second of the same article. It is impossible to say, from the evidence, how much of this testament is the expression of the intentions of the testator, and how much of those of Bland. The affirmative answer of the testator to the question whether this was his will is not equivalent to the ‘ ‘ presentation” of the will by the testator to the witnesses required by the Code. The circumstances of the case resemble those of Bardelabon v. Averett, 11 An. 636. As in that case; the testator was dying when the will was road for the first time to him and to the witnesses simultaneously. The counsel of defendants rely upon the case of Bouthemy v. Dreux, 12 Martin 639. Without inquiring how far that case may now be considered as authority, we content ourselves with observing that the circumstances related at page 642 of the report, differ materially from the facts of the present case.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that there be judgment for plaintiffs; that the nuncupative will under private signature of Archibald Douglass, dated 28th December 1856, be decreed to be null and of no effect; that the cause be remanded to the District Court for further proceedings in partition of the succession of said Douglass, - as ab intestato, among his heirs at law; and that defendants and appellees pay costs in both courts.

Yooühies, J., absent.


author: Voobhies, J.

text:
    Elizabeth Hollingshead and Husband v. Lewis Sturges, Ex’r, et als.
    A party may well ask the nullity of a will, and, in case he fails in that instance, sue for a reduction of excessive dispositions.
    The object of probating a will is .to procure its execution ; and when a judgment of homologation is obtained contradictorily with proper parties, the judgment, as between them, will bar a subsequent action in nullity.
    Appeal from tlie District Coiirt of East Eeliciana, Me Vea, J.

      W. J. Hamilton, W. F. Kernan, F. J. Bowman, and Fuqua & Kil-bourne, for plaintiffs. Muse & Hardee and F. Fond Jr., for defendants and appellants.
   Voobhies, J.

The object of the plaintiff’s demand is two-fold: in the first place, to obtain the homologation of a will of Mary Kepler, deceased, dated ■— December, 1859; and, secondly, to obtain an order of court pronouncing the previous will of the deceased, dated May 9th 1851, revoked by the subsequent will, and by a letter of hers bearing date September 29th, 1859..

The plaintiff being the mother, and as such the forced heir-of the deceased Mary Kepler, prays for a reservation, at all events, of her legitime.

The defendants, — the executor and legatees, — excepted to this action, upon the grounds that the demands were inconsistent and incongruous; that the petition does not disclose any right of action on the part of plaintiff; and that no action can be had on a will which has not been probated.

'This exception was partly sustained; the District Judge restricting the demand to the probating of the last will of the deceased, and to the recognition of whatever rights the plaintiff might have as forced heir.

The defendants offered to file an answer, in which several grounds of nullity are set against the will of the 29th September 1859; but, upon objection on the part of the plaintiff, this document was not admitted,— the Court deciding that the object of the suit was merely to obtain the probate, and not to test the validity of the will.

The case, upon being tried, resulted in a judgment homologating the second will, and decreeing the revocation of the previous one.

We are of opinion that this cause should be remanded for a new trial.

The plaintiff has a right to have tried the several issues presented by her pleadings. There is no inconsistency or incongruity in the several demands contained in her petition. The right to the legitime is disiinct and apart from whatever rights, which she may claim by virtue of the will of her deceased daughter; and, should the succession be intestate, her rights beyond the legitime would be derived from the law. There can therefore be no impropriety, as a matter of pleading, to claim the whole succession either by virtue of a will or by effect pof law, and, in the alternative, to ask a reduction of such legacies as intrench upon the legitime, should the succession be testamentary. A party may well ask the nullity of a will, and, in case he fails in that instance, sue for a reduction of excessive disposition».

On the other hand, the defendants were entitled to attack the validity of the second will, when the attempt was to have the same probated. The object of probating a will is to procure its execution; and, when a judgment of homologation is obtained contradictorily with proper parties, the judgment as between them will bar a subsequent action in nullity. The answer assailing the validity of the will of September 1859, should have been filed, and the issue therein tried.

In the unsettled state of the pleadings and of the evidence, as presented in the record, it is not proper that we should pass upon the question of revocation. Nor are we prepared to say whether or not, under the pleadings and the evidence, the nuncupative will by private act of Mary Kepler, deceased, is a valid testament.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that this cause be remanded for further proceedings; the plaintiff and appellee paying the costs of appeal.

Land, J., absent, concurring.


author: Duefed, J.

text:
    J. B. McClendon v. Bennett & Addison.
    A writ of sequestration which has been issued without the affidavit and bond required by Art. 276 of tlio Code of Practice, will be set aside.
    Appeal from the Dist. Court of the Parish of St. Helena, Wilson, J.

      S. J?. Bussell, for plaintiff. B. If. Hemien, for defendants and appellants.
   Duefed, J.

The plaintiff addressed a petition to the District Court of the parish of St. Helena, for a writ of sequestration of certain landed property. The writ was granted and executed, and the property restored to the defendants on giving bond, conditioned according to law.

The plaintiff based his demand on the allegations, lo., that he had acquired the property in question at a Sheriff’s sale made in execution of a writ oifi. fa. at the suit of Hugh & Dowling v. New Orleans & Nashville R. R. Company; 2o., that said Hugh & Dowling having sued out an alias fi. fa., and the Sheriff having levied on the same property, he enjoined the sale and the case was, on recusation, removed to the Fourth District Court of New Orleans, where it is still pending; 3o., that the Sheriff, by reason of said transfer of the cause, “declares that he is without authority to protect or preserve possession of the land above described;” 4o., “that inconsequence of said lands being left unpro-tooted, he is greatly injured by trespassers who have gone upon said lands, and cut and destroyed largo quantities of valuable timber. That one Elisha Bennett and Israel Addison are at this time upon said lands without a shadow of right in law or in fact, &e.”

Tho said Bennett & Addison answered tho plaintiff s petition, asserting title in themselves, and excepted to 'the whole proceedings as being irregular and contrary to law, 1st, because the sequestration issued without affidavit or bond; 2d, because the petition has not been filed in time. The second objection is now abandoned.

Tho District Judge overruled tho exceptions, and, on an e.a parte trial, nonsuited the defendants on their ideas of ownership and damages.-

Tho first ground of exception was well taken. C. P. 276.

It is not correct to say that tho defendants cannot oppose tho want of all the legal formalities, because tho sequestration was to await the final action of the suit in injunction to which they are strangers, 1st, because it was issued against them by reason of. their alleged possession and depredations; 2dly, because, as between the parties to the injunction suit, the writ should have been issued by the court seized of jurisdiction, the 4th District Court of New Orleans.

It is therefore ordered, that the judgment of the District Court, be avoided and reversed. It is further ordered, that the writ of sequestration bo, on tho exception of the defendants, set aside and dissolved, at the costs of the plaintiff in both courts, without prejudice to tho claim in damages of tho defendants.

Voobhxes, J., absent.


author: Mebbiok, C. J.

text:
    Tufts & Hobart et als. v. Thomas J. Casey.
    No .appeal can be ontdrtainod in this Court to reviso that which has alroady oblainod the force of the thing adjudged upon a former appeal.
    Appeal from the Fourth District Court of New Orleans, J.

      Bonford, Singleton & Olack, for plaintiffs and appellants. Benjamin, Bradford c6 Finney, for defendants.
   Mebbiok, C. J.

On the 5th of November the syndic filed his provisional tableau of distribution, on which he placed the appellants as mortgage creditors for @18,108 04.

M. Abrams, among others, filed an opposition to the tableau of distribution, claiming to be a creditor by privilege in virtue of an attachment. Having been defeated he appealed to this court, and final judgment was rendered recognizing his privilege for the amount of the proceeds of the property attached, viz, 3,251 85. See 15 An. 258.

Keep, Bard & Co. were parties to the record and had given evidence of their claim on the trial of the oppositions.

On the forwarding of the mandate from this Court, viz, in July I860, the syndic filed what he calls a “supplemental tableau to the 1st pro- “ visional tableau to mate the same conform to the decree of the “ Supreme Court on the opposition of M. Abrams.”

Abrams complained oí this last tablean by way of opposition, because be said it did not conform to the decree of this Court.

Keep, Bard & Co. filed an opposition, on the ground that their mortgage to the real estate was anterior in date to the levy of the attachment upon the movables, and that the syndic had placed to the credit of Abrams the net proceeds of the sales of the furniture seized under the attachment, amounting to §2862 03, whereas, they aver, that inasmuch as the personal effects are insufficient to pay the general privileges affecting the movables, the deficiency, §1764 94 ought first to be deducted from the proceeds, and only the residue, §1097 29, ought to be distributed'to said Abrams; instead of which, the fund set apart to Keep, Bar-d <fc Co. is made to sustain said deficiency of §1764 94. They pray that the last tableau may be corrected accordingly.

The District j'..dge amended the tableau by placing the clerk of this Court thereon as creditor for §28 80, the costs, but dismissed the opposition of Keep, Bard & Co., on the ground that they were concluded by the judgment of this Court which had the force of the thing adjudged. They appeal.

Abrams moves to dismiss the appeal.

The supplemental tableau was but an exhibit in more convenient form, of the funds awarded to the different creditors by the decree of this Court. It was nothing more than the result of the arithmetical calculations necessary to carry into effect our decree, and consequently not subject to any opposition except that which should allege a departure from that decree.- The opponents do not complain of a want of compliance with our judgment on' the part of the syndic, but they seek to go behind the decree itself and obtain a redress which was not granted them by the former judgment.

No appeal can be entertained in this Court to revise that which has already obtained the force of the thing adjudged upon a former appeal. See Nolte v. His Creditors, 7 N. S. 641.

It is, therefore, ordered, adjudged and decreed by the Court, that the appeal in this case be dismissed, at the costs of the appellants.

Vooehies, J., absent.


author: Dueeed, J.

text:
    Edward D. White v. James Maguire et al.
    An Appellant has tlie right (C. P. 595) to withdraw his appeal, on motion,at any time before the appel-Iüü lias been cited; and in such, a case he may renew it, according to that article and article 593, within a year if he reside in the State, or two years if he he absent therefrom.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Schuard C. Kelley, for plaintiff and appellant. Kace é Foster, for defendant.
   On a motion to dismiss:

Dueeed, J.

The motion to dismiss cannot be maintained, lo. The appellant had, under the article 695 of the Code of Practice, the right to withdraw, on motion, his appeal, as the appellee had not then been cited. 2o. The second appeal was seasonably taken during the year; and when, as was the case, the Supreme Court closed its session before the return day fixed by the District Court, the record of appeal was properly filed on the first day of the succeeding term. Wells v. Lamothe, 10 La. 410. Besides, the appellee haying caused the case to be set down for trial, can not now urge such objections, Creevy v. Breedlove, 12 An. 745.

Motion dismissed.


text:
    Edward D. White v. James Maguire et als.
    Actions for torts, injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offences or quasi-oflfencos, are prescribed by one year.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      F. G. Kelly, for plaintiff and appellant. Face é Foster, for defendant.
   Land, J.

This suit is for the recovery of damages for an alleged tort committed prior to the 13th day of September, 1854. The petition was filed on the 16th of May, 1856, and citation was served on the defendant on the 19th of the same month and year.

The prescription of one year was pleaded to the action, and is a bar to plaintiff’s recovery. C. C. Art. 3501,

Judgment affirmed.


author: Voorhigs, J.

text:
    The N. O. St. Joseph’s Association v. A. Magnier.
    To the general rule that parties to a contract cannot stipulate hut for themselves, there is an exception when one makes, in his own name, some advantage for a third person the condition or consideration of a commutative contract, or onerous donation. C. C. 1884,1896. He for whose benefit this advantage is stipulated, has an equitable action to enforce the -stipulation, when he has signified his assent in the premises. 0. P. 35.
    A penal obligation cannot be stipulated for the benefit of third persons. A penal clause, being a secondary obligation having for its object the enforcement of a primary obligation, cannot be assimilated to a condition or consideration. C. 0. 2113, 2115.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Bwrant & Hornor, for plaintiff. Field & Blocker and 0. Bufour, for defendant and appellant. '
   Voorhigs, J.

The defendant, Magnier, and several other hatters in the city of New Orleans entered into a contract to close their respective stores on Sundays. They stipulated, in express terms, that those who would violate this obligation, would become subject for each infraction, to a fine of one hundred dollars for the benefit of the asylum of the St. Joseph’s Orphans.

A. Magnier having, on several Sundays, opened Ms store, the present suit was brought to recover the stipulated fine.

To the general rule that parties to a contract cannot stipulate but for themselyes, there is an exception when one makes, in his own name, some advantage for a third person the condition or consideration of a commutative contract, or onerous donation. 0. 0. 1884, [1896. He, for whose benefit this advantage is stipulated, has an equitable action to enforce the stipulation, when he has signified his assent in the premises. C. P. 36.

The text is clear that the advantage must be the- condition or consideration of the contract: hence it is that a penal obligation cannot be stipulated for the benefit of third persons.. 6 Toullier, No. 846; Holland de Villargues, 2 Diet. Not. No. 60; C. N. 1121.

A penal clause, being a secondary obligation having for its object the enforcement of a primary obligation, cannot be assimilated to a condition or consideration. C. 0. 2113.

“The penal obligation, says O. C. 2115, has this in common with a conditional obligation, that the penalty is due only on condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts there must be always a principal obligation, independent of the penalty; while in conditional contracts, there is no obligation, unless the condition happens.” *

The stipulation to pay a fine of one hundred dollars for each violation of the contract, is, hi the very language of the parties, a penal obligation. Its very object and purpose is to enforce the primary obligation, which each of the contracting parties assumed, to close his respective store on Sundays. It is a strained” and unnatural construction to say that the contract was entered into with the view of making a donation to the plaintiffs, dependent upon the condition that any of the parties would not close their stores. This* was a commutative contract with a penal clause, not a conditional donation.

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

Land, J., absent, concurring.


text:
    S. B. Nettles v. The Sheriff et als.
    By article 2341, dotal immovables may be sold “ for the purpose of liberating from jail either husband or wife,” &c.
    Appeal from the District Court of East Feliciana, Mo Vea, J.

      D. B. Sanford, for plaintiff and appellant. Muse <& Hunter, for defendants.
   Voobhies, J.

The plaintiff, a married woman, gave her note to tho seizing creditors, who are attorneys-at-law, for the purpose of defending her husband, who was then confined in jail on a charge of manslaughter.

The question is, whether she is bound by such a contract.

The 'husband and wife owe to each other support and assistance. C. C' 121. She bears a proportion of the marriage charges, equal, if need be, to one-half of her income, when all her property is paraphernal, and she has reserved to herself its administration. O. C¡ 2366, When separated in property, she contributes to the expenses of the marriage to the amount of ope-half of her income, C. 0. 2397. And if there remains nothing to the husband, the wife, who Iras obtained the separation, is bound for all the household expenses and for those incurved for the education of the children. 0. C. 2409. Lastly, she can alienate even her immova-bles in all cases where the alienation of the dotal property is j>ermitted. C. C. 2411.

Now, by Art. 2341 of the Civil Code, dotal immovables may be sold “ for the purpose of liberating from jail either husband or wife,” etc... If the wife can alienate her dotal and paraphernal property for such purpose, it is because a contract to that effect is legal and binding- upon her. (See Gilbert, Code Civil Annoté, notes to Art. 1658 of the N. 0.)

The charge of fraud preferred against the creditors is wholly unsupported by proof.

Judgment affirmed.

Land, J., absent, concurring.


text:
    Succession of Benjamin Andrews.
    From tlie moment when the citation of appeal is served on the appellee, tlie appellant cannot withdraw his appeal; and whether the appellee ohtaia the rejection of the appeal by producing the record from the court below or prosecute execution on the judgment appealed from, on the certificate of the Cleric that the record has not been brought up by the appellant (within three days after the time allowed him to file the record) the appeal shall be considered as abandoned, and the appellant shall not after-wards be allowed to renew it. 0. P. 594, 5S9 ; 15 An. 591 arid 592.
    Appeal from the District Court of Washington, Wilson, J.
    21 O. W. Ellis, for Burris, curator. Alfred Hennen, for defendants.
   Buchanan, J.

The appellee moves to dismiss this appeal on the following grounds:

1. That appellant applied for and obtained an appeal to this court, returnable on the fourth Monday of February, 1860, from a judgment ren- ’ dered by the District Court on the 15th December, 1859; that he failed to give bond and take the necessary steps to prosecute his said appeal; that appellant thereby abandoned his appeal, and cannot be permitted to renew it.

2. That having failed to bring up his said appeal within the time prescribed by the order of court and at the regular return day, ajjpellee ob,-tained the .certificate of the Clerk of the Supreme Court, stating that the record had not been brought up, &c., which certificate ajjpellee produced riat the next regular term of the-District Court, and obtained award of exe- . cution upon the judgment, which thereby became irrevocable; that the subsequent appeal from the said judgment is consequently illegal, and cannot be entertained. - ■ •

The facts stated in this rule are shown to he true by the record. And under the law and the practice of the court, tisis motion must prevail. C. P. Art. 589, 594; 15 An. 591; Ibid. 592.

Rule absolute, and appeal dismissed, at costs of appellant.

Land, J., absent, concitrring.


text:
    Henry Marks, Under Tutor, v. Mary A. and J. Witkouski.—M. V. Witkouski, Intervenor.
    ■Where an under tutor acts collasively and corruptly to defraud the minor, it wilt justify his removal from office; and damages will be awarded against him on proof of the loss sustained by his fraudulent conduct.
    Appeal from the District Court of the Parish of Carroll, Farrar, 3.

      Jones & Dougherty, M. DuBose and G. A. DeFrance, for plaintiff and appellant. Sparrow and Montgomery, for appellees. H. Short, for inter-venors.
   Buchanan, 3.

Thomas Davis died in the Parish of Tensas, leaving 'a considerable estate in land and negroes, and several minor children. His widow, the natural tutrix of his children, having married again, was continued in the tutorship, and her second husband, Julius Witkouski, was joined with her in the tutorship. They applied for the sale of the minors’ property, for the purpose of paying debts and effecting a partition. One of the minors, a married woman, assisted by her husband, joined in this application. The present plaintiff, under tutor of the minors Davis, signed a consent to the sale on the terms prayed for in the petition of tutrix, ‘ ‘ believing the same to be for their interest. ” A family meeting was thereupon ordered to be convoked; which met, and advised the sale on the terms proposed; stating them reason for thus advising,,to be, “that we think it will be to the interest and of evident advantage to said minors, to sell said property and invest the money as we have advised. ” The under tutor was not present at this family meeting. The Clerk having homolo-gated the deliberations of the family meeting and ordered the sale to take place, the under tutor filed this suit or opposition by petition, alleging that the sale was illegal by .reason of his (the under tutor’s) absence from the family meeting; that the sale was unnecessary and prejudicial to the interest of the minors; that the object of the tutrix and co-tutor was, to defraud the minors Davis of their just rights to the estate of their father; that they had neglected to give security for their administration, and had maladministered the estate. This.petition concluded by a prayer that the tutrix and co-tutor be cited; that the judgment homologating the proceedings of the family meeting be set aside; that the sale be declared prejudicial to the minors; and that the tutrix and co-tutor give security, or in default thereof, be dismissed from their said offices.

The evidence shows, also, that the under tutor appeared at the public crying, and notified the persons present that he opposed the sale; whereupon the crying and adjudication were postponed.

The defendants, and ateo the married heir, assisted by her husband, intervening herein, plead, that the opposition of the under tutor has its origin in a corrupt motive, to wit, to extort from the tutrix and co-tutor one-half of their commissions, and the payment of a certain note held by the under tutor against the defendants; that the proposed sale was necessary and advantageous to the minors; and that damage has been suffered by the estate through the opposition made by the plaintiff. They pray that he be deprived of the under-tutorship and sentenced to pay damages.

The judgment of the District Court ordered the sale to proceed in due course of law; dismissed the plaintiff and opponent from his office of under tutor; and condemned him to pay the estate of Thomas Daws, represented by the defendants, five hundred dollars as damages caused by the willful and ungrounded opposition to the sale of the property of the estate.

From this judgment, plaintiff has taken a devolutive appeal.

It is proved that the plaintiff not only gave his written consent to the sale, as above mentioned, but that he notified the counsel of the parties, that it would be impossible for him to be present at the family meeting; by reason of which declaration of plaintiff, his rvritten consent was taken upon the petition for the sale. It is also proved, that plaintiff stated to various persons that there was an agreement that he should have half the commissions of administration for signing the bond; that this agreement not being kept, was the reason for his erasing his name as surety from the bond of administration of defendants, and for making this opposition to the sale.

This conduct of the plaintiff justifies his removal from the office óf un--der tutor. But we are unable to concur in that part of the judgment appealed from, which awards pecuniary damages against the plaintiff. Those damages could only be due, upon a distinct and precise proof of loss sustained by the estate, through the plaintiff’s acts. Now, true it is, that one witness on the trial below, estimates, in general terms, the damage to the estate from this cause at five hundred dollars. But on the other hand, we find it asserted by counsel of appellant, in his brief filed herein, on the 12th February, 1861, that the property in question has since been sold by order of court to effect a partition among the heirs, and that it has been proved on the trial of (mother cause in like District Oourt, that the property sold for from five to seven per cent, more than it ioould have sold for, or was worth, at the time the sede was opposed. This difference m the amount of the inmentories, say about $140,000, amounts to $7,000 to $10,000 gained by the opposition. The counsel adds: these foots will not be denied. And in the brief submitted by the counsel of appellees, filed twelve days afterwards (on the 24th February) they have not been denied. The same fact was asserted in the oral argument by counsel of apx>ellant, without opposition made to its statement by the opposite counsel.

It is, therefore, adjudged, that the judgment ordering the probate sale to proceed,- and dismissing the plaintiff from the office of under tutor of the minors Davis, be affirmed; that so much of said judgment as condemns the minors Davis to pay five hundred dollars damages be reversed; that plaintiff and appellant pay costs of the court below; and that appellees pay costs of appeal.

Yooexobs, J., absent.