author: Merrick, O. J.

text:
    E. Blanc v. T. Cousin.
    Where it appears that no oflort was made m the lower court to correct a supposed error in Uio judg- • moni with regard to tlio costs, and the plaintiff has judgment for a part of his demand, the Supreme Court will not disturb that part of the judgment which awards him his costs.
    APPEAL from the District Court of the Parish -of St. Tammany, Baylies, J.

      Alfred Hennen, for plaintiff.

      J. R. Jones and L. Janin, for defendant and appellant.
   Merrick, O. J.

This case is a second time before us, having been remanded to this court on a writ of error by the Supreme Court of the United States, under the 25th section of the Judiciary Act.*

It is now conceded by the appellant’s counsel, on the sixth page of his brief, that the verdict of the jury and the judgment of the lower court are correct on the question of title, and in conformity to the law as settled by the supreme Court of the United States.

The appellant only claims that the judgment of the District Court should be amended in regard to costs.

No effort was made in the lower court to have the supposed error corrected ; neither was the point made, as we perceive, on the original argument of the case in this court. As the plaintiff has judgment for a part of his demand at least, wo shall not disturb that part which awards him his costs.

The appellee claims an amendment of the judgment in his favor to the extent of the titles set up in his petition.

lie relies upon his prescription. We deem the proof in the record insufficient for this purpose; and as the appellee has not asked that the case be remanded for further proof, nothing remains but to affirm the judgment.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, and that the appellant pay the costs of the appeal.

Duffel, J., absent.

       See the decision of S. C. U. S., reported in 19lh Howard’s Rep., p. 202.]


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Commonwealth Insurance Co. v. C. A. Labuzan and J. L. Lewis.
    A copy of an Act of tlie Legislature of another State cannot be properly authenticated without having affixed to it the seal of the State.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Bentick Egan, for plaintiff.

      M. Grivot, for defendant and appellant.
   Buchanan, J.

This is a suit upon a promissory note made by Labuzan to the order of, and endorsed in blank by Lewis.

There was judgment against both defendants. Lewis appeals.

Among other defences, the appellant disputed the corporate quality of plaintiff.

A printed paper, purporting to be a copy of an Act of the Legislature of Pennsylvania “ to incorporate the Commonwealth Insurance Company of Harrisburg, Pa.,” was offered in evidence by plaintiff. This document was authenticated by a certificate signed "A. G. Curtin, Secretary of the Commonwealth, per J. PI. McCauley,” and sealed with “ the seal of the Secretary’s office.”

A bill of exceptions was reserved to 'the admission of this document, as not being sufficiently authenticated.

The Act of Congress of May 26th, 1790, (Statutes at Large, vol. 1, p. 122,) section 1st, says : “ Acts of the Legislatures of the several States shall be authenticated by having the seal of their respective States affixed thereto.” The seal in evidence in this case is proved not to be the seal of the State of Pennsylvania. In fact, it does not purport to bo such.

As to the objection, that the certificate is not signed by the Secretary of State of Pennsylvania, but by a clerk in his office, this would not be important, were the proper seal affixed. For it was held by the Supreme Court of the United States in Amedijs case, 11th Wheaton, p. 406, that the seal of the State requires no certificate; that it is the sole authentication of an Act of the Legislature required by the Act of Congress; and imports absolute verity.

It is, therefore, adjudged and decreed, that the judgment of the District Court, as regards the appellant, John L. Lewis, be reversed; and that there be judgment in favor of said Lewis, as in case of nonsuit, with costs in both courts.

Duffel, J., absent.


author: Voorhies, J.

text:
    Bernard Laterrade v. D. Kaiser.
    Wlioro a party, bomg liarrassod by suits, pays, undor protest, money which is claimed in violation of a city ordinance, he is entitled to maintain an action for repetition.
    PPEAL from the Third District Court of New Orleans, Dmigneaud, J.

      Michel & Koontz, for defendant and appellant.

      L. Costera and T. W. Col-lens, for plaintiff.
   Voorhies, J.

This is the sequel of a cause decided, between these parties, in the month of February, 1858. It was then held that the defendant, as les-' see of the market house, was entitled to receive only the daily fee of seventy-five cents, instead of three dollars, as claimed, of the plaintiff, who occupied some stalls.

During the pendency of his litigation, the plaintiff being harrassed by daily suits, instituted by the present defendant before the Magistrate’s court, paid the fees claimed at the rate of three dollars per day ; but did so under protest. He now asks a repetition of the excess paid.

The District Judge correctly held that the defendant was, under circumstances, bound to refund to the plaintiff the sum of $467 25. Indeed, without the protest, the plaintiff was entitled to maintain his action, inasmuch as the amount had been collected in violation .of the ordinances of the city ; and the defendant had, in consequence, incurred a penalty for this illegal act.

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

Duffel, J., absent.


text:
    State of Louisiana v. Henry, a slave.
    TIio Act of tlio Legislature relativo to slaves, approved March 19th, 1857, does not contravene Art. 115 of the Constitution, which declares that “ every Act of the Legislature shall omhraco hut one object and that shall be expressed in the title.”
    The State is not bound to iurnish the accused with a list of the talesmen as they are summoned.
    APPEAL from the First Justice’s Court of the Parish of West- Feliciana.

      T. J. Semmes, Attorney General, for the State.

      Wm. W. Leake, for defendant and appellant.
   Merrick, O. J.

The accused has been convicted of murder, and condemned to be executed.

On his appeal to this court, his counsel relies for a reversal of the judgment of the lower court upon the unconstitutionality of the Act relative to slaves, under which he was tried, and also upon the erroneous ruling of the court on the trial of the cause.

The Act of 19th March, 1857, relative to slaves, is supposed to be unconstitutional because it contravenes Article 115 of the Constitution, which declares that “ every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.”

It is true that the Act in question treats of crimes committed by slaves, and prescribes the penalties; it declares the duties of Justices of the Peace and District Attorneys in relation to the same; regulates the trial and punishment, and provides for the compensation of the owner where slaves are executed ; treats of runaways; compels the attendance of witnesses, and declares who may be witnesses in certain cases.

This classification of the various provisions of the Act shows that by analysis and subdivision we may discover more than one object in the Act, if we attend to each separate provision of the same, instead of its general scope. No Act could be framed on any subject, however simple, if it contained moro than a single provision, which might not be obnoxious to the same charge. And to give this interpretation to the Constitution would require as many distinct Acts of the Legislature as there are paragraphs and provisions in any one Act.

Suppose the statute had been subdivided, and the first sixteen sections had been grouped under a statute entitled “ An Act relative to crimes committed by slaves. It could then have been objected with equal propriety, that the statute embraced more than one object, because it embraced the crimes of murder , poisoning, arson, burglary, &e., &c.

If a statute were passed upon any one of these heads, in any manner recognizing any distinctions or grades in the offence, that again would be obnoxious to the same objection. It is thus seen, it could not have been the intention of the framers of the Constitution to restrict the Legislature to a single provision on each object of legislation. They had in view the object of preventing legislation under .titles which were foreign to the same, and which furnished no index to the laws so passed. Incidentally also, this Article of the Constitution may prevent, in a measure, combinations among the members of the Legislature in the passage of laws, and leaves each bill to pass upon'its own merits.

But it is urged,, that if the Legislature may adopt a title so comprehensive as the one in question, then, under a title relative to free white persons,” the Legislature might pass an entire body of laws, such as the Civil Code of Louisiana.

The example given might present difficulty, and it shows it is not easy to draw the intended line of demarcation, if any exists, between an object considered as a genus and the objects which form its species. Without, therefore, undertaking to unravel this difficulty, we think we may safely assume that the title to the Act relative to slaves is a fair index to every one of the forty-three sections embraced therein. If duties are imposed by the Act upon Justices of the Peace, the Sheriff, or the District Attorney, it is only with relation to slaves. In like manner, every other section of the statute has a direct relation to the object specified in the title of the Act.

Then, when we look to the body of the Act, to see whether it contains more than one object, we must observe its general scope and not the subdivisions introduced by the statute itself. Testing the present Act by those rules, does not enable us to say it violates the Constitution in the particulars complained of.

A bill of exceptions was taken to the refusal of the magistrate to furnish the counsel of the accused with a list of the talesmen being summoned by the Sheriff, after the regular panel had been exhausted. It appears by the bill, that after three jurors were sworn and the panel exhausted, the Sheriff was directed to summon ten others; that while the Sheriff was performing this duty, the prisoner’s counsel requested a list might be served upon him of the new jurors so summoned, but it was refused him 011 the ground that it would occasion too much delay, and as each juror came into the court-house he was called to be sworn, without waiting until the Sheriff had summoned the number ordered.

It was a matter within the discretion of the Justices of the Peace, whether they would delay the proceedings until the Sheriff returned, or proceed as fast as the jurors presented themselves. We are not aware of any law which makes it the duty of the State to furnish the accused with a list of the talesmen as they are summoned; and although a refusal to furnish such a list would not be error, we think where several talesmen have been summoned and are in attendance, such reasonable request of the prisoner, to be furnished a list, ought not to be refused. But in this case it appears the talesmen were called to be sworn as they appeared in the court-house, and it was impossible to furnish the accused with the list until the return of the absent Sheriff.

The remaining ground relied on by the prisoner is the alleged misconduct of two of the jurors, who held a conversation with bystanders, one of whom was reprimanded by the court. Conceding that the rules governing the trial of criminal cases in respect to white persons are applicable to the trial of slaves, it does not appear that the accused can avail himself of the objection in this case, because the improper conduct of the two jurors occurred when only three jurors were sworn, and no effort was made to cause them to be set aside and have others empanelled in their place, and moreover this was not even urged as a ground for a new trial, neither has any bill of exception been taken to the ruling of the lower court upon this point. As the accused and his counsel must have been aware of the misconduct of the jurors at the time it occurred, the case of the State v. Hornsby is not in point. 8 Rob. 558.

Judgment affirmed.


author: Merrick, C. J.

text:
    Smith, Harris & Co. v. Nathaniel Amacker.
    ■\YIiero a plaintiff offered to discontinue a suit, having given .the Clerk of the court instructions to that effect, prior to the filing of a reconvontional demand, but the defendant resisted the discontinuance and was sustained by the court — Ildd: That, whether plaintiff ?s original domands were urged to the jury or not, it was an error to disregard them on the final judgment. If no evidence was offered to sustain them, a judgment of nonsuit should have been rondored; if they were proved to have been novated, judgment should have been rendered against the plaintiff; if they were established, plaintiff should have had judgment.
    APPEAL from the District Court of the Parish of' St. Helena, Wilson, J.

      J. T. Ellison, A. Addison and Michel & Koontz, for plaintiffs and appellants.

      E. P. & TI. W. Ellis and Preston Pond, for defendant.
   Merrick, C. J.

The appeal is taken in this case from a judgment in favor of the defendant, for $9000, for the wrongful suing out of writs of sequestration in the two consolidated cases, by which certain cotton and the stock of goods in trade of the defendant were seized.

The judgment is erroneous.

The plaintiffs offered to discontinue the suits, having given the Clerk of the District Court instructions to that effect prior to the filing of the reconventional demand.

The defendant opposed the discontinuance, and was sustained by the court.

The verdict of the jury and the judgment of the court do not notice plaintiffs’ demands, and judgment is rendered upon the reconventional demand alone.

Whether plaintiffs’ original demands were urged to the jury or not, it was error to disregard them on the final judgment. If no evidence was offered to sustain them, a judgment of nonsuit should have been rendered. If they were proven to have been novated, judgment should have been - rendered against the plaintiffs. If they were established, plaintiffs should have had judgment.

On the reconventional demand, we observe that the damages are high. The seizure of the stock of goods amounting to but little over four thousand dollars, and the eighteen bales of cotton continued but one day, when the sequestration was set aside on bond by the defendant. It is difficult to believe that the seizure of so small a stock of goods, by turning the key upon them for so short a period, could have occasioned the defendant nine thousand dollars damage. ,

Again, there, is no ground for charging the plaintiffs with attorney’s fees to the amount claimed, as an element of damage. Por before the reconventional demand was filed, and before the appearance of counsel, the plaintiffs had given directions to dismiss the suits, and they have been kept in court against the wishes of plaintiffs.

As the judgment of the lower court must be reversed as to a portion of the case, we will also remand for a now trial upon the reconventional demand, instead of rendering judgment upon the same here.

The appellant’s counsel refers to certain bills of exception, on which he also relies for a reversal of the judgment. We do not find any bills of exception on the page to which he refers in this voluminous record, and we have too much labor to justify the examination of matters which may not be relied on by the .appellant.

It js¡ therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for a new trial, the defendant and appellee paying the costs of the appeal.

Land, J., absent.


author: Duffel, J.

text:
    Sowers & Jamison v. E. Shiff, L. Millaudon and A. Lesseps.
    Evidence called for ex officio, by the Judge, after tlio case is submitted and under advisement, is unauthorized, and will bo disregarded on appeal.
    TYJioro a natural drain exists on one estate in favor of another, the mere fact that the owner of the estate in favor of which such servitude exists outs a ditch or canal leading such water into the drain, as would, if left in a state of nature, find its way by a slow process, is not such an aggravation as would bo unauthorized, whore it has for its object the interest of agriculture, and does not tend to redeem swamp lands, or to turn the natural coarse of water into another direction.
    APPEAL from the District Court of the Parish of Plaquemines, Foulhouze, J.

      T. Gilmore, J. M. Bonner, and A. P. Field, for plaintiffs and appellants.

      I. E. S fí. N. Morse, for defendants.
   Duffel, J.

The plaintiffs allege, that they are the owners of a tract of land known as the Union Plantation, situated in the parish of Plaquemines, at about eleven leagues below the Oity of New Orleans, and on the same side of the river Mississippi, having about eighteen arpents front to said river, by forty arpents in depth, below and contiguous to which lie the lands lately belonging to Alexander and Auguste Lesseps, but now cultivated by, and in the possession of the defendants, and known as the Bonsecour Plantation. The plaintiffs further aver, that there exists upon their plantation a bayou or natural drain which takes its source above, runs across their plantation, and obliquely across the said Bonsecour Plantation, by means of which the plaintiffs’ plantation is drained, or the waters thereof find their natural course. They further charge, that notwithstanding the natural servitude thus due by the lower estate in favor of tlieir upper estate, the said defendants have, on or about-day of-last past, constructed or caused to be constructed a dam across said bayou on the division tine of the two estates, thus obstructing the natural course of the water, whereby they have been damaged by the loss of their crop, &c., &c., to the extent of $34,000, as follows:

120 acres of cane (total loss).................................. $ 18,000

40 acres of ratoons (next year)................................ 3,000

Damage done to land by water................................ 12,000

Damage done, hauling wood, wear and tear of negroes, carts, mules, &c. 1,000

$ 34,000

They aver that the defendants, although thereto amicably requested, refuse to remove said dam and to pay them, the above sum; and pray that they be ordered to remove said obstruction and be condemned to pay, in solido, the above sum of thirty-four thousand dollars.

The defendants in their answer deny the existence of any servitude on their estate in favor of the plaintiffs’ property, or the existence of any natural drain or bayou as described in the petition, and oppose to such servitude the prescription of ten, twenty and thirty years.

The District Judge after hearing the parties, dismissed the suit.

The conclusion to which we have arrived does not require us to express any opinion on the several bills of exception taken on the trial of the cause. We will however remark, that the evidence called for ex officio by the Judge, after the case had been submitted and was under advisement, was unauthorized, and, therefore, disregarded by this court.

The witnesses of the defendants establish, beyond a shadow of doubt, that the bayou or coulée described in the plaintiffs’ petition is a natural drain, and that the estate of the defendants owes, as charged, a natural servitude to the estate of the plaintiffs. And the only remaining question is: have the plaintiffs, by their acts, so aggravated this natural servitude as to authorize the erection, by the defendants, of the dam complained of ? We adhere to the opinion expressed in the case of Martin v. Jett, 12 La., p. 503, and the liberal interpretation therein given to Art. 656 of the Civil Code; for we conceive that a strict and rigid application of said Article would condemn to perpetual sterility all the rich lands in lower Louisiana bordering on the Mississippi River. If the mere fact of my upper neighbor’s cutting a ditch or canal leading in a natural drain, into which, the waters thus accumulating, would, if left in a state of nature, find their way by a slow process, were a sufficient warrant to justify my closing the natural drain, it is evident that my lower neighbor could exercise the same right, as also the owners of the lands in the immediate rear. Thus, in a very short time, would every plantation be completely shut up, with no other means of getting rid of the surplus water than by absorption and evaporation,' — a state of thing which was never contemplated by the Legislature. The evidence shows that said coulée runs across the iilaintilfs’ plantation at a distance of from twelve to fifteen arpents from the river, and that the whole of the front land, which is all good and productive, is more effectually drained by ditches which fall into the coulée; and that from the coulée, running back to a distance of about seven acres, there is a gradual elevation in the soil of about eighteen to twenty-four inches, with a descent from that point to the back swamps where the tide water of the Gulf backs, and at long intervals overreaches the ridge. The evidence further shows, that there are three old ditches from the coulée to the ridge, the lower of which cuts the ridge and extends to the swamp or to another back coulée. The plaintiffs have expressed their willingness, if required, to close said ditches, and we will in our decree protect the defendants in this respect; although the evidence does not show satisfactorily that the defendants have been injured thereby.

Upon the whole, we are of opinion that the aggravation of the servitude was authorized, as it had for object the interest of agriculture, and did not tend to redeem swamp lands or to turn the natural course of water into another direction. Wo will dispose of the plea of prescription by inserting here the Article 791 of the Civil Code. “ Prescription for non-usage does not take place against natural or necessary servitudes, which originate from the situation of places.”

Two of plaintiffs’ witnesses have assessed the damages by, in a great measure, simply swearing to the correctness of the bill of charges. The assessment is so evidently overrated and extravagant, that we only allude to it for the purpose of expressing our disapprobation ; and inasmuch as we have no other testimony bearing on this branch of the case, we will, in this respect, remand the cause to enable the plaintiffs to prove, by legal evidence based upon real facts, the reasonable damages resulting from tlie acts of the defendants.

It is, therefore, ordered, that the judgment of the District Court be avoided and reversed. It is'further adjudged and decreed, that the defendants be, and they are hereby ordered to remove and demolish, on their plantation, the obstruction or dam constructed across the coulée described in the plaintiffs’ petition. It is further adjudged and decreed, that the plaintiffs be, and they are hereby ordered, to fill up and stop effectually all the ditches or canals on their plantation, at the extreme height of the ridge described in our opinion, and in such a manner as to keep the tide water from running in the same before overflowing- the ridge itself. It is further ordered, that this cause bo remanded to the court a qua to pass on the question of damages, and that the costs of both courts be paid by the defendants.

Land, J., absent,


text:
    Mrs. Van Ostern v. Mr. & Mrs. Simmons.
    A direct action is indispensable in order to defeat a fraudulent contract; and only in cases of fictitious contracts, or puro simulations can the creditor cause tbe property to bo seized and sold in utter disregard of the deed of transfer.
    A PPEAL from the 5th District Court of New Orleans, Eggleston, 3.

      M. M. Reynolds and J. C. Coleman, for plaintiffs.
    F. F. <& J. B. Cotton and

      Michel & ICoontz, for defendants and appellants.
   Voorhies, J.

The plaintiff enjoined the seizure of two slaves, to which she claims title by virtue of a donation inter vivos from her mother, Mrs. Douglas. The latter is the seized debtor, and the seizing- creditors are Mrs. Simmons and her husband.

Pending the proceedings, which resulted in a judgment in favor of Mrs. Simmons against Mrs. Douglas, the act of donation was passed ; and, from an inspection of the record, we conclude that the donation was not a fictitious transfer. The plaintiff has had the control over the slaves donated ever since, and there is nothing to indicate that her possession is intended merely to give her an appearance of title. In other words, this is a real contract.

Upon the subject of the revocatory action, the Code, Art. 1975, says.- “If the contract be purely gratuitous, it shall be presumed to have been made in fraud of creditors, if, at the time of making-, the debtor had not over and above the amount of his debts, more than twice the amount of the property passed by such gratuitous contract.” Had the creditor, in the case at bar, brought a direct action to set aside and avoid the donation, on account of its injurious effects on his rights, it would have been incumbent upon him to prove those facts, which, under the provisions of the Code, create the presumption of fraud. But it is well established that a direct action is indispensable in order to-defeat a fraudulent contract; and that, only in cases of fictitious contracts or pure simulation, can the creditor cause the property to be seized and sold in utter disregard of the deed of transfer.

Tho judgment of tho District Court must, however, be amended as regards tho damages awarded. It is not, in that respect, sustained by proof of actual damages. Nor can we graut the relief which the plaintiff’s counsel asks for his client, on the allegation that the seizure was vexatious and malicious. This is not borne out sufficiently by the record. Neveu v. Voorhies, Sheriff, et als., 14 An. 738.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by striking out the allowance for damages, and that the same be, In other respects, affirmed, tho plaintiff paying the costs of appeal.

Land, J., absent.


text:
    Marie Schewer, Wife of J. Schewer, v. Louis Klein.
    Where a suit was brought for defamation of character, and defendant failing to answer, a judgment by default was made ilnal without tho intervention of a jury, on exporte affidavits sworn to bpfore the Cleric some days previous to tho trial — Held: That a jury ought to have been empanelled to assess tho'damages, tho witnesses ought to have been examined in open court on tho trial, or their depositions taken according to law should have been offered m evidence.
    Where the husband of tho plaintiff is not a party to the suit, his authorization to bring the suit should be shown.
    APPEAL from the Piftk District Court of New Orleans, Eggleston, J.

      Nelville Soulé, for plaintiff. W. D. Hennen, for defendant and appellant.
   Merrick, C. J.

This is a suit for defamation of character.

The defendant failed to answer, and tho judgment by default was made final without tho intervention of a jury, on ex parte affidavits sworn to before the Clerk some days previous to the trial.

The petition avers that the plaintiff, a married woman, is authorized to bring the suit, but there is no proof of such authorization in the record.

Defendant appeals. He relies, for a reversal of the judgment, upon three supposed errors, viz:

1st. That the court erred in confirming the default on ex parte affidavits.

2nd. That the damages could only be assessed by a jury. And,

3d. That there being no proof of the authorization of the husband to bring the suit, it ought to be dismissed.

It appears to us that there was error in the three particulars complained of. A jury ought to have been empanelled to assess the damages. The witnesses ought to have been examined in open court, on the trial, or their depositions, taken according to law, should have been offered in evidence. The husbajid of the plaintiff is not a party to the suit. His authorization to bring the suit should have been shown. C. P. 360 ; 17 La. 332 ; C. P. 312 ; 6 An. 521; 11 An. 265 ; 2 An. 140.

The case must be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that the case be remanded to the lower court for a new trial according to law, the plaintiff paying tho costs of the appeal.

Land, J., absent.


author: Buoi-ianan, J.

text:
    Richard England v. Theodore Gripon, owner of Steamboat Cora.
    Tlio Act of Congress, entitled “ An Act for the better security of the lives of persons on vessels navigated in wholo or in part by steam,” may be invoked, as the basis of a civil action, to remedy a private grievance or wrong, caused by a failure to comply with its provisions.
    The neglect to provide the tackle, apparel and furniture required by law for the equipment of a vessel is the fault of the owner himself, and ho is, therefore, responsible to the master of a slave, hired on board his boat and lost through such neglect, for the value of such slave.
    The admissibility of evidence given of facts not alleged in the petition, should bo objected to when offered, and the point reserved; otherwise it will be considered as if it had been responsive to an allegation in an amended petition, filed with consent of the opposito party.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      B. Egan, for plaintiff and appellant.

      Hunt & Denegre and Blocker, for defendant.
   Buoi-ianan, J.

Plaintiff sues for the value of a slave, alleged to have been lost by falling overboard and drowning from on board of defendant’s steamboat, in consequence of said steamboat not being provided with a yawl or small boat, as required by the 4th section of the Act of Congress approved the 3d August, 1852, entitled An Act for the better security of the lives of persons on vessels navigated in whole or in part by steam.”

The slave was hired to the boat as a fireman. He fell overboard about eight o’clock in the evening. Several witnesses swear that he might have been saved, had the Cora been provided with a yawl.

A point is made for defendant, that the Act of Congress relied upon by plaintiff is a penal Act, and cannot be invoked as the basis of a civil action to remedy a private grievance or wrong. But we do not perceive the force of this argument. Almost all crimes or misdemeanors, although the subjects of prosecution at the suit of the State, are attended with injury to individuals. The public prosecution has never been held to exclude the private action. On the contrary, the fault of defendant, which is the gist of the civil action in damages, under Article 2294 of the Civil Code, is most directly and conclusively established by proof of facts which might have been the ground of a criminal prosecution against him. We have very lately decided, that the owners of vessels were bound towards masters of slaves hired by them, in an implied warranty that no injury should result to the slaves so hired, from mismanagement and fault on the part of any officers of the boat. Howes v. Steamer Red Chief, decided May 14th, 1860. The present case is a stronger one; for the neglect to provide the tackle, apparel and furniture required by law for the equipment of a vessel, is the fault of the owner of the vessel himself, with which he is directly and immediately chargeable.

The allegations of the petition are proved to our satisfaction.

Evidence has also been given, without objection, of facts not alleged in the petition, tending to show that the cause of the slave’s falling overboard was the condition of the woodpile, which occupied the whole of the guards and rendered it dangerous to pass from forward to the after part of the boat.

The counsel of the defendant insists that this portion of the testimony should be disregerded. But under our practice, its admissibility should have been objected to when offered, and the point reserved; otherwise it will be considered as if it had been responsive to an allegation in an amended petition, filed with consent of the opposite party.

The judgment of the District Court is, therefore, reversed; and it is adjudged and decreed by this court, that plaintiff and appellant recover of defendant and appellee twelve hundred and fifty dollars, with legal interest from judicial demand, 11th December, 1857, until paid, and costs in both courts.

Land, J., absent.


text:
    Shaw & Zunts v. E. P. Noble et als.
    Whoro it was sought to make parties liable for the price and debts of a boat, as owners, under a title derived from the plaintiffs at a certain period— BOU: That evidence of a different title could not bo received.
    A variance in the bill of sale as to tho names of the vendors, is a variance in the substance itself, and will exclude it as evidence.
    In actions upon contracts and deeds, if any part of the contract proved, or deed described should materially vary from the contract or deed, as stated in the pleadings, it will be fatal. '
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Lea & Marr, for plaintiffs and appellants.

      A. N. Ogden S Stansbury, and S. B. Noble, for defendants.
   Duffel, J.

This suit was commenced against the defendant, E. P. Noble, as owner of the steamer Compromise, to recover five hundred dollars, the balance of the price of said boat still due, as also for stores and supplies furnished to the said boat, and the premiums for her insurance. The members of the commercial firm of Connolly & Moore were, by a supplemental petition, made defendants, as co-owners, with Noble, of the compromise.

The defendant, Noble, is sought to be made responsible, as owner, on the allegation “ that in the month of July, 1856, petitioners sold, conveyed and delivered unto the said Noble, the steamer Compromise, for the sum and price of ifi>7,500, all of which has been paid, except the sum of five hundred dollars, for-which H. A. Nunnally, who was the master of said boat, in the month of October, 1856, executed and delivered to petitioners the note of the steamboat Compromise and owners, payable lst-4th of April, 1857, &c.”

We will first notice the objection, on the score of interest, to tho testimony of the witnesses, H. A. Nunnally and /. W. Watt. The first named witness had a direct interest to fix the liabilities of the defendants, being himself personally bound for the whole amount in litigation; and the witness, Watt, had a direct interest the other way, for, according to his testimony, he is equally responsible with the defendant, Noble. We think that the District Judge should not only have disregarded the testimony of the witness, Nunnally, but also that of the other witness; and if we here allude to the testimony of the witness, Watt, it is because it appears to have been received with a reservation.

Our attention is next called to a bill of exception, taken by the defendants, to the introduction, in evidence, of a copy of the sale of the steamboat Compromise, from the plain tiffs, as agents of ,D. O. Hill, M. A. Cox and B. W. Kay, to E.P. Noble, on the 1st day of October, 1856.

The objection is, that “ the petition contained no allegation of any such sale of the date above sot out, and by parties thus named and interested, and that thus there was a want of correspondence between the averment and the proof offered.” The objection was well taken, and should have been sustained, for it was a violation of the rule that the allegata and probata must correspond. The variance was in the substance itself, the names of the vendors; and as the defendants were sought to be made responsible for the price and debts of the boat, as owners, under a title from the plaintiffs, at a certain period, evidence of a different title could not be received. In actions upon contracts and deeds, if any part of the contract proved, or deed described, should materially vary from the contract or deed as stated in the pleadings, it will be fatal. Greenleaf, vol. 1, $ 63, 66 aud 69. Deloney et al. v. Smith et al., 3 La. 418; Lyons v. Jackson, 4 R. 465; Nicholls v. His Creditors, 9 R. 47 6.

The rejection of the sale from plaintiffs, as agents, to one of the defendants, necessitates a judgment of nonsuit, which will be an affirmance of the judgment of the District Court.

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

Land, J., absent.


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      Louis Rochelle v. Louis Francois Hezeau.
    Where a child claims property in the possession of his natural father, oil the ground that it was acquired by the joint labor of the deceased mother with that of the father, courts of justice are bound to discountenance pretensions based upon such an immoral connection, by demanding strict and conclusivo proof, bofore affording relief.
    PPEAL from the Fourth District Court of New Orleans, Morgan, J.

      II. R. Grandmont, E. Meunier and G. LeGardeur, for plaintiff and appellant.

      L. Eyma and C. Dufour, for defendant.
   Duffel, J.

The plaintiff, who represents himself as the duly recognized natural son and sole heir of EUonore Vicloire Rochelle, seeks to recover from the defendant the undivided half of all the property, lands, slaves, movables, &c., owned at the demise of his mother, the 2d of January, 1855, either separately or jointly, by his said mother and the defendant, on the ground that the same was the acquisition of their joint labor, industry and economy, during a period of eighteen or twenty years that they lived in New Orleans as husband aud wife. The plaintiff also sets up other claims as special damages, for the illegal acts of the defendant, and for the fruits and revenues of all said property.

The answer denies generally all the allegations of the petition, and assorts “ that the plaintiff has no right of action against him in the way this suit has been instituted.”

The judgment of the District Court was one of nonsuit.

The evidence shows that the defendant and EUonore Victoire Rochelle came together in New Orleans very poor, some twenty years before the death of the latter, and that during the whole of that time they lived together as husband and wife; that there is now living another issue of this illicit cohabitation, a boy named Hen ry, aged about ten or twelve years, who, according to the brief filed herein by the plaintiff, was also recognized as a natural son and heir of Eléonore Victoire Rochelle. It also appears that when the defendant first came, as above stated, in New Orleans, he had, and still has living in France, a legitimate wife. The defendant and his concubine were very industrious and economical; they worked together; their first occupation was to make artificial flowers, and they kept, to within a very short time before the death of the plaintiff’s mother, and possibly to the day of her death, a very profitable store as florists.

On the other hand, we see that the said Eléonore Victoire Rochelle acquired in her own name eight lots of ground situated in Faubourg Washington, on the 23d day of June, 1848 ; that as her agent, under a power of attorney, dated the 28th of June, 1848, the defendant purchased in her individual name, the following property, to-wit: on the 16th of February, 1850, two lots of ground in Faubourg' Washington, and on the 3d of April, 1855, seven lots of ground in the Third District of New Orleans; and the plaintiff admits that the title to the slave Louise stands in the name of his mother.

The defendant has also established that he has, for the last twelve years, and upwards, dealt extensively as a money broker, discounting notes and lending money on interest for his own account.

Wo also find that eight of the lots acquired as above stated have boon incorporated and form a part of the graveyard of St. Vincent de Paul.

Were we to give the judicial sanction of this court to the pretensions of the plaintiff, its immediate effect would be to incorporate into our Code a species of community alike repugnant to good morals and social order. A sense of duty requires that the judicial tribunals of this State should rather, within legal bounds, discountenance all such pretensions, by demanding strict and conclusive proof, before affording relief.

Tested by the above rule, the plaintiff has failed to make out his case; for we are of opinion that his mother has received her share of the profits of the joint labor which she has invested in the acquisition of real property and slave. We, nevertheless, incline to the belief, that the succession should be credited with one half of the contents of the store of artificial flowers at the time of the death of Eléonore Victoire Rochelle, together with one-half of the dues of the same; also with a just proportion of the unpaid revenues of the cemetery of St. Vincent de Paul at the same date, and a like proportion of the revenues of the same since accrued, and with the value oí the services of the slave Louise. A part of the movables described in the inventory belongs, without doubt, to the deceased; but the evidence is not sufficient to authorize us to pass on the above pretensions, and besides, all the parties in interest are not before us. Justice, however, requires that the rights of the heirs should be reserved in the above particulars. 2 An., 10 ; 13 An., 576 ; Hennen's Digest, vol. 2, p. 1131; C. 0. 1234, 1231, 1252.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, so far as to reserve the right of action which the heirs of Eléonore Victoire Rochelle may have to claim of the defendant a settlement and an account of the contents of the store kept by the defendant and the deceased, including the dues of said store, at the date of the demise of the plaintiff’s mother, together with an accouut of the value of the services of the slave Louise, as also the portion of the said deceased out of the revenues of the cemetery of St. Vincent de Paul which were unpaid at her death and which have since accrued, as also so much of the movables described in the public inventory of the succession of Eléonore Victoire Rochelle as will, after a proper investigation, appear to belong to said estate. And it is farther ordered, that the judgment of the lower court, amended as above, be affirmed, the defendant paying the costs of the appeal.


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    Brannan, Patterson & Holliday v. Wm. R. Hoel.
    The right of the owners of a boat to recover from their officers, through whose neglect damage lias been done, tho amount paid by them on account of such damage, is not prejudiced by the fact that instead of contesting the demand, they compromised it.
    The pilot or any other officer of a boat should not be held responsible to tho owners unless it bo clearly shown that ho 1ms been guilty of negligence, by which the loss was occasioned — but ho cannot escape responsibility when such negligence is shown, simply because other persons are also culpable. In such case, he is bound in solido with the other negligent parties.
    APPEAL from the Fifth District .Court of JN'ew Orleans, Eggleston, J.

      Hart <& Martin, for plaintiffs.

      Simonds <& Fenner, for defendant and appellant.
   Merrick, C. J.

“ Plaintiffs allege that the defendant, Wm. R. Hod, while in charge, as pilot, of their steamboat, the Virginia, did, on the 5th day of January, 1858, by gross carelessness and neglect, run into and sink, at Vicksburg, a number of boats loaded with coal, the property of Victor F. Wilson, of that place; that the said boats were worth fully twenty-five hundred dollars; that their steamer was attached in the Sixth District Court of New Orleans, and that they had been compelled to pay the said sum, and were entitled in law to recover the same from defendant, through whose negligence the collision had occurred.”

The plaintiff^ examined five witnesses, from whom it appears that the collision took place between two and three o’clock on the morning of the 5th of January, 1858; that the moon was shining brightly, and all objects were clearly visible; that the coal boats were lying in their proper place, about three hundred yards below the wharf boat, which was the usual steamboat landing at Vicksburg; that lights were exhibited on the boats; that the steamer came in at a high rate of speed, and made a very awkward lauding; that she destroyed property to the amount of three thousand dollars; that she was soon afterwards attached in New Orleans, at the suit of the owner of the coal, and that tho suit was compromised for twenty-five hundred dollars.”

“ And finally, it is shown that the defendant was acting as pilot on the steamer at the time of the collision, and was then at the wheel.”

The defendant has introduced witnesses, showing that he sustains an excellent character in his occupation, and that he is a skillful and careful pilot. He produces also one witness who was on the steamboat and acted as mate at the time the collision took place. This witness is contradicted by plaintiffs’ witnesses in some particulars. He says it was a dark morning, and that the coal boats had no lights visible; that if they had had lights, the collision could have been avoided ; that the coal boats were not discovered in time; that at the time they were seen, the wind was blowing and it was impossible to prevent the collision although the pilot used every exertion so to do; he says further, that the collision happened without any negligence on the part of the pilot.

The judgment of the lower court was in favor of plaintiffs for $2550, and defendant appeals.

I. His counsel objects to the recovery, that, by compromising the demand of the owner of the coal boat, instead of contesting the same, plaintiffs have lost all recourse against the defendant.

II. It is further objected, that the pilot is not the only person concerned in the management of the steamboat; that it should have been shown, that it was the fault of the pilot so as to exclude every other hypothesis; that in this instance, it may have been the fault of the engineer, the mate or watch, or the captain.

III. The amount paid by the plaintiffs to Victor F. Wilson was $2500. It is alleged that $50 more was paid for costs, but there is no proof that it was so .paid. Judgment, we have seen was rendered for $2550. Defendant claims there is manifest error (in the event his other defences are overruled) of $50.

1. On the first ground, we think that the compromise of the demand of Wilson against the plaintiffs cannot prejudice the right of the latter to recover. Had the plaintiffs contested Wilson’s demand, and paid only after final judgment, such judgment would not have been conclusive upon defendant as to the amount of damages suffered. As to him, it would have been res inter alios acta.

The suggestion that the defendant’s testimony might have prevented a recovery in such action, does not vary the state of the case. The question is, has the act of the defendant occasioned the plaintiffs’ damage, and how much? If the plaintiffs have the means*of proof, they were not obliged to wage an unsuccessful war with Wilson, and might well make payment to him and look for redress to those by whose negligence the loss was occasioned.

2. On the second ground, the pilot does not pretend that any other person was the occasion of the loss, and one thing is clear (if wg give credence to the witnesses,) that there was great negligence on his part. The night was not dark : he was approaching a town where flatboats are almost always moored, and, instead of landing at the wharf boat in the ordinary way, he approached the shore with too much steam in the midst of the flatboats, two or three hundred yards below the usual landing; the flatboats being also more conspicuous from their lights. It is no excuse to the pilot, that another person was also remiss in duty in not observing the flatboats soon enough. The pilot ought to have known where the coal boats were lying at a town like Vicksburg, as well as to have seen them, and he ought not to have approached the shore under so much headway. There is no proof that the engineer disobeyed his orders, or that he himself was yielding'obedience to any one having power to control him or to direct the movements of the boat.

It is suggested that pilots pursue a perilous occupation peculiarly subject to accidents which the greatest prudence and skill cannot always avoid, and that they ought not to be held liable, except in eases of gross negligence affirmatively proved, and where it is also clearly shown that the loss was not occasioned wholly or in part by the fault of other parties engaged in the management of the boat.

We are willing to concede, that the pilot or other officers of the boat ought not to be held responsible to the owners, unless it is clearly shown that they have been guilty of negligence, by which the loss was occasioned, but they cannot escape responsibility when such negligence is shown, simply because other persons arc also culpable. In such, case, they ave bound in solido with the other negligent parties. 0. 0. 2304; Acts 1844, p. 14.

3. On the third ground, we find that there is an error of fifty dollars in the judgment. The plaintiff contends, that as no special mention was made of this error in the motion for a new trial, and as the appeal has suspended the entire judgment, we ought to apply the maxim, Be minimis non curat lex. No instance has been cited where the maxim has been applied to so large a sum as fifty dollars. Moreover, there is as much reason, in reference to the appeal, why the plaintiff should be cautious to exact nothing but what is just of his adversary, as there is that the defendant should be vigilant to protect himself in the lower court.

It is, therefore, ordered, adjudged and decreed by the. court, that the judgment of tho lower court be avoided and reversed. And we do now order, adjudge and decree, that the plaintiffs recover and have judgment against the defendant, Wm. R. Hod, for the sum of two thousand five hundred dollars, with legal interest thereon from judicial demand until paid, and for costs in the lower court, the plaintiffs paying the costs of appeal.

Land, J., absent.


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    Wm. E. Leverich, Curator of Walsh. v. Amos Adams et al.
    In actions which involve the question of simulation, groat latitude is permitted iu the introduction of proof, and officers may he called upon to state anything which does not directly contradict their return, although tho same may be connected with other and extraneous proof which shall have the eilbcl of showing that the officer was mistaken in such return.
    The law abhors a multiplicity of actions against the same person, aud does not favor the collection of a multiplicity of actions against different and distinct persons iu the same suit.
    Whore a party was appointed guardian to a minor by the courts of Mississippi, and subsequently removed to the State of Louisiana, bringing the minor with him, thereby changing tho dormcii of the minor, and obtained possession of the effects of the minor in a fiduciary capacity — Held: That even if tho authority granted by the M:ssissippi courts terminated on his removal, he was yet responsible as a nyoliormigestor, and tho minor was entitled to call him to account, and moreover had his tacit mortgage under Art. 32S3 of tho Civil Code.
    If tho minor is entitled to his account, and if he has a tacit mortgage under a real statute, he must have an action hero to enforce his rights.
    A party does not forfeitliis right to tlmt which is really due him, by tho rendition of a judgment for a larger sum.
    APPEAL from the District Oourt of the Parish of E. Baton Rouge, Beale, J.

      T. G. Morgan, for plaintiff and appellant.

      A. M. Bunn, for defendants.
   Merrick, O. J.

This ease was before us in 1856, and was remanded for a new trial upon the actiou of nullity against the 'judgment,obtained by James S. Baily against Amos Adams, who had acted as his tutor. See 11 An. 510.

Tho record is voluminous; but a careful examination of tho evidence has satisfied ns of the correctness of the conclusions of the Judge of the lower court upon the main facts of the case. We shall not, therefore, state the facts of the case further, but proceed at once to dispose of the questions of law urged upon our attention by appellant’s counsel.

The first is a bill of exception to tlie ruling- of the court permitting- the Deputy Sheriff, L. C. Morris, to testify that “ he did not know Kendall Dunbar, and does not think or know that he ever saw him,” on the ground that to the order of seizure and sale, issued at the suit of the Citizens’ Banlc v. Kendall Dunbar, he had returned “ that the parties being at the time and place appointed for the sale of said property, waived the appraisement thereof.”

The charge made by the defendant is that the sale under the order of seizure and sale, to McCalop, was fraudulent and simulated. In this sort of action, as admitted by plaintiff’s counsel, great latitude is permitted in the introduction of proof, and we think that officers may be called upon to state anything which does not directly contradict their return, although the same may be connected with other and extraneous proof which shall have the effect of showing that the officer was mistaken in such return. In this instance, we think plaintiff’s counsel concedes the admissibility of the testimony when he says “ Non constat that he (Kendall Dunbar) was not represented by some special agent or by his attorney.” Under the circumstances, we think the ruling of the District Judge who tried the case ought not to be disturbed, more particularly as we deem'the evidence sufficient to maintain the judgment without reference to this testimony.

Again, it is urged that there was error in dismissing the suit as to Mrs. Adams. The plaintiff’s action is in the nature.of a petitory action, and was brought to enjoin the sale of a plantation and slaves under a judgment in favor of James S. Baity. Until Mrs. Adams had attempted to enforce her judgment to the prejudice of the plaintiff, he was without interest to attack it. It is true the law abhors a multiplicity of actions, but it means actions against the same person. It does not favor the collection of a multiplicity of actions against different and distinct parties in the same suit. The suit to 'annul the judgment of separation of property in favor of Mrs. Adams was, therefore, properly dismissed.

Again, it is contended that inasmuch as Amos Adams was appointed guardian to Baily by the courts in Mississippi, where he resided at the time, he cannot be held as an intermeddler; and if he misapplied the property of his ward, the action should be prosecuted against him and his surety in the State of Mississippi and not in the courts of this State. '

It is shown that Adams, who had married the mother of the minor, removed with his wife from the State of Mississippi, where his wife had been domiciled with her first husband, to the parish of East Baton Rouge, in 1836, and brought the minor with him. He thereby changed the domicil of the minor. He obtained possession of the effects of the minor in a fiduciary capacity. Now, it is a matter of no moment in this case, whether the authority granted by the Mississippi courts terminated on the removal to this State or not; for, if he continued to be tutor, he was bound to account under our law, and the minor became entitled to his tacit mortgage for the security of the trust. If the office terminated, he became a negotiorum gestor, and the minor was also entitled to call him to account, and moreover had his tacit mortgage under Art. 3283 of the Civil Code. See Pratts v. His Creditors, 2 Rob. 508; New Orleans Insurance Company v. Tio.

It cannot for a moment be admitted, that a party who has a personal demand against another shall be sent to a foreign State or jurisdiction for redress. There cannot be a right without a remedy. If the minor is entitled to his account, and if he has a tacit mortgage under a real statute, he must have an action to enforce his rights.

Again, it is argued that the judgment of the minor against Adams was fraudulent, and therefore, it ought to be set entirely aside. It is true that the defendant lias been able to establish only $11,315 68. instead of $16,136 62, of the amount admitted by the tutor in the account, which was homologated. But it does not appear to us, that the minor forfeited his right to that which is really due him, by the rendition of a judgment in his favor, for a larger sum. Had there been no judgment, his claim would have been the same, except as to the right to issue execution.

It is next objected, that the court erred in dismissing the plaintiff’s demand in warranty against the Citizens’ Bank and Dunbar.

The Sheriff’s sale to McCalop was a simulation made for the benefit of Adams. Even the price does not appear to have been paid to the bank to this day, and the bank is now endeavoring to enforce her mortgage against the property in this proceeding, and has a judgment in the lower court in her favor for the same. There is no ground for calling either the bank or Dunbar in warranty.

The plaintiff urges, in conclusion, that Walsh was a purchaser in good faith and for a sound price, and therefore, he cannot be affected by the defect in McCalop’s title. We are satisfied with the conclusions of the District Judge on this branch of the case. It is evident, from the large indebtedness of Adams, the informal Sheriff’s sale to McCalop, the fact that the price was never paid, that Adams always remained in possession as owner; that Walsh, his factor, undertook to take McCalop’s place, who he acknowledges was Adams’ agent; that ho agreed, on reimbursement, to transfer the property to Adams or to any one he should designate, without warranty; that there was no stimulation of warranty between them; that Walsh charged his liabilities on Adams’ account, including the bank debt to Mm, and accounted to him for the crops; we say from all this, it is evident, that the sale was a simulation, and at most, while it screened the property from creditors, was only intended to secure Walsh for such advances as he might make Adams. The judgment of the lower court does full justice to all parties.

Since the rendition of the decree in the lower court, Amos Adams has departed this life, and the defendant, Clara L. Adams, has been appointed the administratrix of his succession.

The effect of the affirmance of the judgment, which is not complained of in other particulars, will be to bring the property in dispute into the succession of Amos Adams for administration, where the plaintiff will be at liberty to set up all claims he may have for disbursements made on account of Adams, or other demands for money against said succession. See 11 An. 267.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed, the plaintiff paying the costs of the appeal; it being understood that the plaintiff will be at liberty to set up all claims he may have for disbursements made on account of said Amos Adams, deceased, or other demands for money against the succession.


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    Succession of John Taylor, f. m. c., Mary Jane Taylor, f. w. c., Tutrix, &c., v. Clara Taylor, f. w. c., Tutrix, et al.
    "Where a party offered ill evidence, as proof of a marriage, solemnized in the State of Indiana, a certified copy duly authenticated, of tho record of the marriage license and certificate of marriage of the minister who celebrated the samo, from tho County Circuit Court of the State, and at tho same timo offered the revised statutes of Indiana relative to “marriage” and to the “ Clerks of tho Circuit Court ” — Held: That such testimony is admissible to establish the marriage.
    Parol evidence is admissible to provo that the contracting parties to a marriage were in good faith, and that tho marriage was consummated.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Michel <& Koontz, for plaintiff and appellant.

      C. Roselius and F. Haynes, for defendants.
   Duffel, J.

' John Taylor, a free man of color, made, by public act, dated the 23d day of September, 1847, his nuncupative will, wherein he acknowledged, as his natural children, Célestine, Martha, Charles and Georgina, whom he instituted his universal heirs and legatees. The testator died in January, 1853, and his instituted heirs (with the exception of Georgina, who had departed this life before her father,) were regularly put in possession of his estate. It appears that the above named instituted heirs and legatees were born of an illicit union between John Taylor, a free man of color, and Clara, a slave, and that said Clara and her above named children were duly emancipated on the eighth day of July, 1845.

The plaintiff alleges that she was legally married to John Taylor in the year 1843, in the town of New Albany, in the State of Indiana; that they had three children, and that Medora Ada, who was bom in 1845, is the only surviving child of said marriage, and as such, sole heir of her deceased father. And after setting forth the will made as aforesaid by her husband, the emancipation of the constituted heirs and of their mother, and that said constituted heirs could not, under the law, bo legally acknowledged, nor instituted heirs, that they were adulterous bastards, she demands, as the natural tutrix of the minor, Medora Ada, that the said will of John Taylor be abrogated, annulled and declared to be void and of no effect; that the said Medora Ada Taylor be recognized as the sole heir of her father; that the said instituted heirs under the will be ejected from the property described in her petition, and which belongs to the succession of said John Taylor, and that she bo, as natural tutrix of her said" minor, put in possession of the same.

The defendants’ exception to the insufficiency and uncertainty of the allegations of the petition was properly overruled. The defence on the merits is a denial of the marriage of Mary Jane Taylor, f. w. c., with the deceased, and of its legality ; they also deny that the alleged child, Medora Ada Taylor, f. c. c., as set forth in the petition, is the legitimate issue of said deceased, or was ever, as such acknowledged by him.

The plaintiff offered in evidence, in proof of her marriage, a certified copy, duly authenticated, of the record of the marriage license and certificate of marriage of the minister who celebrated the same, from Floyd County Circuit Court of the State of Indiana. The plaintiff also offered at the same time the following laws of said State : Revised Statutes, Part II, chapter 35, art. I of Marriage; Part III, chapter 38, art. II, of the Clerks of the Circuit Courts; which was rejected by the District Judge on the grounds, 1st, “that the Deputy Clerk illegally granted the license, without stating the absence or sickness of the Clerk ”; and 2d, “ that the capacity of the minister was not proved.”

The plaintiff took her bill of exceptions, to which is annexed the rejected document and the statutes above described.

A bill of exception was also taken to the ruling of the Judge excluding all parol evidence to establish the marriage.

Under the laws of Indiana, Clerks of Circuit Courts may appoint deputies, who are authorized to act when such Clerks are unable to attend to the duties of the office, or are absent. The 8th section of Art. 1st of Marriage makes it the duty of the Clerk of the Circuit Court of the county in which the female resides, to issue a license directed to any person empowered by law to. solemnize marriages, authorizing him to join together the persons therein named, as husband and wife. The 6th section directs that marriages shall be solemnized, among others, by ministers of the gospel aud priests of every denomination who are regularly licensed or ordained as such. The 15th and 16th sections direct the registry of the license and certificate of marriage to be made by the Clerk of the Circuit Court of the county in which such marriage was solemnized, and provide that a copy of such record duly certified, attested and sealed by the Clerk of said Court, shall be presumptive evidence of the fact of such marriage; and the 14th section also provides, “ and no marriage solemnized before any person professing to be an officer, or minister authorized by law to solemnize marriages, shall be adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed officer or minister, or on account of any omission or informality in issuing or granting the license, if the marriage in other respects be lawful, and be consummated with a full belief, on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.”

It is therefore clear, that the District Judge erred in rejecting this evidence, and it is equally clear that the plaintiff had the right to prove, by parol, that the contracting parties were in good faith, and that the marriage was consummated.

The rejected evidence and the excluded testimony being before us, we will examine the case on its merits.

The license aud certificate of marriage prove that John Taylor and Mary Jane Lewis, the plaintiff, f. p. c., were married together in Floyd County, Indiana, on the 30th day of August, 1843, by the Revd. B. H. HicJcox, an Episcopalian minister, and the testimony amply shows, that they were married and lived together as husband and wife. It is also in proof that John Taylor filed, in the Fifth District Court of New Orleans, on the 21st day of March, 1848, his petition for a divorce, wherein he pleaded and recited his marriage with the present plaintiff, and the parties were in fact divorced on the 19th of May, 1851.

We cannot entertain the least doubt as to the existence of a legal marriage between John Taylor and Mary Jane Lewis, f. p. c.

The plaintiff is sufficiently identified as the divorced wife of John Taylor, and Medora Ada is, without doubt, her child; and, as far as we can judge from the testimony, the child was born in 1846, and certainly before the time referred to by the witnesses, Eliza Harding and Celia Cook, f. p. c., in their testimony, and prior to the date of tho petition in divorce of John Taylor. It is also in evidence, that John Taylor visited the plaintiff in 1847 in New Orleans.

There is nothing in the evidence to destroy the legal presumption that John Taylor was the father of Medora Ada. C. C. 203, 207; Vernon v. Vernon’s Heirs, 6 An. 244.

We will now inquire as to the rights of the defendants under the will of their natural father; and in doing this, we will not express any opinion as to the fact, whether said instituted heirs could be acknowledged by the testator as his natural children, a point not free of doubts in our mind, notwithstanding its repeated adjudication by this court.

The Article 1470 of the Civil Code will dispose of this branch of the case, even by giving effect to the acknowledgment of the defendants by their natural father. It says : Natural children, or acknowledged bastards, cannot receive from their natural parents, by donations inter vivos or mortis causa, beyond what is strictly necessary to procure them sustenance, or an occupation or profession which may maintain them, whenever the father or the mother who has thus.disposed in their favor, leaves legitimate children or descendants. Those donations shall be reducible in case of excess, according to the rules laid down under the title of Father and Child.” Delaney v. Beale et al., 1 La. 498.

The defendants, or the major one, at least, may not be in need of alimony; or it may be that their enjoyment of the whole estate of their natural father since his death would, of itself, be an ample contribution.

We do not think that the facts of this case, or equity, require that the cause should be remanded to inquire into the wants of the defendants, as,we are of opinion that they acquired nothing under the will, and that, therefore, the question,of reduction does not arise. C. C. 258.

We will, however, reserve in our decree, the right of action of the defendants, if any they have, for alimony. C. C. 257, 913.

It is, therefore, ordered, that the judgment of the District Court be reversed; and it is now further ordered, adjudged and decreed, that the minor, Medora Ada Taylor, be recognized as the legitimate issue of the marriage of John Taylor, deceased, and Mary Jane Lewis, f. p. c., and as such, forced heir of her father. It is further ordered, adjudged and decreed, that the nuncupative will and testament made by John Taylor, f. m. c., by public act executed on the 23d day of September, 1847, be, and the same is hereby annulled and avoided, in so far as it instituted the defendants universal heirs and legatees under the will. It is further ordered, adjudged and decreed, that defendants be condemned to deliver up unto the plaintiff, as natural tutrix of said Medora Ada Taylor, i. c. g., the property described in the petition, and that said tutrix be, as such, put in possession of all the property belonging to the succession of John Taylor, f. m. c. It is further ordered, that the right of action of defendants, if any they have, for alimony, be reserved; and that said defendants pay the costs of both courts.


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    Joseph Cleris v. Gebhard Tieman.
    The servitude «flight and sight is continuous and apparent, and may be imposed by the owner of two lots on one in favor of the other. But the right of way through an alley is a discontinuous servitude and can under no circumstances result from the “ destination ckipere de famille.^

    APPEAL from the Second District Court of New Orleans, Morgan, J.

      L. Castera and F. Percy, for plaintiff.

      E. C. Kelly, for defendant and appellant.
   Voorhies, J.

The plaintiff and the defendant are the owners of two contiguous lots. The former claims a right of way through an alley on the latter’s property, this alley running alongside the division line. There is also a claim for a servitude of light and sight fronting on this alley.

The titles of the parties, derived from the same ancestor, are silent upon this matter, with the exception of the sale to Mrs. Be Blinml, where the plaintiff’s lot is described “ with all the buildings and improvements thereon, and with all rights, ways and servitudes attached to it, without any exception,” &c.

The two lots were owned at the time by one Coutret, who erected the buildings and improvements on them; and it is contended that he established the servitudes par destination, du pere de famille.

The plaintiff has clearly made out his case with regard to the servitude of light and sight, — a continuous and apparent servitude imposed by the owner of both lots, on the one in favor of the other. C. C. 763, 765; Lavillebeuvre v. Cosgrove, 13 An. 323. But with respect to the right of way through the alley, the case is different: the servitude of passage being discontinuous, can, under no circumstances, result from the destination du pere de famille.’’ F. M. Fisk v. Abram Haber, 7 An. 652. The case is precise in this instance: “ Continuous non-apparent servitudes, and interrupted servitudes, whether apparent or not, can be established only by a title.” C. 0. 762. “ The use which the owner has intentionally established on a particular part 'of his property in favor of another part, is equal to a title, with respect to perpetual and apparent servitudes thereon.” C. 0. 763. The right of way or passage is a servitude needing, for its exercise, the act of man, and is, therefore, discontinuous ; it is so classed by the Code itself. 0. C. 723.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended, by disallowing the right of way or servitude of passage claimed by plaintiff through the alley on the defendant’s property; and that, in other respects, the judgment be affirmed; the plaintiff paying the costs of appeal, and the defendant the costs of the District Court.


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    Mary McVey v. Joseph Holden, her husband.
    AA'hcro parties, who wore married in this State and had acquired during the marriago and their residence here, property in slaves, removed for a time to Mississippi and while there entered into a post nuptial contract by which the slaves wore conveyed to a trustee for the use and benefit of the wife, during her life, and after her death wore to descend to the* joint heirs of the husband and wife — Held: That, after they again returned to this State to reside permanently, their rights must be determined by our law — the post nuptial contract disregarded — and .the slaves will belong to the community.
    APPEAL from the District Court of the Parish of Jefferson, Vidor Burthe, J.
    ■ Hyams, Labatt <& Jonas, for plaintiff and appellant.

      R. King Butler and R. Beauvais, for defendant.
   Merrick, C. J.

This suit is brought for a divorce a mensa et thoro, the recovery of separate property, and a dissolution of the community.

The divorce is claimed on account of neglect, abandonment, excesses and “moral cruelty.”

The District Judge was of opinion, that the proof aaus insufficient to support the allegations for separation from bed and board. An attentive examination of the testimony has led us to the same conclusion.

The only serious question in the case, is that presented by a post nuptial contract executed in the State of Mississippi, (ivhere the parties resided for a time,) by which the defendant transferred to a trustee the negroes now claimed by the Avife.

The parties were married in Louisiana in 1821, and the slaves in controversy were acquired during the marriage and prior to the removal of the parties to Mississippi.

The instrument by which the slaves were conveyed to the trustee, was under seal and purports to be a conveyance of the negroes to the trustee in consideration of five dollars paid by him. The trustee covenants that the plaintiff shall be permitted to retain possession of the slaves, have the direction of their labor and appropriate the same to her OAvn use, free from the liabilities of her husband. The trustee further covenanted to transfer the property to such persons or uses as the plaintiff should direct, and in default thereof, and at her death, that the property should be freed from the trust and descend to the joint heirs of the said plaintiff and defendant.

Defendant contends that this act is void under the Act of Feb. 15th, 1839, of Mississippi, which declares that “ Any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution in her OAvn name and as of her property; provided the same does not come from her husband after coverture.’’

The appellant contends that this statute has not changed the law of Mississippi in reference to property settled in trust for the benefit of the wife, and cites the case of Radciffe v. Dougherty, 23 Miss. R. 182.

We do not feel called upon to express our- opinion upon this question. The parties were married in this State and had their domicil here at the time the slaves in controversy were purchased. They halting long since returned to their ancient domicil, which they now make their permanent residence, their rights may Avell be determined by the laws which were in force at the time of the marriage, the acquisition of the property, and the rise of the litigation. By our laAv the property belongs to the community, and as the wife brought nothing iuto the marriage, has inherited nothing, and acquired nothing by donation, there is no ground for a contract between the husband and wife fot the transfer of property to her for the replacing of dotal or paraphernal effects alienated by him. 0. 0. 1784, 2421.

Our law does not permit the parties to make any change in relation to the rights of the spouses after the marriage, (0. 0. 2309,) and donations to each other are always revocable. 0. 0. 1742.

The trust estate created by the post nuptial settlement in Mississippi, is in contravention of the above and other .provisions of our law. Now, as the wife, (conceding the instrument to be valid by the laws of Mississippi,) acquired only an equitable interest under the laws of that State, which could not be enforced in a court of law, and only by a suit in chancery, we think, comity does not require us to recognize the validity of such settlement, particularly in tho absence of the trustee. Wailes v. Daniel, 14 An. 578. Had the rights of the parties been fixed by the dissolution of the marriage, while they were resident in the State of Mississippi, or if the property conveyed to the trustee had not belonged to the community under our law, the question might possibly have been different.

Judgment affirmed.

Land, J., absent.


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    Robertson, Hudson & Pulliam v. Fullerton & Myer.
    Tho offering a note in ovidonco upon trial, without objection, dispenses with the necessity of proving the signatures upon tho note necessary to charge the party against whom tho note is offered.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      H-yarns, Labatt <& Jonas, for plaintiff.

      Mott & Fraser, for defendants and appellants.
   Buchanan, J.

This is a suit upon a note payable to plaintiffs, signed “ Fullerton <& Myer.”

Defendants are described in the petition as a commercial firm, established and doing business in Texas.

Citation was served on Samuel W. Fullerton, who defends the suit individually, denying the partnership charged, and denying that he signed or authorized any other person to sign the note.

The partnership of Fullerton & Myer is proved by a witness examined under commission, and whose deposition was admitted without objection.

The note was also given in evidence without objection.

It is urged by counsel of defendants, that the signature of the note was not proved, although specially denied.

The offering of a note in evidence upon trial, without objection, dispenses with the necessity of proving the signatures upon the note necessary to charge the party against whom the note is offered. Maxwell v. Kennedy, 10 An. 798; Tyler v. Marcellin, 8 An. 312.

Judgment affirmed, with costs.

Land, J., absent.


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    A. M. Forbes v. John Fahrmer.
    "Whore it is sought to prove payment of a promissory note, it.is not necessary that the note ho annexed to tlic commission, in order to prove payment by the answers of the witness, whoso depositions aro to bo taken.
    Plamtiffhaving ignored the existence of a noto, and sued for the stipulated price of property sold, cannot, whore the defence is that the nolo was takou up by defendant, insist upon the production of the note.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      E- Hiestand, for plaintiff.

      E. Abell, for defendant and appellant.
   Voorhies, J.

The plaintiff sold two mules to the defendant for the sum of $385, for which amount the latter executed his note payable sixty days after date. The former instituted suit, not on the note, but for the stipulated price, disregarding the existence of that instrument.

The defence is that the note was taken up by the defendant, upon payment or discount. The testimony of Alexander'Miller, taken, under commission, was offered to prove that fact; but it was rejected by the District Court, on the plaintiff’s objection that the questions propounded were leading, and also that the note itself was not annexed to the commission, nor had been produced during the trial.

There is one leading question propounded by the defendant; this, however, is supplied by a cross-interrogatory of the opposite party on the same subject-matter, eliciting the same information.

With regard to the non-production of the promissory note, the objection raised' is, — not that the contents of this instrument are to'be proven without accounting for its loss or destruction, — but that the defendant cannot prove the payment by parol, without annexing the note to the commission, or producing it on the trial. This objection is untenable. If a written receipt had been given, parol evidence would be inadmissible to prove the fact of payment. Bat, in the present case, the existence of such a receipt is neither alleged nor shown. We are aware of no rule of law requiring a note to be annexed to a commission, in order to prove payment by the answers of the witness, whose depositions are to be taken. This is a matter of convenience or expediency.

The plaintiff having ignored the existence of the note and sued for the stipulated price of the property sold, cannot with any propriety insist upon the production of the note.

The testimony of Miller was admissible in evidence. The plea of payment is clearly sustained by his answers.

It is, therefore, ordered and adjudged that the judgment of the District Court be avoided and reversed ; and that there be judgment in favor of the defendant, with costs in both Courts.

Land, J., absent.


author: Voorihes, •].

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    A. D. Grieff v. R. S. Kirk & Co. et al.
    Tho drawer of a bill of exchange is entitled to notice of protest upon the refusal of the acceptor to pay the amount, and cannot bo held liable unless such notice is given.
    Where a suit is brought against a firm, tho name of one of tho partners composing which is alleged to bo unknown, a judgment cannot bo rendered against the firm so far as concerns the unknown partner ; but where the other partner, not having been personally cited, appeared and filed a general denial, and upon judgment being rendered against the firm, appealed as a partner — Held: That lie was bound by tho decree.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Du,rand & Hornor, for plaintiffs.

      Lea and Marr, for defendants and appellants.
   Voorihes, •].

The plaintiffs are the holders of bills of exchange drawn by George Kirie, and accepted by R. S. Kirk <& Co. Suit was brought against the drawer and acceptors, the latter being, as alleged, a firm composed of R. S. Kirk, and a person unknown to tho plaintiffs.

With regard to the defendant, George Kirk, the record does not justify the rendition of a judgment against him, as he received no notice of protest.

The counsel of the defendants contend, that no judgment could have been rendered against the firm of R. S. Kirk <& Co., because they have not been legally brought into court. This position is correct so far as concerns the unknown partner; but R. S. Kirk has filed a general denial in this case, and, upon judgment being rendered against the firm, has appealed as a partner. It is satisfactorily shown that R. S. Kirk, who filed the answer, was a member of the firm of R. S. Kirk <& Co.; for, not having been personally cited, he had no interest to appear, if, in point of fact, he was not a partner. His appearance can be accounted for under no other hypothesis but the fact of his interest in the partnership.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and it is further adjudged, that the plaintiffs’ demand against George Kirk be rejected, with costs in both courts; and that the plaintiffs do have judgment against R. S. Kirk for the sum of four hundred and twenty-four dollars and twenty-five cents, with legal interest from the seventeenth day of June, A. D., eighteen hundred and fifty-eight; and for the further sum of four hundred and twenty-six dollars and thirty cents, with like interest from the seventeenth day of July, A. D., eighteen hundred and fifty-eight, with costs and privilege upon the property attached.

Land, J., absent.