author: Porter, J.

text:
      OAKEY vs. MAYOR, & AL.

    The ordinance of the mayor, aldermen and city council of New-Orleans, of September’, 1827, imposing a tax on the front proprietors of ground within the city and incorporated faubourgs for the exclusive purpose of paving the streets and making the banquets, violates neither the constitution of the United States nor that of Louisiana.
    Taxation need not be uniform.
    A tax laying a certain sum on the owners of all property of a particular description, is a tax on property.
    The corporation Of New-Orleans, have a right to lay a tax to provide for a prospective deficiency.
    Appeal from the court of the first district.
    In September, 1827, the mayor and city council of New-Orleans passed an ordinance by which the front .proprietors of ground within the city and incorporated faubourgs, should* . „ . . for the exclusive purpose of paving the streets and making the banquets, pay one-third part Gf what the city assessor should estimate the cost of the work to be done in front of their ground respectively. The ordinance embraced not only lots in front of which pavements and banquets had already been made, but also such as were unpaved, leaving it to the option of the proprietors to pay one third of the amount as assessed in cash, or to give their endorsed notes payable in 6, 12, 18 and 24 months, bearing an interest of 8 per cent. The plaintiff, who is the owner of the property situated at the corner of Bienville and Chartres-streets, gave his notes at 6,12,18 and 24 monthsfor the amount of the tax imposed on him, and the present suit was brought to recover them back on the ground that the ordinance of 1827 was unconstitutional, partial in its operation, and unauthorized by the charter incorporating the city. All exceptions wereawaived in the court below, and the case tried on the legality of the ordinance of 1827. The district court gave judgment for the defendants and the plaintiff appealed.

      Pierce and Eustis for the appellant.

      Moreau and Soulé for the appellees
    — cited the old and new Civil Code — 3d Dallas — Mo-Teau’s Digest — Martin’s Reports, 7th vol — do ° . New Series, vol. 5th — Ordinances of the cor■poration of New-Orleans, 4th vol — Ordinances of the corporation of New-York of 1827, p. 174 and 181 — and the ordinances of the cities of Boston and'Charleston.
   Porter, J.

delivered the opinion of die court. On the 22d of September, 1827, the city council passed an ordinance by which they imposed an annual tax for twenty years, on all the owners of lots in the city and fau-bourgs of New-Orleans, for the exclusive purpose of paving the streets and making banquets in front of their property; leaving, however, to the persons so taxed, the choice of exempting themselves from the annual payment of the sum charged on their property, by paying in cash the amount expended by the corporation in doing the work, or by giving their notes in four equal and annual instal-ments, with interest at eight per cent, for the delay of payment.

By this ordinance, the tax was demandable at once from all those in front of whose lots the work had been done, but those before whose property the pavement was not made, were only required to pay after the execution of the work.

The plaintiff chose to give his notes at 1, 2, 3 and 4 years, for the tax imposed on him, and now contests the payment, on the ground that they were given without consideration; the ordinance being illegal, unconstitutional, and in violation of the charter incorporating the city.

The district court gave judgment for the defendants, and the plaintiff appealed.

The case has been well and elaborately discussed, and like other causes where the interests of many are involved, it has assumed an importance to which we do not think it entitled from any difficulty it presents in the decision.

To one of the propositions of the appellant’s counsel the court gives its entire assent. The corporation is the creature of the legislature, and has no power but that which the creator has thought proper to bestow on it: its jurisdiction is limited; and the charter is to the city council what the constitution is to the legislature — neither can rightfully exercise any power not conferred on them. We have kept this principle steadily in view in considering the question before us.

The most natural order in which the case . . can be examined, is to enquire:

First — What powers are conferred on the corporation?

Second — Could these powers be constitutionally given to it by the legislature.

Third — Is the ordinance imposing the tax complained of, within the powers vested in the city council, supposing it to be constitutional ?

I. And first, as to the power conferred. The 6th section of the act of incorporation, with other provisions in relation to the authority of the mayor and aldermen, has the following: “And the said mayor and city council shall have power to raise by tax, in such manner as to them may seem proper, upon the real and personal estate within the said city, such sum or sums of money as may be necessary to supply any deficiency, for the lighting, cleaning, paving, and watering the streets of the said city: for supporting the city watch, the levee of the river, the prisons, work-houses, and other public buildings, and for such other purpose as the police and good government of the said city may require.” In this section is also found a proviso of the following nature, “that no by-law, or ordinance to be passed by the said mayor and city council, shall have any force or effect, which is contrary to this charter, to any provisions of the constitution of the United States, or the laws of this territory.” 2 Moreau’s Digest, 111.

By an act passed in 1813, the corporation is authorized, “to determine the completion and dimensions, the maintainance, and repair of the side pavements in the said streets, at the cost of the proprietors of houses, lands or neighboring lots.” In this act it is also provided, that no by-law or regulation shall have any force or effect, which is contrary to the constitution of the United States, or to the constitution and laws of Louisiana.

By these provisions it is seen, that very extensive powers are conferred on the city council, and that a great deal is intrusted to their discretion. Authority is given them to lay such taxes as to them may seem proper, on the real and personal property within the city, for the supplying of any deficiency which may exist in their funds. After a detailed statement of the objects to which the money so raised is to be applied, a sweeping clause grants taxation for any purpose which the police and good government of the city may * require. Not a word is said about taxation being uniform, and it may therefore be safely stated, that unless something is found in the constitution of the United-States, or of the state of Louisiana, which nullifies the ordinance in question on this ground, it will be in vain sought in the statutes empowering the corporation to levy taxes.

The ordinance of the mayor, aldermen and city council of Now-Oceans of Sept’r 1827, imposing a tax °" *he fr°nt proprietors of g^mmi within the city andmcorpo-faubourgs, ior the exclusive PurPos««fp&v®g the streets & making the ban-quetts, violate neither the constitution of the United States or that of Louisiana.

II. This brings us to the second question j could the legislature constitutionally confer on the city council power of so extensive a nature as that we have just examined ?

The provisos in the statutes already cited, declare, all by-laws and ordinances invalid which are contrary to the constitution of the United States, and counsel have argued, that any species of taxation exercised by the corporation contrary to that which the general government could resort to, is null and void.

If the nullity of the ordinance is supposed . r to arise from its want of uniformity, and consequent opposition to the constitution of the 1 1 1 . United States, the answer is, that there is 7 nothing in that instrument which requires ° 1 direct taxes to be uniform. It merely declares they shall be apportioned among the respective states according to their numbers, and leaves to congress after that apportionment is made, the power to select such objects as they may think proper for taxation.

Taxation need not be uniform.

We have been unable to discover any thing in the constitution of the United States which would authorise us tosay the ordinance was invalid, and the examination of that of our own state has brought us to the same result. There is nothing in it which requires taxation to be uniform. In the case of Le Breton vs. Morgan, where a tax had been imposed by the state on the parish of Orleans for the reimbursement of certain expenses which the governor had incurred in the attempt to stop a crevasse on the plantation of B. Macarty, in the year 1816, and its payment was resisted, we held the law to be constitutional and enforced it. That case so far as it respects the constitutional question involved in. it, cannot be satisfactorily distinguished from the instance before us. 4 Martin, n. s. 138.

Since the argument, we have looked into a decision of the supreme court of Massachusetts, on a question somewhat similar to the present one. The constitution of that state gave power to the legislature “to levy pro- . portionate and reasonable assessments, rates and taxes on all the inhabitants of, and persons resident, and estates lying within the commonwealth; and also to impose and levy reasonable duties and excises upon any produce, goods, wares, and merchandise, and commodities whatsoever.”

Under the first branch of this power, which requires taxation to be proportionate, the supreme court of that state considered, that a tax levied on a bank could not be justified. The exercise of the power requiring a valuation of all the property in the commonwealth, and then an assessment of each individual according to his proportion of that property. But under the second division, they held the tax to be rightfully laid: that the legislature had the same authority to tax banks, as they had to tax attornies, tavern-keepers, retailers of goods, although other trades and professions were not made subject to taxation. 12 Massachusetts Reports, 254.

In our constitution, there is no such provision as that then existing in Massachusetts, which required the legislature to levy proportionate taxes, and if under it, the courts of that country did not think a law compelling a . bank to pay a tax was a violation of their constitution, how much less reason is there,

pQr contending here, that taxes cannot be enforced, which are not levied equally on all. It is no doubt desirable, taxation should be uniform, and a wise legislation, as far as it is practicable, will always make burthens of this kind fall as equally as possible on the whole of the community. But uniformity, in the sense for which the appellant contends, would annul all the fiscal laws of the state. The man whose lands and slaves were taxed, might to-morrow, on the principle urged, enjoin the sheriff from collection, because the cash of his neighbor which was used in market, buying bills and discounting notes, was not made contributory to the public revenue. The merchant and auctioneer could resist the payment of taxes levied on them, because mechanics and farmers were not assessed in the same way. The constitution we think has confided to the legislature the power of selecting such property as they may deem proper for taxation, and all the latitude which under it they possess, in relation to real and personal property, they have transmitted to the corporation by the charter.

But It IS said, this power may be applied to the most iniquitous purposes, — that in the exercise of it a particular class of persons, or a single individual might be selected as the victims of legislative or corporate oppres-. sion, and be compelled to pay all the expenses of the state; or that under the pretence of raising revenue, the whole fortune of a citizen might be wrested from him. General principles cannot be settled by supposing extreme cases. When they arise, they present exceptions, and are governed by other rules. It is not necessary for us to say in this case whether there is not in the constitution of every free country, certain fundamental principles, under which the citizen can find shelter and protection in extreme cases. We will think of that, when a case arises which requires us to do so. But on an enquiry whether a certain power is conferred by the constitution, we cannot come to the conclusion it does not exist, because it may be abused. Juries could not try causes, nor courts decide them, if this was the test by which their authority was to be tried. Because a law might be passed plundering a citizen under the pretence of raising revenue, and therefore void; it does not follow that all inequality in taxation draws with it the same consequence. The difficulty of establishing perfect uniformity, was the reason why the constitution did not affix limits to legislative authority, and while the discretion intrusted, is used for the purposes for which it was conferred, and in the spirit with which it was granted, we see no ground for declaring it void.

The tax levied by the corporation on all persons owning property in the city, in front of which the streets had been paved, and on all persons in front of whose lots pavement might hereafter be made, does not present a case of extreme injustice. Indeed we have been unable to discover any thing unjust in it, and it is as uniform as any taxation in relation to the subject matter could well be. It falls alike on all, who stand in the same situation.

It is shown that in the cities ofNew-York and Boston, the same burthen is imposed on the owners of property fronting the streets, and the acquiescence of such intelligent communities, in the justice and constitutionality of these regulations, has been properly presented to us as an argument in favor of the same construction being given to the ordi-0 D nance of this city.

III. The last question is, whether independent of any objection to the constitutionality of the ordinance, it is within the powers granted to the corporation. To this point the principal part of the arguments addressed to the court on behalf of the appellant, has been directed.

The first objection is, that by the charter the corporation is authorized to tax rúal and personal estate, and that the tax now complained of is on real estate alone.

It does not appear to us, that the power given to tax real and personal estate, renders it imperative on the corporation to tax both. By the same section of the law, the city council are empowered to exercise their authority as to them may seem proper.

The next objection is, that the law was retrospective in its operation, because the citizen was taxed for work already done. Admitting this was the reason which induced the passage of the ordinance, we do not see how the motives of the law maker can make the law retrospective and void, unless the party complaining could show he had a vested j-jgJjf not fa \)e taxed. ® The same objection would exist against all laws for raising revenue when the state or corporation was indebted for money expended for purposes of public utility. It was contended on another branch of this part of the case, that the corporation could only levy a tax to supply an actual deficiency in its funds. Now as no actual deficiency could arise until the corporation was in debt, it would follow that if both objections were true, the corporation could not levy a tax for work that was to be done, because the deficiency would be prospective, and it could not supply an actual one, because it was retrospective, and we should thus come to a conclusion that the corporation could not levy any tax. This we cannot do. The plain intent and meaning of a law cannot be destroyed in this way by professional ingeuiiy. Nor do we think there is any more force in another objection akin to this just disposed of, namely, that the plaintiff having bought the property since the pavement was made, is now taxed for a benefit done to- another. All men acquire property knowing that it is subject to taxation, and if that property could have been rightfully taxed in the hands of the vendor, it can in those of the vendee, if the state was in debt, and an extraordinary tax was laid to discharge it, could the holders of land and slaves, resist the payment, on the ground that they did notown the property at the time the state became indebted? Who ever heard of such an objection? And yet on principle it cannot be distinguished from that which the appellant makes.

certain sum on the owners of ail property of a par-tieuiar description is a tax on property, A tax laying a

It was next said, this was not a tax, or at least not a tax on property: it was an assessment on individuals, in consequence of the situation in which their property was situated.

It appears to us a tax, and a tax on pron ... , i t perty. .because it is only on persons holding . , , property, and because they do hold it, that . . i . the tax is imposed. Where is the difference between saying all lots are to be taxed ten dollars, to be paid by the owners, or- declaring that all owners of lots shall pay a tax of ten dollars? There is some in the words, but none in the thing. It is still a tax on the property. The argument addressed to us on this head, was quite too refined for any.practical purpose. The land tax of the state in every parish might be attacked by the same ingeni ous reasoning. An inhabitant of St. John the Baptiste might say with the same truth and force, . the parish I live in is taxed $1400, it is therefore a tax of situation, in consequence of my property there, and it is a personal tax, not one on property, because I have to pay it.

Lastly, and with most earnestness it was pressed on us, that the corporation was only authorized to lay taxes to supply a deficiency in their funds, and that no such deficiency was shown to exist at the time the ordinance was passed.

The account of the city for the year 1827 is produced. It exhibits receipts to the amount of $210,729 45 cents. The expenses are $196,502, leaving a balance in the hands of the treasurer of $14,226 73 cents — there was therefore no actual deficiency.

If the argument of the appellant was correct, this circumstance would raise doubts of the legality of the tax in question. Our examination of the law has however satisfied us, that the position assumed cannot be maintained. The actual deficiency contended for, could only exist, where the corporation was indebted on contracts, or engagements, and could not discharge them, or where the whole police of the city was stopped for want 1 J 11 of funds to meet the daily expenses of the corporation. If it was on the occurrence of these contingencies alone, the legislature intended to vest the city council with the power of taxation, a grant of very singular powers was certainly contemplated. They would render the corporation completely inefficient. For if it could never raise money by taxation until it had violated its contracts, or was without funds to meet its daily or weekly expenditures, few would trust it, or few would serve it. Unless, the language of the charter imperatively requires such a construction, the court cannot be expected to adopt it. We do not think it does. The words used, should receive such an interpretan on as will best promote the purposes the legislature had in view. The terms to supply a deficiency, were evidently thrown into the statute, instead of a general power to tax, because the city derived revenue from other sources, which might render taxation unnecessary. There is nothing therefore in the enactment which indicates jealousy on the part of the law-maker, or requires a strict construction of the power, beyond the fair import of the language, considered in relation to the subject matter. It does not appear to us that it prevents the corporation anticipating a want of funds, and providing the means of discharging its obligations, before the day of payment arrives. We think there is the deficiency contemplated by the charter, whenever the city wants funds to commence public improvements, clearly as there would be if these improvements were completed, and there was no money in the treasury to pay for them, and that consequently the corporation may lay taxes to meet the engagements it is about to enter into, as well as those which are already made.

The corporation ofN. Orleans have a right to levy a tax to supply a prospective deficency.

Under this view of the case there is nothing on record which shows a violation of the charter, and it is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.


source: Caselaw Access Project

author: Mathews, J.

license: Public Domain

text:
      McCOMBS vs. DUNBAR & AL.

    The acts of an administrator, appointed by the court of probates, can only be annulled by declaring void and illegal the authority, in virtue of which he acted.
    The court of competent jurisdiction for this pur pose, is that which conferred on him the authority.

      Appeal from the court of the third district, the judge of the eighth presiding.
    William Dunbar, the husband of the plaintiff, died intestate, leaving three minor children his only legitimate forced heirs, and certain property in the párish of West Feliciana. The plaintiff, as widow in community, and as natural tutrix to her minor children, by the advice of a family meeting, legally convoked, accepted the succession with benefit of inventory. Subsequent to these proceedings, and within the delay allowed by law for deliberating, and before the plaintiff had determined to accept or renounce, A. Dunbar, one of the defendants, was appointed administrator of the succession of William Dunbar, and caused the property belonging thereto to be sold, by virtue o’f an order of the court of probates, at which sale J. Dunbar, co-defendant, became the purchaser. This suit was brought to recover back the property upon the ground that the authority of the defendant to administer, as derived from the court of probates, was illegal .and void. The answer contained, among others, one plea to the jurisdiction of the district court, which was overruled, and after final judgment for the plaintiff the defendant appealed

      Watts for appellee, Lockett for appellant.
   Mathews, J.

delivered the opinion of the court. In this case the plaintiff claims from the defendant, property which she alleges has been improperly administered by the latter, under an illegal authority derived from the court of probates of the parish of West Felici-ana, as belonging to her by right, accruing in consequence of her legal claim to one half of it, being a community of acquets and gains, acquired during ¿her marriage with William Dunbar, late of the parish aforesaid. The other half she claims to hold and administer as tutrix of her minor children. The proceedings in the parish court, by which the defendant was appointed administrator of the succession of her late husband, she prays may be annulled. The answer contains, amongst other pleas, one to the jurisdiction of the district court, which was overruled, and after final judgment the defendant appealed.

The cause appears to have been much litigated in the court below, and the record contains many bills of exceptions; but as we are of opinion, that the plea to the jurisdiction was improperly determined, that part of the proceeding will alone be noticed.

administrator ap-probatel “Laby dedarl “*[ th<fauthority he actea.

The court of competent authority for this purpose is that which conferred on him1' the authority,

The court of probates was certainly the proper and competent tribunal to decide on the pretensions of the applicant for .administration of the intestate’s estate. This was granted to the defendant, and his acts under the appointment thus judicially made, can only be annulled by declaring void and illegal the authority in virtue of which he acted; in other words, by rescinding and annulling the decree which gave to him the appointment of administrator: and it appears to us, . ... „ that the court of competent jurisdiction for . . . this purpose, is that which conferred on him the authority. Admitting the existence of a distinction, as assumed by the judge, a quo, between proceeding in nullity of judgments and those which have for their object a recission, (which by the way, is hard to be imagined) still it is believed that the doctrine of the Code of Practice in relation to the nullity ofjudgments, places the power of declaring them void in the court which may have rendered them, or in the appellate court, when circumstances will permit the latter to interfere. See C. P. art. 608

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that judgment be here entered, as in case of non-suit, at the costs of the plaintiff and appellee in both courts.


author: Martin, J.

text:
      FLOWER vs. WILLIAMS.

    A witness may testify to his belief of a fact: if examined as to the grounds of his belief, and his answers are vague, the court will instruct the jury.
    It is the province of a jury to ascertain whether drugs and medicines intended for sale to other than patients, for profit, constitutes a commercial partnership.
    Where one partner purchases articles for his own use, the partnership is not bound.
    The judgment cannot include interest, if a remiti-tur therefor be entered of record.
    Appeal from the court of the third district, the Judge of the fourth presiding.
    The petition stated that in the month of January, 1820, the defendant and William Wa-terhouse formed a commercial partnership, the object of which was to establish in the country an apothecary’s shop, and to practice together as physicians. That in February, 1820, Water-house, by the consent of the defendant, came to New-Orleans to purchase drugs, and was introduced to the plaintiffs, who, ignorant of his standing, but having every confidence in his partner the defendant, were induced to accept for the said firm of Williams & Waterhouse, two drafts, one for 81500 for drugs purchased of Field Sc Morgan, the other for 8557 54, for books had of B. Levy Sc co. That they had been compelled to pay said drafts, and Wa-terhouse having absconded, they pray judgment for the amount against the defendant, with interest, cost and damages.
    The defendant denied all the allegations in the petition, particularly the existence of any partnership between himself and Waterhouse;
    The plaintiff then called for the production of the articles of partnership, and the defendant answered under oath that he had no such articles in his possession, and denied that any such had ever existed.
    To prove the partnership, a number of witnesses were examined by plaintiff, who testified it was notorious in the neighborhood, that the defendant and Waterhouse were in partnership. One witness stated that in a conversation with defendant, the latter observed, that he feared Waterhouse had injured him; that he had purchased medicines in New-Orleans, and he was . apprehensive he should have to pay about S2000. A clerk of plaintiffs’ deposed, that when Waterhouse arrived at New-Orleans, “to the best of his belief he exhibited plaintiff articles of partnership,” is certain that plain tiff was induced to accept for the firm upon the credit of the defendant alone, Waterhouse being a perfect stranger. To that part of the clerk’s testimony, stating his belief, the defendant excepted, on the ground that the belief of witness could not be received. The objection was overruled, and . the jury found a vet diet for plaintiff for S1872 98, with interest from the 8th May, 1820, (being the date of protest) and for the interest a remití tur was entered oí record by the plaintiff. Judgment was entered up for the amount of the verdict. Motion for a new trial overruled and the defendant appealed.

      Watts for appellant.
    1st. A new trial oughtto have been granted, the verdict being contrary to law and without evidence.
    2d. There is no proof of commercial partnership as declared on by plaintiff. The verdict includes a purchase of books worth $557 50 4 n. n. 347, Hazard vs. Boyd, an aereement to buy goods does not warrant purchase of drugs — -an agreement to buy medí-cines dos not warrant a purchase of books. The interest from May, 1820, the date of protest, up to September, 1824, the date of the filing the petition, was remitted, yet the judgment is for the whole interest.
   Martin, J.

delivered the opinion of the

court. The petition charges that the defendant and Waterhouse, being engaged in a commercial partnership for the purchase of drugs and medicines, in the parish, of Feliciana, the latter came to New-Orleans to effect purchases for the partnership, and the plaintiffs were induced to come into acceptances and engagements towards the vendors, at his request, whereby they were compelled to pay several sums of money, amounting to upwards of two thousand dollars, which the partners are bound jointly and severally to refund, and the defendants neglect and refuse, &c.

The general issue was pleaded, there was a verdict for the plaintiffs, which the defendant vainly attempted to set aside: judgment was given accordingly, and he appealed.

testify to his be-examined as* to the grounds of his belief, and his answers aro vague, the court ■will instruct the jury.

jjjg counse| has first called our attention j.Q a jjjjj exceptions to the opinion of the inferior judge, in overruling an objection to the reading of a part of Cooper’s deposition, in which he states, that “Waterhouse exhibited to the plaintiffs, as the deponent verily believes, articles of partnership between the defendant and Waterhouse.” The objection was on the ground that as the witness deposed to a fact, which took place inhis own presence, evidence of what he believed could not be received.

It does not appear to us the judge erred, The fact was material and the witness was bound to disclose it. He might have been . examined as to the grounds of his belief, ... and if he gave none or vague ones, it might have been urged that this part of his testimony ought to have no weight, and the court might have been requested to instruct the jury in this respect. The case of Watson & al. vs. M’Callister, 7th Martin, p. 368, must be understood to apply to instances in which the witness on being called on for the grounds of his belief, gives none,

It is the prov-inceofthe jury to ascertaiu whether dlugs and me-dicines intended <°r sa>e to other than patients for profit, constitutes a commercial partnership,

The defendant’s counsel has contended , , . . that the jury erred m finding a commercial partnership, it appearing that in the neighborhood of his residence, indeed in the country generally, physicians are in the practice of keeping medicines to supply their patients and neighbors, and the defendant and Waterhouse, if they were at all concerned in business, were so as physicians principally, and the apothecary’s shop was only an appendage to their business as physicians.

Ttis certainly true that the sale of medicines to the vendor’s patients, and an incidental sale to a neighbor, are not acts which can be viewed as commercial transactions. An innkeeper sells wine to his lodgers, without thereby becoming a merchant. Slocum vs. Sibley, 5 Martin, 682, and the casual sale of a bottle to a neighbor, would not make it so. It was the proper x 1 province of the jury to ascertain whether the drugs and medicines were intended for 0 sale to other than patients, to such a degree 1 ° as to constitute a buying and sale of drugs 1/0 0 and medicines for profit, and thus to be a commercial pursuit: they have thought it was, and we see nothing that can authorize our interference with the verdict, in this respect.

Where one partner purchases articles for his own use, the partnership is not bound.

The judgment cannot include interest if a remi-titur therefor be entered of record

Part of the acceptances paid by the plaintiffs, are for classical books and clothes for Waterhouse’s own use, in which the partnership does not appear to have had any interest, and we deem it our duty to sustain the objection of the defendant to any allowance therefor.

The last grounds of complaint against the verdict and judgment are, that the first has allowed interest. The counsel has urged that none ought to have been given, as the claim was liquidated by the verdict alone. That the protest of the acceptances of the plaintiffs, gave no claim to interest, or the law allowing interest on protested notes, if it can be extended to protested acceptances, is posterior to any protest in the present case. The judgment is complained of, as it gives interest according to the verdict, andabsolutely disregards a remititur entered on record by the plaintiffs between the verdict and judgment.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the plaintiffs and appellees recover from the defendant and appellant, the sum of thirteen hundred and eighty-five dollars, with costs in the lower court; those of appeal to be borne by the appellee.


text:
      DONALDSON vs. MAURIN & AL.

    A party who claims under a will, may sue in the name, by which he is therein designated.
    Where personal obligations are imposed on a ven-dee by the terms of the contract, he cannot relieve himself from them, by a sale of the mortgaged property to a third person, without the consent of the vendor.
    A vendee cannot be cited in warranty.
    A third person cited in warranty, who wishes to avail himself of the provisions of the Code of Practice in his favor, must file his opposition in his answer to the citation in warranty.
    An express agreement not to alienate, in an act of mortgage, relieves the mortgagee creditor from the necessity of pursuing all the steps, required by the hypothecary action in ordinary cases.
    Appeal from the court of the first district.
    On the 24th of April, 1812, William Donaldson, by authentic act, sold to the defendant Maurin, two lots of ground for the price of 55600, to be paid at the will of the purchaser. and subject to an annual and perpetual interest . , , , , of six per cent, per annum, to be calculated from the first of January, 1812, and payable Half yearly on the first of July and first of January, in each year, until the whole principal should be paid. The act contained a stipulation that Maurin should not sell nor alienate said lots, or any part thereof, until final payment, and in case the interest was not punctually paid as it became due, that then Maurin should be bound to pay the principal and interest with all costs of recovery.
    In 1814, Maurin and Hopkins entered into a contract of partnership in relation to the lots, by which they became joint owners thereof. Hopkins died soon after, and at a probate sale of his effects, his widow became the purchaser of the lots, the defendant Maurin consenting to the sale as the best way of settling the affairs-of the partnership. The widow afterwards, intermarried with P. Pedesclaux, who sold the lots to Bringier — Bringier became insolvent,and at a sale of his property, the lots in question were purchased by Madame Lefort, who was in possession at the institution of the present suit.
    Pedesclaux and wife were brought into court at the instance of Maurin; they cited the syndic of Bringier, who cited Madame Lefort,-The petitioner averred the non compliance of Maurin with his engagements, and prayed judgment for 0600, with the annual [rents, damages, interest and costs. Exceptions to the action were putin by Maurin on the ground: 1st. That the name of petitioner was not Colgate D. Donaldson, but Colgate D. Vanpra-delles. 2d. That petitioner set herself out as heir of William Donaldson, by way of description, and not by way of averment, and further that she does not show by what right or title she is heir of Donaldson, whether by testamentary, regular or irregular succession. 3d. That the conclusions of the petition were not analagous to the nature of the action, for that in the body of the petition, the petitioner set up a claim to the payment of a capital sum for the price of certain lots and annual rents, and concluded by demanding payment of said sums of money and also for all damages.
    It was admitted that the maiden name of the plaintiff was Colgate D Vanpradelles. The first and third exceptions were overruled by the court below, and the plaintiff permitted to amend his petition by inserting the word testamentary, so as to read[Cóigate D. Donaldson, widow and testamentary heir of Wm. Donald-SOI1, deceased, Maurin then answered to the merits, denying generally the allegations, and praying that if judgment should be rendered against him, a similar judgment might be rendered against Pedesclaux and wife.
    The court below rendered judgment in favor of the plaintiff, againstMaurin personally for $600, with interest at the rate of six per cent, per annum from the 25th April, 1825, and ordered the property mentioned in the petition to be seized and sold. Madame Lefort appealed.

      M‘Caleb for plaintiff, Watts for Maurin,
    who joined in the appeal, filed the following points.
    1st. That the exception as to the name, under which plaintiff brought suit, \yas improperly overruled.
    2d. There was neither allegation nor proof that the defendant and Maurin were ever put in delay in payment of the.interest, so as to entitle ' the plaintiff to demand the capital or principal sum.
    3d. Judgment ought to have been rendered against Pedesclaux and wife for same amount in favor of Maurin, for which judgment was rendered against him in favor of plaintiff.

      Jlipley and Conrad for Madame Lefort.
   Mathews, J.

delivered the opinion of the court. This suit is brought by the testamentary heir of William Donaldson, to recover the price of two certain lots of ground situated in Donaldsonville, sold by the testator to the defendant Maurin, for the sum of 600 dollars and interest thereon, at the rate of six per cent, per annum, from the 1st day of January, 1812. According to the terms of the act of sale, the purchaser was bound to pay the interest half yearly until the price should be paid, which he was at liberty to pay in any sums and at any time that he might choose, &c. A mortgage on the property sold was expressly reserved for security of the. payment of the price, containing a pact de non alienando.. It appears from the evidence in the cause, that some improvements were put on the lots thus purchased, and that they finally became a partnership property between the vendee and S. A. Hopkins, late of the town of Donald-sonville, and that after the death of the latter, his widow purchased them at a public sale of the succession of her husband; the original vendee consenting that she should thereby acquire all his rights to the half held by him in common with her former husband. She afterwards intermarried with P* Pedesclaux, who sold and conveyed the |o^g qUesj-jon £0 Louis Bringier, under the same conditions as they were held by the original purchaser from William Donaldson. The property was finally sold as belonging to the estate of Bringier, who had become insolvent; one lot by sheriff’s sale, and the other by the collector of taxes, when the defendant, Mrs. Lefort, became the purchaser of one of the lots, the other was purchased by one Francois Lefort, who is not made a party in this suit, and is now in possession. Pedesclaux and wife were brought into court in the present action, at the instance of the defendant Maui'in, and they called in the syndic of Bringier, who cited Mrs. Lefort. The court below rendered judgment against the first defendant personally, for the sum of six hundred dollars principal, and three years interest, at the rate of six per cent, per annum; and decreed that the property now in the possession of the third persons should be seized and sold to satisfy the judgment; from which Mrs. Lefort appealed.

a party who claims under a win may sue in the name by which he is therein designated.

We must first examine the mdgment of .... . , ° the district court as between the plaintiff and the original defendant. The first objection made to its correctness is based on an alleged misnomer of the former. She sues under the name of Donaldson., whereas the defendant avers that her real name is Van-pradelle, being that which she had before her marriage. Whether our laws do, ipso facto, by marriage confer on a wife the family name of her .husband, or that she may rightfully assume it in all subsequent transactions, in the present case need not be inquired into. The plaintiff sues as testamentary heir of her husband. In , ... . . , - . , the will she is designated by the same name . • m which she sues; m this name she acquired the rights which she now claims against the defendant; and in 'it, in our opinion, she may properly pursue them. No mistake as to the real person in interest can take place, and consequently no injury can happen, to the defendant by the assumption of this name on the part of the plaintiff.

Another objection made by the counsel for Maurin to the judgment of the court below, is, that he was not put in delay of payment of the interest stipulated in his contract with Wm. Donaldson by a demand, and that without it, the principal sum was not exigible. The contract under consideration is suigeneris. It is not, strictly speaking, either a rente fonciere bail a rente, or constitution de rente. It perhaps partakes more’of the former species of con tract, than any other. The stipulations which it contains bind the purchaser to pay the interest on the price semi-annually, and in default thereof subjects him to have the principal exacted; all secured by express mortgage on the property. Now these are personal obligations imposed upon him by the explicit terms of the contract, and from which he could not release himself by any subsequent sale of the mortgaged property to a third person, without the consent of the vendor. By failing to pay the interest or rent, he has subjected himself to pay the principal. In this respect we are, therefore, of opinion that the judgment of the district court is correct.

Where personal obligations are imposed on the vendee by the terms of the contract, he cannot relieve himself from them by a sale of the mort gaged property to a third person without the consent of the vendor.

In relation to the cause, as between the original defendant and the party cited at liis instance, we do not believe that there is error in the judgment of the district court, in not rendering a judgment in his favor against them personally. They undertook no personal responsibility in relation to the payment of the rent stipulated in the contract under which they acquired the property. Indeed we do not believe that any of the subsequent holders are, or will be liable to him personally, unless in the event that he shall be compelled to pay the arrearages of rent which may have accrued during the time of their possession of the lots. It is not easy to perceive on what principle they have been forced into the present suit: surely not as warrantors; for . -i -i -i , . ■agreater legal absurdity cannot be imagined, than to make a vendee warrantor. But as they have acquired in the proceedings, their respective claims must be examined. And this leads us to the investigation of those set up by the appellant. Her counsel mainly relies for relief against the judgment rendered by the court below, on her situation as a third possessor. It is perhaps true, according to the provisions of the Code of Practice, that she could not be compelled to pay the amount secured by L " the mortgage on the property which she occupies, or surrender it in discharge of the debt due to the mortgagor, without proceedings, and notice to her in conformity with those proceedings, unless these preliminary steps may be legally pretermitted in consequence of the agreement contained in the mortgage not to alienate. But we are of opinion that the opposition as a third possessor ought to have been made in the answer to the citation in warranty; and that, having neglected to do so, she submitted the decision of the case to the jurisdiction of the inferior court on its substance and merits. The defence set up in this courtis mere matter of form, because in any event she would be bound to pay the money secured by the mortgagee, according to the amount of property by her held, or subject to be seized and sold.

a vendee cannot be called in warranty.

A third possessor cited in warranty who wishes to avail himself cf the provisions of the Code of Practice in his favor, must file his opposition in his answer to the citation in warranty.

greemen^no? to of mortgage, re-gagee ^crSiitoí from the necessity of pursuing aii the steps required by the hypo-thecary action in ordinary cases,

The judgment of the district court having condemned all the property mentioned in the mortgage to be sold, id est, both lots ; and it . , „ . , . . . appearing that one oí them is held by a , . person who has m no manner been made a . . party to this suit, it becomes our duty to inquire into the effect of the pact de non alie-1 * _ nando. The same question arose in the case of Nathan & al. vs. Lee. See 2 Mart. n. s. p. 32. We there determined that the express agreement not to alienate in an act of mortgage, relieves the mortgagee creditor from the necessity of pursuing all the steps required by the hypothecary action in ordinary cases. But it is now contended, that the S panish laws and rules of proceeding, on which the decision in that case was founded, have since been repealed by the act of 1828, and that there is now no express law in force to support any exception to the rules of proceeding established by the Code of Practice, for hypothecary actions. Admitting this to be true, although perhaps not admissible in contracts previous to the repealing laws, we are yet of opinion that the present case must receive a decision similar to the former. It is an universal principle,founded in reason and law, that effect must be given to all the parts of a written contract or agreement, and meaning to all its stipulations and phrases, unless such a construction leads to absurdity. It is also a general rule that owners of property must be presumed to know the titles and the in-cumbarnces under which they hold it.

In applying these rules to the case under _ rl \ ® consideration, it is evident that the mortgagee intended some advantage to himself by introduction of the clause de non alien-ando, consented to on the part of the mortgagor, beyond what he would have had without such a fact or agreement, and that the only manner in which it can have the effect intended by the parties to the contract, is to construe it into an authority to seize the property mortgaged in the hands of the third possessors, without preliminary proceedings, as in case of an ordinary hypothecation. This summary process the possessors have no right to complain of, for they knew the terms and conditions on which they hold the property.

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


author: Porter J.

text:
      RELF, vs. COLLINS & AL.

    One syndic, where others are appointed, is not the representative of the creditors, and it is only as such, that suit can he maintained for matters relating to the insolvent’s estate.

      Appeal from the court of the third dis- , . , . i „ , ... . tnct, the judge of the eighth presiding.
    Relf and others were appointed syndics to 1 1 " the insolvent Bougard, and the present action was brought by Relf alone,- who styled himself acting syndic. The defendants excepted to the petition, on the ground that all the syndics should have been made parties. The court overruled the exception, and after final judgment for the plaintiff, the defendants appealed.

      Watts, for the appellants,
    contended that syn-dics were joint mandatories, and must jointly sue and be sued.
   Porter J.

delivered the opinion of the court. The petitioner states himself to be acting syndic of the estate of an insolvent, and in that capacity sues. The defendants excepted to the petition, on the ground that all the syndics should be made parties. The court refused to sustain the exception ; and its correctness in doing so, is the first question presented for our decision.

We think the court belovV erred. The record shows that other syndics were apj pointed, and. that their powers were joint, not joint and several. One - of them is not the representative of the creditors, and it is only as such that he can maintain a suit for matters relating to the insolvents estate.

One syndic, where others are appointed, is not the representative of the creditors, and it is only as such' that' suit can Be maintained for matters relating to-the insolvent’s estate.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that there be judgment for the plaintiff as in case of nonsuit, the plaintiff paying costs in both courts.


text:
      McMICKEN vs. BRADFORD & AL.

    Where there is a difference between the description of the land seized and that sold, no title passes nnder the sale..
    Appeal from the court of the third district, the judge of the eighth presiding.
    This action was brought to recover a tract of land in possession of the defendants, of which the plaintiff alledged himself to be the legal owner.
    The plaintiff claimed under a sheriff’s deed, and it appeared from the evidence, that the land therein conveyed was of a different description from that described in the petition.

      There was judgment for the defendants, and the plaintiff appealed.
    Watts, for the appellee. x
    1st. No property passes at sheriff’s sale, except what is ascertained and declared at the time of sale. — Jackson v's. Striker, 1 Johnson’s cases, 284.
    2d. Sheriffs cannot sell under a general description — Jackson vs. Newton, 18 T. R. 355.
    3d. In a sheriff’s deed, the land must be described with reasonable certainty. — Jackson vs. Delaney, 13 T. R. 537.
    4. Sheriff’s return of seizure must contain a definite description of the land levied on, or nothing passes by the sale. — 9 Mass. 92, 11 Mass. 163.
    The sheriff, in his return, shall specify the object seized and sold, and the property sold by the sheriff must have been actually seized. Code of Practice 701, 2; 2 Hayioood 66.
    Downs, contra.
    The sheriff’s sale to the plaintiff was made under the laws in the Code of Practice, art. 690, 695 ; therefore any defects in the deed cannot affect the validity of the adjudication. — Hughes vs. Harrison,! th M. n. s. 227. If the deed is not essential to the sheriff’s sale, and the adjudication is good without it., defects m what is immaterial can*. not invalidate what would otherwise be good.
    Where there is tVecnet'thee des-kndt,03ei'zed and pasL?'uñde/the 8ala‘
    The variance between the deed and the seizure was an accidental error in the sheriff.
   Porter J.

delivered the opinion of the court. This is a petitionary action, in which the plaintiff must recover on the strength of his own title. He claims under a sheriff’s deed,and the description there given ofthepremisesdoes not embrace the locus in quo„ Such was the .opinion of the jury in the court of the first instance, and we think the evidence fully supports it.

It has been argued that the sheriff seized the land claimed in the petition, and that it was through error that a different description of it was given at the sale and in the deed of conveyance. This may be, but a forced alienation of property, must be in strict pursm anee of law ; and seizing one thing, and selling another, does not divest the debtor of that which was seized.

This opinion renders it unnecessary to examine the other questions in the cause; and it is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs,


author: Martin J.

text:
      McMICKEN vs. THE ESTATE OF FICKLIN.

      An attorney for absent heirs cannot resign without the leave of the court.
    No proceedings can be had by the creditors of a vacant estate to establish their claims, till a curator be appointed to it, or the estate be insolvent, and a syndic or syndics be legally appointed.
    Appeal from the court of probates for the parish of West Feliciana.
    A copartnership, which had existed between the plaintiff and defendant, was dissolved in 1817, by mutual consent, and the plaintiff put in possession of the books, for the purpose of collecting the debts and settling the affairs of the partnership. Ficklin afterwards died, leaving a vacant estate. On the 22d. of January, 1828, the plaintiff, by a petition to the court of probates, prayed the appointment of auditors or referees to examine the affairs of the partnership and make a true report of its state and condition. He further prayed for the appointment of an attorney for the absent heirs of the defendant, and a judgment for such sum as the referees should report in his favor. Referees were appointed on the 6 th of February, and made their report, finding the sum of S969 60 due from the estate of defendant to the plaintiff, the latter prayed for the appointment of a syndic, and that the proceedings of the referees be ho-mologated., which took place on the 21st February, notwithstanding the opposition of the attorney for the absent heirs, who then, appealed.
    Watts> for the appellant,
    urged the following points:
    1. There never was any legal defensor to the suit — it was not a case for the appointment of a syndic.
    2. The proceedings were irregular and ex parte, no time or place of meeting of the creditors was fixed — no notice of it. The creditors were not named, nor whether they were present or absent.
    3. The referees made their report ex parte.

    4. They acted on ex parte testimony.
    5. The opposition of the attorney for the absent heirs ought to have, been sustained.

      Me Caleb, for the appellee,
    contended that the attorney for the absent heirs had no power to take the' appeal, having by his own showing resigned his functions.
   Martin J.

delivered the opinion of the court. On the 26th óf January, 1828, the plaintiff, surviving partner of the deceased, with a view of establishing a claim against ° . the estate, prvokoed the appointment of referees to examine and report on an account which he produced, and an attorney to the absent heirs.

An attorney for not resign without tb® leave of the court,

The referees made their report on the fourth of February following. On the 19th, a meeting of creditors, composed of the plaintiff and another, appointed a syndic and the proceedings were homologated on the 21st.

The report of the referees, appointed by the syndic, was homologated on the 21st of May, notwithstanding the opposition of the attorney of the absent heirs, and the plaintiff was recognized as a creditor of the estate for nine hundred and sixty-nine dollars and sixty cents.

The attorney for the absent heirs appealed.

The appellees counsel have prayed that the appeal be dismissed on a suggestion that the attorney for the absent heirs was without authority, having lately resigned the appointment.

It appears that the attorney offered his resignation, but it does not appear that it wasac- . ■. i í~k t i . . ceptea, and the Code has an express provision which prevents such an officer from resigning without the leave of the court.

No proceedings the creditors of to Establish their claims, till a curator be appointed to it, or the estate be insolvent estate be insolvent, and a syn-die or syndics be legally appointed.

The appellant has assigned errors on the? rr D face of the record.

1. That there was no legal defensor to the' estate in the present suit, the present not being a case in which a syndic could be legally appointed.

2. The proceedings were irregular and eo£ _parte — the judge had fixed no time and place for the meeting of creditors, and there was no advertisement of it.

3. The referees made their report ex parte ; no notice being given of the time and place of their meeting.

4. They acted on ex parte testimony.

5. The opposition of the attorney of the absent heirs ought to have been sustained.

We are of opinion the first assignment of error is conclusive.

No proceedings can be had by the creditors °f a vacant estate, to establish their claims a curator be appointed to it; or the estate be insolvent and a syndic or syndics be legally appointed ly appointed.

In the present case the estate does not ap-> tQ ^ insolvent. The judge ordered a meeting of creditors without stating, the time or place of their meeting, and all their pro-r . ceedings teem with irregularities and errors.

It is therefore ordered adjudged and decreed that the judgment of the court of probates be annulled, avoided and reversed with costs in both courts.


author: Pouter, J.

text:
      THE STATE vs. FAVROT.

    A public inventory is a ministerial act, and may be made by a notary ; but tbe right of deciding whether an inventory should be made or not, is a judicial act, and if the judge be interested, he cannot act.
    A public inventory is a ministerial act and may be made by a notary, but the right of deciding whether° anSinventory should be made or not is a judicial act and if the judge be interested he cannot act.
   The facts are stated in the opinion delivered by

Pouter, J.

The party applying to the court for the rule in this instance states, that he is heir of one Yiscerent M. Jones, and Alphonso C'. Jones, and that he had requested the parish judge of the parish of West Baton Rouge to make an inventory of the property of the deceased. That the judge had refused because a partnership had existed between him and the intestate. A mandamus is prayed for to compel him.

We think the rule, which issued on the judge to show cause should be discharged. The l(í97th article of the Louisiana Code declares, it is true, that public inventories may be made by a judge or a notary duly appointed; and this is a ministerial act. But by law the right of deciding whether an inventory should be made or not, is a judicial . . , act, and we think the judge could not act ' . _ when he was interested.—Lou. Code, nos. 1081, 1082.

The rule must therefore be discharged.


author: Mathews J.

text:
      LACY vs. FLUCKER.

    When the appellant relies solely on errors of law apparent on the face of the record, they must he specially assigned within ten days after the record is brought up, otherwise the appeal will be dismissed.
    The ordinary plea of no error on an appeal does not cure the want of assignment of errors.
    Apfe al from the probate court of St. Helena.
    It appears from the record in this case, that a judgment by default was taken in the court below at the April term, and at the May term following the defendant moved for further time to answer and craved oyer of the documents in support of the plaintiff’s demand. The court overruled the motion and made final the judgment.
    The defendant appealed.
   Mathews J.

. t delivered the opinion of the court. This suit is commenced on a curator’s bond — judgment was taken by default which was afterwards made final and the defendant appealed.

The record contains no statement of facts or bills of exceptions, nor is there any assignment of errors as apparent on its face regularly made in this .court. $.n assignment was offered after the expiration of ten days, within which time it is required to be made by‘the art. 897 of the Code of Practice, but was opposed by the counsel for the appellee, who had previous to any motion to dismiss the appeal filed an answer, in consequence of the omission to move for a dismissal before filing the answer on the appeal, it is contended on the part of the appellant that the right to cause it, to be dismissed is waived, that the cause must be examined on its merits, and that an assignment of errors ought still to be admitted. It is true, in some instances, that -the acts done by one party in a suit, may destroy advantages of which he might have availed himself by a different course of proceeding, and place his adversary in a better situation than he would have been if the preliminary steps had been pursued. But unless by admissions in _ . . . . the pleadings on one side, it is not easy to conceive how defects of pleading on the other can be remedied. In the present case the appellee first required a confirmation of the judgment of the court below, and afterwards claimed a dismissal of the appeal on account of the want of statement of facts or assignment of errors. The cause comes up in such a state, that it is impossible to investigate it on its merits, without the aid of such an assignment of errors as is required by the Code of Practice. To affirm or reverse the judgment, would be to proceed without adequate lights to guide us in our course. The article of the Code of Practice above cited is peremptory, that when an appellant does not rely wholly, or in part, k 1 J J1 r 7 on a statement of facts, an exception to the # 1 .judges opinion or special verdict to sustain his ° L appeal: but on errors of law appearing on the 11 11 ° face of the record, he must file a written pa-1 Per a^e<^§*ng specially such errors, within ten days after the record is brought up, otherwise, his appeal shall be rejected. Now it is believed that the ordinary plea of no error on an appeal does not cure the want of an as- . signment of errors in the planner required by the Code of Practice.

When the ap-■peiiant relies Bolely upon errors ofiaw, apparent on the face of the record, they must be spe-. ciaiiy assigned within ten days after the record is brought up, peaTwiif beGdis" missed.

The ordinary plea of no error on an appeal, does not cure the want of an hs-signmenfc of or-row*

It is thefore ordered, and that this appeal be dismissed at the costs of the appellant.


text:
      HIGGINS & AL. vs. McMICKEN.

    When both certificates issued under the same act of congress, there is no difference iu regard to the time at which the parties acquired from the government of the United States.
    A donee of land from the government of the United States, must take it subject to all the burthens, conditions and limitations, which the donor has thought proper to affix to his gift.
    The acts of congress in relation to actual settlements in Florida, unsupported by written evidence of claim do not recognize titles — they make gifts.
    A person who has no title to land cannot claim damages from the owner, for selling it as the property of a third person.
    Appeal from the court of the third district, the judge of the fourth presiding.
    The petitioners stated that they were collateral heirs of Bridget Lawrence, deceased, and as such, owners of a tract of land on Thompson’s Creek, in the parish of West Feliciana.— That the defendant caused a part'of said land to be sold by the sheriff, to satisfy a judgment which he had obtained against one John Lawrence, who they alledge never had any title to the land, and that this fact was within the knowledge of the defendant at the time of the seizure. They prayed for damages and a decree for the land.
    The defendant in his answer set up a title to the premises, and averred that the sheriff in selling the same, — acted of his own accord and without any instructions. He prayed that the suit of the plaintiff be dismissed, anda judgment rendered in his favor for' the land. The sheriff deposed that in the sale he acted under the directions of defendant. That he did not put the purchasers in possession, or dispossess any one of the land. The plaintiffs introduced as evidence of title a certificate dated 1st August 1825, for six hundred and forty acres, the claimant being an actual settler, and so reported by the commissioner in his report of actual settlement claims. The defendant introduced and relied upon a certificate dated April, 1827, for twelve hundred and eighty acres, confirmed as a donation claim. The certificate also states the defendant to have obtained an order of survey from the Spanish government, on the 1st May, 1799, and that a survey was made by Pintado in 1808. Both certificates covered the disputed premises. There was judgment for the plaintiffs in the court below and the defendant appealed.
    Bradford, for the plaintiffs.

      Downs, for the defendant,
    urged the following points.
    1. The title of the defendant ought to prevail, because he has a written valid title from the Spanish government, and the plaintiff’s is only a donation claim, acts of congress of 3d. March, 1819, 8th May, 1822, 26th May, 1824 and 4th May, 1826.
    Claims founded on any order of survey, re-quette, permission to settle, or any written evidence of claim derived from the Spanish authorities, have a preference over the donation claims of the actual settler, U. S. laws, vol. 6. 431, vol. 7. 101, 310, 461, U. S. land laws, 758-9, 823, 880, 905. Because he has a plot of survey made by a Spanish surveyor, and which appears to have been made in pursuance of an order of survey from the Spanish authorities. King 8c al. vs. Martin, 5 Martin, 197, Hooter vs. Tippett, 8 Martin, 637. Larches vs. Gonzales n Martin, 207; Litchworth vs. Bartells 4th M. n. s. 136.
    Because he has an order of survey from the land commissioners showing the locus m quo, which is necessary in all cases of confliction, and this the plaintiffs have not, acts of congress 1822, sec. 4, vol. 7, 102 land laws 824.

      Where both certificates issued under the same act of congress, there is no difference in regard to the time at ■which the parties acquired from the government of the U. States.

      The plaintiffs must make out a better title than r defendants, otherwise, they cannot recover. Martíng heirs vg< Gardiner, 5 Martin, 662.
   Porter J.

delivered the opinion of the court. This action in its commencement, was a suit for damages brought against the defendant, for having caused a portion of a tract of land to which the plaintiffs claimed title, to be sold at sheriffs sale, in satisfaction of a judgment which the defendant had obtained against one John Lawrence. An answer was filed, denying all agency on the part of the defendant in the sale, and further claiming title to the premises.

The cause was submitted to a jury on these issues, who found a verdict in favor of the plaintiffs, for the land, and assessed their damages at $400. The court confirmed this verdict, and the defendant appealed.

The titles under which the respective parties claim, cover the same land, and we are therefore under the necessity of examining their relative superiority.

They are both donations from congress. , . ® The certificate of the plaintiffs is dated the 1st August, 1825. That of the defendant on the 5th of April,¡1827. But both certificates purport to be issued in pursuance of an act of congress passed on the 8th May, 1822.— There is therefore, no difference in regard to the time, at which the parties acquired from the government of the United States.

The plaintiffs certificate is for six hundred and forty acres, the claimant being an actual settler, and so reported by the commissioner in his report of actual settlement claims.

That of the defendant is for twelve hundred and eighty acres, and his title is confirmed as a donation claim. The certificate also states the defendant to have obtained an order of survey from the Spanish government, on the 1st of May, 1799, and that a survey was made by Pintado, in 1808.

The second section of the act of 1822, under which these certificates issued declares, “That all the claims reported as aforesaid, and contained in the several reports of the said registers and receivers, founded on orders of survey, requets, permission to settle, and other written evidences of claims derived from the Spanish authorities, which ought, in the opinion of the registers and receivers to he confirmed, shall he confirmed in the same manner as if the title had been completed t # Provided, That the confirmation of all the saj¿j ciajms provided for by this -act, shall am0ünt an}y i0 a relinquishment forever on the part of the United States, of any claim whatever to the tract of land so confirmed and granted."—Land laws, page 823.

It is under this section th© certificate in favor of the defendant issued.

By the third section,, under which, that of the plaintiffs was given, it is enacted “That every person, or bis or her legal representative, where.claim is comprised in the lists or registers of claims reported by the registers and receivers, and the persons embraced in the list of actual settlers or their legal representatives, not having any written evidence of claim, reported as aforesaid,, shall,, when it appears by the said reports, or by the said lists, feat the land claimed or settled on, had been actually inhabited, or cultivated by such person or persons in whose right he claims, on or. before the 15th day of April, 1813, be entitled to a grant for the land so claimed or settled on, as a donation: — Provided, That not more, than one tract shall be thus granted to any one person, and the same shall not contain more than six hundred and forty acres: and that no lands shall be thus granted which are claimed or recognised by the preceding sections of the act, or by virtue of a confirmation under an act entitled “An act for adjusting the claims to land, and establishing land offices in the districts east of the island of New Orleans, approved on the 3d. day of March, 1829,” ,&c. &c.

A donee of land from the govern■ment of the United States must take it subject to all the burthens, conditions and limitations which the donor has thought proper to affix to his gift.

The acts of ■congress in relation to actual settlement clams in Florida, unsupported by written evidence of claims, do not recognize titles: they make gifts.

We had occasion to express very fully a few days since, in the case-of Boutner vs. Ventriss’ heirs, our-opinion in regard to the rights of those who claimed lands by donations from the government of the United States. We there came to the conclusion, that the donees must take-them subject to all the burthens, conditions,and'limitations,which the donor has .thought proper to affix to his gift.

That opinion is decisive of this case; it must never be lost sight of in deciding cases of this kind, that the acts of congress in relation to aetual settlements in Florida, -unsupported by written evidence of claim, do not recognize titles; they make gifts. The .provision which confers on the plaintiffs a right to the land, now sued for, annexes as a condition, that the property so granted, shall not have been claimed or recognized under the preceding sections of the act. rpjjg ,jefen¿|an{; shows his title to the premises has been claimed and recognized under the preceding sections; and consequently, shows a better one than the plaintiffs.

A person who land"0 ^cannot from* th^owner the property of I third person.

The remaining question in the cause is, whether a person who has no title to land, can claim damages from the owner, for sel-hng h 93 the property of a third person, and the mere statement of the question shows, that it must be answered in the negative.

The opinion, we entertain of the validity of the title of the plaintiffs, dispenses with an examination of the various questions arising on the bills of exceptions with which the record is loaded.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be annulled, avoided, and reversed, and it is further ordered, adjudged, and decreed that there be judgment for defendant with costs in both courts.


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      McDONOUGH vs. SPRAGGINS.

    The court of probates may discharge a curator irregularly appointed. As an administrator de son tori, he may be answerable to creditors for waste, but that suit against him must be brought in the courts of ordinary jurisdiction.
    Appeal from the court of probates of the parish of Iberville. *
    This suit was brought to recover from the defendant as curator of the estate of Nicholas Wilson, deceased, the amouut of a promisory note, drawn by Wilson in his lifetime, in favor of Durnford, and by the latter, transferred to the plaintiff. The petition concludes with a prayer for judgment against the defendant, in his capacity of curator, and in the event of a deficiency of assets, prays judgment against the defendant personally, for having wasted the succession, and having acted as administrator or curator de son tort. The answer of the defendant alleges that the estate of, Nicholas Wilson never was vacant, and that no curator could legally be appointed to the same. That if the defendant ever was appointed curator, the said appointment expired before the institution of the present suit. It appeared from the documentary evidence introduced, that in October, 1825, Wilson died, ab intestate — leaving a widow and several children. On the 1st of November, of the same year, his widow accepted J ^ community of acquets and gains, and was appointed curatrix to one of her children, and tutrix to the others, who were all present.
    On the 24th of November, 1825, the widow, by a petition to the court of probates, waived her right of preference to the administration of the estate, and on the same day, Joseph Erwin was appointed administrator. On the 15th of July, 1826, Erwin petitioned for, and obtained'his discharge from the administration; and on the 4th of September, 1826, Spraggins, the defendant, received letters of curatorship. On the 4th of May, 1827, Spraggins applied to be discharged from his curatorship, on the ground that the succession of Wilson, was not vacant at the time of his appointment. On the 28th of July, 1828, the present suit was brought, praying judgment against defendant in the manner above stated, and opposing his discharge. The court of probates decided that the appointment of Spraggins was illegal and void, ab in-itio, and discharged him and his sureties from all responsibility. From this judgment the plaintiff appealed.

      Porter, for appellant,
    urged the following points:
    1. The court below erred in deciding that Samuel M. Spraggins was not properly sued as administrator de son tort in the court of probates — said court having sole and exclusive jurisdiction in such cases.
    2. The judge a quo erred in deciding that the appointment of Samuel M. Spraggins as curator was ab initio void, for the reasons given in his judgment.
   Mathews, J.

delivered the opinion of the c ourt.

This suit was commenced against the defendant in his capacity as curator, to obtain judgment, rendering the succession which he represents,liable to pay and satisfy the plaintiff’s demand, and also, to obtain a decree against him personally, on the event of the property of the estate of Wilson, being insufficient to pay all just claims against it, as having illegally administered the succession of the intestate. He denies ever having been curator, legally appointed, and that if he ever was such, he ceased to be before the institution of the present action. The court below sustained the pleas of the answer-? and discharged the defendant from his cu-ratorship, and refused to hold jurisdiction 0f the cause, and from its judgment the plaintiff appealed.

It appears from the evidence in the case, that Wilson died intestate, leaving, at his death? a widow, and several children? residing in the parish of Iberville ; the former accepted the community of acquets and gains, and in that right, claimed one-half of the estate left at the decease of her husband? and caused the other half to be adjudicated to her at the appraised value of the idventorj, and took upon herself to manage the estate of her children, as curatrix ad bo-na, of one, and as tutrix of the others, who were minors? under the age of puberty. Afterwards her father, Joseph Erwin, by her consent? was appointed administrator of Wilson’s succession. He ceased or declined to act in that capacity; was discharged by the court of probates, and Spraggins? appointed curator, as of a vacant estate. This last appointment was clearly illegal? as the heirs were all present in the state. Under pretence of having discovered the illegality of his appointment, the curator applied to the court, from which it was derived, to he discharged from his trust. This was opposed by several of the creditors of Wilson’s succession, and amongst others, the present plaintiff made opposition. The judge of the court ofprobates,notwithstanding the pretensions of the opponents, discharged him, and we think properly. His appointment being originally illegal, was rightfully avoided; it was perhaps, void, ab initio and consequently he was never a legal representative of the estate which he undertook to administer. As an administrator de son tort or an intermedler with Wilson’s estate, he may be answerable to creditors for waste. But those pursuits against him, must take place in a court of ordinary jurisdiction.

The court of probates may discharge a curator irregularly appointed. As an administrator de son tort, ho may bs answerable to creditors for waste, but that suit against him must be brought in courts of ordinary jurisdiction.

It is therefore ordered, &c. that the judgment of the court of probates be affirmed with costs.


author:
MaRtin, J.
      Mathews, J.

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      PARKER vs. RICHARDSON.

    When a defendant has not prayed below for relief against his co-defendant, who was brought in only as regards any interest he might have in the premises, the sale of which was prayed for, he cannot have any on the appeal.

      Appeal from the court of the first district»
    This action was brought to recover from the defendant fifteen hundred dollars, and the facts of the case are in substance as follows: By a contract entered into with Fiske, the agent of the defendant, (who owned a lot on the Batture) it was agreed that the plaintiff should fill it up, in conformity with the police regulations of the city and suburbs of New-Orleans, for which he was to receive the price of fifteen hundred dollars at the expiration of one year from the date of the contract, provided he produced a certificate from the city surveyor that the lot was properly filled up; and it was further agreed upon, that if the sum was not punctually paid, interest was to be charged at. the rate of ten per cent., the plaintiff for security retaining alien upon thelot. The plaintiff prayed judgment for fifteen hundred dollars, with interest — That the lot might be seized and sold to satisfy the judgment — and that the heirs of Gravier, who presented a claim to the lot, might also be made parties to the suit. The defendant in his answer denied generally the allegations in the petition, and the heirs of Gravier answered that they were sole owners of the lot, and in possession of the same — That if the plaintiff had filled it up, he done so as an intruder, was entitled to , . no remuneration, but responsible to them in damages. The plaintiff then filed a supplemental petition, averring that the work done upon the lot was worth fifteen hundred dollars, and prayed that, upon proving this fact, judgment might be rendered not only against Richardson, but also against the heirs ofGravier for fifteen hundred dollars, with interest as stipulated in the contract;
    The plaintiff produced in evidence, 1st, the certificate of the city surveyor, that the lot was filled up in conformity to the police regulations. 2d, The .contract between Fiske and himself, stipulating to pay fifteen hundred dollars, and proved further that the work was worth that sum.
    The court below gave judgment for the plaintiff for the amount claimed, and decreed that the defendants interest in the lot be seized and sold. The defendant appealed.

      Maybin for appellant, Grymes for appellee.
   MaRtin, J.

delivered at March term 1829, the opinion of the court. This action, like that of Parker vs. Walden, 6 Martin, n. s. 713, is brought on a contract between the mayor of the city of New-Orleans and the plantiff, in pursuance of an adjudication to the latter of the filling up of the present defendant’s lot. The plaintiff further alleges, that Fiske, the defendant’s agent, promised to pay therefor, within one year, fifteen hundred dollars, with interest at ten per cent, if not punctually paid, the defendant producing a certificate from the proper officer that the lot was rightly filled up.

After averring that the work was performed and the certificate produced, the petition concludes with a prayer that the defendant may be cited, the lot sold, and that the heirs of Gravier, who claim an interest therein, may also be made parties.

The defendant, Richardson, pleaded the general issue.

The heirs of Gravier opposed the sale of the lot, on the ground of the plaintiff having acted without authority, and being entitled to no privilege on the lot.

The court gave judgment for the plaintiff. The defendant, Richardson, appealed.

His counsel urges, that the part of the judgment which condemns him personally and exclusively is erroneous, because the work alleged by the plaintiff to have been done, having been directed by an ordinance of the city council, created a lien on the lot claimed by the appellant and Gravier’s heirs, and by no others ; and all the alleged owners being in court, the question between the plaintiff and them should have been there settled, so that in any future controversy between the claimants, there should not be any dispute as to the value of the work ; and in case the lot be thereafter declared to be the property of the heirs, the appellant, after having paid the plaintiff, might have his lien or privilege, without being driven to his action to establish the value of the work.

Where a defendant has not prayed below for relief against his codefendant who was brought in only as regards any interest ho might have in the premises the sale of which was prayed for, he cannot have any on the appeal.

It does not appear to us that the district court erred. The appellant, a defendant below, did not pray for any relief against his co-defendants, who were brought in only as regard to any interest they might have against the lot, the sale of which was prayed.

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

A rehearing was granted, upon the application of the appellant, Richardson, and in March, 1830,

Mathews, J.

delivered the opinion of the court. It appears that a judgment was rendered in this case, by the supreme court, in term> X829, and that a rehearing was afterwards granted at the instance of the appellant. He complains of the judgment of the district court as defective, in not having pronounced on the claims of the heirs of Gravier, who became parties to the suit, and condemned them to the payment of the sum demanded by the plaintiff, in consequence of allegations on their part, that they are the owners and possessors of the lots of ground which were filled up by the appellee, Parker, who sues to recover the value of the work and labour by him performed, in the execution of his contract or agreement to fill up said lots, entered into with the defendant Richardson, through the agency of Fiske, the attorney in fact of the latter.

We are unable to perceive any good reasons why the original defendant should complain, because judgment was not rendered against the parties, who subsequently intervened in the cause. The supplemental petition and answer of the heirs of Gravier created a distinct issue between them and the plaintiff — in truth, a suit different from that r originally brought against Richardson. The first is an action on a specific contract, in which the defendant promised, on certain conditions to be performed by the plaintiff, (and which have been performed, as appears by the evidence of the cause) to pay to him fifteen hundred dollars, with interest at the rate of ten per cent, per annum after a certain date, the payment of which was secured by a lien stipulated on the lots which were to be filled up. Now by this contract he bound himself personally, and burthened the property with a species of mortgage to the extent of his right and interest therein.

The judgment of the district court touches no matters except those which arise out of this contract and the pleadings between Parker and Richardson. It condemns the latter personally to the payment of the sum expressed in the agreement, and subjects his interest in the lot to be sold in satisfaction of the judgment. The plaintiff might, perhaps, with some semblance of justice, have complained of the decree of the court below, in not ordering the lot to be sold absolutely on the suit and issue between him and the heirs of Gravier ; but how the defendant can . . „ . - legally interfere m that affair, we are at a loss t0 ¿|jscover> Any claim which he may pos» gibly hereafter have, ex equo et bono, against Gravier’s heirs for money paid and advanced to their use and benefit, cannot be taken into consideration in the present suit.

It is ordered that the judgment rendered in this cause, on the second day of March, 1829, remains undisturbed.


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      JIOVELLINA vs. MINOR & AL.

    Where property producing fruits is sold on. a credit, the vendee owes no interest on the price until after a delay of payment.
    Appeal from the court of the first district.
    The executor of the last will and testament of the plaintiff’s mother, conjointly with the the plaintiff’s guardian, sold to Stephen Minor, on the 19th of April, 1811, a house and lot in Bienville street, for the sum of seven thousand five hundred dollars, of which sum three thousand were paid at the time of sale ; two thousand four hundred thirty-nine dollars and twenty-five cents, to be paid in one year thereafter, and the balance of two thousand sixty dollars and seventy-five cents, to be paid when . ,. . . . the vendors should raise a mortgage existing upon the house and lot for this sum ; it being understood that, if the mortgage should be raised within a year, the purchaser should have the whole year to pay, and if the mortgage should not be raised within the year, the purchaser was to have thirty days to pay, after notice of its being raised. The mortgage was raised on the 9th of February, 1829, and this suit was brought to recover from the defendants (who are heirs of Stephen Minor) two thousand sixty dollars and seventy-five cents, the balance of the purchase money, with interest from the 19 th of April, 1812. The defendants in their answer plead a tender of the sum due, but denied that any interest was chargeable.
    . It was admitted that, in 1819, the small building which was on the lot, was replaced by two three-story brick buildings, which cost Stephen Minor twenty-four thousand dollars; that the sum due by the act of sale,' whenever the mortgage was raised, was duly tendered within the term stipulated by the act of sale, and it was only the interest on the sum which the defendants had refused to pay. The plaintiffs proved that the house and lot, at the time of the sale would have rented for twenty-five dollars per month.
    The court below gave judgment for the plaintiff for the amount claimed, with interest from the 19th April 1812, and the defendants appealed.
    Pierce, for appellants.
    There is error in the judgment of the district court, for interest can only be charged on the price after it becomes due. — Old C. C. p. 268, art. 46. Hepp Sf al. vs. Diteros al. 3 Mart, n. s.p. 189.
    Art. 84, of the old Civil Code, p. 360, intends to provide for cases where the price is due, and not to alter the existing law. This is presumed.
    This is not conventional interest; and there are but two kinds known,legal and conventional. If it be legal, at what rate is it to be charged ? It ’s not provided for by law. The legal interest is fixed by the laws of this territory, to wit:— at five per cent, on all sums which are the object of a judicial demand, and six per cent, for the interest of sums discounted in banks. — Old C. C.

      art. 32, p. 408 — A price, which is not yet due is not the object of a judicial demand.
    Dennis, for appellees.
    The only point which divides the parties is the question of interest. The appellee maintains that there is no error in the judgment below, because interest is due by the Old C. C. p. 361, art. 84 — p. 271, art. 53 — art. 1652 of French Code — Panda's Francoises, p. 105— Path. Con de Vente No. 283,284,285, 286— Jurisprudence, Code Napoleon, vol. 14, p. 351 —Journal du Palais, vol. 34, p. 45.
   Martin, J.

delivered the opinion of the court. The plaintiff states that a lot of hers was sold by the testamentary executors of her mother, from whom she inherited it, and her guardian, to the defendants’ ancestor, in 1811, and the premises being incumbered by a mortgage for a sum of about two thousand dollars, it was agreed that it should be retained by the vendee during one year, and then paid, if the mortgage was canceled, otherwise within thirty days after the vendee received notice of the canceling ; that a period of nineteen years had elapsed before the mortgage could be canceled, and notice being given to the defendants, they became bound to pay the said sum, thirty days thereafter? with interest from the end of the year following the sale; the property sold being productive of fruits, i. t. an annual rent, there being a house on if.

The defendants pleaded a tender (on the thirtieth day after notice) of the sum, denying any interest was due.

The tender was admitted — the plaintiff had judgment for the principal and interest from the end of the year following the sale. The defendants appealed.

The appellee’s counsel has contended that a' vendee of property producing fruits, owes interest from the day of the sale, even when he has a term for the payment of the price.

A number of French authorities have been produced which establish this proposition, in its fullest extent.-Poth Contra de Vente, with Bernard's notes, w.283—6 Pandect's Fran-caises on art 1652 of the Napoleon Code—Muleville on Domat, Vente, tit. 2, sect. 363—Id. interest., 5, 14,—6 Toullier, 681.

The article of the Napoleon Code, 1652, has been literally copied in our code of 1808, —360, art. 84. “ The buyer owes interest on the price of the sales, if the thing sold produces fruits or other increase.”

It is not extraordinary that the courts of this state should give different opinions from those of the courts of France, on an article copied from the Napoleon Code in ours. The Napoleon Code introduced an entire new system, and abrogated all former laws. The confused state in which the civil laws of the country were plunged by the effect of the changes which happened in its government, having rendered it indispensable to make known the laws which had been preserved, after the abrogation of those which were contrary to the constitution of the United States, or irreconcileable with its principles, and to collect them in a single work, which might serve as a guide for the decisions of courts and juries, without recuring to a multiplicity of books, which, being for the most part written in foreign languages, offered, in their interpretation, inexhaustible sources of litigation.—1 Moreau’s Digest, 220.

In giving their sanction to our code, the legislature abrogated only such parts of former laws, as were contrary to, or irreconcileable with its dispositions. Id. 224.

Where property producing credit, the ven-dee owes no in-Íerdeiayof pay-raent*

Pothier, however, who wrote before the Napoleon Code, has expressed his opinion against the position of the appellee’s counsel, an(j teaches that the vendee of land, who has a delay to pay the price, owes no interest in the mean while. He cites in support of his conclusion, Covarrulias,a Spanish writer.

In examining, therefore, the pretensions of the appellee, we have entirely disregarded the opinions of French writers.

According to our laws, interest, in contracts to pay money, is the measure of damages to be paid by the party who neglects to comply with his engagements.— C. Code, 270.

These damages are due only when the D J debtor has delayed to comply with his obli-gatfon, except when the thing which the ® ’ » o debtor had obliged himself to give or do, could not be given or done only at a certain time, which he has suffered to elapse,—C. Code, 268, art. 4. Hepp & al. vs. Ducros, 3 M. n. s. 189. By construing, therefore, the article 84 p. 360 of the Code, we conclude that the vendee of land is only chargeable with interest after a delay of payment.—Pothier, vente n. 28, 286.

The Digest 1,19, 13, 620, de actionibus . . vend, et empt. on which the provisions of the Napoleon and our Codes are evidently based, applies to such cases only, in which the debt is payable. It is so understood by Rodriguez, 7 Digesto Theoretico.

Interest is with us either conventional or legal.

In the present case, as there is no convention, legal interest only can be claimed. Our laws know but two rates of legal interest-That of jive per cent, on all suras that are the object of a judicial demand; six per cent, on discounts in banks.—C. Code 408, art. 32. Now the money claimed by the plaintiff in this case was tendered as soon as it became the object of a judicial demand, as soon as it was payable.

Generally speaking, interest is not due before a demand.—C. Code 270, art. 53. But where the law makes them accrue of right, id est, as in the case of a sale of a thing producing fruit, they become due on the delay, without any previous demand or suit. And this is the only difference between the sale of such a thing or any other.

In sales on a credit, the vendor always requires a higher price than on cash sales, and is regulated by the extent of the credit. It would then be absurd for him to expect interest till the period of credit is elapsed. Many consider a sale, with interest from the delivery, as a cash sale. The position that interest is demandable before the day of payment, is absurd.

After that day, if the debtor be prevented by the act positive or negative of the creditor, or if the latter withdraw or conceal himself, the debtor is not in fault, and owes no interest or damages. His obligation to keep the money ready to be paid on demand, prevents him from parting with it to make it produce interest, except at his own risk.

In a late case, in the western district, Miles vs. Odin & al. 8 Martin n. s. 214, we held that Brent, the vendee of a number of slaves, in whose hands a creditor of the vendor had attached the price, did not owe any interest during the pendency of the suit, although the judgment was protracted for several years. See also the case of Boutuny vs. Ducournau, 6 Martin, 657.

It is therefore ordered, adjudged and de-it i-i creed, that the judgment of the district court be annulled, avoided and reversed, and that the plaintiff and appellee receive from the defendants and appellant the sum of two thousand sixty dollars and seventy-five cents, the plaintiff and appellee paying costs in both courts.