author: Slideli, J.

text:
    Freeland v. Briscoe.
    There are no presumptions against sureties; they can only be held to the precise terms of their obligation. C. C. 3008.
    A surety will be discharged where he cannot, upon payment, be subrogated to the rights of the creditor. C. C. 3021, 3022.
    A mortgage executed to secure the payment of a judgment stated' in it to be the property of the mortgagee, will be declared void on proof that tbe judgment did not belong to him.
    APPEAL from the District Court of Madison, Selby, J.

      Thomas and Snyder, for the appellant.

      A. P'ierse, Stacy and Sparrow, for the defendant.
   The judgment of the court was pronounced by

Slideli, J.

Freeland having obtained an order of seizure and sale upon a mortgage executed in his favor by Briscoe, an injunction was obtained by Briscoe. The cases were consolidated, and a judgment having been rendered which partially sustained and partially rejected the claims of Freeland, Briscoe appealed.

The mortgage which has given rise to, tbis controversy was executed by Briccoe, in 1842, to secure the payment of two alleged judgments obtained by Freeland, one against John Briscoe in the United States Court of Louisiana, for $7,484 80, and interest, and the other against Bowen, the surety upon a note for which John Briscoe was the principal debtor, in the Circuit Court of Claiborne county, Mississippi, for $10,017 00. It was stated in the mortgage as the agreement of the parties that, the security given by the mortgage for the payment of the sums mentioned was received in full discharge of ail the securities in the original notes in which the judgments were obtained. By the power 6f attorney annexed to the mortgage Freeland states that, the mortgage is to be executed to secure the payment to himself of about $19,000 due to him by John Briscoe. At the time of executing this mortgage Samuel M. Briscoe transferred to Wilcox, the attorney of Freeland, who accepted the mortgage for him, two notes of Amis Sy Butterworth, amounting to $3,888, which were imputed in the act of mortgage as a credit upon the alleged judgment rendered in Mississippi.' The petition for injunction charged that the mortgage had been obtained'from Briscoe through fraud and misrepresentation by Freeland and his attorney; that there never had been a judgment rendered in Mississippi in favor of Freeland against Bowen, as surety of John Briscoe. The prayer was, that the whole mortgage be declared a nullity, and for judgment against Free-land for the amount of the two notes transferred to him and imputed as a payment upon the Mississippi judgment. There was also an alternative prayer that, if not entitled to full relief, the mortgage might be declared null, so far as it related to the Mississippi judgment, and that the two notes might be imputed as a payment upon the judgment rendered in the United States Court. By a supplemental plea it was farther alleged that, the nullity of the mortgage had become res judicata in an antecedent litigation between the parties.

It is conceded that, at the time when the mortgage was executed, the judgment in Mississippi was not in favor of Freeland, eo nomine, as stated in the act of mortgage. The judgment was in favor of the Commercial Bank of Rodney. The note upon which it was obtained was once held by Freeland, who discounted it at the bank. ' The bank obtained judgment upon it against Bowen, nominally the co-obligor, but in reality the surety of John Briscoe. The bank also brought suit upon it against Freeland, as endorser. That the bank was at one time the holder of the note is conclusively shown, and Freeland has failed to show that he has ever paid it, or become the owner of the judgment. That John Briscoe desired that Freeland should be secured against his liability on the note is satisfactorily shown, and counsel are perhaps warranted in saying that no moral fraud or intentional deception was practised by the mortgagee, or his attorney, upon Samuel M. Briscoe. But the mortgage, so far as that claim was concerned, was based upon the alleged existence of a judgment which did not exist; it is not satisfactorily proved that Samuel M. Briscoe knew the true state of the case, to wit, that the judgment was owned by the £bank, and that Freeland had not paid, nor was the owner of the note. No liability of Samuel M. Briscoe for the note of John Briscoe and Bowen, is proved. He stands in this matter under the evidence, whatever may be the real state of the case, as a voluntary surety for an antecedent liability of John Briscoe, by the mortgage of his own lands and slaves.

The law applicable to such a state of evidence is clearly in his favor. The judgment in Mississippi, which he undertook to secure, did not exist, as represented. It was not owned by the party to whom the mortgage was given. There are no presumptions against sureties; they can only be held to the contract as made — to the precise terms of their obligation. Fidejussio est strictissimi juris, el non clurat vel extenditur de re ad rem, de persona ad personam, de tempore ad tempus. Where the principal’s indebtedness does not exist, the collateral contract is a nullity. The representation was that Freeland was the plaintiff in the judgment; and the mortgage was to secure its payment to him. But it turns out that he was not the creditor, and, however innocent the representation, the surety cannot be held. The surety is entitled to subrogation upon paying the creditor; but if the mortgagor Briscoe should pay Freeland $10,017, Freeland could not, so far as the evidence informs us, transfer to him what he represented himself as owning, a judgment against Bowen, and the note of John. Briscoe upon which it was obtained. - See Civil Code, arts. 3008, 3021, 3022.

But it is said that, even though Freeland had ,not paid the note, yet under his liability as endorser he would have had a right to sue John Briscoe for an indemnity, and may therefore hold on to an indemnity although irregularly obtained. This may be true; but then it is not shown that Samuel Briscoe was liable as principal debtor, and there is therefore no such equity established against him. We are therefore of opinion that the mortgage, so far as it was given to secure the alleged judgment in Mississippi, cannot be declared valid under the evidence presented to us.

There are however circumstances presented by this record, which induce us to leave the rights of the parties open as to the Mississippi judgment and the note upon which it was obtained ; especially as the jury refused to restore to Samuel M. Briscoe the notes of Butterworth &f Amis’, and sustained the imputation of their amount to the Mississippi judgment. This finding shows that, in the opinion of the jury, Samuel M. Briscoe was not a mere volunteer jn this matter; and although we do not feel authorized, under the evidence, to affirm the verdict in that particular, it has formed with us a strong inducement to leave the controversy partially open in favor of both ' litigants, by reserving to Freeland whatever rights he may have acquired under the mortgage, or may otherwise have, with regard to the Mississippi judgment and the note upon which it was obtained, and to Samuel M.sBriscoe his rights, whatever they may be, to the reeision pro tanto of the mortgage, and the restoration of the notes of Butterworth Sf Amis, or their value.

We would have been disposed to remand the cause upon those points, were it not that the pleadings and proceedings are complicated to a degree which would embarrass the examination of the case.

As regards the plea of res judicata: We consider it untenable. To explain all the proceedings which are exhibited by the confused and complicated records before us, and upon which the question of res judicata turns, would be an unnecessary waste of time. It suffices to say that, the consent judgment which is pleaded as res judicata, expressly refers to the other proceedings than those in the suit in’which it was rendered. Interpreted by the recitations contained in it, and by the other suits to which it refers, it is obvious that it was understood by the parties and by the court as a perpetuation of the injunction arresting a prior order of sale, applying merely to the executory proceedings instiuted in the former case, and not concluding the parties upon the issues presented in this cause, and then pending.

It is therefore decreed that the judgment of the court below be reversed; and it is further decreed that the said Thomas Freeland be recognized as a mortgage creditor for the sum of $7,484 40, and interest thereon at the rate of ten per centum per annumfrom the 4th day of January, 1840, until paid, upon the lands and slaves described in the act of mortgage, executed on the 19th day of July, 1842, before Malcolm Wallace, notary, by said Samuel Af Briscoe to said Thomas Freeland, of which mortgage a copy is on file in this cause; and that the said lands and slaves be seized and sold to satisfy the said sum, interest, and costs of this suit in the court below; and that the injunction by said Briscoe obtained be dissolved. And it is further decreed- that, in all other respects, this suit be dismissed as in case of non-suit, and with- a full reservation of the rights and liabilities of the said Samuel M. Briscoe and the said Freeland respectively, with respect to so much of- said mortgage as was given to secure the alleged judgment rendered in the Circuit Court of Claiborne county, Mississippi, and with-respect- to the judgment rendered in Mississippi in favor of the Commercial Bank of Rodney against Brown, and with respect to a certain note made by A. G. Brown John Briscoe in favor of J. B. Warren for $9,333 30, dat’ed 5th- May, 1839, being the note more fully described in the record of this cause, and With respect to the two notes of Amis 8f Bullerworlh mentioned'in said act of mortgage. And- it is further decreed that the síM'-Freeland pay the costs of this appeal.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    Hill v. Bowden et al.
    Acceptance of’serVice’of apetition of appeal by an attorney at law will be presumed to have been authorized by his client, unless the latter, by his own affidavit or otherwise, shows that the attorney transcended his authority.-
    Where an appellee, by his attorney, writes at the foot of a petition for an appeal and of the order granting it, the words, “ Service accepted," it will include a-waiver of citation.
    One whose possession commenced and was continued in bad faith, is answerable for rents accrued previously td’the commencement of suit.
    APPEAL- from-the District Court of Madison, Selby, J-.

      Thomas and Snyder, for the appellant-

      Amonelt, for the defendants, Copley, intervenor, pro se.

      Bemiss, for the intervenor,- Morancy.

   The judgment of the court was pronounced by

King, J.

The appellee Copley has moved to dismiss the appeal, on the ground that the service of- the-petition of- appeal was accepted without his authority by his attorney, and that, if the acceptance be deemed-to have been authorized, it can have no greater effect than if the petition had been actually served, which service it is contended would be insufficient.

We have repeatedly held, that the acts of attornies will be presumed to have been authorized by their clients, unless the latter, by their own affidavit or otherwise, show that the attorney transcended his authority. Conrey v. Brenham, 1 An. Rep. 397. Ingram v. Richardson, 2 An. 839. No such showing has been made by the appellee. At the foot of the petition praying for an appeal, and of-the order granting it, is the following acceptance in writing: “Service accepted for the defendants James Bowden, and wife, Judith Bowden, and the intervenor George W, Copley, lune 14, 1847. (Signed) J. J. Amonelt, Atty.” This is a distinct acceptance of service of the petition and order of appeal, and fairly includes a waiver of citation. The motion to dismiss is, therefore overruled.

The plaintiff, Cynthia-Hill, instituted this action to recover a tract of land in the possession, of the defendants. The latter disclaimed title, and alleged that they held as lessees of Copley. Copley intervened- in the suit, asserted that he was the owner, prayed-to-be quieted in his title, and, in the event of eviction, to recover the value of the improvements. Morancy also intervened, and claimed the land. He prayed to be decreed- to be the owner; but, if the plaintiff should prove to have the better title, he then asked for the value of the iniprovements placed on the land by those under whom he claimed. The jury gave a verdict in favor of the plaintiff for the land, and in favor of Copley, against the plaintiff, for §400, the value of the improvements, and rejected the claim of Morancy. The plaintiff has appealed. Mrs. Iiill exhibited a patent in her favor for the land in controversy. 'The superiority of her title is not contested in this court. The only questions at present at issue between the parties relate to the value of the -improvements made upon the land while in the possession of Sims, under whom the intervenors claim, the rents which are to be deducted, and the party to whom the residue, if any, should be awarded.

We think that, under the evidence, ‘the refits to which the plaintiff is entitled fully equal the enhanced value given to .the land by the improvements made upon it, and that the.claim for the .latter has extinguished the former. This conclusion renders it .unnecessary to determine between the conflicting claims of the intervenors.

The evidence, in our opinion, shows that the possession of Sims, under whom the intervenors claim, commenced and was continued in bad faith. Such being the character of his possession, he was answerable for the rents which had accrued previous to the inception of the suit. -He obtained possession of the land by making a verbal promise to give a slave as the price to the plaintiff, who had acquired apre-emption right under the act of 1838. He availed himself of the possession thus acquired to enter the land in his own name, and refused to fulfil his engagement to deliver the slave. The plaintiff caused this entry to be cancelled and a patent issued in -her favor, in 1844; notwithstanding which, those deriving tittle from Sims have persisted in holding possession, until evicted by the judgment in this suit. The intervenors can assert no greater rights than Sims possessed. Their claim for improvements made by him must be taken subject to the offset of rents, which the plaintiff could have opposed to him.

It appears that Sims went upon the land in 1840,' at which time the timber was deadened upon about twenty acres of the tract. In 1842, he had cleared and put under cultivation from fifty to one hundred acres, and had erected upon it a house worth §150. What quantity was cultivated during the two previous years, does not appear. The judgment in this suit was rendered in October, 1846. Thus Sims, and -those holding under him, remained in possession seven years, during five of which, at least, they"had from fifty to one hundred acres of the land in cultivation. The lowest estimate of the rents is §2 an acre per annum, the highest §5. The enhanced value of the land by the clearing is shown to be §9 an acre. The difference -between the rents and the enhanced value of the soil, leaves a balance in favor of the -former sufficient to compensate for the house. The jury appear to have considered the value of the improvements only, and to have made no allowance for the rents. Upon no other hypothesis can their verdict be accounted for, under the evidence submitted to them. This conclusion is fairly inferrable from the terms in which their verdict is expressed. It isas follows: “We, the jury, find a verdict for plaintiff for the land in controversy, allowing George W. Copley §400 for the improvements on the land, and find against the intervenor Morancy.” Into this error they probably fell in consequence of the refusal of the .judge to charge that, the plaintiff was entitled to recover rents, if they found that Sims was a possessor in bad faith. The verdict is clearly erroneous, and the facts do not, in our opinon, require that the cause should be remanded.

It is therefore ordered that, so much of the judgment of the District Court as decrees to the plaintiff, Cynthia L. Hill, the land in controversy, and rejects ^le c^a*m tb® intervenor Morancy, be affirmed with costs. It is further ordered that so much of said judgment as decrees to the intervenor Geo. W. Copley $400, for improvements, be reversed, and that there be final judgment against said Copley; the appellee paying the costs of this appeal.


author: Rost, S.

text:
    Bathurst v. Course et al.
    Where the preamble of a statute declares tlmt doubtsliave arisen'as to the legality of certain ordinances of a police jury, which are inserted at length in the preamble, and the statute declares that tbo ordinances shall have full force and effect, no objection can be made to their legality on account of the form adopted by the legislature to give them validity.
    The validity of .an ordinance of a police jury, proved by the testimony of the clerk of the jury to have been duly enacted and promulgated, cannot be effected by the omission of the clerk to transcribe on the minute',hook kept for that purpose the proceedings of the meeting at which it was passed. The omission may be corrected at any time, nunc pro tunc.

    APPEAL from the District Court of Concordia, Farrar, J.

      R. N., and A. N. Ogden, for the appellant.

      Stacy and Sparrow, for the .defendants.
   The judgment of the count was pronounced by

Rost, S.

The plaintiffs have enjoined the sheriff of .the parish of Concordia from collecting a tax of five cents per .superficial acre, imposed by the police jury of that parish on certain waste lands, owned by them, within its limits. There was judgment against them in the court below, dissolving the injunction with damages, and they have appealed.

The grounds of injunction are these:

1.That the police jury had no power or authority to enact the ordinance .of the 17th November, 1841, by virtue of which the tax was assessed.

2.That the discrimination in favor of the riparian proprietors, by which in effect they pay less, by two-thirds, of a tax levied for the general benefit of th-e parish, than the other inhabitants, would make the ordinance and assessment of the tax under it illegal and unconstitutional, .even if it possessed the highest legislative sanction.

3.That the tax was never legally assessed .at any certain .or fixed rate., and, even if fixed, was nevertheless illegal and unconstitutional.

The ordinances of the 17th and 19th November, 1841, though unauthorised by law at the time of their passage, became binding for all taxes assessed after the promulgation of the act of the 26th March, 1842, by which those ordinances became laws of the State. The forms pursued by the legislature in their adoption, were the same as those used in the .adoption of the Louisiana Code and of .the .Code .of Practice. They present no irregularity which would justify our interference.

It is next contended that the ordinance óf 1846, by which the tax claimed was assessed, cannot be enforced, because the proceedings of the meeting of the police jury, during which it is alleged to have been passed, were not copied in the minute-book kept for that purpose. This omission is proved. But the clerk of the police jury testifies that, the proceedings of that meeting were correctly copied and made out by him, and signed by fhe president; that this copy was published both in the Concordia Intelligencer and in pamphlet form, and that the printed copies are true copies of the original proceedings. The neglect to record the proceedings in the minute-book was a misdemeanor on the part of the clerk. This informality may be cured, nunc pro tunc, at any time, and cannot affect the validity of ordinances duly passed and published.

The next point relied on by the appellants is, the irreguality of the tax arising from an ordinance passed by the police jury on the 9th of May, 1845, which provides that the riparian proprietors who have, in front of their lands, levées made according to law, shall be entitled to a credit of two-thirds of the levée tax assessed on their lands. If this disposition was found in the ordinance imposing the tax, and it was held to be an entire ordinance, the illegality of a part of it would annuli the whole, according to the principle recognized in the case of Morgan v. Municipality No. Two, 1 Annual Rep. 111. But those dispositions form the subject of two different ordinances, passed in different years, the last of which is in these words: ‘j Resolved, That the levée tax for the present year be five cents per acre .on .all uncultivated lands, and ten cents per acre on cultivated lands ; and that it be collected in the same manner as the State taxes are collected by law.” It makes 'no reference wbateyer to the ordinance of 1845j and cannot be affected by its illegality.

We are not prepared to say that the dispositions of the ordinance of 1845 are a proper exercise of power, or that they do not fall within the exception reserved in the case of Oakey v. Mayor et al., cited at bar, and in .the añore recent case of Municipality No. Two v. Duncan, 2 La. Rep. p, 1. 2 Annual Rep. Í82.

The broad delegation of plenary and unlimited power to the police jury of this parish, must be understood of course as embracing only such powers as can be rightfully exercised under .a government of laws. We incline to the opinion that the partial exemption from taxation of the riparian proprietors attempted by this ordinance, is not such a power. But. that question is not before us in such a form as will enable us to pass finally upon it. The parties for whose benefit the ordinance was passed are not before the court.

W.e.are satisfied there is no error in the judgment appealed from.

Judgment affirmed.

       The act of 26 March, 1842, ,eh. 164, is in .these words :
      “ Whoreas the police jury of the parish of Concordia did, at the November session of the said jury, in the year 1841, make and ordain two ordinances, in the following words, to wit:
      [Here the two ordinances are transcribed at large.]
      “ And whereas doubts have arisen whether the said jury had the legal power to ordain .the same:
      Section 1. Be it enacted by the Senate and House of Representatives of the Stats

        •of Louisiana, in General Assembly convened, That .each and every part of the said ordinances be, and the same is horeby approved and adopted, and declared to have full and legal force and effect, except so far as the .same maybe amended by other sections and provisions of this act.
      Sec. 2. Be it further enacted, &c.”


author: Rost, J.

text:
    Succession of Williamson.
    The court .of the parish in which the deceased had his domicil at the time of his death, has exclusive jurisdiction of his succession. The appointment of an administration by a court in another parishis a nullity. •

      An heir, present-orrepresented, is .entitled to the administration .of a succession, in preference to the surviving husband or wife.
    APPEAL from the District Court of Madison, Selby, J.

      Bemiss, for the appellant.

      Thomas and Snyder, contrá.
   The judgment of the court was pronounced by

Rost, J.

Russell M. Williamson, who had lately removed to this State with his family and a'large number of slaves, and was settled in the parish of Madison, died out of the State. After his death, his widow, to frustrate the service of legal process upon the slaves, -removed them, first, to the State of Mississippi, .and afterwards to the parish of Livingston, where she took out letters of administration on the succession of her husband. Williamson left at his death three children by his first marriage, .and one by his surviving wife. Robert W. Burney, who had intermarried with one .of the children of the first marriage, filed his application in the parish of Madison to be appointed administrator of the succession. To this application the .surviving wife made opposition, alleging her appointment as administratrix in the parish ,of Livingston, and praying that she might be maintained as such in preference to the applicant. Mary F. Williamson, the wife of Burney and beneficiary heir of R. M. Williamson, made herself a party to the proceedings, and prayed to be appointed .administratrix of her father’s succession in conjunction with her husband. The court below awarded the administration .to Burney and Mary F. JVilliamson. The surviving wife has appealed.

The parish of Madison was the place of domipilof the deceased. The court of the parish of Livingston had no jurisdiction of his succession, and the appointment of an administratrix by that court was a nullity.

The judge of the first instance has made a correct application of art. 1114 of the Civil Code, which ordains that the heir, present or represented, shall be entitled to the administration in preference to the surviving husband or wife.

The point made by the appellant that there is now no property of the deceased in the parish of Madison, is very satisfactorily accounted for by the fact that all the property of which he died possessed, and which his heirs claim as belonging to him, was removed from thatparish, after his death, by the appellant herself, as already stated. Judgment affirmed. '


text:
    New Orleans and Carrollton Railroad Company v. Chaney.
    Prescription in favor of the endorser of a draft is not interrupted by the acknowledgment of the debt by, nor by the citation of, any other party.
    Where an action has beenpending for more than three years, and plaintiffs have had ample time to procure the testimony necessary to establish their demand, but have not done so ; and, on the motion for a new trial, it was not urged that there was surprize, or any expectation of obtaining further evidence, a final judgment, and not one of non-suit, will be' rendered in favor of defendant.
    APPEAL from the District Court of Carroll, Copley, J.

      Thomas, for the appellants.

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

King, J.

The conclusion at which we have arrived on the merits of this cause, renders it unnecessary to consider the motion to dismiss.

The defendant is sued as endorser of a draft, and pleads the prescription of five years. A judgment was rendered in his favor in the court below, and the plaintiffs have appealed. This suit was instituted more, than, five years after the maturity of the draft upon which it is founded-. It is alleged in the petition that the defendant promised payment within the five years preceding the inception of the suit, and to establish the averment an interrogatory was propounded to the defendant, who denied any such promise. No effort appears to have been made to contradict thi3 answer, although it was redered more than six months prior to the trial. The plaintiffs further endeavored to show an interruption of the prescription, by exhibiting the record of a suit instituted against the remaining parties to the draft. Neither -the acknowledgment, nor the citation, of any other party to the draft, had the effect of interupting prescription as to the defendant, who was an endorser. Jacobs v. Williams, 12 Rob. 183. McCalop v. Newcomb, 2 Ann. Rep. 332. Hickman v. Stafford, Ibid, 792.

The plaintiffs have asked, in the event of the testimony being insufficient to authorize a recovery, that there be judgment as in caseof non-suit only. The cause was pending three years in the District Court,during which time plaintiffs had ample time to prepare for trial, and to procure the testimony necessary to establish their demand, if any existed. In the-motion for a new trial it is not urged that there has been surprise, nor that there-is any expectation of obtaining further evidence. Under these circumstances the judgment should be final. ' '' Judgment affirmed.


text:
    Barbarin v. Barbarin.
    Advances made by an under tutor for tbe use of minors, not authorized by a decree of court rendered on the advice of a family meeting, ■frill-give Him nó claim against the minors beyond their revenues.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      Grivot and R. N., and A. N. Ogden, for the appellant.

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

Rost, J.

We have examined this case with great care, without having been able to agree with the jury before whom if was tried iffany of the conclusions to which they came. The plaintiff sued for advance's made to- the defendant in her own right and on account of her minor children,- the greater part of which have been acknowledged by her to be due, and on which she has agreed in writing to pay interest at the rate of eight per cent per annum. She resists the claim on the following grounds-: 1st.- That she signed the acknowledgment of indebtedness and promised to pay interest, in error of her legal-rights. 2d. That the plaintiff,-being under tutor of her minor.children, insisted upon taking charge as her agent, and did take charge as such, of the succession of her husband, which she was administeri ng; and that by his misconduct and mismanagement he has caused the minors $5,000 damages, which-she claims in reconvention in their behalf. The jury allowed the plaintiff .only a part of his claim against the defendant herself; and gave judgment in reconvention against him, in favor of the minors, for $1,990 33. From this judgment the plaintiff has appealed.

“ For the purposes of this inquiry, we must hold the plaintiff to stand in the situation of under tutor of the minors. He was originally appointed in that capacity, and the subsequent appointment of his brother William, which he caused to be made in 1835, was not carried into effect. William Barbarin never, qualified as under tutor, and has testified that he acted as his brother’s agent during a temporary absence, and that he always considered his said brother as the under tutor. The plaintiff himself took the receipts and acknowledgements, which were given to him by the defendant in 1841, in the capacity of under tutor.

To establish her allegations that the plaintiff had taken into his own hands the exclusive management of the succession of the deceased, the defendant pro. pounded to him certain interrogatories, to which he gave negative answers, admitting only that she requested him to collect some claims due to the succession, and to pay the debts due by it, which he alleges he did, and rendered to her a full, explicit and detailed account, which she examined and approved. Thei’e is nothing in the recox-d to falsify these answers. On the contrary, the fact proved, that plans and estimates of buildings, which the defendant wished to erect on vacant lots of the succession, were submitted to her alone by the builders, and that the plaintiff was not consulted in the matter, corroborates them, and shows that she was administering personally the real estate. The plaintiff acted as her agent, as stated in his answers. He appears to have liquidated the succession with reasonable diligence; he has accounted to her for all the sums collected by him, with interest at the rate of ten per cent per annum, during the time she authorized him to use them in his own affairs ; and he has besides advanced to her the sums which he now claims.

Now it is alleged that, being under tutor, he could not become the agent of the tutrix, and that, by accepting the agency, he subjected himself to all the responsibilities of a tutor. Dalloz, vol. 4, nos. 309, 310, 311. We have already seen that the plaintiff did not administer the real estate, and he cannot therefore be held liable for the maladministration of it. Admitting the rules laid down by Dalloz to be well founded in law, and applicable to the plaintiff so far as he has administered, the defendant hei'self can derive no benefit from them. After requiring the plaintiff to pay over to her the whole amount in his hands, and obtaining from him large advances besides, her allegation that the fund» she has received should have been withheld from her and employed by her agent in improving the community property, cannot be considered as serious^ so far as she is concerned. If the plaintiff has suffered her to dilapidate the property of the minors, the relation in which he stood towards them will ultimately render him liable to them for the losses they may have sustained; but the defendant stands between him and danger. The rights of the minor» must first be ascertained contradictorily with hex-. If the property remaining in her hands is sufficient to satisfy their claims, they have sustained no injury; if it is not, the deficiency will be the limit of the damages which may be done by the under tutor.

The advances made by the under tutor not having been authorized by a decree of court rendered on the advice of a family meeting, he has no claim for them against the minors, beyond the revenues; and he cannot be permitted to enforce his claim against their defendant personally, until that of the minors is ascertained and paid. The execution of the judgment to which he is entitled must, therefore, be stayed, till the claim of the minors is liquidated and paid in due course of law.

It is therefore ordered that the judgment in this ease he reversed; it it is further ordered that there be judgment in favor ef, the plaintiff against the defendant Marceline Brouct personally, for the sum of $2,609 77, with interest at the rate of eight per cent per annum on $1,802 31, part thereof, from the 13th of April, 1841, till paid, and the like interest on the balance from the 20th day of September, 1841, till paid. It is further ordered that the execution under this judgment be stayed until the claim of the minor children of Joseph Barharin against the defendant, their tutrix, be liquidated in due course of law and satisfied by the said defendant, or, in case of deficiency, by the plaintiff. It is further ordered that there be judgment against the minors, on their claim in reconvention, as in case of non-suit; and that one half of the costs in both courts be paid by the defendant, and the other half by the minors.


text:
    Walsh v. Barrow.
    Where a case is tried before a jury who write only french, and the verdict is returned by them in that language, and it is translated into english under the direction of the court, read to them as translated, assented to by them,- signed by the foreman, and recorded by the clerk in their presence, it will be sufficient.
    APPEAL from the District Court of Terrebonne, Randall, I.

      Beatty, for the plaintiff.

      C. A. Johnson, Jor the appellant,.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff seeks to recover $900, for wages as overseer of the defendant, during the year 1843. The answer sets up a contract, by virtue of which it is alleged that the plaintiff was to be paid for his services in proportion to the amount of the crop made by him, and under which he is entitled to about $400. The answer further avers that the plaintiff neglected his business, to the great injury of'the defendant; that, by his fault, a negro worth $1000, and a mule worth $150, had been lost. He claims judgment in reconvention against the plaintiff for $6,500, besides $50 for a set of cooper’s tools. The case was originally submitted to a jury, who found a verdict in favor of the plaintiff for $900. But the verdict being silent on the demand in reconvention, the judgment rendered thereon was reversed on appeal, and the case remanded for further proceedings. It was again submitted to a jury, who found the same verdict in favor of the plaintiff, and against the defendant for his claim in reconvention. A motion for a new trial wás made and refused, and from the judgment rendered in pursuance of the verdict this appeal was taken.

The defendant asks that the judgment of the lower court be set aside and the case remanded for a new trial, on two bills of exception. The first is to the introduction by the plaintiff of the testimony of Jean Lireite, taken at the former trial, (the witness being dead at the time,) on the ground that when the said witness was examined on the first trial, the defendant’s counsel having asked him to state the names of some persons he had heard speak ill of Francois Rodriguez, the court improperly refused to permit the inquiry, and the defendant then excepted; that it was agreed that the objection should stand as a bill of exceptions; that, by such improper refusal to allow the inquiry to be made, the defendant was deprived of his full right of cross-examination, and the testimony remained incomplete. Two other witnesses, one of whom was introduced by the defendant, swear to the same fact, and many material parts of the testimony of Rodriguez ai-e falsified by unimpeached witnesses, and particularly by the experts appointed by the court to examine the fields, about-the situation of which he had testified. As it is manifest that this witness is unworthy of credit, justice does not require the case to be remanded to ascertain that fact.

The second bill- of exceptions taken by the defendant is to the permission granted by the court, on motion of the plaintiff’s counsel, to translate the verdict of the jury. The case was tried before a french jury, and the verdict was returned by them in- the french language. It was translated into english under the directions of the court, read to them in that language, assented to by them, signed, by the foreman, and recorded by the clerk in their presence. It is difficult to understand how the proceeding could have been conducted otherwise, if none of the jurors could write english.

This case differs from that of Duberlrand v. Laville, 8 La. 275. In that case, the verdict was merely recorded in' englislr in the minutes of the court, and the translation was not signed by the foreman of the jury. If it should be contended that the proceeding was informal, there is nothing in the circumstances of the case which would justify us in remanding it on that ground. The questions it presents are all quesjions of fact, and a careful perusal of the record has satisfied us that the jhdgment does justice between the parties.

Judgment affirmed.


author: Eustis, C. J.

text:
    Putnam, Administrator, v. Davidson.
    Where a purchaser at a probate sale, who was a party to an action to annul the sale, sets up in his pleading his title as purchaser, claiming a recourse in Warranty against the succession in case of eviction, he will-not be listened to when, in an aetion against him by the administrator to recover the property or its value, he avers that he was not the owner of it at the date of the first suit.
    APPEAL from the District Court of Livingston, Fenn, J.

      Watterstonr for the appellant.

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

Eustis, C. J.

It appears that, in May, 1842, at a probate sale of the effects ®f the succession of the late John Putnam, in the parish of Livingston, the defendant, Davidson, became the purchaser of a female slave and her two children, on a credit of twelve months. By a judgment of the Court of Probates of Livingston, of the 26th of June. 1845, the proceedings under which the sale of the slaves was made were all annulled, and decreed to be of no effect. An appeal was taken from this judgment to this court, which was nev.er prosecuted. To this judgment the defendant was a party. The court, being one of limited jurisdiction, confined itself to the annulling of its own decrees, and gave no further decision in relation to the property to be affected by its judgment. The present plaintiff institutes this suit against the defendant to recover the slaves, or their value, with wages, by virtue of the judgment annulling the order of sale and proceedings under which the defendant purchased them. The plaintiff was non-suited, and has appealed.

It appears by the answers of the defendant to interrogatories propounded to fcm by-the plaintiff, that he sold the slaves to a Mr. Copland, and, as the defendant believes, they were taken to New Orleans. The date of this sale as given is, the 13th of July, 1844. As this was previous to the institution of the suit in which the proceedings were annulled, and, as it is contended, the defendant bought and sold the slaves in good faith, it is insisted that the plaintiff must fail in his present .action, and that the district judge did not err in non-suiting him.

The defendant, we have stated, was a party to the suit in which the mortuary proceedings of the succession were annulled. He was not only a party defendant, but set up title to the slaves, and claimed a recourse in warranty against the succession in the event of eviction. Can he.now-be heard when he alleges that, at this time, he had sold the slaves, .and was not the owner 1 We think not. We think that, as to the present plaintiff, he . is bound by his plea, and must be held to it, on principles elementary in the administration of justice. The plaintiff has sought his remedy against the defendant, he has made his election, and of its expediency he is the responsible' judge. He has based his action upon what has been decided by a.couiit.of competent jurisdiction, and the defendant is not permitted to deny what he has judicially asserted. If, at the institution of the suit, he had in good faith parted with the title to the slaves he ought to have disclaimed ownership, and thus enabled the proper parties in interest to be made parties to the suit. We, therefore, consider that this action is well brought against the defendant.

The slaves were purchased for the price of $850. The payment of this sum is expressly put at issue by the pleadings, and has not been proved. We think, the plaintiff is entitled to recover the value of the slaves, which we fix at the time of the demand of their delivery, the 16th August;, 1845, at the sum of $1,060.

It is therefore decreed that the judgment appealed from be reversed, and that the plaintiff recover from the .defendant the said sum of $1,060, with interest fromthe!6th of August, 1845, .until paid, and eosts in-both courts.


text:
    Joor, Administrator v. Craig.
    An action by the administrator of a deceased husband against the surviving wife, .to compel her to deliver up certain slaves alleged to belong to the community, is not a possessory ac. tion; the only issue between the parties is one of title.
    APPEAL from the District Court of West Feliciana, Boyle, J.

      Phillips, for the appellant.

      Haralson, Sterling and Collins, for the -defendant.
   The judgment of the court was .pronounced by

Eustis, C. J.

This is an action by the administrator of a deceased husband against the surviving wife, to compel her to deliver up certain slaves alleged to belong to the community, to be administered upon according to law. The general issue was" pleaded by the defendant; there was judgment in her favor, and the plaintiff has appealed.

The district judge before whom this cause was tried considered the action as a possessory one, and regulated the proofs accordingly; and in this, we think, he erred.

The only issue between the parties is the title, and on that point the prosumption of law and the rules of proceeding in cases of this kind are too familiar to require us to repeat them. The Code of Practice provides remedies for any contingency which may accompany the possession of property in litigation. Arts. 273, 274.

The judgment appealed from is therefore reversed, and the case remanded for further proceedings; the appellee and defendant paying the-.costs of this appeal.


author: Kins, J.

text:
    Snow v. Trotter et al.
    Want of amicable demand, is not a sufficient ground to enjoin the execution of an order o f seizure and sale.
    In proceedings via execntiva, it is not necessary that a copy of the petition should be served on the defendant.
    In an action on a note payable to, and in possession of the plaintiff, it is not necessary that he should allege, in special terms, that be is the bolder and owner.
    A prayer that mortgaged property should be seized and sold to satisfy plaintiff’s demand, is equivalent to a prayer for the recognition of the mortgage.
    Where amortgage contains the pact de non alienando, it is unnecessary to allege in the petition for an order of seizure and sale that, the property mortgaged is in the possession of the mortgagor.
    Where an act of mortgage given to secure the price of land, recognizes the capacity of the agent by whom the sale was made and the mortgage retained, and recites the mandate, the power of attorney itself forms no part of the testimony necessary to authorize an order of seizure and sale.
    To suspend the payment of the price, a purchaser must allege and prove that he has been disquieted in his possession, or has just reason to fear that he will he disquieted. C. C. 2533.
    Payment of the price cannot he resisted on the ground that, the vendor has not complied with his agreement to survey and point out the boundaries of the land, where he has not been putin default for his failure to do so.
    APPEAL from the District Court of Carroll, Selby, J.

      Short aud Drew, for the plaintiff.

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

Kins, J.

Snow obtained an order of seizure and sale against Nathan, and Joseph Trotter, upon a conventional mortgage granted by the latter, to secure the payment of notes given for the price of a tract of land. The defendants presented a petition praying for an injunction to stay the execution of the writ on ten different grounds, all of which were considered by the judge in a written opinion, and overruled. From the judgment refusing the injunction the .defendants have appealed.

The grounds upon which the injunction was prayed for are that, there was no amicable demand of payment; that no copy of the petition was served upon the defendants; that the name of Nathan Trotter does not appear in the notice ; that there is no allegation that the plaintiff is the holder or owner of the note secured by mortgage; that the note is made payable to the plaintiff, and is not by him endorsed; that there is no prayer that the mortgage be recognized; that there is no allegation that the property is in the possession or ownership of the defendants; that the power of attorney under which the plaintiff’s agent Bold the land and retained the mortgage, was not authentic; that the consideration of the note has failed, the title to the land for which it was given being imperfect, the wife of the plaintiff not having renounced her rights of mortgage; and finally that, the plaintiff’s agent has failed to comply with his promise to survey and point out the metes and bounds .of the land.

The judge did not, in our opinion, err. in refusing to grant an injunction. The want of amicable demand is not a sufficient ground for granting an injunction to stay the execution of an order of seizure and sale. 15 La- 186, 434.

In executory process a copy of the petition is not required to be served on the defendant. 15 La. 434. C. P. 734, 735. The plaintiff has not alleged in special terms that he is the “holder and owner” of the note on which his demand is founded, nor was such an allegation necessary, he being in the possession of the note, which is payable to himself, and the payment .of which he is seeking .to .enforce.

The prayer that the mortgaged property should be seized and sold to satisfy the plaintiff’s demand, is equivalent to a prayer for the recognition .of the mort,gage.

If, under ,uuy circumstances, it he necessary to aver that, the mortgaged property is in the possession of the mortgagor, the necessity for that averment did not exist in the present instance. The act contains a clause of non-alienation, which would have .authorized the plaintiff to proceed against tire property in the hands of a third possessor, in .the same manner as if it had remained in the possession .of the mortgagor. It is further to be observed that, the defendants have not alleged that the mortgaged property is not in their possession.

It is not material to enquire whether the power ,of attorney under which the plaintiff’s agent acted, was .authentic in form. In the act of mortgage on which the order .of .seizure and sale was granted, the defendants have recognized the .agent’s capacity, and the mandate under Which he .acted is specially recited. The power of attorney formed no part of the testimony necessary to authorize .the order of seizure and sale.

It is not averred in the petition that the plaintiff’s wife has separate effects of .any kind, from which a mortgage upon her husband’s property could result. But, if such an averment had been made, it would not have been a .sufficient .cause for resisting payment. The purchaser can .only suspend the payment of .the price when he has been disquieted in his possession, .or has just reason to fear that he will be disquieted. There is no allegation .of a disturbance, or of .the apprehension .of a disturbance. C. C. art. 2535.

The ground .that the .plaintiff has not complied with the promise .to survey and point out the boundaries of the land,' is equally untenable. There is no averment that he has been put in default for a failure to comply with this engagement. Judgment affirmed.


text:
    Monget, Tutor v. Pate.
    A surviving wife -can .only exonerate herself from personal liability for one half of-the debts .of the community of acquets and gains, by an express renunciation. The community caniiot he accepted with benefit.of inventory. U. .C. 23.78, 2379,2382.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      G. S. Lacey, for the appellant.

      Brunot, for the defendant,
    cited 10 La. 426. O.'C. 1023, 1024,2383. C. P. 977.
   The judgment of the court was pronounced by

King, J.

This case was before us in April last, upon an appeal from a judgment dismissing the action, on an exception taken by the defendant to the right of the plaintiff to proceed against her, either personally, or in her representative capacity of tutrix. The judgment of the lower court was then reversed, and the cause remanded for the purpose of enabling the plaintiff to proceed against the defendant, Louisiana Pate, personally. 2 Ann. Rep. 485. On the second trial judgment was rendered .against the plaintiff, and he has appealed.

T^he plaintiff’s demand is fully proved, and the only question presented is, whether the defendant has accepted the community and thereby rendered herself personally liable for one half of its debts. After the death of her husband the defendant caused an inventory of his succession to be made, and subsequently, in a notarial act, declared that, “ after having examined the affairs of her deceased husband, and the indebtedness of his estate, she came to the conclusion of accepting his estate, with benefit of inventory.” In the same act she accepted the succession with the benefit of inventory for her minor children, under the advice of a family meeting. It is contended that this is a conditional acceptance, by which the defendant has not rendered herself absolutely liable. Under the provisions of our Code, the community of acquets and gains eannet be accepted with the' benefit of inventory. The surviving wife must accept or renounce it unconditionally. She may exonerate herself from the debts of the community by an express renunciation, and preserves the right of renouncing by causing an inventory to be made within the delay, and with the forms, prescribed by law. C. C. Arts. 2378, 2379, 2382. 10 La. 427. In the case of Flood v. Schaumburg, 3 Mart. N. S. 631, in which the subject was. elaborately examined, under the provisions of the old Code, similar to those of the new, the court said, that “inventory and acceptance under it are sufficient to enable the heirs to escape responsibility in their personal capacity. Inventory and renunciation are both required to enable the wife to enjoy the same privilege.” The defendant in the present instance has manifested no intention to renounce the community; but, on the contrary, has formally declared that she- has accepted it. The illegal condition which she annexes to the acceptance must be disregarded. We think that the defendant has rendered herself liable for one half the debt claimed, and that the court erred in rejecting the plaintiff’s demand. The difficulty suggested, of executing the judgment, cannot occur. It is personal against the defendant, and cannot be executed upon the effects of the succession.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the plaintiff have judgment against the defendant personally, for one half of the debt claimed in the petition, to wit, for the sum of $154 82, with ten per cent interest from the 26th of February, 1841, until paid ; for the further sum of $10, with like interest from the 22d August, 1840, until paid; and for the further sum of $34 62, with eight per cent interest from the 24th of May, 1841; the appellee paying the costs of both courts.


text:
    Hackett v. Stephens et al.
    By the Spanish law formerly in force in this State, a testament became void by the subsequent birth of a child. 6 Partida, tit. 1, law 20; tit. 12, law 3.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      A. M. Dunn and T. G. Morgan, for the plaintiff.
    £?. 5. Lacey, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

This action was commenced by Oran Hackett, illegitimate son of Francis Hackett, deceased, against Elvira Hackett, wife of Stephens, and Francis Hackett, his legitimate children, for the recovery of a certain portion of the estate of the said Francis Hackett, The plaintiff claims one-fifth of the whole estate, under a will made by his father in his' favor, bearing date the 2d of March, 1816, and an agreement of the defendants, alleged to have been made after the death of the testator, to give the said plaintiff one-fifth of the estate, in execution of the will. He also rests his claim upon the value of services rendered by him to the defendants, while acting as their authorized agent, in obtaining a settlement of the suecession of- Francis Hackett.

It is admitted that the claim against Francis Hackett has been settled, and this litigation is between the plaintiff and the other defendant Elvira Hackett. Her defence is that, the will on which the plaintiff relies has become null and void, by her birth and that of her brother, posterior to its date; that the plaintiff has no claim for alimonj'-; that the plaintiff never performed the services alleged; that, if he did, they were not performed at her instance or request, and were not worth the sum claimed. The defendant further averred that if she ever made any promise to the plaintiff, it was made in error and without consideration. The husband of this defendant joined in the defence, and the jury returned a verdict against both, for $1,270 12. Upon this verdict a judgment was entered in favor of the plaintiff against Elvira Hackett, wife' of William Stephens, for the whole amount of the verdict, with interest. From this judgment she has appealed.

The two first grounds of defence are fully sustained. The defendant and her brother were born after the date of the will, and under the laws then in force it became void. Part. 6, tit. 1, law 20; tit. 12, law 3. Admitting that the defendants still were under a natural obligation to execute it, and that this natural obligation would be a sufficient consideration for a promise on tlipir part to do so, no promise of the defendant has been shown, and her husband could not make it for her.

The plaintiff has not shown himself entitled to alimony; and the only legal claim he has, is for the value of services rendered. "The testimony shows that he attended faithfully to the business of the defendant and her brother, for nine years; that he did every thing in his power to assist their counsel in the prosecution of a long and intricate suit; and that he was successful in securing their rights. The counsel in the cause, say that they would not have performed the manual labor performed by the plaintiff for $500. The defendant has received the benefit of that labor, and is bound, 'in good conscience, to pay for half of it. But the judgment rendered against her is for too large a sum. We think §600 a fair compensation for the services rendered to her by the plain-(V 1

It is therefore ordered that the judgment in this case, so far as appealed from, be reversed, and that there be judgment in favor of the plaintiff, against the defendant Elvira Hackett, assisted by her husband William, Stephens, for the sum of §600, with legal interest from this date, and the costs of the court below; those of this appeal to be paid by the plaintiff and appellee.


text:
    Dubroca v. Favrot.
    An order of execution must be in english and french, where the latter is the maternal tongue of the debtor, or it may be enjoined. C. I?. 626. The fact that the petition in the action, which was in english only, was not excepted to on that account, is not a waiver of the right to requite that the order of execution' shall be in both languages.
    APPEAL from the District Court of West Baton Rouge, Burle, J.

      Bennett, for the plaintiff.

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

Rost, J.

The plaintiff, who is a native of Louisiana, and whose maternal tongue is french, has enjoined an order of execution issued against him, an the ground that it is in the english language only, when it should have been in english and french. The seizing creditor filed a motion to dissolve, which, after hearing, was overruled, without prejudice to him to prosecute legally the execution of his judgment. He has appealed.

Averse as we are to sacrifice substantial justice to forms, we are unable to give the appellant relief. Art. 626 of the Code of Practice expressly provides that the order of execution must be in french and english, when' the french language is the maternal tongue of the party cast.

It is urged that the petition in the suit was Written in the english language only; that the defendant, the present plaintiff in injunction, accepted service of it, and confessed judgment upon it, in that language; and that, as the objection now made was tacitly waived in the pleadings, the plaintiff cannot insist upon it at any subsequent stage of the proceedings. The force of this argument does not strike us. The waiver is good as far as it goes, but the article cited gives the plaintiff a substantive legal right, which we are not at liberty to consid» er as having been waived by implication.

Judgment affirmed.

      Eustis, C. J. did uot sit on the trial of this case, being related to one of the parties.


author: Kino, J.

text:
    McGehee v. Brown.
    A plaintiff cannot require that an exception to the jurisdiction of the court, on the ground of the defendant's domicil being in another parish than that in which the action is p ending, should be submitted to a jury.
    Either party to an action has a right to require the answers of his adversary under oath to interrogatories to he used as evidence upon the trial of all issues pending between them, whether on preliminary exceptions or on the merits. C. 3?. 347.

      APPEAL from the District Court of East Baton-.Rouge, Burk, J.

      Elam, for the appellant.

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

Kino, J.

The defendant was sued in the parish of East Baton Rouge, and filed an exception, declining the jurisdiction of the court, on the ground that his domicil was in the parish of Iberville. The plaintiff offered a supplement petition, propounding interrogatories to the defendant, and praying that the issue presented by the exception might be tried by a jury. The judge refused to grant a jury, or to order the interrogatories to be answered, and to this ruling the plaintiff took a bill of exceptions. The plea to the jurisdiction was sustained, and, from the judgment dismissing the action, the plaintiff has appealed. ,

The prayer for a jury to decide upon the declinatory exception was properly refused. (J. P. art. 755. The judge however erred, in our opinion, in not requiring the interrogatories to be answered. Either party to a cause may avail himself of the answers of his adversary under oath to interrogatories, to he used in evidence on the trial of all issues pending between them, whether upon preliminary exceptions or upon the merits. C. P. art. 347.

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


author: Suidem,, J.

text:
    Bank of Louisiana v. Carl et al.
    Where it is shown that there were two post-offices, one about three and a half or four miles from the residence of the endorser of a note bat on the opposite side of a wide and vapid river, and the other about six miles from his residence baton the same side of the river, and it is not proved that he received his letters from either exclusively or uniformly, notice of protest sent by mail directed to the latter will be good. Per Curiam.- The plaintiffs m ay have fairly considered the latter as the most Convenient, and practically the nearest to the endorser’s residence.
    In the absence of evidence to justify it, the address of a notice of protest generally to the parish of the endorser’s domicil, is not sufficient.
    The stat. of 13 March, 1827, was intended to provide a convenient and permanent mode of proof oi notice of protest; hut not to change the tales of commercial law on the subject of notice.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      Brunot, for the plaintiffs.
    'A. M. Dunn, for the appellants.
   The judgment of the court was pronounced by

Suidem,, J.

The appellants, Carl and Mrs. Corcoran, are sued as endorsers of a promissory note. The defence is. want of notice of non-payment. The notices to Carl were mailed at the post-office at Baton Rouge, addressed : one “East Baton Rouge; and one “ East Baton Rouge, Port Pludson post office.” Carl resided at the time of protest, in the parish of East Baton Rouge, and about six miles below Port Hudson. There was at the time a post-office on the opposite side of the river and in a different parish, at what was called Devall’s landing; this office was about three and a half or four miles from Carl’s residence, but being on the opposite side of a wide and rapid river can scarcely be considered as an office more convenient to Carl’s residence than the Port Hudson office, which, although six miles distant, was on the same side oi the river as the defendant’s residence. The post-office at Devalls’ landing appears to have existed about a year before the protest of the note. It also is proved that on some occasions Carl had sent to Devall’s landing for letters. But it is not proved that he resorted to that office exclusively or uniformly, nor that the plaintiff’s knew' that that would have been the proper address. Under the circumstances, the plaintiffs, who have a right to notify the endorser by mail, may have fairly considered the Port Hudson office as the one most convenient and- practically the nearest to the defendant’s residence. Such would seem to have been the opinion of the district judge who must have been acquainted with the localities, and we do not feel at liberty to disturb his opinion.

The notices to Mrs. Corcoran- were' addressed : one “ East Baton Rouge and the other, “ East Baton Rouge,- Jackson, East Feliciana, post office.” Mrs. Corcoran resided at the time in the parish of East Baton Rouge, about twenty-three miles from the town of Baton Rouge, about nine or ten miles from Port Hudson, and about fifteen miles from- Jackson. Her plantation business was transacted' at Port Hudson. That the Port Hudson office was the one to which she resorted for letters' is inferrable from: the testimony of a person who had corresponded with- her.

In the absence of evidence to justify it,- the general address to the parish of East Baton Rouge was bad. It is- said that the notice was good, because the party actually resided in: the parish of East Baton Rouge ; that therefore the notices confirmed to* the litteral terms of the 2d section of the act of 1827, which provides,- *‘ that whenever such endorser shall not reside in the town or city where protest shall be made, then and in such case it shall be the duty of such notaries, or others acting as such, to put into the nearest post-office where such protest is made a notice of such protest- to such- endorser, &c., addressed to them at their domicil or usual place of residence.” It has been very frequently held that the act of 1827 was intended to provide a-convenient and permanent mode of proof of notice ; but not to chang.e the rules of the commercial law upon the subject of notice. Those rules would be violated if we followed narrowly and strictly the mere letter of the statute, without regarding its spirit and intention. Nor do we think, as the case is presented, that we can hold her under the notice addressed to the Jackson office, which was more distant by several miles than the Port Hudson office. There is nothing before us to authorize the belief that she resorted to the more distant office, nor is there any. showing of unsuccessful diligence on the part of the holder to ascertain the proper address.

It is therefore decreed that, as to the said Carl, the judgment be affirmed j that, as to the said Mrs. Corcoran, it be reversed, and that there be judgment in her favor as in case of non-suit; and that one-half of the costs of this appeal be paid by the plaintiff, and the other half by the said Carl.


text:
    Hall v. Lorente.
    Where no time is fixed in a contract for the performance of the condition, and the party has not been put in default, it may still be performed. C- C. 2023, 2033,1907.

      APPEAL from the District Court of East- Baton Rouge, Burk, J.

      Joor, for the appellant.

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

Rost, J.

On the 22d day of March, 1832, Swift, the plaintiff’s testator, purchased at probate sale fourteen acres of land, which were adjudicated t.o him for the sum of $425, on a credit of twelve months. On the same day, he subscribed in favor of Policarpio Regillo, an act under private signature, which is as follows:

“ Received of Mr. Policarpio Regillo, four hundred dollars. I have bought at the probate sale of A. C. Bunn, this day, a certain tract of land in the parish of East Baton Rouge, about fourteen acres, for a-sum between four and five hundred dollars, which I promise to transfer to Mr. Policarpio Regillo, when and how he may desire, on condition that he .pay to me any balance that may (if any) be due on it, after the above four hundred dollars, which is the condition,”

On this act is found, the following endorsement: “■•Mr. John Swift: Having assigned over to Manuela Maria Lorente all my right, title and interest, to the ■ within claim, you are hereby authorized to make the within named transfer to the said Manuela Maria Lorente.

“ (Signed.) ' Policarpio Resillo.”

Under this assignment, the defendant took possession of the land, without opposition from Swift, and remained in peaceable possession of it as long as he lived, without requiring the legal title 'to be made to her, or complying with the condition on which she was to receive it. The plaintiff now claims the land under the adjudication to Swift, without regard to this contract. The defendant sets up her equitable claim 'Under it, denies the right of the plaintiff to proceed as he has done, and avers her readiness to -comply with the condition on which the title was to be made .to her, when called upon to do so. The case was tried by a jury, who found ior the defendant generally ; and the plaintiff has appealed .from the judgment rendered-on this verdict.

The contract on which the defendant relies iis legal and valid, and has been executed by the delivery of the property to her. As it fixes no time for the performance of the condition, and the defendant has never been put in default, that condition may now be performed. C. C. arts. 2023, 2033, 1907. The contract being still in force, the plaintiff cannot disregard it as he has done. It is clear,.however, that the defendant is not entitled to the final judgment rendered in her favor, and that the judgment should have been one of non-suit.

It is therefore ordered that the judgment in this case be reversed. It further ordered that there be judgment against the plaintiff as in case of non-suit; and that he pay the costs of the court belowr those of this appeal to be paid by the defendant and appellee.


text:
    Foy v. Harper.
    Service of a writ of sequestration on a Sunday is in conflict with art. 207 of the Code of Practice ; and where the evidence shows that it could have been served on any other day as weii, it will be set aside.

      APPEAL from the District Court of St. Tammany, Penn, J.

      Sheafe, for the plaintiff.

      Hoffman and Halsey, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This case was tried by a jury, and, as the verdict is rendered on questions of fact, we do no.tiind any thing in the evidence which authorizes us to interfere with the judgment of the court below on the merits. The district judge overruled a motion made by the counsel for the defendant, to set aside the writ of sequestration under which a quantity of lumber had been taken into the possession of the sheriff at the suit of the plaintiff, which had been afterwards delivered to the defendant on his bond. The ground on which the defendant’s application was based was, that the writ had been served on Sunday. The return of the sheriff shows that the writ was served on the 6th of July, 1845, which, by the calender of which we take judicial notice, was a Sunday. This service is in conflict with art. 207 of the Code of Practice, which prohibits the institution of civil suits, and ali proceedings in civil actions, on s.und.ay. By the act of March 7th, 1838, concerning damages on bills of exchange, Sunday is declared to be a day of public rest. B. & C’s. Dig. 41. Irish v. Wright, 8 Rob. 428. We do not consider ourselves called opon to decide as to the effect of these laws in all possible cases, as, in that before us, the service could have been made on any other day as well as that on which it was made, according to the petition, affidavit, and sheriff’s return on which we are alone to act. The sequestration ought therefore to have been set aside.

The judgment of the District Court is therefore affirmed, so far as it decrees the amount due by the defendant to the plaintiff, and the sequestration is se.t aside; .the appellee paying the costs of this appeal.


author: Eustis, C. J”.

text:
    Farrar v. Rowley et al.
    Where the factors of a planter keep two separate accounts, one in the name of a particular plantation, and the other in that of R. its ostensible owner, and the balance on the latter is in favor of R., but the factors are creditors on the plantation account, the balance due on the latter, with the privilege attached to it, will not be extinguished by that due to R. on bis .private account, where there is no allegation or proof of fraud, nor any violation of the rights of mortgage .creditors .upon the crop on which the balance against the plantation is privileged.
    Where the price of mules, purchased for the use of a plantation and paid for by a third per" son, is relmbursedby a draft on the factors of the planter, the advance will be a privileged claim under art. 3184 of the Civil Code. The mules were “necessary supplies” within the meaning of the statute, and the extinguishment of the vendor's privilege, brings the ad“ vanee within the fair intendment of the statute.
    An overseer whose services have continued during one year and a part of a second, has, under art. 3184, §1, of the Civil Code, a privilege on the crop of the second year, valid against a third person, who purchases during .the second year, the plantation and crop then in the ground.
    A sheriff,by whom a plantation aud slaves had been seized and taken possession of, who has paid himself out of the funds in his hands for all disbursements made by him for the safe keeping and preservation of the properly, can make no .additional charge for his responsibility and general cave; for this he is remunerated by the emoluments of his office. Per Curiam: Sheriffs are bound to take care of property taken possession of by them, and are authorized to lay out money for its preservation. They may appoint guardians for its safe custody, and the law gives them ample authority for all proper expenditures, and the con. stitution imposes no obstacle to their reimbursement; hut art. 71 prohibits such allowances as that claimed in this case.
    from the District Court of Concordia, Barry, J.

      Thomas, Snyder and Farrar, for the appellants.

      Frost, Shaw and Sparrow, for different appellees.
   The judgment of the court was pronounced by

Eustis, C. J”.

This appeal is taken from several decrees of the court of the ninth district, according privileges on the price of two plantations.

The first we shall notice is that in favor of Wright, Williams Co., merchants of New Orleans. The judge allowed them a privilege on the crop of 1847, for the sum of $2242 77, and directed them to be paid out of its proceeds. They were the factors of the plantation. It appears that they kept two accounts, one in the name of the Marengo plantation, and the other in'the name of Samuel Roioley, the ostensible owner. In the latter the balance was in favor of Rowley, but in the plantation aeoount the factors were creditors. The privilege was allowed on the ground that the amount was for provisions, and other supplies necessary for the cultivation of the plantation. It is contended by the mortgage creditors, who are the appellants, that the plantation account was extinguished in fact, by the balance of the private account of Rowley, which was largely in his favor. If the accounts were consolidated, such would have been the result, and the question resolves itself into the right of the factors to keep the plantation account open with its privilege, and to appropriate the proceeds of the .crop of 1846 to the use of the owner. That the crop belonged to him is not questioned, and there is nothing before us upon which his right to dispose of it as he has done can be contested. There is no allegation or evidence of fraud, nor .any violation of the rights of the mortgage creditors upon the crop of 1847. Sea Williams v. Duer, 14 La. 537. As the case is before us, we are not authorized to disturb .or change the accounts as they have been kept between the parties. The case of Bloodworth v. Jacobs, 2 An. Rep. 25, seems to us to be conclusive on this subject.

There is a .charge in the account of $840 for eight mules, which is objected to as not being privileged under the statute. The mules were bought for the plantation, and paid for by a third person, who was reimbursed by a draft on Wright, Williams <ij- Co., which was paid. The niules we consider as coming within the words of the statute — necessary supplies. The extinguishment of the vendor’s privilege, which could have been exercised at any moment by the withdrawal of the animals from the working .of the plantation, we think brings the advance by the factor within its fair legal intendment. Acts of 1843, p. 44, ch. 70.

The next claim to be considered ,is that of John E. Curtis. He had judgment for $600, for a year’s wages as overseer of the Bristol plantation for the year 1846, and &r $464 66 for his wages for eight months of the year 1847, making $1064 66, and he was decreed to have a privilege for this sum, and the sheriff was directed to satisfy it out of the sale of the Bristol plantation. The plantation was sold in October, 1847, with the crop, and purchased by Thomas P. Farrar, the appellant. We have nothing before us which enables us to refuse to allow to the overseer his wages for 1846, out of the funds under the control of the court. Under article 3184 of the Code, he has his privilege for the wages of that year on the proceeds of the crop, in the ground, of 1847. Such is the interpretation given to that article in cases in which'the services of the .o.v.erseer have been continuous for one whole year and the portion of another. Succession of Johnson, 3 Rob. 216. Welsh v. Shields, 6 Rob. 484. Ib. 12 Rob. 530.

In relation to the feet of the wages of 1846 having been paid, and the amouut due for those of 1847, as it depends entirely on the credibility of the witnesses heard by the district judge, we do not feel authorized to interfere with his decision.

The next claim to be considered is the claim of the sheriff of the Parish of Concordia, who seized the two-thirds of the Marengo plantation and slaves, and kept possession of them from the 22d May, until the 7th of August, 1847. He alleges that he was obliged necessarily to ineur expenses in the safe-keeping and preservation of said property, and asks the court to make a suitable allowance, “ say the sum of ®500 and the court made the allowance, for keeping the movable property and slaves. It was stated in argument, and acquiesced in by counsel, that for all disbursements made by the sheriff, hire of keeper and supplies, the sheriff has paid himself out of the funds in his hands; but the charge at present insisted upon is, for his responsibility and care generally, without any definite or distinct action. For this the sheriff is remunerated by the emoluments of his officce. Sheriffs are bound to take care of property taken possession of by them, and are authorized to lay out money for its necessaiy preservation. They may appoint guardians for its safe custody, and the law, as we undestand it, gives them ample authority for all just and proper expenditures, and the constitution imposes no obstacle to their reimbursement. But if the 71st article has any application to ministerial officers, it prohibits allowances of thiskind. Drew v. Chambliss, ante p. 246. It is, therefore, decreed that, the judgment in favor of Wright, Williams 8f Co. be affirmed with costs; that the judgment in favor of John E. Curtis be affirmed with costs ; and that the judgment in favor of Isaac J. Course, sheriff, bo reversed, and his demand be dismissed, with .costs in both courts.


text:
    Downes v. Scott et al.
    There can be no rente a résnéré without a stipulation for the return of the price. A contract ' of sale, the validity of which is made to depend on the payment of notes which form no part of its consideration, is not a rente á réméré.

    Where by a contract of saleof land the validity of the sale was made to depend on the payment of certain notes which formed no part of its consideration, the subsequent resumption of possossion of the land by the vendor creates such a presumption of payment as makes it incumbent on the vendee to account for the notes.
    The vendor is bound, in case of eviction, to refund to the purchaser the whole amount of fruits and revenues which the latter has been condemned to pay to the true owner.
    APPEAL from the District Court of Madison, Selby, J.

      R. C. Downes, for the plaintiff.

      Thomas and Snyder, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff in his own right, and as tutor of the minors of Josephus, and Samuel Sparrow, children and heirs of Samuel and Sarah Sparrow, deceased, claims title to two lots of land, about one-half of which is in possession of the defendants. The defendants, in their answer, claim title to that portion of the land in their possession, by virtue of a sheriff’s sale made in 1837, and under an agreement with Hector Phillips, whom they call in warranty. Phillips appears and defends the suit; denio the right of the plaintiff’ to recover, and alleges that, en the 29th of December, 1830, he and John McEacharn acquired title to the land claimed from Samuel Sparrow, the ancestor of the two minors whom the plaintiff represents, and that, on the 20th of January, 1835, he acquired the interest of John McEacharn by purchase from Daniel McEacharn, the heirs of whom he caffs in warranty. These heirs answer the call, and allege title in their ancestor to the land sold by him, under a sale made to him by Micajah Harris, curator of the estate of Samuel Sparrow deceased, bearing date the 9th day of May, 1830, and adduced in evidence. There was judgment in favor of the plaintiff in the court below for the land, and $550, that being the value of the rents over and above that of the improvements. There was further a judgment in favor of the defendants against Phillips for the sum of $1,500, and in favor of Phillips against his immediate warrantors for the sum of $317. This judgment is in conformity with the verdict of the jury, before whom the case was tried. The defendants took this appeal by motion in open court, and ask that the judgment be reversed, or, if deemed correct in other respects, that it be changed so as to allow them, against their warrantor Phillips, the amount of damages assessed against them in favor of the plaintiff.

The plaintiff has satisfactorily made out the title under which he claims, and the case turns upon the validity of the private act set up by Phillips. It is manifest that the sale made by the curator of Sparrow to Daniel McEacharn conveyed no title to him, and that he could therefore convey none to Phillips; so that the only inquiry is, as to the rights which Phillips himself acquired under the act of December 29th, 1830. That act has been treated in argument as a vente á réméré, We cannot view it in that light. There is no vente á remiré without a stipulation for the return of the price. Here nothing is said about the price. The validity of the contract is made to depend on the payment of notes, which form no part of the consideration of it.

It is contended by the plaintiff’s counsel that this was not a serious contract, or that, if it was, the condition must be presumed to have been performed, as the vendor subsequently resumed the possession of the property, and the same was occupied by him and his wife until their death. Ón the application of the plaintiff, Phillips was ordered to bring into court the notes mentioned in the act, and failed to do so or to account for them. The resumption of the possession of the land by Sparrow, created such a presumption of payment as made it incumbent upon Phillips to account for the notes. But there is another circumstance which throws doubt upon the reality of this contract. It is under private signature, and there is no evidence in the record to make its date certain, orto explain the singular fact that it bears date more than seven months after the death of Sparrow, as appears by the date of the authentic act by which Harris, curator of Sparrow deceased, sold to Daniel MeEacharn. Supposing that this discrepancy can be explained, the defence set up by the heirs of MeEacharn still shows, that they do not claim title under the act of the 29th December, 1830. These facts, coupled with the unusual and irrational stipulations which this act contains, fully authorized the conclusion to which the jury came in relation to the question of title.

The amounts allowed for the rents and improvements appear to us justified by the evidence; and the only error justly complained of by the appellants is that, Phillips should have been adjudged to refund to them the whole amount of the fruits and revenues which the judgment condemns them to pay. Morris v. Abat et al. 9 La. 552. In this respect the judgment must be changed.

It is therefore ordered that the judgment rendered in favor of the plaintiffs be affirmed, with costs. It is further ordered that the judgment rendered in favor of the defendants against the warrantor, Hector Phillips, be reversed ; and that there be judgment in favor of the said defendants against the said Warrantor for the sum of $1,792, with all the costs of this suit in both courts.

       The contract is in these words
      “ Know all men by those presents, that I, Samuel Sparrow, for and in consideration of the sum of $925, to me in hand paid, by Hector Phillips and John McEacharn, the receipt whereof I do hereby acknowledge, have sold and conveyed, and by these presents do sell and convey, unto Hector Phillips and John McEacharn, a certain tract of land! [here describing it], being the land to which I am entitled to a right of pre-emption. I, the said Samuel Sparrow, do warrant and defend, for myself, my heirs, executors and assigns, unto the aforesaid Hector Phillips and John McEacharn, their heirs, executors and assigns forever. "Whereas the said Samuel Sparrow has given two notes unto the said Rector Phillips and John McEacharn, amounting to $750; the first note of $450, due 1st of January, 1832; and the other for $300, due 1st of January, 1832: Now the express condition of the above obligation is such that, if the said Samuel Sparrow shall pay, or cause to be paid, his two notes, amounting to the aforesaid sum, when they become due, then this obligation shall he null and void, otherwise to remain in full force and virtue. In witness whereof I have hereunto set my hand and seal, this 29 th day of December, in the year of our Lord, 1830.
      Witness: ■ . Samuel Sparrow, [Seal.]
      C. E. Crane,
      Neil McEacharn.”


text:
    Groves v. Steel et al.
    A statement made by a party is inadmissible to explain or contradict a! notarial act made by his authority, where he continues to hold the property conveyed to him by the act.
    In a dation eh paiement every thing doubtful or ambiguous must be interpreted against the donee or creditor.
    APPEAL from the District Court of Madison, Selby, L.

      Thomas, StaciJ and Sparrow, for the appellant.

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

Rost, J.

This case has already been before the Supreme Court, and the facts of it are fully stated in the opinion then delivered, to which reference is made. 2 Ann. Rep, 480. It was remanded on various bills of exceptions, for the admission of evidence rejected on the first tidal. One of those bills of exceptions was taken to the opinion of the j udge refusing to admit parol evidence to prove the acknowledgements of the plaintiff, Groves, before and after the execution of the sale of the land made by Brown to him, that he had received the lands in satisfaction of all his claims against Brown, aad that he particularly specified the debt now in controversy. The case was tried before a jury; the evidence of the acknowledgments of Groves was introduced, and the jury returned a verdict in favor of the defendants, which the court below refused to set aside. The plaintiff has appealed from the judgment rendered thereon.

The plaintiff as stated in the former opinion, was second endorser on two notés, subscribed in the State of Mississippi by John W. Brown, for the price of certain slaves introduced by the vendor in that State, in violation of a constitutional prohibition. The drawer having failed to pay the notes at maturity they were duly protested, and an action was instituted upon them in the Federal Court of this State, against the plaintiff and others. The Supreme Court of the State of Mississippi had previously decided that contracts of this description could not be enforced in that State, and it is in evidence that the plaintiff firmly believed that he would not be held liable on his endorsements-. During the pendency of this suit, he received the conveyance of land mentioned in the defendant’s answer, for the nominal sum of $13,200. He admits that he did not pay the consideration, and alleges that'the land was given to him for what it was worth, in part payment of what he has had to pay on account of his endorsements for Brown, in satisfaction o'f the judgment rendered against him by the Supreme Court of the United States. The defendants-, on the other hand, contend, and have adduced witnesses who swear that the land was received by the plaintiff as a full, indemnity for his endorsements, at a time when he had no serious apprehension to be compelled to pay. This transfer from Brown to the plaintiff has been executed ; the original plaintiff in this suit has died ; and the land conveyed is now in the possession of his heirs. This is a contract in which the consideration expressed does not exist, and the question which the ease presents involves the ascertainment of the true consideration of it, C. C. 1894.

At the trial, the plaintiff offered in evidence the notary before whom John Brown executed the act of sale of the land ,to him, to prove that a few days after the passage of said aet the plaintiff asked him if Brown had passed an act of sale or mortgage before him, in favor of him the said plaintiff, and if so what were the terms and conditions of said sale or mortgage, and upon being informed of the passage of said act and of its contents, expressed great dissatisfaction therewith, and said that it was wrong and not in accordance with the agreement and understanding between him and said Brown, . The court below refused to admit this evidence on the ground that the plaintiff could not make testimony for himself, and that his declarations could not be introduced to explain away or contradict a notarial act, made by his authority, he holding the property conveyed by said notarial act at the time the supposed disapprobation of said act is alleged to have taken place, and his succession yet holding the said property.

We are of opinion that the judge did not err. But if the evidence had been admiitted, it would not have benefitted the plaintiff. An expression of dissatisfaction on the part of Groves, without showing what other contract was intended, could have had no influence on the jury, after he availed himself of that which had been passed in his favor.

The question, what is the real consideration of this contract, is strictly a question of fact. It has been found by the jury in favor of the defendants, and a careful perusal of the record satisfies us that it contains sufficient testimony to authorize the verdict. There may be other testimony which would lead to a different conclusion; but we have no means of acertaining that the jury erred in weighing the evidence, and there is nothing unreasonable in the conclusion to which they appear to have come that, in’this arrangement, Groves took upon himself the remote risk of paying the whole judgment for the probable chance of keeping the land for nothing.

The transfer from Brown to him was a dation en jjaiemenl, in which every thing doubtful or ambiguous is to be interpreted against him. Troplong, Vente, no. 7.

The loose and irregular manner in which -those transactions were conducted by him throughout, renders it extremely difficult to-ascertain- his rights with precision. The doubts which exist have all been created by him, in a contract in which every thing obscure or doubtful-must, as already shown,-be interpreted against him. Judgment affirmed.