text:
    Jouanneau, Curator, v. Shannon.
    Though, in a contest between two joint owners of a steamer as to the extent of their respective interests, the enrollment, which states merely that the two are sole owners, will raise a presumption, under art. 2836 C. C., that the joint ownership was equal, it may be1 rebutted by the production of the books and papers of the steamer, which, under the circumstances, arc equivalent to a written title in favor of the defendant: and parol evidence of their contents, unless specially objected to as secondary, must receive the same consideration as the books and papers themselves.
    A part owner of a steamer or vessel, who owns more than half of the vessel, and is in possession, has an undoubted right to employ her in her usual trade, where no objcctionis made* by his co-proprietor. It is only where the owners disagree, that there is any conflict in the jurisprudence of maritime nations on this subject. Nor will this right of employment cease by the death of the co-proprictoiy his rights and obligations being transmitted to his heirs.
    Where one of the part owners of a steamer, in the exercise of his legal rights,-continues the1 steamer in her usual trade, after the death of his co-proprietor, without objection on the part of the heirs or representatives of the deceased, any loss resulting from an explosion of her boilors must be borne by the co-proprietors in proportion to their respective interests, unless it be shown to have resulted from the negligence or misconduct of the surviving part owner. And where,-in such a case, the share of the survivor is purchased by a third person after the explosion, who causes the repairs necessary to render the boat fit for navigation tobe made in a prudent manner andin good faith, withoutobjection on the part of the heirs or representatives of the deceased, and the repairs are proved to have increased the value of the boat more than their cost, the share of the deceased must,-as between the succession itself and the purchaser, be charged with its proportional part of the cost of the repairs.
    from the Second District Court of NTew Orleans, Canonr J.

      Redmond and Coken, for the plaintiff.

      Goold and Kendall, for the appellants*
   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

Miller and Whipple owned the steamboat Medora. Whipple died in NTew Orleans, in January, 1847 : his succession was opened here ; andr after some delay, Jouanneau was appointed curator. In February, 1847, while making her second trip after Whipple's death, an explosion of her boilers took place, by which she was much injured. Miller then sold his interest, of three-fourths, to the defendant, who repaired and put her in running order. In April, the curator brought this suit, in which he claims one-half of the boat. Shannon answered claiming three-fourths, and asking to be allowed the sums he had expended for necessary repairs.

The first point which requires consideration is, the extent of ownership of the parties. The enrollment, which \vas made in 1846 upon the oath of Miller, states that he, together with Whipple, are sole owners of the Medora. To prove that Whipple's interest was only a fourth, the defendant offered the testimony of the steamer’s clerk, who deposes that he kept her books : that Miller appeared on the books as owner of three-fourths, which he afterwards sold to-Shannon ; that Whipple, who acted as the boat’s engineer, owned one-fourthy as also appeared on the books'; that he never claimed a larger interest, and, in all his settlements of account whit the boat, acted on the basis of an interest of" one-fourth.

The-plaintiff objected to this'testimony, on the ground, “that the enrollment, introduced in evidence by plaintiff, having established1 the joint ownership of the steamboat by plaintiff and defendant, and the law (C. C. 2836) raising in plaintiff’s favor the presumption Lhat said joint ownership was equal, the title of defendant to a greater portion of such boat could only be established by an instrument in writing, inasmuch as plaintiff established his interest by evidence of that character,”-—which objection the court overruled, and the plaintiff took his bill of exceptions.

The ruling of the court does not appear to us erroneous. It may be conceded that, the analogy of the article of the Code referred to justifies the presumption invoked by the plaintiff. It declares that “when the contract of partnership does not determine the share of each partner in the profits or losses, each one shall be entitled to an equal share of the profits, and must contribute equally to the losses.” But, while the enrollment fairly raises that presumption, it is not a presumption juris et d.e jure. It is merely a presumption supplied, in the silence of the parties, upon the principle that equality is equity, and that an equitable standard will be applied where the parties had not expressly furnished one. The burden was thrown upon Shannon to rebut the legal inference, and we think he has done so successfully.

It will be observed that no objection was made to the non-production of the books and accounts, nor to the parol proof of their contents. 1 The books and accounts, under the circumstances, ware equivalent to a written title in favor of the defendant: and parol proof of their contents, unless specifically objected to, as being secondary evidence, must receive the same consideration as the books themselves.

Concurring in opinion with the district judge that, Whipple owned only one-fourth of the steamer, our next enquiry will be directed to the conduct of Shannon after IFhipjple’s death, and its legal consequences.

The right of a part owner in possession, who owns the preponderating share of a vessel, to employ her in her usual trade, where no objection is made by his co-proprietor, appears to be undoubted. It is only in the case where the owners disagree, that we find any conflict in the jurisprudence of maritime nations. The laws of France, the ordinances of tiro Hanse towns, those of W’isbuy, and generally the ancieut usages, are said to authorize the exercise of a complete authority by the majority in interest. The english law qualifies this authority. It authorizes the majority in interest to employ the- ship, yet, at the same time, protects the interests of the dissentient minority from being lost in any employment which they disapprove, by requiring the majority to give security for the vessel’s safe return. Differing upon a minor point, the laws of all commercial nations harmonize to this extent, that they are founded upon equitable principles and an enlarged public policy. In the language of a learned author, “ ships are built to plough the sea and not to lie by the walls, and their actual employment is considered as a matter not merely of private advantage to their owners, but of public benefit to the State ; and therefore rules have been adopted to favor this employment, and to prevent the obstinacy of some of the part owners from condemning the ship to rot in idleness.” Abbott on Ship., p. 125.

In a liberal furtherance of these principles it has been held that, if the dissenting part owner does not apply for security, he is supposed to consent to the employment of the ship, is liable for his share of the expenses, and entitled to a share in the profits. Gould v. Stanton, 16 Conn. 12, cited in notes to Abbott, edit, of 1846.

We have not found in the books any case where the question of the right of employment, after the death of a part owner, has occurred. But, upon principle, we conceive the cases are not distinguishable. The rights and' the ob-. ligations of a party are transmitted to his heirs. 1Whipple, when he assented to, become a part owner with Miller, assumed all the obligations and liabilities: which pertained by legal implibation to that relation. If Miller choose to send the steamer on a voyage, and Whipple did not object, the vessel and the. voyage were not at Miller’s sole risk. If Whipple objected, his remedy was by-application to a competent tribunal to compel his associate to give security. With, what propriety can the, character of- the contract, and the reciprocal rights and duties of the parties, be immediately changed by the transmission of the interest qf Whipple to his heirs 1 Public policy, and th.e interest of' Miller, who was, tho owner of threerfotirths of the vessel, stilj required that she should not lie idle at the wharf,; but be usefully employed.

The peculiar circumstances, presented in this case illustrate very strongly the-propriety of maintaining the principles aboye explained, even after the death of-the part owner. The steamer had been advertized to leave, on her usual voyage, on the day of Whipple’s death. She was a regular packet, had been taking in cargo on the day. of his death and the day previous, and was heavily, laden. If' the argument of the plaintiff’s, qoqnsel be correct, and Whipple’s death terminated the controlling, power of the majority interest, the steamer should not only-have withdrawn from all future business, britf have disappointed passengers-already engaged, and disembarked the freight shg had already received. Such a proposition certainly involves an injustice to Whipple’s co-proprietor, and a disregard of the interests of commerce.

It is proper also to, ajld that, the boat- made qnly-two trips aftqr the part owner’s, death, and these were in her regular trade as a packet. .

Being therefore of opinion that the continuance of the boat’s employment, in the absence of any objection, by the proper representative of the sue-, pession, was not illegal, the solution of the question arising out of the. explosion, which occurred on her second trip after Whipple's death, is free from, 1 difficulfy. Miller having a right to employ the boat usefully, he is not to bear;the whole burden of that loss, unless it can be attributed to some fault on his part. Under the evidence, iff is doubtful whether the accident, arose from somq defect in the, boilers, or from the inattention of the engineer. But there is nothing proved which vyould authorize us to say that the loss vyas attributable to, any misconduct or negligence on the pai;t of Miller, either in the selection of an-engineer or otherwise. If the same thing had happened in Whipple’s life time, under similar- circumst¡ances, there would be no pretence for inflicting the wholq. loss on his associate.

The explosion injured the bq^t so seriquslyí¡haí¡, she woujd have been entirely pnfit for navigation without repairs. Shannon, who bought Miller's interest, had these repairs made in a prudent manner and in good faith; and the claim, for these repairs, having been submitted by order of the court below to skilful, qxperts, has been ascertained to be reasonable. The outlay was $3,973 66; and, in, the opinion of the experts,, has increased the value of the vessel in a greater-ratio.

As these repairs were necessary and reasonable, and have contributed to the, pommon benefit, and as there is no evidence of qny objection by the representa-, 1jve of the succession to their being made, it would be inequitable to enrich the, succession at the expense of Shannon.

Even if the f)art owners are not tobe treated, int.er s.e, as commercial partner^ under article 2796 of the Code, they are at least to be considered as quasi partners, and accountable for the excess which one, in good faith, has advanced for the other. As between the succession of Whipple and the defendant, we entertain no doubt that the share of the former in the proceeds of the boat, should be charged, in favor of Shannon, with one-fourth of the amount of $3,973 66, expended for the repairs. Gardner v. Cleveland, 9 Pick. 336.

It may be, however, that the succession is not solvent; and we think it proper not to express an opinion noy as to the right of Shannon adversely to creditors of the estate, but will leave that question to be settled upon a tableau of' distribution.

It is therefore decreed that, the judgment of the court below be reversed. It is, further decreed that, the said Shannon be recognized as the own er of three fourths-of the steamer Medora, and, as such, that- he receive three fourths of the proceeds-, of the sale of said steamer. It is further- decreed, that the said succession be, recognized as the owner of one-fourth of said steamer; that the said succession, be adjudged the debtor of the said Shannon in the sum of $993 41¿ ; and that the right of Shannon to be paid said sum, by preference out of the share of said succession in said proceeds of sale, be reserved for adjudication upon the tableau pf distribution, said share of said proceeds to be considered as representing the. share of the said succession in the said vessel. And it is further decreed that, the costs of this appeal be paid by the succession; and that the costs of this suit in the court below be paid by the said succession, and the said Shannon, in equal portions.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Hewlett v. Henderson.
    Where, on an application for a new trial on the ground of the sickness of one of the plaintiff's counsel and the absence of the other on professional business elswhere, there is no, allegation that the judgment is contrary to law and evidence, nor that justice requires its revision, anew trial must be refused.
    APPEAL from a judgment rendered by the- District Court of Jefferson. Clarke, J. refusing a new trial. The reasons assigned for the refusal were:,
    “In this case, a judgment of non-suit having been rendered, the plaintiff' moves, for a new trial, on the following grounds: 1st. That the principal counsel was unable to attend the trial, on account of important- professional business elswhere. 2d. That another counsel was also unable to attend on account of sickness. 3d. That the counsel representing the attorneys of plaintiff moved fbr a continuance on the grounds stated, and, pending the motion, which was very much protracted by defendant’s counsel, he. was obliged to leave the court, to attend a criminal case at Carrollton.
    “The application sets fourth none of the grounds indicated in our Code of Practice as legal causes for granting a new trial; Yide C. P. 560. There is no allegation that the judgment is contrary to law and evidence, nor is there a ground laid for the exercise of its discretion by the court in granting a new trial ex officio, by-the averment, supported by affidavit, that justice requires a revision of the judgment &c. The third ground does not strengthen the application. The statement of facts on which it is based requires some amendment, to make it conform; With What transpired on the trial. The counsel who, it is said, represented the attorneys of the plaintiff, appeared for the plaintiff when the case was called, and moved for a continuance, upon affidavit of the absence of one, and the sickness of another, counsel. The continuance was refused on the ground that, the affidavit did not set forth facts and contain allegations furnishing legal cause for granting a continuance. Upon the refusal to postpone the trial, having requested the witnesses for the plaintiff to be called, lie again moved for a continuance on the ground that one of plaintiff’s witnesses, subpoenaed, had not appeared, and, being a member of the legislature, could not be attached. The defendant’s counsel opposed the continuance, offering to guaranty the production of the witness in time to give his testimony on the trial. Pending the argument of the question thus raised, the witness appeared in court. Upon the appearance in court of the witness whose absence had been complained of, the counsel who moved for the continuance retired from the court-house, and, there being no one to represent the plaintiff, a judgment of non-suit was entered upon the record. Under the circumstances thus presented, the courtis reluctant to entertain an application to set aside a judgment not alleged to be contrary to law and evidence, nor shown to work an irreparable injury or injustice.”

      Michel and Soulé, for the appellant.

      Hiestand, for the defendant.
   The

judgment of the court (King, J. absent,) was pronounced by

Slidell, J.

For the reasons assigned by the district judge, it is ordered that the judgment of the District court be affirmed, with costs.


author: Eustis, C. J.

text:
    Landreaux v. Marsoudet.
    Where a recorder of mortgages, who, on the authority and at the instance of the administrator oí a succession, illegally cancelled a mortgage, is compelled by a judgment to pay the amount of the mortgage, with interest and the costs of the suit instituted by the mortgagee, he may recover, against the administrator individually, the amount so paid, with interest from judicial demaud, and costs ut‘ suit.
    Admitting the right of an administrator, who has been condemned individually to refund to a register of mortgages an amount recovered I'rom the latter by a mortgagee whose mortgage had been illegally erased at the. instance of the administrator, to recover from the creditors of the succession to whom the amount of the mortgage liad been paid, which is not conceded, the action against the creditors would be prescribed, under art. 1176 C. C., by three years from the date of the order or judgment under which thepaymontwasmade to them.
    Interest may he allowed by way of damages.
    from the Fifth. District Court of New Orlenos, Buchanan, J.

      Le Qardeur, for the plaintiff.

      Marsoudet, appellant, pro se.

      Maurian, on the same side.
   The judgment of the court (King, J. absent,) was pronounced by

Eustis, C. J.

On the 20th January, 1847, Pierre Chigé recovered judgment, in the Fifth District Court of New Orleans, against Pierre Landreaux, who was the re'eordor of mortgages for the city -of New Orleans, for the sum of $1,279 14, with interest from judicial demand, and costs of suit; which judgment was affirmed by this court. See 2 An. p. C06.

The plaintiff, Chigé, had purchased certain real estate in New Orleans, at a judicial sale made for the purpose of effecting a partition among heirs. The purchase money was to remain in deposit, in consequence of the existence of a mortgage in favor of the Bank of Louisiana. This deposit was withdrawn without the privity of the purchaser, and an administrator who was appointed to administer the effects of the succession, after the sale to Chigé, undertook to raise the mortgage which existed in favor of the Bank of Louisiana, and, at his instance, the mortgage was cancelled accordingly, on the records of the mortgage office, The Bank of Louisiana took no part in these proceedings, and an order of seizure was issued to subject the property purchased by Chigé to the mortgage as still subsisting, and Chigé, after an unsuccessful attempt to resist the bank, was compelled again to pay for the property he had purchased, to the extent of the mortgage debt, of the bank. He brought liis action against the recorder of mortgages for having thus illegally cancelled the mortgage, and thus enabled the administrator to withdraw the purchase money deposited, and apply it to other purposes than that for which it was intended. Landreaux, the plaintiff, having paid this judgment, has instituted the present suit against the defendant, who was the administrator, who took upon himsolf to raise the mortgage in favor of the Bank of Louisiana. In this suit he seeks to recover the amount of the said judgment and costs, and the sum of $500, for expenses and damages. He obtained judgment against the defendant for the sum of $1442 95, with interest from the judicial demand, and costs: and the defendant has appealed. The case has been argued in a written brief, presented by the defendant in person. He has failed to show am fact or circumstance by which he was justified in raising the mortgage in favor of the Bank of Louisiana. Williams v. Bank of Louisiana, 17 La. 382. Bertoli v. Citizens' Bank, 1 An. p. 119. Gas Bank v. Webb, 2 An. 526. Alling v. Citizens’ Bank, ante 308.

It was on his authority and at his instance, that the recorder cancelled the mortgage on his records, by reason of which he was rendered liable to Chigé in the action which we have slated, and the defendant must stand responsible to Landreaux for having done this act. It is true that the judgment against Landreaux, was rendered on admissions of fact made by Landreaux, and that those admisssions are not binding upon the present defendant. But the facts in this case, as we understand them, and as the district judge in his opinion considered them, are as strong against the defendant as the admission made in the suit by the plaintiff; and the present action, as it stands before us, is without any defence on the merits.

The defendant called in warranty two of the creditors of the succession, to. whom, it was alleged by him, that the funds deposited by Chigé had been distributed. The district judge held that the recourse of the defendant against these parties was prescribed by lapse of time, by virtue of art. 1176 of the Civil Code. Admitting the defendant to have had any right of action against the creditors, in a case of this kind, which is not conceded, we think the proscription established by this article applies to it. The objections made to the precise amount of the judgment have been examined. The district judge has allowed the plaintiff the amount of Chigé’s judgment paid by him, with interest and costs, and has given him interest from judicial demand. Interest may be allowed by way of damages, and the amount embraced by the objections of the defendant will be but a small compensation for the expense and damage resulting from the-facts of which we have evidence before us.

Judgment affirmed.


author: Etjstis, C. J.

text:
    The First Municipality v. Cutting.
    It is no objection to the validity of an ordinance of one of the municipalities of New Orleans, containing a prohibition and attaching a penalty to its violation, that it purports by its terms to be a resolution.
    Decision in First Municipality v. Devron, ante, p, 278 affirmed.
    The right to establish markets is a branch of the sovereign power, and that of regulating them is necessarily apower of municipal police.
    The rigid rules by which the validity of penal statues is to be tested, are inapplicable to the by-laws of a municipal corporation.
    The fines which a municipal corporation is authorized to recover for the violation of its ordinances is a penalty in the nature of liquidated damages, and established, as such, in lieu of tho damages which a court would be authorized to assess in place thereof.
    A by-law, or ordinance of a municipal corporation; nih'st be consonant with the law of the ■ land; but it must receive a reasonable construction, dud its terms mustnotbe strictly scrutinized for the purpose of making it void.
    from a of a Justice of the Peace in New Orleans:

      Preaux and Morel, for 'the plaintiffs.

      Latour and Roselius, for the appellant.
   The judgement of the court ( King, J, absent,) was pronounced by

Etjstis, C. J.

This is an appeal from a judgment of one of the justices of the peace of New Orleans, rendered against the defendant for the amount of a fine incurred by huff, for a violation of one of the ordinances of the First MunL cipality. The ordinance is in these words : “Resolved, that after the promulgaiioii of this resolution, any person selling groceries at the markets shall pay a finé from twenty-five to fifty dollars, for each and every time he shall violate the ordinance forbidding to sell groceries under the meat and vegetable markets.” The ordinance to which this refers provides that, “from and after the 1st of ■January, 1846, it shall not be lawful to Sell groceries and oysters, either at thd meat or at the vegetable markets.”

The first and most material objection which has been taken to the validity of this ordinance or by-law is, that it purports by its terms to lié a resolution, and as such has not the force and effect of a legal ordinance or by-law. We consid'ered this objection in the case of The First Municipality v. Devron, recently decided, and it was not without difficulty that We came to the conclusion in favor of its legality. That conclusion was founded oh the indefinite character of thé powers given to the mayor and city council of the late city of New Orleans, by the several statutes on that subject. No form in which their legislative acts aré to be exercised is given in toy of the statutes. They have authority to make and pass by-laws or ordinances, and, in one instance, fines imposed by the regulations and by-laws of the corporation, are recognized as valid. Moreau’s Digest, vol. 2. p. 124. In another instance, provision is made for the recovery of fines incurred for offences committed against the ordinances and regulations enacted by the city council. Considering therefore that the ordinance contained a prohibition with the penalty attached, it was in fact a by-laW or regulation, and. the form made use of in enacting it did not rénder it void as such. It was signed by the mayor, and no valid objection was mbdó to the power of the council to enact ifri

It is contended that the corporíltitíñ hab no right to pfbhibit the salé of groceries in the public markets. The right to establish markets is a branch of the sovereign power, and the right of regulating them is necessarily a power of municipal police. See Blackstone’s Com. vol. p. 274. Domat, Droit Public, lib. 1: beet. 3. This power is vested by positive law in the mayor and council of each inunicipality, upon whom rests the responsibility of the peace, comfort and ortl«r of the assemblages collected at fixed hours at these great thoroughfares! The limitation of the sales to perishable objects necessary for the daily support-of the inhabitants, and the exclusion of other articles appear to us to be obviously within the powers vested in the municipal administration. Morano v. The Mayor, 2 La. 218.

It is next contended that the resolution is illegal, because it refers to an ordinance forbidding the sale of groceries in the two markets, without stating what ordinance; and no such ordinance has been shown. The ordinance referred to we have recited at length; it prohibits the sale of groceries aiid oysters.

If the ordinance under consideration were a penal statute, the penalty might not be enforced by reason of its want of certainty; but we do not understand 'that the strict and rigid rules by which the validity of peual statues is to be tested, are to be applied to the by-laws of a municipal corporation. The by-laws of very few of these corporations could stand such a test. Loze v. The Mayor of New Orleans, 2 La. 427.

We understand the fine which a municipal corporation is-authorized to recover for the violation of its ordinances to be a penalty in the nature of liquidated damages, and established as such in lieu of the damages which a court would be authorized to assess. Willcok on Municipal Corporations, no. 368. A by-law must be consonant with the law of the land; but it must receive a reasonable construction, and its terms must not be strictly scrutinized for the purpose of making it void. Idem. no. 382.

The sense of the ordinance in question being plain and obvious to the most common understanding, we do not think it void by reason of uncertainty.

Judgment affirmed.

      A similar decission, for the same reasons, was rendered at the same time, in the case of the Hirst Municipality v. Vogtel.


author: Rost, J.

text:
    Succession of Mossy.
    A marriage contract stipulated: “Art. 1. Les futurs éponx seront uns et commuús eú tons biens\ meubles et immeubles, acquéts et conquSts immeubles, qn’ils peuveni maintenant possédée, ou pourront posséder d Vavenir', fye. Art. 3. Les Mens de la demoiselle futwe consistent: lp. e?¿. une somme de six cents piastres, provenant dune donation qui lui fút faitepar Mr. J. A. et Mme. D. son \épouse, grand-pére et grande-mére de la demoiselle future; 2°. et en son trousseau de la valeur de mille piastres, ainsi qué le reconnait le sieur fnlur qui consent den demewer chargé par le seul fait du mariage. Art. 4. Les sieur et Dame A., pére et m'ére de la demoiselle futwe, constituent cn dot, conjoiniement et par moitié en avancem&nt de lours successions futures, d Mile. A., lew filie, qui Vaccepte, et dont le sieur futur se fait charge, payée qu'elle soit: 1°. une somme de six mille piastres quHls dobligent et promettént de payer aux futurs époux, savoir: trozs mille piastres dans le courant du mois de juillet de Vannée prochaine, et irois mille piastres dans le cowant du mois de julliet de V anrioeprochaine, mil knit ceutvingt nevf; 2P. et douze couverts dwgent, SfC. estlmés par les parties d la somme de cent vingt piastres, le tout. Art. 5. Tons les biens ci-dessus constatés entreront dans la communauié sns-'établie et en feront partie d compter dujow de la benediction nuptiale; et tousles autr'es Mens qui poumont écheozr et appaiienir par la suite aux futurs époux, soit pan' succession donations, legs ou autres avantages quelconques; seront et dcmeureront propres d chacun deux, de cóté et ligne” Held: That the property brought into the community was that owned by the parties at the date of the marriage contract; that the property which the future wife owned at that time, consisted only of that described in art. 3; that the dowry settled on her by her parents, and to be paid in one and two years, was not her property nntil after the marriage (C. C. 1733); and that the provision in art. 5, that all the previously enumerated property shall fall into the community, refers exclusively to the property enumerated in the third article, which must be considered as part of the communiiy.

      a PPEAL from the Second District Court of New Orleans, Buchanan, J. prS" -£*. siding.

      LeQardeur, for the appellant.
    >S. L Johnson, for the under-tutor* conirá.

   The judgment of the court (King, J. absent,) was pronounced by

Rost, J.

The mother and natural tutrix of the minor children of the late Toussaint Mossy, applied to the court for leave to substitute a special mortgage to the legal mortgage existing on her property in then- favor, and filed an account liquidating their rights, in which she deducts from the assets of the community the sum of $7,720, brought by her in marriage. She prayed for its homologation. This prayer was opposed by the under-tutor of the minors, upon the ground that, by the marriage contract between the deceased and his wife, the property brought by the latter in marriage became a part of the community, and that the whole assets ought to be equally divided between the tutrix and her children. This appeal is taken from the judgment of the District court sustaining that opposition.

This case turns upon the correct interpretation of the following articles of the marriage contract:

Art. 1. Les futur époux seront uns et eommuns en tous biens, meubles et immeubles, acquéts et conquéts immeubles, qu’ils peuvent maintenantposséder, ou pourront posséder & l’avenir, &c.

Art. 3. Les Mens de la demoiselle future consistent: 1°. en une somme de six cents piastres, provenant d’une donation qui Iui fut faite par Mr. Jean Marie Armant et Mme. Félicité Lupin, son épouse, grand-pére et grand-mere de la demoiselle future; 2o. et en son trousseau de la valeur de mille piastres, ainsi que le recconnait le sieur futur, qui consent d’en demeurer chargé par le seul fait du marriage.”

Art. 4. Les sieur et dame Armant, pére et mere de la demoiselle future, constituent en dot, conjointement et par moitié, en avancement de leurs successions futuros, á. Melle. Jeanne Eliza Armant, leur filie, quil’ accepte, et dont le sieur futur se fait charge, payée qu’elle soil: 18. une somme de six mille piastre's' qu’ils s’obligent et promettent de payer aux futurs époux, savoir: trois millo piastres dans le courant du mois de juillet proehain, et trois mille piastres dans le courant du mois de jnillet de l’année prochaine, mil huit cent vingt neuf; 2a. et douze couverts d’argent, cuilleres á soupe et á íagoüt, aussi d’argent, estimes par' Ies parties a la somme de cent vingt piastres, le tout.

The fifth article then privides that: Tous les biens ci-dessus constatés entreront dans la communauté sus-établie, et en feront partie á compter du jour de la benédiction nuptiale; et tous Ies autres biens qui pourront éeheoir et appartenir' par la suite aux futurs époux, soit par' succession, donations, legs ou autres«vantages quelconques, seront et demeureront propres á chacun d’eux, de cóté et ligne.”

We consider that the property brought into the community by the parties was that, which they owned at the date of the marriage contract. The property which the appellant possessed and owned at that time, consisted only of the property described in the third article of the contract. The dowry settled upon her By her parents, and to be paid in one and two years, was not her property until aftei' the marriage had taken place. G. C. 1733.

The fifth article provides that, all the property previously enumerated shall 'fall into the community. This, we conceive, refers exclusively to the property enumerated in the third article. Any other interpretation would lead to tire absurd result of throwing into the community a sum of money given to the wife, on the express condition that it should be dotal, andwhichthe husbandhas acknowledged to have received as such.

Under the decision of the Supreme Court, in the case of Fabre et al. v. Sparks, 12 Rob. 31, the property described in the third article of the contract must be considered as part of the assets of the community. But the appellant is entitled to deduct from the total amount of those assets her dowry, amounting to §6,120.

It is, therefore, ordered that the judgment in this case be reversed. It is further ordered that the opposition of the under-tutor be sustained, for the sum of §1,600, mentioned in the third article of the marriage contract between the tutrix and her husband. It is further ordered that the remainder of the opposition be overruled, and that the account of tutorship be rendered in conformity with this opinion ; the costs of the opposition to be paid by the tutrix, and those of this appeal by the minors.


text:
    Wiltz et al. v. Peters et al.
    Where certain stockholders of a bank, who had been appointed commissioners, of an election for directors, and whose duty it was to ascertain the legality of any disputed votes, receive certain votes though objected to when offered, and sign, on tho day of election, a certificate from which it appears that certain individuals obtained the plurality of votes necessary to an election, they will not be allowed to urge, in an action to annul the election, that any portion of the votes so received by them were not given according to law, nor that they were given by persons not bona fide owners of the shares on which they voted. Per Cwriam: Though, under our legislation, any stockholder has aright to enquire, by iiq'iio wm-ranto the election of those who assume to administer tho corporation of which he is a member, a stockholder may have so acted as to render himself incompetent or disqualified to become a relator. Where the wrong complained of was the result of his own misconduct or neglect, or he has acquiesced or concurred in it, he will notbe listened to. And although a corporator will not be permitted to impeach a title conferred by an election over whichhe presided, or the legality of the votes which hehimself, as commissioner, received, nor to contest an election, in whichhe has concurred; yet, if one should concur in an election in ignorance of some fact malting it invalid, and should afterwards show the objection, and that it has come to his knowledge since the election, he should be heard, consent, inducedby error, not being bindingin the eye of the law. Without undertaking to say to what extent these principles! apply to municipal corporations, we have no hesitation in recognizing their application to private corporations.
    from the Second District Court of New Orleans, Canon J.

      Prentiss- and L. Peirce for the plaintiffs.
    Hunt, Grymes, Loclcett and Goold, for the-appellants.
   The judgement of the court, (King, J. absent,) was pronounced by

Slidell, J.

The petitioners seek by the present proceeding, which is in the nature of a quo warranto, to oust the defendants, Peters and others, from the-directorship of the Louisiana State Bank. They also ask a mandamus commanding Vignie and others to issue an advertizement far a new election, they being the persons who constituted the board of directors, prior to the alleged illegal election, under color of which Peters and others had assumed to act. All the-directors of the board, except two, have answered': uThat the said board of directors of the Louisiana State Bank did not deem themselves authorized, from the return of the judges of the election, for the election of directors of said bank,, held on the 5th instant ( February, 1849,) to order-a new election of directors-to be made; and could not therefore issue advertisements for another election to-he held; ” Wherefore they say, “ they submit to such judgement and mandate. as the nature of the case may require, and as may be finally rendered in the premises. ” The two members of the old board who did not join in this answer, are members ofthe new board; and, as they claim to hold under the new election, must be considered as virtually concurring in the position taken by them associates in the old board. The whole of the former board, therefore, must be regarded as acquiescing in the validity ofthe election of the new bqard and in their continuance in power. It is obvious then, that the contestin this cause is between Dujilho, Wiltz and Dupré, on the one hand, and the newly elected board on the other, who, upon the face of the pleadings, are at least directors de facto, under the color of election.

The first question which demands our consideration is, can the plaintiffs be heard as relators ?

As the general rule it may be conceded that, under our legislation, any stockholder has a right to inquire, by the remedy of quo warranto, into the election of those who assume to administer the corporation of which he is a member. But while the defendants do not dispute the general rule, they contend that a party may have so acted as to render himself incompetent or disqnalified to become a relator. They argue,' “that yvhere the wrong complained of was the result of' the party’s own misconduct or negligence, the court will refuse an application by him, or at his instance; that the law will not permit any one to play fast and loose—to establish, or overturn the effects of 1ns own actions, as may prove most beneficial to him — if it suits him, to take advantage of his own conduct and say nothing —if it does not accord with bis views, to declare his own conduct illegal, and avoid his own acts. ” The authorities cited by the defendants fully sustain this position, and have not been met by any conflicting decisions.

In the case of King v. Clarke, 1 East. 47, it was observed: — “The court have indeed on several occasions said,, and said wisely, that they will not listen to, a corporator who has acquiesced, or perhaps concurred, in the very act, which he afterwards comes to complain of when it suits his purpose.” In Rex v. Stythe, 6 Barn. and Cres. 240, Abbott C. J. says: “It has generally been considered a rule of corporation law, that a person is not to be permitted to impeach, a title conferred by an election in which he has concurred, or the title of those, mediately or immediately derived from that- election. But in order ” said he, “to preyent any misunderstanding upon this point, I will add that, if a person should concur in an election in ignorance of some fact making it invalid, and should afterwards come before the court, and show the objection, and that it has come to his knowledge since the election, and that it is a matter which ought to be enquired into, I would by no means have it inferred from the decision in the present case that, such an application ought not to be heard. ” In the Queen v. Greene, 2 Adolp. and Ellis, 463, Denman, C. J. observed: “ The principle which precludes a party, having acted as the relator did in this instance, from, applying afterwards to set the proceedings aside, is the same which prevails in other-cases, namely, that a man shall not take his chance of inconsistent advantages..” And Coleridge, Justice, on the same occasion, assumed it to be the settled rule, that a man shaE not apply to the court as relator, if he has concurred in the irregularity of which he complains, ” See also AngeE and Ames, on Corp., p. 707.

Without undertaking to say to what extent these opinions would be followed in this countiy in questions concerning municipal corporations, we have no hesitation in recognizing their propriety as applied to private corporations. Such being the well settled doctrine,, it remains to be considered how far it is applicable to the case at bar,

The petitioners allege that they were appointed commissioners of election for directors of the bank, and that, acting in that capacity, they received votes to which objection had been made. The certificate which they themselves signed, on the 5th of February, shows that the defendants, who now claim to be the duly elected directors of the bank, obtained a plurality of the votes offered at the election, and received by the plaintiffs themselves in their capacity of judges. It is now charged by the petitioners that a large portion of the votes were not given according to law, and were given by persons not bona fide owners of the shares. But although objections, as it is alleged in the petition, were made at the time, to the reception of those votes, the plaintiffs themselves, whose duty it was to ascertain the disputed legality, received them. Under such circumstances, we are of the opinion that they cannot be heal'd as relators.

It is proper to observe that, although the plaintiffs, as commissioners, acting with the two othev commissioners, Hermann and Rochereau, received all the votes, notwithstanding objections made by stockholders at the time, and signed, on the day of election, a certificate showing the number of votes given to the respective candidates, the three plaintiffs signed, two days afterwards, but without the concurrence of the other two commissioners, a declaration that they decline to certify or declare either ticket elected. But we cannot perceive how this subsequent declaration destroys the effect, of their previous reception of the votes, upon the question of their competency now to impeach, as relators, the legality of those votes. The declaration on the 7th stands in conflict with their-acts on the 5th,

It is also proper to add, in this connection, that the only protest of the stock-, holders against the reception of votes exhibited in the record, is a protest made, by the successful candidates.

We are not to be understood as saying that a party can, in no case, be heard to impeach an election over which he presided, and the legality of votes which he himself, as commissioner, received. A case might occur where the illegality-rested upon facts, as to which the party subsequently complaining was ignorant at the time, and was without the means of knowledge. Consent induced by error is not binding, in tire eye of the law. But the petition contains no such allegation; and no foundation therefore has been laid in the pleadings, nor even, in the evidence, for a departure from a wholesome and equitable general rule.

A variety of points were discussed at bar, upon which, in consequence of the views already expressed, we do not deem it necessary to enlarge. It is, how-, ever, not improper to observe that, although the charter of the bank declares that the directors shall be elected by a plurality of the votes of qualified stockholders, and although the petitioners have admitted in the petition that the per-, sons whose amotion is asked had a nominal majority, they have not proved that a single illegal vote was given in favor of those persons, nor even that a single ’ illegal vote was received at all.

Three of the defendants, Peters, Shaw and Converse, filed an answer, in which they aver “that they have resigned, the-offices of directors of the Louisiana State Bank, under the election set forth in the petition, and disclaim all title to be directors of the said bank, in virtue of said election. ” It was alleged, in the pe-. tition, that Peters, Converse and Shaw were, at the time of their being voted for, directors of the City Bank, and so continued until after the 5th instant, It is questionable whether the disclaimer', as framed, is tq be deemed an admission, on their part of the existence of the alleged disability.. But if it be so considered, it cannot be regarded as binding on the other defendants, who have not concurred iu it, nor on the corporation. No evidence has been adduced that such disability-existed; and the plaintiff’s counsel, in his brief, admits that the disclaimer by the three in no manner alters the issue as to the other six, who formally denied all the allegations of the petition, except such as were expressly admitted. It is proper to add that, the appeal is taken by the six directors.

While it is the duty of our courts to grant the extraordinary remedy of qua warranto to all those who are entitled to it under the liberal provisions of our Code, it is equally their duty to administer the remedy with reference to the principles recognized in that jurisprudence from which the writ was derived, so far as those principles are consistent with the spirit of our institutions, and with sound reason and equity. Dissensions and lawsuits between the members of a corporation, like quarrels in a family or partnership, are dangerous to its well being; and those who bring matters pertaining to its administration before the tribunals, ought not only to prove that irregularities have been committed, but should also be free from the objection of having participated or acquiesced in them. A court of justice, in such cases, cannot be expected to take assertions-for proof, nor even to hear a parly whose complaints are inconsistent with his own conduct.

When any competent stockholder presents before us a case in which the irregularities are proved, which are complained of by the plaintiffs, and are, in, their turn, asserted in recrimination by the defendants, it will be our duty to-declare their legal effect. Until then it is unnecessary, and would be improper, to do so.

Upon the question of the jurisdiction of this court, which was suggested by-the plaintiffs, we deem it unnecessary to do more than refer to the reasons given by the district judge, on the motion taken below to set aside the order of appeal. The allegation of the petition was, that the new directors did “ induct-themselves, on the 12th inst., into the bank as directors, and, so pretending themselves, did proceed to elect Samuel J. Peters, as their president, and have taken unlawful possession of the said institution, to the loss and injury of the stockholders to a large amount, and of your petitioners in particular, as stockholders, in a sum exceeding $5000.”

It is therefore decreed that, the judgment of the court below be reversed, and' that the petition of the plaintiffs be dismissed; the plaintiffs paying the costs in. both courts.


author: Slidell, L

text:
    Amonett, Executor, v. Fisk.
    A party to an action, to whom an interrogatory is propounded by his adversary, may state in-his answer any matter pertinent to the issue, and clearly connected with the facts which bis-adversary is seeking to establish. The answer may he qualified by the statement of facts* which would prevent the consequences of an absolute and unqualified answer.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Vason, for the plaintiff.

      Elmore and W. W. King, for the appellant.
   The» judgment of the court was pronounced by

Slidell, L

To what extent a party interrogated may cany his answers jyond a categorical reply to the questions propounded, was a subject considered iu the case of Haynes v. Heard, 3. An. 648. The court below correctly refused to strike out a portion of the answers of the defendant, and they were properly received as evidence.

Upon the question of privilege, we deem it unnecessary to do more than to refer to the satisfactory opinion of the district judge.

As the evidence was conflicting, and was considered by the district judge as ieaving in doubt the right of the defendant to a judgment against the succession for the amount of the balance of the account, we will not disturb the judgment in that respect. But, under all the circumstances, we deem it equitable to reserve the rights of the defendant, if any there be, against the succession of Slaughter.

It is therefore decreed that the judgment of the court below be so amended, as to reserve the rights of the succession of Abijah Fisk, if any it may have; against the succession of Saughter; and that, so amended, the judgment be in all respects affirmed; the costs of the appeal to be paid by the appellee.

      Plaintiff propounded the following interrogatories to the defendant. “Did you receive the twenty-two bales of cotton consigned to you in the annexed bills of lading? Have you sold them? If yea, when and to whom, and at what price?” To these interrogatories the defendant answered: “He did receive twenty-two bales of cottonfrom W. C. Watson, the overseer ofaplantation called Deahl’s plantation,1 which was said to belong to the succession o£Slaughter : That said Watson acted as overseer, and had the management and control thereof, with the knowledge and consent of the legal representatives of the said succession; and that Watsoninformedthedeponentthatcertainsupplieswerenecessan-y bo carry onthesaid plantation, and the hiring of certain negroes, of which deponent had the control, was necessary to save the then growing crop; that this took place about tjie 5bh of August: That deponent is certain,• from his own knowledge of the affairs of said plantation and the means of the succession, that this information was correct: That he accordingly agreed to furnish the necessan'y supplies} and to hire the negroes, with the understanding tiiat Watson was to send him the cotton made on the plantation for sale, and,that lie wastobe reimbursed out of it: That deponent did furnish the supplies, as charged in his account filed with this answer, and did hire the negroes as therein changed, making the sum of $1406 48 : That Watson never sent him but the twenty-two bales above mentioned, which were sold to Messrs. F. M. Weld Sf Co.,- as per thé annexed account of sales, and amounted to the nett price of $555 80, after paying bl\6 changes upon the same, which left a balance still due him of $850 68.-” The motion of the plái'ntiff was, to Strike out that port of the answer prined in italicsK.»


text:
    Wilson et al. v. Churchman.
    Whatever may be the right of a party to appeal at once from a refusal to set asirle a sequestrátion by which his property is actually detained in legal custody; it cannot be extended to the case of one who lias been restored to possession by giving bond. It cannot be said that the judgment works, or may work, an irreparable injury, which is the test by which to determine whether an appeal will lie from an interlocutory judgment before a trial on the merits.
    from the Fourth District Court of New Orleans, Strawbridge, L

      Hunton and Micou, for the plaintiffs.

      T. R. Wolfe, Lockett and Gooldj for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

A sequestration having been levied upon goods, Gilchrist bonded them, and a rale was then taken by the defendant and Gilchrist, to show cause why the sequestration should not be set aside. Upon hearing, the court dismissed the rule; and from this refusal to set aside the sequestration, the defendant and third opponent appealed.

Whatever may the right of a party to appeal at once from the refusal to set aside a sequestration, by which his property is actually detained in legal custody, we think the right should not be extended to a case where the party has been restored to the possession by giving bond. It cannot be said, in such a case, that the judgment works, or may work, an irreparable injury; which is the proper test in determining whether an interlocutory judgment is appealable, before a trial on the merits. See Hart v. Philips, 1 Rob. 223.

Considering the present appeal premature, it is therefore dismissed, at the cost of the appellants;


text:
    Nott et ux. v. Marchesseau.
    Proof that plaintiff’s attorney offered to defendant to rescind the sale of & slave on receiving back the price, and that tbe offer Was rejected by defendant! who said that a law suit was ■unavoidable, will dispense with the necessity of a tender of the slave before suing to rescind'the sale.
    from the First District Court of New Orleans, McHenry, J.

      Griffin, for the plaintiffs.

      Barthe, for the appellant.
   The judgment of the court was pronouced by

Rost, J.

The plaintiffs allege that they purchased of the defendant a negro woman and two children, for a sound price and under full guarantee; that before, and at the time of the sale, the slave was afflicted, to the knowledge of the defendant, with a redhibitory disease, which renders her absolutely useless. A recision of the sale is claimed, with damages and interest. The answer is a general denial. There was judgment in favor of the plaintiffs that the sale be can-celled, and that the defendant be condemned to take back the slave sold, and lief two children, and to refund the price. -The defendant has appealed; and the> plaintiffs ask that the judgment be amended, by allowing them the damages and interest claimed in their petition.

The defendant contends that the slave in controversy; and her two children,should have been tendered to him, and that, without such a tender, the plaintiffs cannot maintain their action. It is admitted in the record that the attorney of the plaintiffs offered to the defendant to return the slave, and to rescind the sale, on receiving back the purchase money, and that the offer was rejected by the defendant, who said that a law suit was unavoidable. This declaration of the defendant,that he was determined to have a law suit, dispensed the plaintiff from the formality of making a tendor in the form prescribed by law.

On the merits, the case turns exclusively upon questions of fact, and the judgment is fully sustained by the evidence. We concur with the district judge that the plaintiffs have not made out their claim for damages or interest.

Judgment affirmed.


text:
    Martin et al. v. Chrystal.
    tt is not necessary, to subject a party to tbe penalties imposed by the tenth section of the stat. of á8 March, 1840, abolishing imprisonment for debt, bn one purchasing merchandize for bash and disposing of the same, or removing it beyond the reach of his vendor, -without having paid tho price, that he should have been tho ‘principal in tho transaction, where it is shown that tho purchase of the articles was a fraud contrived between another person and himself, probably for their nnitual benefit. The law will hold both to have been purchasers.
    Art. 107 of the constitution relates exclusively to criminal proceedings,
    Judicial proceedings, having for their object the incarceration of the debtor to compel the pay! ment of his debts, or instituted against a debtor guilty of fraud, have always been held by our courts to be civil, and not criminal proceedings. Proceedings against an insolvent debtor for fraud, under the stat. of 28 March, 1840, aro civil proceedings.
    form the Third District Court of New Orleans, Kennedy, J. T.

    ÍL Wolfe, for the plaintiffs.

      Race, Foster and Soulé, for the appellant.
   The judgment of the court was pronounced by

Etjstis, C. J.

The defendant is appellant from a judgment of 'the Third District Court of New Orleans, by which he was adjudged to pay the plaintiffs the sum of §965 94, with interest from judicial demand, and to be imprisoned for the peno'd of two years from the day of the rendition of the judgment,

The proceedings against the appelant where instituted under the act of the 28th of March, 1840, entitled An act to ábolishiniprisonment for debt. The ferial by jury was waived, and tho court held the defendant guilty of fraud under the tenth section of said act, in having purchased merchandize in New Orleans for cash, and having obtained possession thereof and having disposed of the same; and removed it beyond the reach of his vendors, 'without having paid the price or ’any p'alt thereof.

It is contended that Chryjstal was not considered by the plaintiffs ’as the principal in the transaction. We do not think that this was necessary, in order to sustain the judgment under the act. It appears manifest that tke purchase of the plaintiffs’ articles by Van Allen, was a fraud concocted between him and the defendant, pi-obably for mutti'al benefit, ahd that in the eye of the law both are held to be purchasers. The evidence on this point, we consider, fully supports the ■judgment.

It is urged in behalf of the defendants that, the proceeding in this case is a prosecution for the violation of a statute, which carries with it a grievous penalty—that of imprisonment for a term not exceeding three years; that the prosecution is essentially a criminal one, and, not being instituted by and in the name of the State, but conducted on the petition of the plaintiffs solely, it cannot be sustained under art. 107 of the constitution. That art. provides that, “prosecutions shall be by indictment or information,” “Les poursuites criminelles se feront par acte d’accusation ou sur information.” This provision was not in the old constitution. But from section 18 of ait. 6 of ttie constitution of 1812? and from the othéi provisions of art. 107, evidently refers exclusively to criminal proceedings.

Judicial proceedihgs having for them object the incarceration of the debtor for the payment of his debts; have always been held by our courts to be civil and not criminal proceedings. Notwithstanding the caution with which the rights of the román citizen were protected by the laws, after a certain delay in the payment of a debt the debtor was delivered into tho power of the debtor by virtue of a sanguinary law of tho twelve tables; and although civilization and humanity in time modified if, its vestiges still exist under oiir modern social systems. In Louisiana the-writ of capias ad satisfaciendum, in ordinary cases of debt, was only abolished by this act of 1840. The object and policy of that writ was not tho punishment of the debtor, but to force him to discharge his debt by depriving him of his liberty. Under this view of the subject, the Supreme Court held the proceedings under this act to be civil and not criminal, in Maurin's case, 15 La. 536. That case was one that attracted great attention at the time, and was fully and thoroughly considered. Under the insolvent acts of 1808 and 1817, the proceedings against debtors guilty of fraud, under which the gravest penalties were incurred, have always been held to be civil proceedings; and the Supreme Court hasnotonlyuniformly taken cognizance of them, but has more than once reversed verdicts of juries by which the defendants had been acquitted—a power which no court would attemptto assume, in any other than a civil proceeding. Andrews v. His Creditors, 11 La.467. Castel v. Creditors, 4 La. 574. Coquet v. Creditors, 4 La. 198. Prados v. Creditors, 1 La. 175.

Considering the character of these proceedings under our jurisprudence, as settled by decisions in the court of the last resort, we think the provisions of the 107th art. of the constitution not applicable to them, it relating only to criminal prosecutions. Judgment affirmed.


text:
    Rice v. Walsh.
    An affidavit by a party “that the facts set forth in the above petition, which in his opinion render an injunction necessary, are true to the best of his knowledge and belief,” is insufficient to sustain an injunction, for its uncertainty. It is susceptible of two constructions; one of which, that the party moans to swear that sifeh of the facts stated in the petition as, in his opinion, render an injunction necessary, are true, would render it defective. The affidavit must be clear and unequivocal, establishing all the facts which would warrant the interference of the court, and laying a clear basis for an indictment for perjury, if any of the assertions be untrue.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      H. A. Bullard and Frost, for the appellant.

      Warfield and Rand, for the defendant.
   The judgment of the court was pronounced by

Slidell, J.

This appeal is taken from a judgment of the court sustaining a motion to dissolve the injunction obtained by plaintiff, upon the ground, among others, that the affidavit was defective. It was in these words: '■'■Ban Rice,the above named petitioner, makes oath that the facts set forth in the above petition, which in his opinion render an injuction necessary, aie true to the best of his knowledge and belief.”

This affidavit is susceptible of two constructions. One is, that the plaintiff means to swear that the facts set forth in the petition are true, and that in his opinion they render an injunction necessary. The other is, that he means to swear that such of the facts stated, as in his opinion render an injunction neces-* sai-y, are true. Construed in the former sense, file affidavit would be good; in the other, it would be defective.

A parly applying for an injunction should present an affidavit clear and unequivocal,. establishing, by his oath, all the facts- which would warrant the inter-* férence of the court, and laying a clear basis for an indictment for perjury, if any of the assertions sworn to be untrue. When the affidavit has a doubtful aspect, as in the present case, the injunction ought not to be granted or maintained* See Hubert v. Toby, 5 La. 52. Canal Bank v. Carriel, 3 An. 115.

It is conceded, however, that the allowance of ten per cent interest was incorrect, the ease- not being within the statute of 1831.

If. is therafore decreed, that the judgment of the District court be amended, by striking therefrom the allowance of ten per cent interest, and that so amended it be affirmed; the appellee paying the costs of this appeal.


text:
    Thierry et al. v. Laffon.
    The payee of a bill of exchange drawn abroad, payable and ptotested here, cannot recover ■ damages against the acceptor.
    In r.n action, by tlie payees, on a bill endorsed by themselves, and afterwards by a third person, in blank, it is unnecessary to state such endorsements in the petition, or, in tile absence of any evidence to impugn the title of the plaintiffs, to prove them on the trial.
    from the Fourth District Court of New Orleans, Strawbiidge, I.

      Lombard, for the plaintiffs.

      Griffin, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs, as payees of a bill of exchange, drawn in Paris, and payable in New Orleans, sue the defendant as acceptor. The judgment allows the plaintiffs the amount of the bill, with interest from date of protest, and five per cent damages. We are not aware of any law allowing damages against the acceptor, under the circumstances. In the case refereed to (Pecquet v. Mayer, 14 La. 74,) the defendant was the drawer of the bills.

The bill exhibits the blank endorsements of the payees and- of one Tighter. These endorsements were not stated in the petition. It was not necessary so to state them, nor to prove them at the trial. See the case of Hepburn v. Ratliff, 2 An. 331. There was no evidence offered by the defendant to impugn the title of the plaintiffs.

It is therefore, decreed, that the judgment be. amended by striking therefrom the allowance of damages; and that, so amended, the judgment be affirmed; the plaintiff’ paying the costs of this appeal.


text:
    Succession of Prevost.
    After the lapse of a century, a marriage, which had' never Been doubted or denied, must be held to have been duly solemnized.
    A marriage, celebrated in Louisiana before the* year 1T787, maybe proved by reputation. Per Cur: Under the laws of Spain, in force atr that time, proof of marriage by reputation, was sufficient, in civil suits.
    Decision in Patton v. Philadelphia, 1 An. 98, affirmed, (so far as it declares that the regulations of the council of Trent, m regard1 to marriages, were never extended to the colony of Louisiana by the king of Spain.
    The certificate of a priest, attesting the celebration of a marriage in the Spanish colony of Louisiana, before the year 17/87:, though not signed by th'e parties* nor by witnesses, is proof of a legal marriage.
    Where the marriage of the parenfts.has been proved, parol evidence is sufficient to establish the legitimacy of their children.
    No objection to evidence will' Be considered on appeal, unless specified, and reserved, in a Bill of exceptions. No notice will be taken of any agreement, alleged* By the counsel of one party to have been made with, the other party, that the evidence was received subject í¡o all legal exceptions,.

      from the District Court of St. Bernard, Rousseau, J.

      Griffon and Simon, for the petitioners.

      Buisson and Maurian, ■ ior the appellants.
   The judgment of the court was pronounced by

Rost, J.

Rosalie Verret and others sue to be recognized as collateral heirs of Edward Prevost, who diod leaving neither descendants nor ascendants. They allege their legitimate descent from Nicolas Verret and Marie Cantrelle, his wife, who were the common grand-father and grand-mother of themselves and the deceased. The children of the late Mrs. Hanoieau, a first cousin of the deceased, oppose the plaintiffs’ claims, and allege themselves to be his only legitimate heirs. They contend that the evidence furnished by the plaintiffs in support of their pretensions, is either null, or insufficient to establish their quality of heirs. The court below considered the evidence of the plaintiffs sufficient, and ordered that they be put in possession, in equal shares, of nineteen-twentieths of the succession,, reserving the other one-twentieth to the children of Mrs. Hanoteau, in right of their mother. The opponents have appealed.

In the evidence adduced by the plaintiffs to prove their heirship, there are two acts of marriage wanting: that of Nicolas Verret and Marie Cantrelle, the common grand father and grand mother of the appellees and of die. deceased, and that of Louis Verret and Marie Patin, the father and mother of four of the apppllees. There aro also two acts of baptism wanting: that of-Adolphe Verret and that of Martial Verret, two of the appellees, sons of Jacques Verret by his second marriage.

The marriage of Nicolas Verret and Marie Cantrelle must have taken place before the year 1749, as their first child Marie was baptized on the, 16th Sept, of that year. It is proved that the records of the marriages celebrated in New Orleans from the year 1720 to 1772 were regularly kept, and that those records were lost in the conflagration of the 21st March, 1788, which destroyed this city.

Verret resided in the city of .New,Orleans, and all his children w;ere baptized there, as his legitimate issue from Marie Cantrelle. We \yould presume from these facts, if it were necessary, that the marriage was also celebrated there. But, afj¿er the lapse of a century, without the legality of this marriage having ever been doubted, controverted, or denied, it must be held to have been duly solemnized. Clapier et al. v. Banks, 10 La. 68.

The marriage of Louis Verret and Marie Patin is proved by reputation. It is shown that the act of marriage cannot be found in the parish of Pointe Coupee, where the marriage is said to have been, celebrated. But the certificates of baptism of his four children, in which they are recognized as legitimate, are produced. These children are acknowledged by the other appellees as their coheirs, and witnesses testify to their status as legitimate children, and that they inherited, as such, the succession of their father.

This is not a case in which proof of the due solemnization of the marriage is necessaiy. The marriage must have taken place before 1787, Godfrey Verret the first issue of it, having been baptized on the 18th of February of that year. Under the law of Spain, in ' force at that time, proof of marriage by reputation, was sufficient in civil suits. “PrEesumptio se sola próbat, tantum semiplene,” says Ferraris, in his Bibliotheca Canónica, Jurídica, &c. vol. 7, verbo Prcesumptio, no. 17; but he adds: “ Si autem prossumptio probabilis adjuvetur publica fama, vel aliis adminiculis, potest etiam facere plenam probationem; colligitur clare ex cap. illud 11 de Prcesumptionibus, (the writer, I suppose, refers to Menochius,) juncto ejus summario, ubi dicitur, quod per cohabitationem diutinam et famam de matrimonio, aliaque adminicula, probatur matrimonium; et ex cap. tertio loe. 13 eodem, juncta glossa a ED. Ibidem. ” Same author, no. 18.

Prcesumptio vehemens, sen violenta, facit plenum probationem, adeo utad condemnationem sufficiat saltern in causis civilibus, non nimium arduis. ” lb. no. 19.

Ex solis preesumptionibus etiam vehementibus nemo in caus& criminali criminaliter mota condemnandus est, nisi tamen sint indubitata, luce clariora, seu talia qua; evidentiam rei inducant. Ib. np. 20.

The evidence adduced is sufficient for tho.purposes of this suit.

It is urged by the opponents that, during the dominion of Spain, marriages were-regulated by the council of Trent, whiqh required t;hem to be celebrated by the, parrochas of the parties, or a priest delegated by him, in presence of two wit-, nesses, under the pain of-nullity; and that as the, certificates of1 the priest, adduced as evidence oí the marriage of Jacques Verrelw'fhMarguerite Shcweitzer, and of Augustin Verret with Marie Bujeaud, are signed neither by the, parties nor by witnesses, they, are not proof of a legal;marriage.

In the case of Patton v. The cities of Philadelphia and New Orleans, 1 An. p. 104, this question was thoroughly examined; and w<? came to the conclusion that, the regulations of the council of Trent, in relation to marriages, were never-, extended to the colony of Louisiana, 'life adhere to^is opinion, and are satisfied that the solemnization of those two marriages was sufficient, under the, regulations of the qhurch, as they existed before the council of Trent.

The affidavits of AJolphe and Martial Verret, introduced without opposition, and the testimony of their godfather and godmother, pijove their legitimate filiation from, Jacques Verret, andalsq that of theiy brothers, and sisters. This evidence, is corroborated by the testimony of Aurléien-, Verret, who stated that ho knows-, all the petitioners, eithpr personally or by reputation ; that the genealogical tab-, leau filed in this case, is correct; and that all the children of Nicolas Verret and:, Marie Canjtrelle had died before the institution of this suit; that he knows personally all the children of Louis Verret-, that it is to his knowledge that they, inherited their father’s estate; that they were ahvay reputed legitimate; and; that, if they were not, he would certainly know it-

Considering as proved the marriages of the fathers and mothers of the plain tiffs,, the evidence adduced by.them sufficiently proves theirlegitimate.filiation. Hobdy v. Jones, 2 An. 944.

In coming to this conclusion we have taken no notice of the .agreement alleged* by the opponents to exist between them and the plaintiffs, th^tt the documents, and affidavits offered in evidence were received subject to,all legal exceptions} Under the uniform jurisprudence of this court? no objections to evidence can bp. • considered on appeal, unless they are specified and reserved by a bill of exceptiops,.

Judgment affirmed.-.


text:
    Conrey v. Harrison et al.
    Where interrogatories are propounded to a plaintiff, in answer to one of which he states that defendant is indebted to him in the amount sued for in an action against him as drawer of a bill of exchange, it will be unnecessary to make any further proof of his claim until the answer is rebutted by sufficient evidence.

      Aii .agent, in possession of a bill endorsed in blank, may maintain an action on it in bis own name. The fact that the bill belonged to a third person is unimportant, except to enable the defendant to oppose any equitable defence against the hue owner.
    "Where a court of the first instance is not required to pronounce on an exception of lis pendens, before going to trial on the merits, it will be considered as waived.
    from the Third District Court of New Orleans, Kennedy J.

      Lockett and Goolcl, for the plaintiff.

      J. and H. II. Strawbridge, for the appellants,.
   The judgment of the court was pronounced by

Slidell, J.

The defendant, Tffarrison, demands the renewal of the judgment, upon the ground that there is no evidence that he. received notice of protest of the bill of exchange, upon which he is charged,

Harrison propounded interrogatories to the plaintiff, m answer to one of which the plaintiff replied that, Harrison was indebted to him, for the reasons alleged in the petition, in the sum there stated, subject to certain credits as stated in the answer. It was not necessary to make further proof until this answer was rebutted by sufficient testimony. With regard to the fact disclosed in the plaintiff’s answers, that the bill belonged to the bank of Charleston,, whose agent the plaintiff is, it was unimportant, except to enable the defendant to show an equitable defence against the true owner, which he has not dope.. The bill being endorsed ip blank, and in Conrey’s possession, he could maintain-, an action upon it in his own name.

,, Elbert jileaded the pendency of another spit against him; but there is nothing in the transcript to show that the co.urt was called to pronounce upon this ex-geption, before going to trial upon the, merits.. See Kempe v. Hunt, 4 La. 482.

Judgment affirmed.,


author: Sljtoell, J.

text:
    Dwight, Curator v. McMillen.
    ^ mofc®n to dismiss,, on the ground that the transcript was not Sled iu. titae,.is not required to bo made within tliroo days after the filing of the record.
    A PPEAL from the Fifth District Court of New Orleans,. Buchanan, J.

      J. an<J PL H. Strawbridge, for the plaintiff.

      Lewis and Bermudez, for th© appellant.
   The judgment of the court (King, J. absent,.)) was pronounced "by

Sljtoell, J.

This appeal was returnable on the 1st mpnday of November, 184.7, and the transcript was not filed until, the 6th of. the ensuing December. The appellee has moved, upon this groupd, the dismissal, of the case ; to which motion the appellant replies that, it was npt made.- within, three days after the transcript was filed, and, under the ruling ip, O’Reilly v. McLeod, 2 An. 138, cannot be entertained.

Under the provisions of the Code of Practice we have frequently held that, a party who neglects to file the transcript seasonably, must be considered as having abandoned his appeal'. The omission of the appellee to move for the dismissal upon that ground within three days after the filing of- the transcript, ought not to bar the appellee, for two reasons : first, because he was not cited; and secondly, because he cannot be held to constant vigilance, after the legal delay has passed, in watching, day by day, the docket to see at what time the negligent appellant will file the transcript.

The appellee cannot be considered as having waived his right to a dismissal, and the motion must be maintained. Appeal dismissed.


author: Slidell, J«

text:
    Wilson et al. v. Lambeth et al.
    In ail action on a bill of exchange payable “incurrent city notes,” which plaintiffs aver were, at maturity of the bill, and still are, at par and equivalent to specie, where no proof is offered oil either side as to their value al maturity or at the time of the trial, judgment must ho rendered for the amount payable according to the tenor of the bill, though the notes were below par at the maturity of the bill, hut at par at tho time of the trial. It was incumbent on defendants, and not on plaintiffs, to’prove the value of the notes át tho maturity of the hill, and at the time of the trial.
    APPEAL from the Fourth District Court of New Orleans, Strawhidge, J. In this case there was a.judgment below, “that the plaintiffs recover from the defendants, in solido-, the sum of $1,800, with legal interest thereon from 21st April, 1842, until paid, and costs,” The reasons assigned by the judge for this opinion are as follows: “ The plaintiffs claim the sum of $1,800 from the defendants, in solido, under a bill of exchange, payable on the 18th December, 1841, which was accepted to be paid 1 in current city notes,’ which the petition avers were, at the time of maturity, and are now, at par, and equivalent to specie. Defendants pleaded a general denial, but no proof was offered on either side of the state of tire currency, either at maturity or at present; but defendants contend that it was the duty of plaintiffs to have offered proof of both, and that they would then be entitled to .judgment for the depreciated value at maturity, payable in the currency of the present day. Under the pleadings; it was incumbent on tie defendants to have offered proof, to bring the facts, on which they rely, to tho notice of thecourt. They form their ground of defence ; without them there is ho case, but that of an ordinary suit on a bill of exchange, before thecourt. The plaintiffs were not bound to offer this proof, although alleged in their petition, if they had made out their case without. It is certainly known to the court personally that, about the time of maturity, the currency of the banks of this city was depreciated; but if it could judicially take notice of this fact, it cannot and does not, either personally or individually, iinow what was the rate of depreciation, or in What paper 'the defendants chose to pay (for one of the cases had gone so far as to decide that the choice lay with the debtor,)—Orleans or Atchafalaya, for all were, in the sense in which the term is used, ‘ current.’ They only differed from the others in passing at a greater discount. í'he defendants, in this state of things, with commendable prudence, made a eohditional acceptance. Had they paid, or tendered, at maturity, their obligations would have been discharged. They broke th'ó condition, and 1 am of opinion are bound now to pay according to the tenor of then- bill. There is, therefoffe, judgment for plaintiffs against defendants, in solid'o, &c.” The defendants appealed.

      T. R. Wolfe, for- tho plaintiffs.

      Pitts and Wm. M. Randolph, for the appellants»
   The judgment of the court (King, J. absent,) was pronounced by

Slidell, J«

For the reasons given By the district judge, the judgment of the eo'urt below is affirmed, with costs.


text:
    Whitenright et al. v. Leavitt et al.
    Decision in Richardson †. Leavitt, 1 An. 430, affirmed;

      j PPEAL from the Fourth District Court of New Orleans, Strawbridge, J. -ti-

      Lockett and Goold, for the appellants.

      Cohen and T. A. Clarke, for the defendants.
   The judgment of the court (Slidell, J. not sitting, having been of counsel,) was pronounced by

Eustis, C. J.

The plaintiffs, who are merchants residing in the city of New York, instituted suit against the defendants, J. W. Sf R. Leavitt, who are also merchants in Now York, by attachment. The property attached Was claiihed by the intervenors, under an assignment made in New York. The judgment ’of the court of the first instance was in favor of the intervenors, and the plaintiffs have appealed; and the sole question for the consideration of the court is, the validity of that assignment. In the case of Richardson v. Leavitt, 1 An. 430, this assignment was before the court, and bve there held that, it being of personal property in trust, for the payment of particular creditors by preference, and it being valid by the laws of New York Where it was executed, and where all the parties resided, and the property being delivered into the possession of the assignees, it was not liable to attachment by a New York creditor for a debt contracted and payable there. The case was nidch contested, and veiy thoroughly argued. The argument principally turned upon the effect of the laws of Louisiana upon the assignment, and its validity under the laws of Now York does not appear to have been much contested;

It is contended that, under the -jurisprudence of New York, the assignment is fraudulent and void, because it appropriates partnership property to the payment of the individual creditors of the partners, and the several property of the members of the firm to the payment of the partnership debts. The only pro- - perty upon which this assignment was to operate in Louisiana; as far as the evidence shows, was the remains of certaih invoices of goods shipped to New Orleans by the defendants for sale on consignment, and the proceeds of certain ¡goods which had been sold on their accouilt; which both appear to be property 'of thé partnership. It appears that in the Üésignment provision is made for private debts of the partners, as well as for the partnership debts. ílie assignment is made without imposing on the assignees anji discrimination in the payment; and it might well be • said that, in executing their trust, they would be held to the distribution which the law would make, and to apply the partnership propferty first to the payment of the partnership debts. But the authorities referred to by the counsel do not support the position that he has taken. The principal case which he has relied upon is that of Jackson v. Cornell, 1 Sanford’s Chancery Rep. 348. The assignment held in this case to be void was of all the property of the insolvent, real and personal; and in the other cases, in which the rules fetated by the counsel have been acted upon, th’e assignments have been of all thfe property or the great hulk df it, and what are termed gendral assignments; The assignment iinder consideration purports Only to convey that portion of the defendants’ property which v^as in the State of Louisiana, arid perhaps an inconsiderable part of their whole estate.

Upon a full cohsideratiori of the shbject, adhere to bur opinion given in Richardson’s case;

Jiidgment affirmed.


text:
    Police Jury v. McDonogh.
    Where in an action by a police jury, in which the tax-payers of the parish are the real parties in interest, the plaintiffs have not made out their case, hut there is reason to believe they can do so if another trial be allowed, the case will be remanded for further proceedings.
    from the Fifth District Court of New Orleans, Buchanan, J.

      T. G. Morgan, for the plaintiffs.

      Roselius, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment rendered against him in favor of the plaintiffs, for the cost of a levée made in front of his land, in the parish of East Baton Rouge.

The inspector of roads and levéeá for the district in which the land is situated, adjudicated the making of the levée to F. D. Newcomb, for $950. The levée was made and accepted by the plaintiffs, and Newcomb, having ascertained that the inspector had failed to notify the absent proprietor in the manner required by the act of 1829 concerning roads and levées, claimed the amount of the adjudication from the police jury, and obtained against them a judgment, which was affirmed on appeal, and has since been satisfied. 4 Rob. 233. This action has been instituted, on the intimation of the Supreme Court in that case, that the absent proprietor was liable upon a quantum meruit, to the amount he had been benefited by the work done. Tho defence is a general denial, and an allegation that the work was of no value, benefit, or advantage to the defendant. The defendant has also pleaded in this court, the prescriptions of one and three years.

The value of the work, and the extent to which the defendant has been benefited by it, are the only questions at issue. The only evidence by which the plaintiffs have attempted to support their allegations is that of the witness Carl, who testified that the value of the work was the amount of the adjudication to Newcomb, “ he,” says the witness,” being the lowest bidder, although other men, who were good judges of the value of the work, were present at the adjudication, and bidding.” This witness does not know the quantity of work done, and takes the adjudication as the measure of value.

It was held, in the former case, that the adjudication was illegal for want of proper notice to McBonogh; and the notice required by the act of 1829, is not shown in this case to have been given. Under this state of facts, the defendant cannot be bound by the adjudication in any manner.

The plaintiffs have not made out their case. But as they are only plaintiffs in name, the tax-payers of the parish being the real parties in interest, we will, as has been customary with this court in such cases, remand the case for further pi-oceedings. This disposition of it, will enable the plaintiffs to controvert the plea of prescription filed on the appeal.

It is, therefore, ordered, that the judg2nent in this case be reversed, and the case remanded for further proceedings according to law ; the plaintiffs and appellees paying the costs of this appeal.


text:
    Alva v. Jamet et al.
    In an action to enforce the tacit mortgage of a minor against real estate held by a third person under a title derived from the tutor, the harden of proving that there is other property first liable for plaintiff’s claim is upon such third person.

      from the Second District Court of New Orleans, McHenry J. presiding.

      Grandmont, for the plaintiff.

      Preaux, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff was the creditor of Chevarre, her late tutor, and as such had a tacit mortgage upon his property. The present action was brought in the via ordinarid, to enforce the tacit mortgage on certain real estate which the defendant derived by mesne conveyances from the tutor. The prayer of the petition was that, the defendants be cited, and that, after due proceedings, there might be a decree subjecting the real, estate to sale for the payment of the plaintiff’s claim. We see no objection to this mode of proceeding, which certainly cannot be characterized as summary. If there was other property first liable to the plaintiff’s claim, it was for the defendants to show it. They permitted judgment to go by default, and to be confirmed upon proof of the plaintiff’s rights a» aminor; and we see no reason to disturb the decree.

Judgment affirmed.


text:
    Connolly et al. v. Adams.
    One-partner cannot sxxchis-co-partnex', to recover the share of tho latter in the loss in a particxxlar transaction. He must sue for a settlement of the partnership.
    APPEAL by the plaintiffs from a judgment of the Fourth District Court of New Orleans, Strawbridge, J. The judgment of the court below was in these words :

      ft u The petition alleges that plaintiffs entered into an agreement, by which they, in Cincinnati, were to draw bills on merchandize shipped to defendant, and that they were to be jointly interested in the commissions ; that, in the result, there was a loss of $12,000, one-half of which they claimed from the'defendant. They further claim $2,000 for a seperate transaction in relation to a quantity of land. I think this language establishes that there was a partnership between the parties as factors and commission merchants; and I further think that the case fall» within the rule laid down in Levy's case, M La. 581, and also under these numerous cases, so frequently before these courts, viz.: that a partner’s-remedy is by suit for account and settlement of the whole affairs* It is ordered that the suit be dismissed, with costs.”

      JSlmore and W. W. King, for the appellants,
    contended that the parties were not commercial partners; that if there was any partnership,-it was a particular one. C. C. 2796, 2896, 2809. 2 An. R. 156. Collier on Partn. pp. 17, 21. Micou, for the defendant, cited 11-La. 581. 12 Rob. 595. 2 An. 10, 934. 8 Mart. N. S* 280. 11- Mart. 435. Story on Partnership, §;§ 221, 348.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons assigned by the judge of the Fourth District Court of New Orleans, it is- ordered that the- judgment be affirmed, with costs.


text:
    Miller v. Miller et al.
    In an action for freedom plaintiff was declared to be free, and the case was remanded for further proceedings as’between the defendant and'warrantor. The warrantor subsequently instituted an action to annul the judgment, on tho ground that it was obtained through fraud; but there was no evidence that any farther proceedings were had under the decree remanding the ease, nor any allegation or proof that the warrantor had refunded the price to the party by whom he was cited. On an exception that the petition presented no grounds sufficient to support an action of nullity: Held, that the exception should be sustained.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Claiborne, Micou and Grymes, for the plaintiff.

      W. S. Upton, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

In the case of Sally Miller v. Louis Bclmonti, decided by the Supreme Court and reported in 11 Rob. 339, the plaintiff was released from the bonds of slavery, and the cause was remanded for further proceedings as between the defendant and his warrantor, John F. Miller. No further proceedings have been had under this judgment, and the warrantor, Miller, has instituted the present action of nullity to set it aside, on the ground that it was obtained through fraud and ill practices on the part of Sally Miller and her witnesses.

The defendant excepted to the petition on the following, amongst other grounds: 1st. That it presents no sufficient ground to sustain an action of nullity. 2d. That no action of nulliiy will lie after an appeal has been taken to the Supreme Court, and the case finally decided by that tribunal. Bclmonti, the defendant in the former suit, intervened, and joined with the pliantiff in the prayer of his petition. The defendant’s exception having been overruled, she answered on the merits. There was judgment in favor of the defendant in the first instance, and John F. Miller has appealed. But Bclmonti, the real party in interest, does not join in the appeal, and appears to have acquiesced in the judgment.

'We express no opinion upon the question, whether a final judgment of the Supreme Court can be avoided by an action of nullity, being of opinion that the first exception'should have been sustained. It is not shown that any further proceedings have been had under the former decree of the Supreme Court; nor has the plaintiff alleged or proved that he has refunded the price to Bclmonti, and that he is subrogated to his rights. He had no interest in contesting the the former decree, and therefore no capacity to do so.

To the observations of the counsel that the only object of the plaintiff in bringing this suit was to vindicate his character, it is a sufficient answer that the action itself involves rights of property, and that he should have brought himself within the rules prescribed for that class of actions. We may at the same time state, without impropriety, that we hare carefully perused the new evidence discovered by him; that it stands in the record unimpeached, and is in direct conflict with that adduced by the defendant in the former suit to prove her birth and condition. If it can be true that the defendant is of German extraction, we consider the plaintiff as exonerated from all knowledge of that fact.

Appeal dismissed.


text:
    Schnaufer v. Schnaufer.
    Wherein an action for a s operation from bed and board, instituted by the husband, a curator ad hoc was appointed to represent the wife, who was an absentee, but the ease was tided without any issue joined, or judgment by default regularly taken, judgment cannot be rendered for the plaintiff.

      from the First District Court of New Orleans, McHenry, J.

      TV. S. Upton, for the appellant.

      Emerson, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action by the plaintiff for a separation from bed and board from the defendant, his wife, on account of voluntary abandonment and adultery on her port. The parties are alleged, to have been married in Germany, in 1819, and the plaintiff alleges that he had acquired a domicil in New Orleans. A curator was appointed to represent the defendant, who it is not charged was ever in the State, and whose, place of abode is in New York, where she was left by her husband, in 1837. The plaintiff was non-suited, after evidence being heal'd, in the District court, and he has appealed. The case has been submitted by the counsel appointed to represent the defendant, without argument.

The cause was tried without any answer having been filed by the representative of the defendant. Under these circumstances, we do not feel ourselves at liberty to relieve the plaintiff. He had no right to try a cause against an absentee, without issue joined, ora judgment by default regularly taken. H® must abide by the result however irregular the proceedings have been. Kincaid v. Higgins, 7 Bibb’s Rep. 396,

The judgment of the District court cannot be affirmed, but the appeal can be dismissed; and it is accordingly dismissed, at the costs of the appellant.