text:
    No. 161.
    R. W. Vance v. M. A. Cooper et al.
    In this case suit was brought to recover tbs amount of a noto alleged to be lost or mislaid. The evidence admitted on trial, without objection, shows that the holder had received from the maker an amount of Confederate bonds, and had delivered the note to the maker, who shortly afterwards died; and the holder never had possession of the note afterwards. Held — That, having accepted the Confederate bonds, and delivered the note to the maker, amounted to an extinguishment of the note. That the delivery of the note to the maker at the time the bonds were received, rendered it certain that the bonds were not given as collateral security.
    To enable a party to recover on a lost instrument, he must show by direct testimony, or by circumstantial evidence, supported by his oath, such a stato of facts as render the loss probable. The oath of the attorney can not be substituted for that of the party. But if the attorney know of the loss, from his own knowledge, he is competentjto establish the fact.
    The failure to advertise the loss of a note within a reasonable time, will defeat the claimant in a suit to recover.
    APPEAL from Tenth District Court, parish, of Bossier. Levisee, J.

      Looney & Wells, for plaintiff and appellee. Griffin & Turner, for defendant and appellant.
   Ludeling, C. J.

This is a suit on a note alleged to be lost. There was judgment in favor of the plaintiff.

An examination of the ovidonee in the record convinces us that the judgment is erroneous. The allegations in the petition are, that the succession of Nathaniel A. Cooper is indebted to petitioner in the sum of four thousand eight hundred dollars and ninety-four cents, with interest thereon, from first of January, 1862. That the debt was evidenced by a note made by said Cooper, now deceased, that sometime about the day Cooper offered to pay said note and interest, with Confederate States treasury bonds, which petitioner refused to receive in payment of said note and interest, but said Cooper then and there delivered to petitioner the amount of said note and interest, with the express understanding and agreement, that petitioner was to take said bonds, not as a payment of said note, but as collateral surety that said note would he paid. Petitioner avers that he has not said original note in his possession, and has diligently searched and inquired for said note, but can not find the same, and that said note is due and unpaid to petitioner. Petitioner further represents that at the time-said note was executed, the said Cooper, in order to secure-the payment, thereof, executed his mortgage on the following described property.”

The statements in the petition of themselves need explanation. Why should the debtor insist upon giving to his creditor collaterals for security, when the debt is already secured by a mortgage? Why should that creditor take, as security, Confederate treasury bonds, when he was unwilling to receive them in payment ? Why was not the note in the possession of the creditor ? He does not allege that it was lost, or explain why it was not in his possession.

The evidence in. the record, however, sheds light upon the subject. J. A. Kelly, a witness whose testimony was taken by commission* swears that the deceased presented Confederate notes to the plaintiff, who refused to take them as a payment, “ that he refused to take them more than once as a payment,” that the note was secured by a mortgage on the lands of N. A. Cooper. 'Witness further swears that the Confederate notes were taken as collateral security, and “that Cooper expressly said, that if the money did not prove to be good he would make it good.” This was about the first of May, 1863, at Cooper’s residence.”

On cross examination, this witness says, that at this transaction no one was present but the plaintiff, the deceased and witness. And in answer to the second cross question, “Did not the plaintiff deliver to N. A. Cooper the note 9 What did'he do with it 9 ” The witness said that “ he put it in his desk.”

George W. Sentelle, another witness, whose testimony was taken by commission, says: “I saw the note referred to once, which was about the last of April or in May, 1863, but ashort time before the last illness of said Cooper. * * Said Cooper handed me the note, and requested that I should cancel it, stating at the same time that he had paid said R. W. Vance all that was due him, but desired to know of me what was necessary to cancel a mortgage he had given said R. W. Vance, when he drew said note,” etc. He further says N. A. Cooper had said note, and placed it among some other papers of his, at the time referred to. I do not know what became of it afterwards. After his death, 1 was appointed one of the appraisers of his effects, and examined his papers, and have no recollection of seeing said note among his papers. The said R. W. Vance was his family physician during his last illness.”

Mrs. Cooper testified as follows: On the next day after the death of N. A. Cooper, the xAaintiff, R. w. Vance, inquired" of the wife oí deceased for the notes which he (plaintiff) had held against the deceased, and had given them up to him. Plaintiff stated, at the same time, that the note had been paid, and that he only desired it to have the mortgage canceled; and also stated that Mr. Cooper owed him nothing but a little doctor’s bill. States, that this conversation “ took place in her presence, in 1863, on the next day after Mr. Cooper was buried.” “ The witness is the sister of the widow of the deceased, N. A. Cooper.”

Isaac Cooper, a son of the deceased, says: “ The plaintiff came to the house of the deceased the next day after the burial of the deceased, and said he wanted to arrange the papers of witness’ father, the deceased; and that in looking through the papers "of the deceased, N. A. Cooper, the plaintiff found the note, which he (plaintiff) had held against N. A. Cooper, and stated that the note had been paid, and that he (plaintiff) must have the note in order to have it canceled. That he heard plaintiff state, after the death of his father, that he owed him (plaintiff) nothing but a small doctor’s bill.”

The evidence above was received without objection. We think it establishes an extinguishment of the note; and that the plaintiff has no right to the same. An amount of Confederate treasury notes, equal to the principal and interest of the note of N. A. Cooper, was given,, in 1863, to the plaintiff, who delivered the note to the maker.

The fact that Cooper “expressly agreed to make the Confederate notes good, if the money did not prove to be good,” did not prevent the extinguishment of the note. But we are not inclined to give any weight to the loose declarations, in a conversation at which the witness happened to be present, four or five years before the time he testified, made by a person since dead.

The Confederate notes were not received as collateral security, else, the note would not have been given to the debtor.

The plaintiff must fail on other and more technical grounds.

lie claims to be proceeding on a lost instrument. In order to prove the contents of this lost document, the law has wisely requii ed th^t. the loss shall be proved, either by direct testimony, or by such circumstances, supported hy the oath of the party, as render the loss probable. The party, in this case, has failed to make the necessary oath. The oath of the attorney can not be substituted for that of the party, for reasons that are obvious. If he Imoio of the loss, his evidence would satisfy the law; the loss "would then be established by “ direct testimony.” If, on the contrary, he do not know the fact, he could only swear to what his client told him; and thus, the unsworn statement of the party would virtually be substituted for the oath of the party,, required by art. 2258 C. C.

Another fatal defect is, the failure to advertise the lost instrument. “ within a reasonable time.” The note was made in April, I860; in the spring of-'1863 the note was in the possession of the deceased, the-maker; in May, 1863, the maker of the note died. It is not alleged or shown when the note was lost. If lost at all, it must have been before it got back to the possession of the' debtor, in April or May, 1863. Its loss was not advertised until twenty-first March, 1866, about three years after the death of the supposed debtor. There is a want of diligence thus manifested, which is inexcusable, if not suspicious. C. C. art. 2259.

It is, therefore, ordered, adjudged and decreed, that the judgment, of the district court be avoided and reversed; and that there be judgment in favor of the defendant respecting the plaintiff’s demand, with, costs in both courts


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 129.
    Josephine Nicholson and Husband v. John Hendricks.
    This is an action to annul a transfer of a judgment under the allegations of fraud and deceit, practiced by the defendant. Held — That under these allegations parol evidence was admissible to show the fraudulent and simulated character of the transfer.
    The objection that the suit is premature, because the plaintiff has not offered to return the.money received for the transfer of the judgment before bringing suit to annul it, if not urged in the court below, will not be noticed on appeal.
    APPEAL from the Tenth District Court, parish of Caddo. Leuisee, j -

      A. W. 0. Moles, for plaintiffs and appellees. Nutt & Leonard and T. Alexander, for defendant and appellant.
    This case was tried by a jury in the court bemw.
   Wyly, J.

This is a suit to annul the transfer of a judgment by the-plaintiff, Josephine Nicholson, to the defendant, John Hendricks, on the ground of fraud and deception practiced by him in order to get the transfer.

The case was tried by a jury, who rendered the following verdict, to-wit: We, the jury, find for the plaintiff, returning to her the judgment, and annulling the transfer — plaintiff paying to Hendricks three-hundred and eighty-nine dollars, with legal interest from the fourth, day of July, 1867, until paid — said amount to be paid in gold.”

Judgment was rendered on this verdict, and the defendant has appealed.

Our attention is directed to the bill of exceptions taken by the defendant to the ruling of the Court in admitting the evidence of witnesses to prove that the transfer of the judgment was obtained by artifice, deceit and fraud.

The defendant objected to the evidence for the reason that the allegations of the petition are, that the transfer was made for the purppseof protecting the defendant from certain claims against him. If so, said transfer was fraudulent as to all the parties; and for the further reason, that the transfer was a simulation, and between the parties, simulation can not be shown by parol.

The objection to the evidence was, however, overruled by the court for the reason that plaintiff’s petition, viewed as a whole, rests her right to recover on the allegations of fraud and deceit practiced by the defendant on her; and because the face of the petition shows that the simulated transfer, if it may so be regarded, was for the convenience-of the defendant, and not for the advantage of plaintiff.

We think the ruling of the court was correct; that under the allegations of the petition the evidence was admissible.

An examination of the evidence satisfies us that the verdict of the jury is correct. As to the argument that the suit was premature because there was not an offer to return the money before the institution of this suit, we will observe there was no exception of the kind urged in the court below; and we think the defendant can not now complain. on that score, because the money was tendered in open court and refused.

As to the argument of turpitude on the part of the plaintiff, which precludes her from complaining of the gross deception and fraud practiced on her in this transaction by the defendant, we will remark, there is not a particle of evidence showing her guilty of the slightest immorality. On the contrary, the record shows that she was the unfortunate victim of the deception, fraud and immorality of the defendant.

The other points argued by the defendant are unworthy of serious consideration.

It is therefore ordered, that the judgment be affirmed, and that appellant pay costs of appeal.

Rehearing refused.


text:
    No. 143.
    E. E. Marion and Husband v. B. M. Johnson and J. S. Rendall.
    determining the question whether acts complained of will work an irreparable injury to the plaintiff, on the trial of a motion to dissolve an injunction on bond, all the allegations in the petition for injunction must bo taken as true. And if the facts set up show a trespass on real property, which, if continued, would change the possession of immovable property, the motion to bond under art. 307 O. P. will be overruled, because an irreparable injury would be done the plaintiff.
    APPEAL from the Tenth District Court, parish of Caddo. Eevisee, J.

      Egan, Williamson <& Wise, for plaintiffs and appellants. 8. W. Ohagsman, for defendants and appellees.
   Wyly, J.

The plaintiffs have appealed from the order of the district judge dissolving their injunction against the defendants, on the bond of the latter, under art. 307 C. P.

The appellees move to dismiss this appeal on several grounds: the most important is, that the acts complained of and enjoined did not work an irreparable injury, and therefore the injunction was properly dissolved on bond.

In determining this question, the allegations of the petition must be taken as true.

It alleges that the defendants, in building upon a contiguous lot to the plaintiffs’, in Shreveport, have taken out, for a considerable space, the bricks of the wall of their building, to-wit: the Phoenix House, to the great injury of the wall; that they have removed part of the front wall and imbedded in it an .iron pillar for the purpose of permanent occupancy, as part of the front of a building they are erecting on said contiguous lot; that they are taking absolute possession, with a view to appropriate to their sole use the wall and the soil upon which it rests, of which the plaintiffs are the rightful and peaceable possessors, without their consent and to their irreparable injury; that the inner wall and the plastering of said house have been exposed by said acts, and a part of the outer wall and plastering entirely removed; and that it is impossible to remove, with a chisel or other instrument, the excess of the iron works inserted into their wall by the defendants; that the real purpose of the defendants is to dispossess them of said wall and tile soil upon which it rests, which has for years been in their undisturbed possession; that the acts complained of are illegal and will work, them an irreparable injury.

Under this state of facts, which, for the- purposes of the present inquiry, is taken as true, we think the acts complained of and enjoinéd worked an irreparable injury in contemplation of law.

The acts complained of amount to a trespass, and the effect of dissolving the injunction under art. 397 C. P., would be a change of possession of immovable property from the plaintiffs to the defendants, by the court, without either a petitory or possessory action.

The other grounds taken by the appellees are untenable.

It is therefore ordered, that the motion to dismiss be overruled; and on the merits it is ordered that the order dissolving the injunction on. bond, under art. 307 C. P., be set aside and annulled, and that the injunction be reinstated.

It is further ordered, that appellees pay costs of this appeal.


author: Ludeling, C. J.

text:
    No. 121.
    H. Markham v. D. R. Allen, Aministrator, et al.
    The heir and widow in commnnity have the legal right to partition and divide the community property.
    If a partition of the community property has been made between the heir and the surviving widow, a debt that was contracted by the husband before the marriage, is chargeable to that portion which has fallen to the heir, and not to the share of the community belonging to the wife.
    APPEAL from the District Court, parish of Caddo. Levisee, J'.

      T. T. Land and J. W. Jones, for plaintiff and appellant. JElgan, Williamson <& Wise, for defendant and appellee.
   Ludeling, C. J.

This suit is brought against the administrator oí the succession of William A. Sims and Mrs. Elvira Sims, widow in community of G. W. Sims, deceased, on an account stated against George W. Sims. This suit is to make the succession of William A. Sims, the heir, and Elvira Sims, the widow of G. W. Sims, pay the debt.

It seems that immediately after the death of George W. Sims, his son, W. A. Sims, accepted the succession unconditionally, and took possession thereof as sole heir. In a settlement with the widow in community, he transferred to her a part of the property, which was found in possession of George W. Sims, at his death.

This is complained of by the plaintiff as having been done in fraud of creditors and as a simulation. The plaintiff farther contends that .the widow thereby rendered herself liable individually for the debts, as an intermeddler; and he further contends that the community property is liable for the individual debts of the husband.

The evidence does not sustain the charge of fraud or simulation.

The heir had a right to take possession immediately after the death of his father — “ le mort saisi le vifand he thereby became the absolute owner of the property, and liable for the debts of the deceased.

George W. Sims and Elvira Sims were married in August, 1861 ,• the property in the possession of the deceased, when he died, is presumed to be community, and no proof was made to rebut this presumption. C. C. art. 2374:

There was nothing unlawful or unusual in the heir and widow in community making a partition of the community property.

The debt sued on was contracted by G. W. Sims before the marriage between him and Elvira Sims, consequently it must be acquitted out. of his own individual property, and not out of the share of the community belonging to the wife. C. C. art. 2372.

The judgment against the succession of William A. Sims, and in favor of the defendant, Mrs. Elvira Sims, is correct.

It is therefore ordered that the judgment of the lower court b© affirmed, with costs of appeal.


text:
    No. 118.
    Stewart & Jewell v. Levi Presley.
    In interpreting a patent to lanas, issued by tbe Government to an individual, all its clauses must be construed, the one by the other, giving to each the sense resulting from the whole instrument. C. 0.1950.
    In an action of rescission, the party seeking relief must first offer to restore his adversary to the' situation he was in before the contract. C. 0.1906; 3 An. 208; 14 An. 56,474,716; 21 An. 425".
    APPEAL from the District Court, parish of Caddo. Levisee, J.

      Land & Taylor, for plaintiffs and appellees. A. W. O. Mieles, for defendant and appellant.
   Ludeling, C. J.

The plaintiffs allege that, in March, 1865, they sold to Levi Presley two lots in the city of Shreveport for six thousand dollars, and bought from said Presley a certain tract of land situated in the State of Texas, for six thousand dollars. That the two sales were, in fact, an exchange of the property mentioned. They aver thafr the consideration of the transfer by them of the two-lots in Shreveport was the trjict of 640 acres of land in Texas, transferred to them by Presley, and they aver that the said consideration has totally failed that, at the date of the said sales or exchange, the said Presley had no title to the lands translative of property in Texas, nor could he give possession, which he well knew at the time of the sale or exchange.. They alleged that Presley is a non-resident, and pray for the sequestration of the two lots situated in Shreveport, and for damages caused them by the fraudulent sale of Presley, and for a rescission of the sales or exchange above mention ed.

The defendant, who is a resident of Texas, appeared and excepted, that the petition alleged no cause of action against him. In case the exception be overruled, ho answered that the consideration for the sales or exchange had not failed, and he expressly denied the allegations of the plaintiffs that he had no title to the Texas land at the time of the sale, and that lie could not deliver possession thereof. He denied all fraud, aud averred that the plaintiffs have never demanded of him the possession of the land, or informed him of any defect in his title, or notified him of any adverse claim of title or possession in any person, before the filing of this suit, etc.

He further alleged that the plaintiffs did not, before bringing suit, nor have they since, tendered a reconveyance to him of said lands sold or exchanged by him to them, and he prays that the plaintiffs’ demands be rejected.

There was judgment in favor of the plaintiffs, and the defendant has appealed.

Many questions of: law have been discussed in the briefs of the parties, which we deem it unnecessary to examine. We think we can dispose of this case without assuming the right to decide which of two titles to lands in Texas is good, or to settle questions of boundary between contiguous proprietors of lands in the State of Texas.

A careful examination of the patents in the record will show that litigation has grown out of a mistake in the call for the beginning-corner of the Cheek grant, which embraces the land transferred by Presley to the plaintiffs. The actual beginning corner of the Cheek survey is the east corner of the Kleberg survey of 320 acres; but, by mistake, the northeast corner of F. Engelking’s 114-J- acre survey is-named as the beginning point. This mistake is shown by the field notes, by the surrounding surveys, and by the natural objects called for in the surveys. The annexed map will enable us to detect more-readily the error.

The true beginning place is established by several independent facts. The maps of contiguous surveys show that the Cheek land is bounded on the southeast and southwest by vacant prairie, on the northeast by Cumming’s Mill tract, and on the northwest by the Kleberg and the Greenville tracts. The corners and the distances are such that the-lines balance, and the survey closes at the east corner of Kleberg’s survey, and includes the true complement of ground — 640 acres.

The lines which terminate in the vacant prairie at c are each 2064 varas long •, but the first line on Cumming’s line is only 1584 varas. If ii had commenced at Engelking’s east corner, g, it must have run 2924 varas, or 1344 varas further, to reach the second corner, as mapped.

Again, the Cheek patent describes the location as being about eight, miles above San Felipe; the Kleberg patent reads ten miles above San Felipe.

The third line of the Cheek patent strikes the Greenville survey at •&, then makes the fourth corner, and runs thence with Greenville’s southeast line till it intersects the southwest line of Kleberg’s, at e, (here again erroneously called Engelking’s), and makes the fifth corner. 'Thence it returns with Kleberg’s southwest line to his south corner of Cheek’s sixth corner; thence with the southeast line to the east corner of Kleberg’s (still called Engelking’s), Cheek’s true beginning.

If we begin at the point cl, where Cheek’s survey intersects Green-ville’s line, and reverse the courses, Cheek’s third corner will be on Cumming’s line 1580 varas from Kleberg’s east corner, and Cheek’s fourth corner will bo at Kleberg’s east corner, a, Cheek’s true beginning.

Again, while the beginning corner of Cheek’s survey is called Engolldng’s corner, it is clearly identified as Kleberg’s; it is designated thus: “On the southern boundary of Cumming’s Mill tract, a blaolcjaclc on the banlc of a spring branch, bears south 75, west 125 varas.” This is the exact description of Kleberg’s east corner on Cumming’s boundary. Kleberg’s beginning also calls for Engelking’s east corner, and it is there in truth, but it is described thus: “A mulberry, 7 in. dia., marlced X, on the southwest line of Cumming’s Mill tract.”

Kleberg’s survey runs first with Engelking’s southeast lino to his south corner, h, near a pin oak. But when Cheek’s survey purports to make the southeast comer of Engelking’s no pin oak is mentioned, but the comer is blank, just as it is when it figures as Kleberg’s third or south corner, /, with which it is really identical.

Engelking, speaking of the Cheek survey, testifies that “it commenced at the northeast corner of a tract of 329 acres, belonging to Louis Kleberg; ” and he further states that the land is not improved, .and nobody is living on it. Kleberg swears that “the land is not ■occupied, and never has been; ” and he says : “ The beginning corner is a blackjack on the bank of the spring branch, and not Engolking’s east corner, as erroneously stated.”

In interpreting the patent to Cheek, all its clauses must be construed, the one by the other, giving to each the sense resulting from the whole. Article 1950, C. C.; 9 R. 19; 6 Cerven, 281, Jackson v. Marsh. Pursuing this rule, we have arrived at the conclusion above stated. But it is well settled, not only by the textual provisions of the Code, but by the decisions of this court, that in actions of rescission, the party seeking relief must first offer to restore his adversary to the situation he was in before the contract. C. C. article 1906; 6 N. S. 229 ; 7 N. S. 95; 11 La. 102; 3R.400; 6R.472; 3An.208; 14An.56; 14 An. 474, 716 ; 21 An. 425.

This was not done, and the omission is fatal. The property of the defendant was improvidently sequestered and taken out of his possession by the plaintiffs. It is shown that ten dollars per month is a fair rental for the buildings on the lots sequestered, and that two hundred dollars would be a reasonable fee for defending this suit. We think the defendant entitled to these sums for dainages done him by the-wrongful acts of the plaintiffs. C. C. article 2294 ; 4 R. 196; 6 La-270 j 11 La. 108.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed; that the writ of sequestration beset aside, and that there be judgment rejecting the plaintiffs’ demand,, with costs in both courts. It is further decreed that the defendant-have judgment against the plaintiffs for the sum of two hundred! dollars, attorney’s fees, and for rent, at the rate of ten dollars per month, from the thirty-first of December, 1865, until the property which was sequestered be delivered unto the defendant.


text:
    No. 125.
    Cornelia Hart, Tutrix, v. Hoss and Elder, Administrators.
    All successions, sliall be opened and settled in the parish courts. Constitution, article 87.. Therefore, the district court is without jurisdiction raiione 'material to entertain a cause purely probate in its character, such as the present, having for its object the recognition oí. the heirs, and establishing their rights, judicially, to the succession. All actions of this-character must be brought in the parish courts. 21 An. 864.
    APPEAL from the District Court, parish of Caddo. Levisee, J.

      Land & Taylor, for plaintiff and appellant. JEgan, Williamson & Wise, for defendant and appellee.
   Ludeling, C. J.

The plaintiff, alleging herself to be the lawful wife of E. C. Hart, deceased, whose estate is represented by defendants,, sues, as natural tutrix of her minor children, issue of her marriage-with him, to have the said children recognized as the legal and forced, heirs of the deceased.

One of the defendants excepted to the jurisdiction of the district court, raiione materice. There was judgment sustaining the exception,, and the plaintiff has appealed.

The sole object of this writ is the recognition of heirs. The proceeding is purely probate iu its nature. C. P. art. 1000, 1001, 1002 and 1003. 21 An. 364, Succession of Ruffingnac.

The constitution provides that “inprobate matters, when the amount in dispute shall exceed five hundred dollars, exclusive of interest, the appeal shall he directly from the parish to the Supreme Court.” Article 88, Constitution. It follows, therefore, that, in probate matters, the parish courts may entertain suits where amounts exceed five hundred dollars. It is when there exists a contest between a succession on one side, either as plaintiff or defendant, and another party, that the amount determines the jurisdiction. Litigation arising inside of a succession — that is, proceedings properly probate in their nature, and which must be determined in order to finally settle the succession, are properly cognizable in the parish courts. “ All successions shall he opened and settled in the parish courts.” Article 87, Constitution.

Here the plaintiff claims to be recognized as the forced heirs; they do not claim anything against the succession, but they claim by virtue of the succession. “Succession is the transmission of the rights and obligations of the deceased to the heirs.” C. C. 867.

We think the exception was properly sustained. 22 An., Paul 0. Hebert, tutor, v. Winn et. al.

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


author: Taliaferro, J. Ludeling, C. J.

text:
    No. 131.
    Succession of Pomeroy—Opposition to Account of D. J. Elder, Executor.
    Where an appeal lias been granted, and is still pending in the Supreme Court, the court a qua, is without jurisdiction to grant a second appeal from the same judgment.
    APPEAL from the Parish Court of Caddo. Oreswell, Parish Judge.

      T. T. Land and George Williamson, for appellee. Nutt & Leonard, for opponents and appellants.
   Taliaferro, J.

A motion to dismiss the appeal filed on the first day of the present term is made, and several grounds are stated in support of the motion.

The counsel for the appellees contend that, as the case stands now on appeal filed at the August term of this court, 1869, and is still pending in this court, the court below was without jurisdiction to grant an appeal.

This ground is well taken. See 12 Rob. Reports, 320,

It is therefore ordered that the appeal filed at the present term of this court be dismissed, at costs of the appellant.

On Application for Rehearing.

Ludeling, C. J.

We have been urged to grant a rehearing on the motion to dismiss this appeal, on the ground that we are virtually denying the appellant the exercise of a constitutional right.

It has been overlooked by the counsel that, in the opinion rendered at Natchitoches, we held that the wife had not been authorized to prosecute her suit before the lower court, and that, therefore, the suit must he dismissed for want of proper parties. It would he doing a vain thing, under the circumstances, to entertain another appeal from, that judgment.

Rehearing refuseu.


author: Taliaferro, J.

text:
    No. 127.
    City of Shreveport v. B. M. Johnson.
    The act of the Legislature of 1870,2To. 80, amending the act incorporating the town of Shreveport, which gives to the Board of Trustees power and control over the subject of licenses and taxes for the benefit of the corporation, has effect only prospectively. Thereiore an ordinance in force at, and before the passage of this act, assessing a license against all banks doing business within the corporation, is still in force, and the license so assessed mustbepaid.
    from Tenth Judicial District, parish of Caddo. D. Cresivell, Parish Judge.

      Aleóle JBoarmcun, City Attorney, for plaintiff and appellee. Land & Taylor, for defendant and appellant.
   Taliaferro, J.

The defendant is appellant from a judgment against him for the sum of two hundred and fifty dollars, with legal interest upon the amount, from the first of January, 1870. The judgment was rendered in default of defendant’s payment of a license assessed against bankers doing business within the city of Shreveport. The defendant contends that the city of Shreveport is divested of the right to impose the tax complained of by the act of the Legislature, No. 80, approved March 7, 1870. The ordinance of the city was passed December 30, 1869, imposing a tax of $250 on bankers. The act of the Legislature, approved March 7,1870, can only have effect prospectively. It does not repeal or annul the city ordinance of thirtieth of December, 1869.

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

Eehearing refused.


text:
    No. 174.
    George W. Kittridge v. M. D. C. Cane et al.
    tin agreement, in writing, acknowledging the ownership in lands does not dispense with the production of the primordial title in a suit to recover. On the question of, land titles in this State, the settled doctrine appears to be that where an agreement in writing acknowledges ownership in lands, if the title of such ownership is set forth in the instrument, and the existence and loss of the primordial title is shown, then the claimant is entitled to recover on producing the acknowledgment. But if the instrument or acknowledgment does not contain the original primordial title, the claimant under it can not recover without producing the ¿irimordial title íelerred to in the act referring to it.
    APPEAL from the Tenth District Court, parish of Caddo. J. Dincleney Harris, (attorney at law), Special Judge, vice Levisee, recused.

      James W. Duncan and Land <& Taylor, for plaintiff and appellant. Nutt & Leonard, for defendant and appellees.
   Taliaferro, J.

The plaintiff, sues for six-sevenths of one-third part of several tracts of land lying in the parishes of Caddo and Bossier, and for the same share and interest in various town lots in the city of Shreveport; The property of which he claims the six-seventh .of one-third part he avers is owned and held in common by and between himself and the defendants, M. D. C. Cane, and her daughter, Mary Jane Cane, wife of H. McCormick.

This claim, it appears, was first set up by an opposition to an account filed by one of the defendants, as executrix of James H. Crane ; but the opposition was abandoned and the plaintiff brought this action for a partition which, from a denial of his title by the defendants, assumes, in some respect, the form of a petitory action. He prays judgment for six-sevenths of the rents and profits of the property from the time of the death of Samuel Bennett, etc.

The plaintiff shows that he is the owner of six-sevenths of the estate of Samuel Bennett, who died in 1853. He aims to show that the property he designates was owned to the extent of one-third part by Samuel Bennett. To this end he produces the following act:

“Parish op Bossier — State op Louisiana.

“ Be it known, that we, the parties whose names are hereunder subscribed, have this day entered into, and make this act or agreement for the purpose of perpetuating facts herein.set forth:

“ It is understood, and such is here declared to be the fact, by James H. Cane, and Mary D. C. Cane, wife of James H., who appears for herself and as natural tutrix of her minor child, Mrs. S. Bennett, herein authorized and assisted by her said husband, that all the lands purchased by said James H. Cane, in the State of Louisiana, including the plantation on which said Cane and wife, now reside, and also the interest of said James II. Cane and wife in the town of Greenwood, together with the interest and tenements of James H. Cane and Mary D. C. Cane, his wife, in the town of Shreveport, belong one undivided third part to Samuel Bennett, Sr., and one undivided sixth part to William S. Bennett, the minor child aforesaid, whether purchased from the Government of the United States or from individuals — except the one-sixth part in the Shreveport property, which has been awarded to the minor child (heretofore). All which is according to an original agreement between parties.

The remainder of said lands and interests in said towns belonging to the said Cane and to the said Mary, his wife; and the said Samuel Bennett, Sr., declares the foregoing statement'to be true.

Done and signed in the parish of Bossier on this twentieth day of June, 1843, in the presence of John B. Cane and James Alston, witnesses of full age and legal domicile, who, with the parties aforesaid, have also signed this instrument.

(Signed) “James H. Cane,

“ John B. Cane,- Mary D. C. Cane,

“ James Alston.” “ Samuel Bennett.”

“ Be it known and understood, by the consent of the within subscribing witnesses, it is mutually agreed that the plantation on which we now live shall be kept together for the space or term of seven years from this time. G-iven from under our hands this twentieth day of June, 1843, and before the same witnesses.

(Signed)

“ John R. Cane,

“James Alston.”

(Signed)

“James II. Cane,

“Maky D. C. Cane,

“ Samuel Bennett.”

The defendants filed separate answers. M. D. C. Cane denies that the instrument presented by plaintiff confers any title whatever. Admits that she signed the act, but denies that there was any legal consideration for the same; that she was induced to sign it by Samuel Bennett on his statement that J. H. Cane, her then husband, had consented to give him the interest set forth in the instrument, in order to hold and keep the same for the use and benefit of the respondent and her children. She alleges the nullity of the act, and that it was abandoned by her husband and said Bennett.

The other defendant answers that she is ignorant as to whether the signatures to the act are genuine or not. She denies any consideration ever having been given ; and that Samuel Bennett ever had any legal right to the property claimed; that if any such agreement was ever made it was a mere donation inter vivos and in fraud of her rights and of those of her half-brother, W. S. Bennett, and is null on that account as well as for want of form. She pleads in reconvention against this demand a debt of $80,000 owing her, as alleged, by the succession of Samuel Bennett.

There was judgment as of nonsuit in the lower court, and the plaintiff has appealed.

The issue between the parties will be determined simply by a solution of the question, what is the character and import of the act upon which the plaintiff founds his claim ?

The act refers to “ an original agreement between parties.” No-original agreement is shown. The plaintiff contends that the act is-simply an acknowledgment or recognition of a title in Samuel Bennett to -an interest in the lands in -question; that it is not the source or origin of his title, but simply evidence of it; that it is what it purports-to be, an act to perpetuate certain facts, and that the motives of the parties in signing it were to furnish Samuel Bennett with written evidence, which, up to that time, depended upon parol, and wbich evidence they were morally bound to furnish. The plaintiff relies on the case of Richardson v. Hyams, 1 An. 286, and the cases of Brown v. Frantum, 6 La. 39, and 5 La. 73 to 77.

The defendant holds the instrument to be, if anything, a recognitive or confirmative act of that character which does not dispense with the production of the primordial title. C. C. 2251. “ Recognitive acts do not dispense with the exhibition of the primordial title unless its. tenor be there specially set forth.”

In the case of Richardson v. Hyams, the act signed by Winn was authenticated before a notary, who registered and recorded it in the parish of Carroll, where the lands spoken of were situated. The act was dated October 2, 1837, and was recorded thirteenth November, 1838. The instrument recoguized title and ownership in Friend iointly with himself, and contained a power of attorney to Friend to sell the land specified. Third parties had acquired rights under that state of things, and the court protected them against the imprudence of Winn in presenting Friend’s rights in a false aspect to the world.” This court in the case of Brooks v. Norris, 6 Rob. 181, to which our attention has been invited, said: “ According to Dumoulin and Pothier, as well as a formal article of the Civil Code of this State, recognitive acts do not dispense with the primordial title, unless its tenor be therein specially set forth.” These authors distinguish between recognitive acts or acknowledgments which are in the form, the call ,ex certa selenita and those in forma communi. The former, said to be in forma speciali et dispositiva, are those in which the primordial title is set forth. They have this peculiarity, that they are equivalent to the original title in the event of its loss, and prove its existence against the person making it, and they dispense with the production of the primordial title. On the other hand, recognitive acts “ in forma comonuni, are those in which the primordial title is not set forth. These acknowledgments,” says Pothier, serve only to confirm the primordial title and to interrupt prescription ; but they confirm the original title only so far as it is true; they do not prove its existence, and they do not dispense with its production.”

It is clear to our minds that the instrument presented in this case is an act of this latter kind, and can have no effect of itself as an act translative of property. We concur with the plaintiff himself in believing that it it neither a conveyance, an agreement to convey, a donation or an exchange ; but we do not concur with him that it is evidence of title or the furnishing written evidence of a title, which liad previously depended upon parol. It points to “ an original agreement between the parties.” If that original agreement were in writing and purported to convey real estate, the production of that act was indispensable. It can not suffice, of itself, to establish title. The doctrine contended for would obviously lead to results utterly subversive of all the well settled rules of evidence relating to the proof of title to real estate. We think the plaintiff is not sustained in his position, and that he can not recover.

Aside from the inefficiency of the instrument, its vitality or purpose, if it ever had any, seems long ago to have been destroyed by the parties to it. The purpose of the act would seem to have been a desire to protect James H. Cane’s wife and children from the effect of intern-p érate habits he was addicted to, and to insure the redemption of bank bills he had issued in course of business.

It is in proof that Samuel Bennett never exercised any ownership or control over the property of James H. Cane during his lifetime; and that after his decease, was present at the taking of the inventory of J. H. Cane’s estate, and pointed out as property of his succession, the very property referred to in the instrument of twentieth June, 1843, and signed the inventory. G. C. 2251; 6 Rob. 181, and authorities there cited; 6 La. 39.

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

Rehearing refused.


author: Howe, J.

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    No. 124.
    Graham & Anderson v. John Hendricks, Sr.
    Tbe purchase of a lot of cotton by a railroad company, chartered and domiciliated in the State of Mississippi, from a party domiciliated and residing in Louisiana, is not affected by the prohibitions contained in the act of the Legislature of 1855, a clause of which is as follows: “No corporation shall engage in mercantile or agricultural business, norin commission, brokerage, stock jobbing, exchange, or banking business of any kind.” The clause in the act cited, only refers to the buying and selling of articles of merchandise as an employment, and implies operations, conducted with a view of realizing the profits which come from skilful purchase, barter, speculation and sale.
    APPEAL from the District Court, parish of Caddo. Le visee, J.

      T. T. & A. D. Land, for plaintiffs and appellants. Looney <& Wells, for defendant and appellee.
   Howe, J.

The plaintiffs alleged that on the twentieth day oi December, 1862, the defendant sold sixty bales of cotton to the commercial firm of Simpson & Calhounj that on the twenty-third of February, 1863, the said firm sold and transferred the said cotton to the Southern Railroad Company, a corporation duly chartered under the laws of the State of Mississippi, and that on the seventh of April, 1865, the Southern Railroad Company sold the cotton to the plaintiffs. They alleged that the defendant refused to deliver the cotton, and they prayed for a judgment for the same, or its value.

The defendant filed an answer to the merits, and thereafter a peremptory exception, averring, that the Southern. Railroad Company, a corporation represented by plaintiffs, are forbidden by a prohibitory law of the State of Louisiana from buying or selling, or carrying on business as holders, speculators or merchants, and without power or authority to make or maintain the contract' sued- on,” and therefore prayed that this action be dismissed. The court sustained the exception, and dismissed the suit, and the plaintiffs have appealed.

We are of opinion that the judgment was erroneous. The prohibition referred to is contained in a clause of the act of 1855, relative to the organization of corporations for works of public improvement, and for other purposes. E. S., 1870, —■—, and is in these words:

“ No corporation shall engage in mercantile or agricultural business, nor in commission, brokerage, stock jobbing, exchange or banking business of any kind.”

It is quite likely that this prohibition applies only to corporations organized under the sections of which it is a clause or proviso, for otherwise it might have been interpreted so as to stop the operations of every incorporated bank thou in existence in the State. It is highly probable that it does not apply to a corporation created by and under tbe laws of Mississippi. C. C. 9. But aside from these objections to the views of the defendant, we thinlc it clear that the prohibition does not extend to the case of a purchase of cotton as shown by the record before us. The phrase, “ mercantile business,” has a definite meaning. It refers to the buying and selling of articles of merchandise as an employment. It implies operations conducted with a view of -realizing the profits which come from skillful purchase, barter, speculation and sale. The purchase shown in this case is not of this character, and is not liable to the objections which seem to have been in the mind of the Legislature when it forbade a corporation to engage in the hazards oí mercantile business.”

It is ordered that the judgment appealed from be avoided and reversed, and tbe cause remanded to be proceeded with according to law


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    No. 138.
    Jonas Robison v. Joseph Howell.
    The affidavit of tlio plaintiff in a motion for a new trial, in an action of boundary, sets forth that, after judgment was rendered, material evidence was discovered, which he could, not obtain before, although due diligence was used, viz: That he can prove by R. "W. Derve, surveyor of the city of Shreveport, that he has carefully surveyed and examined the lines affecting the rights of parties, and that he is satisfied Hall, the surveyor, never ran the line E. D., and if permitted to testify he will show that Hall could not have run the line in accordance with his order. Held — That the affidavit, setting forth these facts, brought the plaintiff strictly within the articles of the Code of Practice, which provide for such relief, and that a new trial should have been granted. C. P. 560, 561; 2 An. 225.
    APPEAL from, the District Court, parish of Caddo. Levisee, J

      Nutt & Leonard, for plaintiff and appellant. Looney & Wells, for defendant and appellee.
   Ludeling, C. J.

This is an action to fix the boundary between two lots of ground? owned by tbe parties to this suit. There was a judgment in favor of the defendant, and the plaintiff asked for a new trial, on the ground, among others, of newly discovered evidence. In support of this motion, the plaintiff made an affidavit, setting forth the facts, “that, since the trial, he has discovered evidence important to the case, which he could not, with due diligence, have obtained on the trial, in that he has discovered that he can prove by W. R. Derve, surveyor of the city of Shreveport, that he has carefully surveyed and examined the lines dividing the blocks from the ten-acre lots, particularly those affecting the rights of parties to this suit, and that he is satisfied that Hall never ran the line e cl, and that, if permitted to certify, he will prove that Hall could not have run the line in accordance witli his order, and that there is no good reason to believe that he ever did run it.”

We think the judge erred in refusing the new trial. The affidavit in support of the application brings the plaintiff within the articles of the Code of Practice which provides for such relief. C. P. 560, 561. 2 An. 225, Stone v. Rose.

It is therefore ordered that the judgment be set aside, and that the case be remanded for a new trial. It is further ordered that the appellee pay the costs of this appeal.


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    No. 117.
    A. & J Trounstein v. M. Rosenham—Gregg & Martin, Defendants in Third Opposition
    An attachment may be levied on goods stored in a warehouse, without making the warehouse keeper a party by garnishment process. And the attaching creditor has his lien on the property from the date of seizure, under the writ.
    APPEAL from Tenth District Court, parish of Caddo. Levisee, J.

      Looney & Wells, for plaintiffs and appellees. A. W. O. Hieles, for Third Opponents, appellants.
   Ludeling, C. J.

Two writs of attachment were issued against the property of M. Rosenham; one at the suit of A. & J. Trounstein, by the district court, and the other at the suit of Gregg & Martin, by the parish court. These writs were executed by different deputies of the sheriff, on the same day. Gregg & Martin having obtained judgment in the parish court, were proceeding-, under their judgment, to sell the property attached, when A. & J. Trounstein filed a third opposition, claiming to be paid by preference out of the proceeds of the sale of the property, by virtue of their privilege, resulting from their prior attachment. The attachment in the case of A. & J. Trounstein seems to have been first levied. Gregg & Martin contend that the property, being in the warehouse of third persons, could not be attached, except by process of garnishment. We can not assent to this proposition. Article 237 declares: “An attachment in the hands of third persons is a mandate which a creditor obtains from a competent judge, or from the clerk of his court, commanding the seizure of any 'property, credit or right belonging to his debtor, in idhatever hands they may he found, to satisfy the demands which he intends to bring.”

The process of garnishment is an additional means given the creditor to attach the property, rights or credits of his debtor. In the case at bar, the warehouseman told the creditor that the boxes (subsequently attached) were in his warehouse, and that his clerk would point them out to the officer. What reason could there be, in such a case, ior a. garnishment, by serving interrogatories on the warehouseman ? The law does not require a vain thing. The seizure of the property in the hands of the warehouseman, and the appointment of his clerk the keeper of the property, was sufficient, and gave the attaching creditor a privilege on the property seized. 6 An. 551.

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

Rehearing refused.


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    No. 148.
    City of Shreveport v. Frank C. Walpole.
    No deed or act of conveyance is necessary to dedicate land or rights in immovable property to> the public. Nor is any particular form necessary to the dedication of land to the public-use. All that is required is the assent of the owner of the land, and the fact that it is being used for the purposes intended. 18 An .560; 21 An. 244.
    A third parts', occupying lands that have been dedicated to the public use, is without the capacity to acquire title thereto, because such lands are, from the moment of the dedication, out of commerce and are not subject to individual or private ownership. .21 An. 244.
    APPEAL from the Tenth Judieial District, parish of Caddo. Levisee, J.

      T. T. Land and J. W. Jones, for plaintiff and appellee. Looney, Wells & Lunean, for defendant and appellant.
   Taliaferro, J.

The plaintiff alleges that the defendant is in the wrongful and illegal possession of a portion of the “open space” belonging to the corporation of Shreveport for public uses. The plaintiff designates the portion of the “ open space ” alleged to be in the illegal possession of the defendant, as block No. 70, according to Gooch’s survey and map of the open space, and which, they aver, lies between Commerce street and the river. They aver that defendant has been in illegal possession of the premises specified since the fifteenth of October, 1864, and that the ground and buildings thereon, so illegally held by defendant, are worth one thousand dollars per annum. They pray that defendant be ejected from block No. 70; that the same be decreed to belong to the city of Shreveport, for public-uses, and that defendant be decreed to pay the plaintiff at the rate of one thousand dollars per annum from the fifteenth of October, 1864>, with five per cent, interest per annum thereon from judicial demand,, and all costs, etc.

In an amended petition, the plaintiff aveys that the city of Shreveport has held peaceable possession of all, or of the greater part of the ground embraced within the “open space” since the twentieth of March, 1839, when the city was incorporated.

The defendant answered by general denial. In a supplemental answer, he avers that the improvements placed by him on the place the plaintiff seeks to dispossess him of, are worth five thousand dollars, and prays, in case of eviction, that he have judgment against the plaintiff for that sum, as the value of his improvements.

The judgment of the lower court was in favor of the plaintiff, decreeing the ground in controversy to be delivered to the plaintiff, to be used for public purposes; that the defendant vacate the ground and premises claimed by plaintiff, and surrender the same within three months, and, in default thereof, that a writ of possession issue according to law. From this judgment the defendant appeals.

The ground upon which the defendant seems principally to rest his defence is, that the property now pretended to be dedicated to public use, not being ultra commercium, the plaintiff must establish title in writing, and refers to article 449 of the Civil Code. He contends that the block No. 70, or the ground in controversy, comes within the definition of common property, wjhich, though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues. He avers that the corporate authorities of Shreveport have treated the property in question as having that character, by leasing it, and assessing taxes against persons occupying it. He produces notices to pay taxes to the corporation, and tax receipts for taxes paid to it. He shows an ordinance of the corporation for the laying off the “open space” into lots, and for the sale of them. He produces witnesses to prove that the locus in quo had never been used by the city for public purposes.

The plaintiff asserts its title to the property for public uses as being established by dedication made by the original proprietors of the land upon which the city of Shreveport stands, aud who laid out and established the then town of Shreveport. A title so derived is not required to be proved by deed, but may be shown by any species of legitimate evidence. The defendant shows no title in himself, and simply denies that the plaintiff has any. He asserts that the city never accepted block No. 70 as dedicated to public uses, and that it never had any sort of possession of the same; that the city never used it, and that it was never susceptible of being converted to public uses..

The plaintiff shows that a tract of land, of six hundred and forty acres, was reserved to Larkin Edwards out of the lands ceded by the Caddo tribe of Indians to the United States, by treaty entered into in the year 1835; that this tract of land was sold by Edwards to the. Shreveport Company, which was incorporated on the seventh of February, 1837; that the company, about that period, laid off the town of Shreveport, at Bennett & Cane’s Bluff, on the south side of Red River,, upon the location made there of the grant to Larkin Edwards; that. tlie town, was incorporated by act of the Legislature, passed in 1839. The plaintiff shows an authenticated copy of the original map or plan of the. town of Shreveport, by which it is seen that the scope of ground within the limits of the town, known or called The Open Space,” lying between Commerce street and the river, was not run off or subdivided into squares and lots as the other portions of ground within the limits of the town were laid off. A map or plat subsequently made fr’om a survey of the “ open space ” by Gooch, in 1852, is in evidence, ánd this plan shows that the block No. 70,• the ground in controversy, is within the open space.

It is shown that the original proprietors of the property upon which the town was laid off never claimed or exercised ownership over the vacant ground. It is shown that the corporation of the city took possession and control of the open sjiace at an early day as public property; the precise time is not fixed, but an ordinance passed fourteenth November, 1848, is introduced, which shows that the city was then in possession of it, and had buildings and tenants upon it. This was posterior, by near five years, to an act of partition of the unsold squares and lots among the original proprietors. The partition then made, and now in evidence in this case, proves much in support of the plaintiff’s right. It was a judicial partition, made with much formaliiy and exactness. It was preceded by an inventory of all the unsold squares and lots. Neither the inventory nor the partition embrace the open space. No account was taken of it in this final settlement and division of the common property between the former owners and founders of Shreveport.

It is difficult to believe that this large area of land, extending a mile in length, and of sufficient width between Commerce street and the margin of the Red river to serve the purposes of commerce and of public grounds, had it been private property, or considered to belong to the parties to the partition, would have been overlooked entirely by them on that oecasion, when so much care was observed to ascertain and bring into the division all the town property, to which they asserted ownership. The inference is not easily to be avoided, that the open or vacant space within the town limits, then and now shown by the maps, was intended by the founders of Shreveport to be a dedication for public uses, made on a large and liberal scale, commensurate with their views of the future importance and large commerce of their newly established town.

The plaintiff introduced as a witness a citizen of Shreveport, a man advanced in life, who first came to the place in the year 1837, and who has been a practitioner of medicine there ever since. This witness knew personally all the original proprietors, and some of them intimately. He had conversations with nearly all of them — heard them say that this open space between blocks sixty-four and sixty-five, according to the map in evidence (and wMcli embraces all the “open space”), had been dedicated to public uses. These declarations were made to parties proposing to buy property on Commerce street. But never heard them make similar declarations in regard to any lots above Texas street.

Onr predecessors had occasion to examine this question of dedication by the Shreveport Company of the ground lying in front of that city, in the case of Paulina Pickett et al. v. Wm. Brown et al., decided at Natchitoches, in August, 1866. 18 An. 560. This was a suit by the plaintiff to recover from the city of Shreveport three lots within the ■“open space” referred to. The record of that suit, and the decree rendered in it, are in evidence in the present case. The court there decided that the open space was a dedication for public uses to the city of Shreveport, and gave judgment accordingly. ' We will remark that, in the case now before us, the proof of the intention of the original proprietors to dedicate the scope of ground in question to the corporation for public uses, is even more full and complete than in the former. It was said, in the case of Pickett et al. v. Brown et al., just referred to, “that the dedication of property for public uses may be inferred from facts and circumstances which leave no reasonable doubt upon the mind of the intention of the owner to make such a disposition, we think there can be no question.”

The case of the City of Cincinnati v. The Lessee of White, 6 Peters’ Reports Decisions Supreme Court of the United States, followed by various decisions of this court, is referred to. The doctrine is there .also laid down (6 Peters) that “there is no particular form necessary to a dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the purposes intended.”' See also 3 An. 282, and 7 An. 223 and 498, and cases there •cited.

The objection of the defendant that no acceptance of the dedication is shown, and that it is incumbent upon the plaintiff to show such acceptance, is without weight. It is well settled, by repeated decisions, that a formal acceptance is not necessary. 'If any were required, the facts abundantly show an acceptance in the present instance. See, also, on this point, the leading case in 6 Peters, above referred to.

The dedicated property, being held as a public trust, and for public uses, is inalienable by the corporation. It is of that class of property-defined in the first clause of article 449 of the Civil Code as “ common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common, such as the streets, the public walks, the quays.”

The defendant could acquire no title to tne property ne sets up ciaim to. His payment of taxes can confer no title. Besides, he appears to be a.merc naked possessor, without title. From all the circumstances shown relating to his occupancy of the locus in quo, it seems he must llave known that the title to the property was in the city, and lie can hardly be considered a possessor in good faith.

We think the case fully made out on the part of the plaintiff; and it is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


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    No. 119.
    New York Belting and Packing Company v. T. W. Jones.
    Tli© payment of a promissory note to a receiver of the so called Confederate States, under compulsion, during the late war, in an unlawful currency, does not interrupt prescription, and the action to recover on the note is therefore barred by ñve years.
    APPEAL from the Tenth District Court, parish of Caddo. James W. Duncan, (attorney at law), Special Judge, vice Levisee, J., recused.

      Duncan & Moncure, for plaintiff and appellee. J. W. Jones, for defendant and appellant.
   Wyly, J.

A promissory note made by the defendant and belonging to the plaintiffs was seized by the Confederate States Receiver, at Shreveport, in 1862, and collected in Confederate money from the defendant, to whom the note was delivered.

The plaintiffs have instituted this suit to recover the amount of it, contending that the said collection by the Confederate States Receiver did not extinguish their claim.

The main defense is the prescription of five years.

The court gave judgment for the plaintiffs and the defendant has appealed.

More than five years has elapsed from the maturity of the note to the institution of this suit. ■

But plaintiffs contend that prescription was interrupted by the payment in Confederate money to Kline, the Confederate Receiver, and that this payment to Kline made him a negotiorum gestor and interrupted prescription without extinguishing the debt.

On the other hand the defendant contends that the note was either paid or it was not paid. If paid, the plaintiffs have no case. If not paid plaintiffs can not say that the payment to Kline, in Confederate money, interrupted prescription. They can not repudiate that payment for one purpose and use it for another. We are inclined to the opinion that the note is prescribed. The record does not show that an express acknowledgment of the debt was made by the defendant before prescription had accrued. A payment is a tacit acknowledgment of the debt, if voluntarily made. If the testimony of the defendant be true, and it has not been discredited, he did not make the payment voluntarily to the Receiver of the Confederate States. But the fact that he gave unlawful and worthless paper to take up his own, is not a tacit acknowledgment of'liis obligation to pay it in lawful money. He may have preferred giving the Confederate.money to the annoyance of a litigation on a claim to which he had a valid defense.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that there be judgment for the defendant, plaintiffs paying all costs.


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    No. 130.
    Moulor & Dumestre v. M. Rosengarden.
    An attachment taken out under the act of 1868, entitled “An Act to provide additional grounds for attachment,’’ will be dissolved on motion, if tliefacts shown on the trial fail to establish the allegations of the petition.
    APPEAL from Tenth District Court, parish of Caddo. Levisee, J.

      Aleck JBoarman, for plaintiffs and appellants. Egan, Williamson <& Wise, for defendants and appellees.
    This case was tried by a jury, in the court below.
   Wyly, J.

This is a suit on an account for merchandise, which, plaintiffs allege, is due them by the defendant.

It was accompanied with an attachment granted under the act of 1868, an act providing additional grounds for attachment. This attachment was dissolved on the trial of a motion filed for that purpose.

The plaintiffs then amended their petition, alleging that the defendant has assigned, or is about to assign or dispose of his property, rights and credits, or some of them, with intent to defraud his creditors, or give some unfair advantage or preference to some of them. That defendant has converted his property, or is about to convert the same, into money or evidences of debt, with intent to place it beyond the reach of his creditors. Plaintiffs make these allegations for the reason, that defendant has said and boasted that plaintiffs could do nothing to him, and he would fix Ms things so they (meaning the plaintiffs) could never recover anything, or their claim, and that a judgment against him would be worth nothing; and for the further reason that defendant, instead of making an effort to pay his just debt, is daily squandering his means in unlawful pursuits, and for other reasons, that will appear more fully on the trial of this cause.” On making oaths to these averments, and giving bond, he again obtained from the judge a writ of attachment, under which the property of the defendant was seized. This attachment was also dissolved on the trial of a motion to that effect. At the trial on the merits, the plaintiffs recovered judgment for the amount claimed, and then appealed, both from that judgment and the judgment dissolving their injunction.

As to the judgment on the merits, the defendant and appellee does not complain, and certainly the plaintiffs and appellants ought not to> be dissatisfied with a judgment giving them all they asked for.

As to the' judgment dissolving the. second attachment, we think there was no error.

An examination of the evidence at the trial of the rule to dissolve this attachment-satisfies us that the plaintiffs were not entitled to the writ; that there was no disposition of property, or intended disposition, on the part of the defendant, with the view of defrauding his creditors. On the contrary, it appears that he had just rented another shop, and was extending his business. In his case the state •of facts did not exist, contemplated bv the act of 1868, under which the plaintiffs proceeded.

It is therefore ordered that the judgments appealed from be affirmed, and that plaintiffs pay costs of this appeal.


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    No. 144.
    J. R. J. Daniels v. E. K. Hall.
    Two parties, Broolcs aud Norris, owned tracts of land adjoining, both, included in the Gaddo cession to tbe United States. Norris sold bis tract to Hall. Brooks brought suit against Hall for a settlement of boundary. A plat of survey was made under an order of court rendered on tbe consent of parties, describing tbe metes and bounds of Hall's tract of land, and describing and marking other tracts contiguous thereto, and included in tbe same grant. Daniels afterwards purchased sixty-one acres of land from Brooks, included in tbe same grant, and brings this suit against Half for tbe same, who, be alleges, claims it as 1 owner. Tbe plat of survey, and tbe evidence in tbe record, shows that this sixty-one acres lies outside of tbe six hundred and forty acres purchased by Hall from Norris. Held — That tbe order of survey, rendered on consent of tbe parties, although not made in strict accordance with law, must be taken as a finality, and thereioro the plaintiff must recover tbe land sued for, with rents and revenues.
    APPEAL from the .Tenth Judicial District, parish of Caddo. G. 0. Henderson, (attorney at law), Special Judge, vice Devisee, J., recused.

      Nutt & Leonard, for plaintiff aud appellee. George WilMamison, for defendant and appellant.
   Taliaferro, J.

This suit seems to have been instituted in the year 1860 or 1861. The record is confused and incomplete. Some of its deficiencies are gotten over by admissions of counsel. The facts, as well as we are able to understand them, are, that Brooks owning a large body of land, embraced by the reservation in favor of the Grappe’s in the Caddo cession of land to the United States. Norris had made a settlement upon this reservation, or near it, and claimed, by virtue of his title, six hundred and forty acres. Brooks disputing Norris’s title, brought suit against him. Judgment was rendered in favor of Norris, who sold to Hall, the present defendant. In 1853, Brooks brought suit against Hall for settlement of boundary. An. order of survey was rendered by the court on the twenty-ninth of December, 1853, and the survey, for aught that appears to the contrary, was made soon after by Watts, a surveyor, who returned a plat of survey. On this plat is marked a tract of six hundred and forty acres, and adjoining it a tract of sixty-one acres, the land sued for in this case, as we suppose. The order under which this survey was made appears to have been rendered with some formality, upon* the consent of parties, and is claimed to be a judgment between them-The order directs the manner in which the survey should be made,, designating specially the direction and length of the lines to be run by-references to plats to be furnished the surveyor, and to metes and! bounds of other tracts. The present plaintiff, Daniels, who owns the-land formerly Brooks’, complains that Hall is in possession, illegally,, of sixty-one acres of land. He prays to be decreed the owner of the sixty-one acres, and to be put into possession of the same as successor-by purchase from said Brooks, according to the tenor and effect of. “said judgment,” fixing the boundaries between Brooks and Hall; and he prays judgment for fifteen hundred dollars, rents and profits of said land so illegally withheld, etc.

The answer is a general denial. The judge below considered that the survey made under the consent order, although not made in strict accordance with law, should be taken as a finality by consent between the parties, and he accordingly rendered judgment, decreeing the plaintiff owner of the land sued for, and that writs of possession issue; that plaintiff recover from the defendant one hundred dollars per month rent from first of January, 1866, until possession shall be, given to the plaintiff.

The defendant appealed.

We conclude that the judgment should remain undisturbed. It appears to us, from the plat copied into the record, that the sixty-one acres of land contended for, lie outside of the tract of six hundred and forty acres owned by defendant, and make part of the plaintiff’s lands. One of the witnesses says: “ If Watts’ survey is correct, then the greater part, if not the whole, of the land in controversy, lies outside of lateral lines running perpendicularly to the front lines, and embracing, six hundred and forty acres.” He says, further, that: “The lands, adjacent and surrounding the Hall plantation are a part of the Grappe reservation.” Another witness testifies that he was on Hall’s plantation when the survey was made, and talked with him about the survey. Witness says Hall knew very well that the land in controversy was outside his boundaries, as fixed by Watts, the surveyor. Hall admitted that Wafts told him he was making the survey under an order of the court, and according to law, as he understood it. Hall stated he would have nothing to do with the survey; that he had a right to havo his claim located in a different manner than that in which Watts locat-d it.

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


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    No. 151.
    L. P. Spyker v. E. C. Hart.
    'Tlie legal representatives of tlie defendant liaving adopted the allegations in tlie answer filed by the deceased, will not be permitted afterwards to file an amended answer contradicting the allegations in the first answer. Nor will the amendment be permitted if not made within the time allowed by the rules of the court. Case v. Watson, ante p. 350.

      An obligation given for a part of the purchase price of land is not invalid because the value oi Confederate notes was taken as the standard by which the value of the land was measured.
    APPEAL from the District Court, parish of Caddo. J. G. Moneure, (attorney at law), Special Judge, vice Levisee, J., recused.

      Nutt & Leonard, for plaintiff and appellee. Ligan, Williamson <& Wise and Ijcmd & Taylor, for defendant and appellant.
   Howe, J.

This action was instituted upon the following obligation :

“Received, Shreveport, Louisiana, February 24, 1864, of Robert C. Cummings, fourteen thousand dollars, in full payment of one hundred bales of cotton, weighing four hundred and fifty pounds, each. R. C. Cummings takes fire and war risks and furnishes bagging and rope to bale same. E. C. Hart is to gin and bale said cotton and all other risks, except as stated above.

(Signed) E. C. HART.

Indorsed: R. C. Cummings.

The plaintiff as transferree of Cummings, claimed one hundred bales of cotton or their value. The defendant answered that the consideration of the obligation was illegal and void, being Confederate notes. He averred that at the date of the obligation it was well known to Cummings that the defendant had no cotton, but would have to raise it; that he was prevented from raising it by war, and this was a war risk assumed by Cummings. He denied the ownership by plaintiff of the obligation.

Pending the action both parties died, and it was carried on in the names of their respective representatives.

We find two bills of exceptions to the refusal of the judge a quo to permit the representatives of the defendant to amend their answer after the cause had been fixed for trial. We see no error in the ruling. The amendments proposed were too late by the rule of the court, and were contradictory of the allegations of the answer filed by deceased, and which the administrators had at first adopted. See Case v. Watson, lately decided, 22 An. 350.

We gather from the evidence as a whole, that in 1864, Cummings and- Mrs. Paulina Pickett sold to Hart a valuable tract of land near Shreveport, for the price of seventy-five thousand dollars, which sum, is said by the act of sale, to have been paid in cash. It appears, however, that, as matter of fact, but sixty-one thousand dollars were paid, and this in Confederate notes. For the balance of the price of the land, fourteen thousand dollars, the obligation in suit was given. ■Confederate notes were undoubtedly the standard of value, but they were not the consideration of the obligation. The consideration was land.

The defendants, appellants, rely in part, upon the case of Fournet v. Beer, 21 An. 058, in which this court said that the' payment of a portion of the price of a lot of sugar in Confederate notes, where the price was evidently regulated by the value of that paper as a basis, .raised a strong presumption that the whole price was to be paid in the same currency. We may remark that the case cited was published in error, a rehearing having been granted at the close of the Opelousas term of 1809, and the decree not being yet final. But, conceding the correctness of the légal propositions enunciated in that decision, yet the facts of tiie case were different from those now before us. In Fournet v. Beer, there was an agreement to pay money for sugar, and it was held that the agreement was to pay “ Confederate money.” Here the agreement, as explained by the testimony, is to give cotton for land, and where cotton is to be given for land it can make no legal difference by what standard the respective value of the objects of sale is fixed. They would bear the same mathematical proportion to each other in any case.

The other defenses set up are not established; and it is shown that the plaintiff acquired the obligation for value. We find no error therefore in the judgment which was in favor of the plaintiff.

Judgment affirmed.


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    No. 135.
    H. S. Dawson v. Morton & Williamson.
    In an attachment suit there is but one party, the defendant, whose property has been attached, who has the right to give a release bond. Therefore a bond given by the intervenor to have the property released, not being given in pursuance of any law authorizing it, is not a judicial bond, and the sureties thereon are only bound according to the terms and conditions of the bond.
    APPEAL from the Tenth District Court, parish of Caddo. ¡3. JO. Taylor, (attorney at law), Special Judge, vice Devisee, J., recused.

      Jones & Harris, for plaintiff and appellee. JEgan, Williamson (6 Wise and Nutt & Leonard, for defendants and appellants.
   Wyly, J.

The plaintiff, alleging that the defendants were indebted to him the amount of a note he held, attached, as their property, the steamboat Fannie Thornton.

J. H. McDonald, as the agent of Northrop & Co. of Memphis, Tennessee, intervened, alleging that said firm was the true owner of the boat, and obtained the release thereof on bond. At the trial there was judgment against the defendants recognizing the preference ¡resulting from the attachment; the intervention was not passed on. It was probably abandoned. After tbe return of nulla bona on tbe fieri facias issued against tbe defendants, tbe plaintiff began this proceeding, by rule, against the sureties on tbe bond of tbe intervenor given for tbe release of the boat.

In bar of this proceeding, tbe sureties on tbe bond of tbe intervenor made tbe following exception, viz : “Tbe defendants, Walsh and Williamson, defendants in rule of plaintiff, further answering, and peremptorily excepting, move the court to dismiss the said rule on tbe ground tbe law does not allow such summary proceedings in a case like this, where no judgment lias been rendered against their principal, and be has not been put in default by any proceedings against or notice to him. They therefore pray that said rule may be dismissed at plaintiffs’ costs.”

The question is, what is tbe character of tbe bond given by the intervenor in this case ? Is it a judicial bond of is it simply a conventional bond?

If it is a conventional bond, tbe obligation resulting solely from the terms of tbe convention, tbe plaintiff can not recover in this case, because tbe sureties only bound themselves in tbe bond to satisfy such judgment to tbe value of tbe property attached,” as may be rendered against their principal, and no judgment has yet been rendered against him.

If it bo a judicial bond, tbe question is, under what statute was it given? We know of none. Without a law authorizing the release of property under attachment, on tbe bond of an intervenor, it can not fairly be said that such a bond is a judicial bond, which must be construed with reference to tbe law in pursuance of which it was given.

A judicial bond is easily distinguished from a purely conventional bond; in tbe latter, tbe parties signing it are only bound as they agreed to bind themselves in tbe instrument; in tbe former, it is presumed that tbe parties signing the bond intended to bind themselves as tbe statute under which it was given provides they shall be bound. In Soldini v. Hyams, 15 An. 551, where no amount was mentioned in an administrator’s bond, the court held that it being a judicial bond, must be construed with reference to tbe law authorizing it; and as article 1041 Civil Code fixes tbe amount of tbe bond at onefourtli beyond tbe estimated value of tbe property comprised in tbe inventory, tbe law “ implies that tbe sureties, by signing the bond, intended to bind themselves accordingly.”

If no law exists authorizing tbe bond in this case, how can we say that the sureties before us intended to bind themselves otherwise than they agreed to be bound in tbe instrument which they signed. It would bo absurd to say that they signed it in reference to a law not in existence. How is tbe rule to be applied in this court, that tbe effect of judicial bonds must be tested by the law directing them to be taken ? See authorities collated in Hennen’s Digest, 1023, No. 6.

But it is urged that the right of the intervenor to bond comes under an equitable construction of article 259 Code of Practice, which gives the defendant in attachment the right to have it set aside on giving the bond required by that article, and the decision in Emanuel v. Mann, Beers & Bogart, intervenors, 15 An. 53, is relied on to sustain the position.

In determining the character of the bond we think there is no room for this equitable construction. If it is a judicial bond, it must be authorized by a statute, and we do not think article 259 Code of Practice means anything more than it says. It contains no ambiguity, and the authority to bond, given in precise terms, to the defendant, can not be extended to others. It can not fairly be said that the sureties of the intervenor in this case signed in reference to article 259 Code of Practice, which only authorizes the defendant in attachment to bond. We therefore conclude that the bond before us is not a judicial bond,, and that sureties can not be held liable in this proceeding, there being no judgment against their principal, the intervenor, for whom they agreed to be responsible to the value of the property attached.

In Duperier v. Flanders, 20 An. 29, where the question was, whether-the law authorized an intervenor to bond property sequestered, this court held that there were but two parties who are entitled to give a. release bond, “First, the defendant; and, secondly, the plaintiff, after ten days-; this law can not be extended to the intervenor at any time. In case both the defendant and plaintiff neglect to give bond, the-property must remain in the possession of the sheriff.”

Iu principle the case is identical with the one before us. If the law authorizing certain parties to bond in sequestrations “ can not be-extended to the intervenor at any time,” should a statute authorizing-only the defendants to bond in attachments, be extended to the intervenor in this case.

Our conclusion is that the peremptory exception was well taken.

It is therefore ordered that the judgment appealed from be avoided and annulled, and that this proceeding be dismissed at plaintiff’s costs, in both courts.


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    No. 85
    B. C. Frazier v. N. J. Sandlin, District Attorney, et al.
    The act of the Legislature, approved March 16, 1870, entitled “Act Act to regulate public education,” etc., repealed all iormer laws on that subject, therefore the School Directors, appointed prior to its passage, are fundi officiis, and can not stand in judgment in a suit to annul a sale of school lands, and cancel the obligations given for the price.
    APPEAL from the Eleventh District Court, parish of Claiborne. Egan, J.

      John 8. Young, for plaintiff and appellee. If. J. Sandlin, District Attorney. J. E. Wathins, for James Graham, Auditor, appellant.
   Ludeling, C. J.

The plaintiff instituted this suit in May, 1870, Hinder the provisions of the act of thirteen March, 1806, to annul a sale of school lands made to hixu in October, 1859, and to cancel his notes, amounting to $1584, with eight per cent, interest, given for the price of said school lands.

The District Attorney, representing the State, filed an exception, ■alleging among other matters of defense, that the office of school directors, as it existed when the act of 1866 was adopted, under which plaintiff claims to act, is abolished by the act of sixteenth March, 1870, ■and that said school directors can not be made parties, etc.

The act No. 6, of the extra session of the General Assembly of 1870, went into effect on the sixteenth March, 1870. The act of 1870 creates .a Board of School Directors, who shall have power to appoint, for each ward school district in their respective parishes, a board of three District School Directors, etc. And the act of 1870 repeals the former laws of this State in conflict with it.

Those whom the act of 1866 required should be made parties defendant, in suits like the present, are not parties. The old directors cited are functi offioiis. See acts of 1870, p. 23, sec. 39. The necessary parties to a judgment are wanting, and the suit must be dismissed.

It is therefore ordered, adjudged and decreed that the judgment of the court a qua be reversed, and that the suit be dismissed at plaintiff’s ■costs.