author: Land J.

text:
    G. F. Connely v. A. Bourg, Sheriff, et al.
    A surety who pays a judgment, and is thereby subrogated to the rights of the creditor against the principal debtor, may issue execution on the judgment in the name of the creditor for the recovery of the amount which, as surety, he has paid.
    Where a drawer gives two endorsers as co-sureties, the one that endorses first is liable to the other for the whole debt.
    Accommodation paper is governed by the same rules as other paper, in regard to endorsers.
    Strong evidence is required to vary the legal liability of endorsers as fixed by the lex mercatwia.

    APPEAL from tlie District Court of tke Parisli of Terrebonne, Roman J.

      Connelly & Rightor, for plaintiff F. S. Goode, for defendant and appellant.
   Land J.

The holder of a promissory note obtained judgment on the same against the maker, and against G. F. Connely, the payee, and /. B. Robinson, as endorsers; and issued execution on his judgment against Robinson, the second endorser, who paid the principal and interest together with costs of suit into the hands of the sheriff.

Subsequently, Robinson caused an alias writ of fieri facias to issue on the judgment obtained by the holder of the note, against G. F. Connely, the first endorser, for the whole amount of the principal, interest and costs which ho had paid to the sheriff.

Thereupon Connely, the first endorser of the note, sued out an injunction to arrest the execution of the writ on the following grounds.

First. That no judgment existed on which any execution could have issued, the payment by said Robinson, one of the obligors, having extinguished the same.

Secondly. That all the endorsers of commercial paper, under the laws of Louisiana, arej as between themselves, joint sureties, and therefore, under no circumstances was said Robinson entitled to claim more than half of said judgment.

Thirdly. That there was a conventional agreement that in case of loss by the endorsement, said loss should be jointly borne by the endorsers.

And Fourthly. That even if Robinson had a right to issue execution for the ■whole amount of the debt and interest, he had no right to collect from his co-obligor the costs he had himself incurred in resisting the payment of his debt.

The first ground relied on for maintaining the injunction is not tenable. It has been held by this Court that a surety who pays a judgment, and is thereby subrogated to the rights of the creditor against the principal debtor, may issue execution on the judgment, in the name of the creditor, for the recovery of the amount which as surety he has paid. Sprigg v. Beamen, 6 L. 63.

Consequently, by the act of payment every right of the judgment creditor, including the right to issue execution, passed to Robinson by virtue of a legal subrogation both against the maker and first endorser of the note. We say against the maker and first endorser, because the latter endorsed the note for the accommodation of the maker, and is viewed as a surety against whom the rights of the creditor were transferred by the effect of the legal subrogation, as fully as they were against the principal debtor himself. C. C. Arts. 2157, 2158. It results from this doctrine that the payment made by Robinson, who was also an accommodation endorser of the note, and as such is likewise viewed as a surety of the maker, did not extinguish the judgment, but the payment is considered in law as a sale to him of all the rights and actions of the judgment creditor. Scott v. Featherston, 5 A. 313.

The second ground relied on for the injunction is also untenable, for it has been held by this Court that where a drawer gives two endorsers as co-sureties, the one that endorses first is liable to the other for the whole debt. Stone v. Vincent, 6 N. S. 518. The well settled doctrine is that accommodation paper is governed by the same rules as other paper; and that the first accommodation endorser is liable to the second and subsequent endorsers, and the second to the third, and so on to the end of the endorsements.

In relation to the third ground for the injunction, the testimony establishes that Robinson agreed to endorse the note for the accommodation of the maker, provided that Connely would do the same ; and that afterwards Robinson wrote the note payable to the order of Connely, and having endorsed it, delivered it to the maker for his signature, and for the endorsement of the payee. Those facts do not prove an express agreement on the part of Robinson to bear jointly with Connely, any part of the loss that might result from the endorsement of the note for the accommodation of the maker. On the contrary, the facts that the note was written payable to the order of Connely, and was made to bear his first endorsement, are strong circumstances in favor of the understanding of Robinson that Connely should become, as his endorsement shows, the first endorser of the note, and should incur the liabilities incident to that relation, although- Robinson had first in point of time endorsed the note, even before it had been signed by the maker.

Strong evidence is required to vary the legal liability of endorsers as fixed by the lex mercatoria, for the effect of such evidence is to modify the rights and obligations of the endorsers in derogation of the law of their written contract, and such evidence has not been adduced by the plaintiff in this case. The fourth ground for the injunction is likewise untenable. The costs which had been incurred in prosecuting the suit on the note to judgment, formed a part of the debt which the first endorser, considered as a surety, was bound to pay to the judgment creditor, and the right to recover the costs as well as the principal and interest of the debt, was transferred to Robinson by the effect of the legal subrogation which resulted from his payment to the judgment creditor. The judgment was, besides, in solido, and as such, was for the whole amount of costs against each of the defendants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be avoided and reversed; and it is now ordered, adjudged and decreed, that the injunction sued out in this case be dissolved with five per cent, damages on the amount of the judgment enjoined, and that this suit be dismissed at plaintiff’s costs in both courts.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    John Coleman v. R. H. Brown, Curator, et al.
    If the plaintiff in execution send a writ to another parish, the District Court of that parish’ has jurisdiction J;o issue"an-injunction on a third opposition, and to try the question raised by it, although the plaintiff in execution resides out of the parish where the injunction suit is instituted.
    A third opposition without an injunction, in order to have the effect of annulling the sale, must be commenced as an opposition with an injunction prior to the execution of the writ by a sale of the property seized under it.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Short <& Parham, for plaintiff and appellant. Sparrow & Montgomery, for defendant.
   Land, J.

The defendant, R. H. Brown, as curator, obtained judgment in the Second District Court of New Orleans, against R. N. Eubank and W.H. Garland, and caused an execution to issue on the same, directed to the sheriff of the parish of Carroll, by virtue of which the sheriff seized, as the property of the defendant in execution, a certain judgment rendered in the suit of W. H. Garland v. W. S. Scott, in the District Court of said parish. Thereupon,’ the plaintiff filed, in the District Court of the parish of Carroll, an opposition on the ground of ownership, to the seizure of the judgment by the sheriff, and prayed that the parties in interest, all of whom resided out of the parish, be cited; that upon a final hearing, the seizure be set aside, and he be decreed to be the owner of the judgment seized.

The defendant, without answering to the merits, filed an exception to the jurisdiction ol the court, on the ground, that the judgment on which the execution issued, had been rendered by the Second District Court of New Orleans, and not by the District Court of the parish of Carroll, in which court the plaintiff had commenced proceedings by third opposition.

The exception was sustained, and the plaintiff’s suit dismissed for the want of jurisdiction in the District Court of the parish of Carroll.

It has been repeatedly held, notwithstanding the provisions of article 391 of the Code of Practice, that, if the p’aintiff in execution send a writ to another parish, the district court of that parish has jurisdiction to issue an injunction on a third opposition, and to try the question raised by it, although the plaintiff in execution resides out of the parish where the injunction suit is instituted. Lawes v. Chain, 4 N. S., 388; Hobgood v. Brown, 2 A. 323; Galbraith v. Snyder, Id. 492; Police Jury v. Michel, 4 A. 84; Copley v. Edwards, 5 A. 644. The only difference between the cases cited and the present one, consists in the fact, that the plaintiff in this suit did not obtain an injunction on his third opposition to arrest the execution of the writ, and to prevent a sale of the property seized by the sheriff; and the question presented for our decision is narrowed down to this :

Is a third opponent hound to sue out an injunction, in order to give jurisdiction to the district court of the parish to which a writ has been sent for execution ? The cases above cited form an exception to the rule prescribed by Art. 397 of the Code of Practice; and the ground of the exception recognized by these decisions is that of necessity created by the circumstances of the case; and not the issue of a writ of injunction at the suit of the third opponent. The object of a third opposition, commenced without an injunction by the owner of property illegally seized, is to annul the sale after it shall have been made, and recover the possession of his property, with damages against the sheriff for its illegal seizure ; and whether the opposition is commenced with or without an injunction, it is equally important for the owner to mate his demand before the sale shall have taken place; because a third opposition without an injunction, in order to have the effect of annulling the sale, must be commenced as an opposition with an injunction prior to the execution of the writ by a sale of the property seized under it; and, consequently, there is no difference in principle between the case at bar, and those above cited, recognizing jurisdiction in the District Court of the parish to which the writ had been sent for execution.

The facts disclosed in the record make a case of necessity within the previous decisions of this Court, that is to say, a writ issued from a District Court of this city to a remote parish; and personal property, or a debt claimed by a third party there seized by the sheriff and advertised for sale; and these facts gave to the District Court of the Parish of Carroll jurisdiction of the plaintiff’s third opposition.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and this cause remanded for further proceedings according to law; and that defendant and appellee pay the costs of this appeal.


author: Duffel, J.

text:
    Edward C. Word v. Martha G. Winder.
    Laborers who hire themselves out to serve on plantations, or to work in manufactures, have not the right of leaving the person who has hired them, nor can they he sent away by the proprietor, until the time has expired during which they had agreed to serve, unless good and just causes can be assigned. C. 0. 2719. In the latter case an action for breach of contract, according to articles C. C. 1920,1924, is the only remedy.
    Appeal from the District Court of the Parish of Terrebonne, Roman, J.

      Connelly. <6 Rightor, for plaintiff. Bush, Beatty & Attain, for defendant and appellant.
   Duffel, J.

The plaintiff sues for eighteen hundred dollars, amount of his wages for the year 1858, and obtained judgment accordingly, on the finding of a jury. The defendant, after an unsuccessful attempt to obtain a new trial, appealed.

The facts of the case are briefly as follows : The plaintiff acted as the overseer of the defendant in 1857, at a salary of fourteen hundred dollars, with certain specified immunities; the defendant, however, reserving to herself the privilege of discharging the plaintiff, at any time, on paying to him his time of service, at the rate of fourteen hundred dollars per annum. The defendant agreed, in August, 1857, to retain the services of the plaintiff for the year 1858, at the rate of eighteen hundred dollars, but discharged him in November, 1857, or in the early part of December, 1857. The plaintiff offered, on the 1st of January, 1858, to enter into the service of the defendant, and was refused.

The view which we have taken of this case, renders it unnecessary to express any opinion on the bills of exceptions taken on the trial below.

The article 2720 of the Civil Code does not apply to a case of this kind, for as the plaintiff had not entered into the discharge of his duties under the alleged contract, it cannot, properly, be said that he was, according to the terms of the C. C., Art. 2719, sent away by the proprietor. Vide Opinion Book, Trefethen et al. v. Lock et al.

The action, if any, could only be one in damages for a breach of contract. C. 0.1920-1924; Taylor v. Paterson, 9 An. 251. And as the evidence does not establish any damage, but, on the contrary, shows that the plaintiff obtained employment, as overseer, on another plantation for the year 1858, we can award none.

It is therefore, ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed, and that the claim of the plaintiff be rejected, with costs.


author: Merrick, C. J.

text:
    Board of Levee Commissioners v. Henry Marks.
    The act of a District Judge in granting an order of seizure and sale is a judicial act from which an appeal will lie j and such order may he reviewed in this Court. It may be addressed to a levee tax collector for levee dues.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Hugh Short, for plaintiff. M. DuBose, for defendant and appellant.
   Merrick, C. J.

The defendant is appellant from an order of seizure and sale granted in chambers by the Judge of the Tenth District Court for the parish of Carroll, under the late Act of 1859, directing the mode of collecting the levee taxes in the parishes of Madison and Carroll, in cases of failure to pay them. The third section of that Act reads : “ And upon return made by-the sheriff, or other tax collector, that the levee tax due has been demanded of the owner, or any agent of such owner, known to such sheriff or other tax collector in said levee district, and that the amount has not been paid, it shall be the duty of the District Judge, upon the presentation of such return, to grant an order of seizure and sale against the property specified in the assessment roll, which shall be seized and sold without the benefit of appraisement, or such amount as may be necessary to pay the levee tax due thereon, by giving twenty days’ notice in a public newspaper,” &c. See Session Acts, p. 30.

The Judge had before him, annexed to the petition, when he granted the order, a certified extract of the assessment roll, the return of the tax collector, and a document purporting, as it comes up in the record, to be the original ordinances of the Board of Levee Commissioners, authorizing the assessment. Counsel for the defendant alleges it was merely a printed copy, not certified by any authority.

The plaintiffs move to dismiss the appeal, on the alleged ground, that “ there is no such judgment as admits of an appeal. The act of the Judge, in performing the duty required of him by the statute, though a judicial act, does not come •within the meaning of such a judgment rendered as warrants an appeal.”

The appellant contends, first, that the Judge of the lower court could not issue the order of seizure and sale without authentic evidence before him ; that the proof was not authentic to establish the existence of the ordinance ; the capacity of the tax collector ; the verity of his return, and the genuineness of his signature. And secondly, that the order of seizure and sale could not l«gally be addressed to the tax collector, and should have been addressed to the sheriff, as contemplated by the Code of Practice.

On the motion to dismiss the appeal, we are of the opinion that the act of the District Judge, in granting the order of seizure and sale, was a judicial act, from which an appeal will lie to this court. The order of seizure and sale is a proceeding specially defined by the Code of Practice ; and the Legislature must be supposed to have used the term in the act of 1859 in its ordinary sense, and as defined by previous legislation. The object of the proceeding was to raise a sum of money from the defendant by the sale of his property, and to assure a title to the ven-dee, as far as practicable, by a judicial sale, to be conducted contradictorily with the defendant. It has long since been determined that the decree awarding an order of seizure and sale may be reviewed in the appellate court. The first objection made by the defendant is not sustained by the facts. The court was bound to know both the signature and capacity of the tax collector, who is an officer elected and qualified under the authority of an act of the Legislature of a public nature; and he exercises his functions within the jurisdiction of the court granting the order. The return of this officer is authentic evidence, because the act of 1859 has made it competent and sufficient proof to justify the decree. At all events, the certified extract from the assessment roll, and the return of the tax collector, made an authentic and prima facie basis for the decree. On the second ground made by the appellant, we think the order of seizure and sale was properly addressed to the tax collector, who is made by the statute, the collector of taxes in the place of the sheriff. Under former acts of 1857, p. 35, and the fourth section of the act of 1859, by implication recognizes the authority of the tax collector to act in such case, because if declares that the purchaser at the sale made by the sheriff, “ or any levee tax collector,” shall take a good and valid title, &c., p. 31.

The grounds urged by the appellant in his brief and oral argument, as well as the assignment of errors, are therefore insufficient to invalidate the decree of the District Court.

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


author: Buchanan, J. Merrick, C. J.

text:
    Robert R. Barrow v. James S. Miller et als.
    'j'boro cm bo neither increase nor diminution of price on account of disagreement in measure, when the object is designated by the adjoining tenements, and sold from boundary to boundary. C. C. 2471. • •

      Appeal from the District Court of the Parish of Terrebonne, Romani J.

      Connoly & Rightor and C. Belcher, for plaintiff and appellant. F. S. Goode and Beatty & Bush, for defendants.
   Buchanan, J.

This is a petitory action. Plaintiff claims in virtue of a sheriff’s sale, of date the 21st September, 1840, made under executory process, in the suit of The Consolidated Association of the Planters of Louisiana v. Robert J. Walker, to foreclose a mortgage, granted by James Bowie, on the 15th June 1829, and assumed by Walker, the vendee of Bowie.

Defendants allege title in themselves by purchase from Adam Beatty, whom they call in warranty. Beatty calls in warranty his vendor A. A. Laforest. Laforest appears and defends the suit upon a title derived from Robert J. Walker, from whom Laforest purchased, on the 11th day of February 1853, “ all the right, title and interest of the said Robert J. Walker, to that tract of land confirmed in the name of Joseph Felice, containing about one league square, or eighty arpents front by forty deep on each side, including about six thousand four hundred arpents, situate on both sides of Bayou Dularge, sometimes called Bayou Buffalo, in the parish of Terrebonne and State of Louisiana.”

It is thus seen that both parties in this suit hold under the same author, Robert J. Walker. The defendants have alleged various grounds of nullity in the proceedings resulting in the sheriff’s sale under which plaintiff claims; but we see no reason to change the opinion which we expressed of the validity of that sale, in a suit of the warrantor, Laforest, against the present plaintiff, reported in 12th Annual 148.

In fact, the argument of this ease has turned principally upon the question of location of the land mortgaged by Bowie in 1829 to the Consolidated Bank, and seized and sold in 1840, as aforesaid.

Walker’s title to the land,sold by the sheriff vested in plaintiff’s vendor by that sale. The plaintiff is, therefore, entitled to judgment, provided the land occupied by the defendants is covered by his title.

The description of the land in the Act of mortgage, is as follows:

“ A plantation, situated in the parish of Terrebonne, measuring seventy-five arpents on Bayou Boeuf, alias Bayou Du Large, on the left bank of said bayou, by forty arpents in depth; and fifty arpents front on the same bayou, on the right bank, by the same depth of forty arpents, bounded above by other lands belonging to said Bowie, and below by Mr. Edmund Hogan,' on the left bank, and by Mr. William Hargrove, on the right bank of the said Bayou; of which plantation there is now only a small number of arpents in cultivation, the greater part being in standing wood aud wild cane.”

James Bowie, when he granted this mortgage, was the holder, by purchase from the confirmees of two confirmations adjoining each other, on the Bayou Boeuf or Du Large; and which together formed a continuous front of one hundred and sixty arpents, by forty arpents in depth, on both sides of the said Bayou. The upper of them is known as the “ Gabon ” confirmation ; and the lower as the “ Felice ” confirmation.

Previously to his mortgage to the Bank, Bowie had carved the following portions out of the large body of land contained in the Gabon and Felice confirmations :

1st. 1827, April 12. By sale to William Hargrove, twenty-jive arpents front on the right bank of the Bayou, by forty arpents in-depth, to be taken from the lower side of the Gabon confirmation. .:

2d. 1828, November 26th. By sale to Thomas Love, twelve and a half arpents front on both sides of the Bayou, by the whole depth, to be taken off the upper half of the Gabon confirmation.

3d. 1828, November 26th. By sale to Thomas Hurst, five arpents front on the right bank of the Bayou, with the depth of the location, bounded above by the land sold on the same day to Thomas Love.

4th. 1828, December 22. To Edmund Hogan, five arpents front on each side of the Bayou, with forty in depth, bounded above by lands of James Bowie and below by vacant lands.

From the description in the conveyance to Hogan, taken in connection with the previous conveyances, it would seem that the proper location of the Hogan land, was at the lower extremity (by the course of the Bayou,) of the Felice confirmation ; and the evidence shows that Hogan and those claiming under him have occupied land thus located.

The three first named of these alienations of land by Bowie previous to the date of the mortgage, were therefore in the Gabon confirmation ; and the fourth, in the Felice confirmation ; and the interest of Bowie in the two confirmations united, at the date of the mortgage, would seem to have been as follows :

On the right bank, forty-two arpents and a half front, bounded by Thomas Hurst above, and by William Hargrove below ; and seventy-five arpents front, bounded by William Hargrove above, and by Edmund Hogan below.

On the left bank of the Bayou, one hundred and forty-two arpents and a half front, bounded by Thomas Love above, and by Edmund Hogan below.

The quantity of the land on the right bank in the Gabon confirmation was therefore less than the front called for by the mortgage by seven and a half arpents; but this portion of the land on the right bank is bounded below by Hargrove, and therefore agrees better with the calls of the mortgages than the land on the same side of the Bayou in the Felice confirmation. Besides, the land is described in the mortgage, as a plantation. But the only improvements upon the land of Bowie at that time, were at the north end, or in the Gabon tract. On the left side of the Bayou Boeuf, after the date of the mortgage, sold to John G. Banks twelve and a half arpents front, adjoining the land previously sold to Love at the upper or north end of the Gabon confirmation. This sale removed Bowie’s plantation to a distance of twenty-five arpents from the northern line of the confirmation. In order to give the quantity of seventy-five arpents on this side of the Bayou called for by the mortgage, it is, therefore, necessary to include twenty arpents of the front of the Felice confirmation, on the left or east side of the Bayou, to be taken off the northern extremity of the said confirmation, We are inclined to adhere to our decision in the former case (12 An.), that the tract mortgaged should be' taken from the northern end of Bowie’s land, rather than from the southern end adjoining Hogan’s line, for the reasons given in Laforest v. Barrow, and for the further reason, that the other location would sweep all the land held by all the defendants on that side of the Bayou : there being exactly seventy-five arpents in the Felice confirmation,’ north of Hogan’s line.

The counsel of plaintiff has incorrectly styled the sale of the sheriff to plaintiff, a sale per aversionem. The description of the land above given, has not the features of a sale of that kind. O. C. 2471.

Neither can the plaintiff be allowed, as contended by his counsel, to seek for the complement of his, quantity of land on the right bank of the Bayou, by overleaping the Hargrove tract, and taking- land below as well as above that tract. This would be directly contrary to the calls of his title, which gives William Hargrove’s line as the lower boundary, on the right bank of the Bayou, of the land mortgaged by James Bowie to the bank.

It is, therefore, adjudged and decreed, that the judgment of the District Court be avoided and reversed, as to the defendants, James F. Miller Nicholas Fhipps, and William F. Gray : — That the plaintiff, Robert R. Barrow recover of the said James S. Miller and Nicholas Fhipps, a tract of land having a front of twelve and a half arpents front on the left or east bank of the Bayou Dularge, by a depth of forty arpents, described in the petition, and occupied by said Miller and Fhipps — together with two-sixteenths of the costs of the District Court; that the said Miller and Phipps have judgment over their warrantor, Adam Beatty, rescinding and annulling the sale of the land from which said Miller and Phipps are evicted by this judgment; that said Miller and Phipps recover of said Adam Beatty, three hundred dollars, being the one-half of the instalment of interest on their purchase price, due and paid the 1st January 1856, and the 1st January 1857, together with their costs: That the plaintiff, Robert R. Barrow,- recover of William F. Gray, a tract of land described in the petition, and occupied by the said Gray, having a front of seven and a half arpents front on the left or east side of-the Bayou Du Large, by a depth of forty arpents — together with one-sixteenth of the costs of the District Court; that the said William F. Gray have judgment over against his warrantor, Adam Beatty, annulling and rescinding the sale to him by the said Beatty, of the portion of land from which said Gray is evicted by this judgment; that said Gray, moreover, recover from said Beatty, one hundred and eighty dollars, being fifteen-fiftieth of the interest on the purchase price of land, due and paid by said Gray to said Beatty on the 1st January 1856, and the 1st January 1857, and also the costs by said Gray herein expended ; that said Adam Beatty have judgment over against his warrantor Antoine A. Laforest, for the sum of twelve hundred and fifty dollars, being the one-eighth of the purchase price of the sale by said Laforest to said Beatty, of .the Felice confirmation — together with the said Beatty’s costs under this judgment; that as regards the defendants, Hubernille Arcenaux, Lange Frement, Jean Baptiste Boudreau, Clairville Guidry, Joseph B. Durey, A. E. Porche, Andre Brien, B. F. Haines, Maxilian Hebert, Joseph Marcellin Leblanc, Joseph Doudet, Joachim Bodreau; and C. Florentin Michel, the judgment of the District Court upon the verdict of the jury be affirmed ; that the plaintiff, Robert R. Barrow, pay thirteen-sixteenths of the costs of the District Court; and that, the costs of the appeal be paid, one-half by the appellant, and one-half by Antoine A. Laforest, the last warrantor and appellee. It is lastly decreed, that the question of improvements made by the defendants, Miller, Fhipps and Gray, upon the land from which they are evicted by this judgment, be reserved for further adjudication.

Same Case — On a Re-hearing.

Merrick, C. J.

A re-hearing was granted in this case on' the application of' both plaintiffs and defendants.

After a careful re-examination of the questions discussed, we have concluded that our former decree ought to remain undisturbed.

It is, therefore, ordered, that the decree heretofore pronounced by us in this case remain undisturbed.


text:
    Samuel Templeton v. Board of Levee Commissioners.
    It is not the State tax roll which creates the indebtedness for the local tax, it is the ordinance which levies the tax. Hence a person who has removed with his property out of the State, after the assess • ment of the State tax, but before any local tax is assessed, is not indebted for such local tax.
    "Where an order of seizure and sale improvidently issues, the judgment of the lower Court, directing it, will be revoked.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Wm. O. Wyly, for plaintiff and appellant.. Hugh Short, for defendant.
   Merrick, C. J.

Joseph Templeton, for many years a planter of Carroll parish, Louisiana, concluded to sell his land to Samuel Templeton, and removed his negroes to Warren county, Mississippi. He accordingly did so by authentic act of sale on the 8th December, 1858.”

“ On the 22d day of October, 1859, the levee board made an assessment of Joseph Templeton’s levee taxes for 1859, on all his property found on the assessment roll of 1858, including negroes, &c. Joseph Templeton moved his property to Mississippi on the 8th of December, 1858.”

“Sanders D." Olivier, levee tax collector, advertised for sale, on the 29th September, 1860, the land Joseph Templeton had sold plaintiff, to pay Joseph Templeton’s levee taxes for 1859, stating in his advertisement, that he offered it by virtue of an order of seizure and sale. No order of seizure and sale in favor of the levee board, and against the plaintiff’s vendor, was filed in the clerk’s office when this seizure was made. Plaintiff was not made party to any order of seizure and sale sued out by the levee tax collector against Joseph Templeton, although he had possessed the land as owner since 18th December, 1858.”

The present suit is by way of third opposition to the order of seizure and sale, addressed by the District Judge to the tax collector, upon a petition or paper which (as already said) was never filed in the clerk’s office. The judgment of the lower court was in favor of the defendants, the levee commissioners; and plaintiff appeals.

The case presents these questions:

Could the assessment under the act of 1859 be made to have a retroactive effect, so as to create a debt, by relation to the property possessed by Joseph Templeton in 1858 ; and was there any lien for the tax in 1858 at the time of sale ? Was it not necessary that the order of seizure and sale should issue under the seal of the court; and was it not irregular to address it to the tax collector for execution ?

Por the decision of this,case, it is sufficient to consider, and answer the first of these questions. The State tax is assessed under general laws, and the assessment is made the basis iipon which the parish taxes are levied. As the laws under which the State tax is levied are permanent, the State tax may be said to be assessed when the tax roll is completed. But, in regard to parish, or other local taxes; which depend upon an annual ordinance for their existence, they cannot be said to be assessed until the ordinance fixing their amount has been passed. When it'is passed, it refers to the previous assessment of the State tax as the most convenient mode of ascertaining the persons liable to the local tax, and the amount for which they are responsible. It is not the State tax roll which creates the in • debtedness for the local tax, it is the ordinance which levies the tax. Hence, a person who has removed with his property out of the State, after the assessment of the State tax, but before any local tax is assessed, is not indebted tor such local tax; and it would be absurd to insist, that property and persons in a foreign jurisdiction, were subject to taxation here.

The statute of 1859, authorizing the assessment by the Board of Levee Commissioners, is in itself clear as to the time it is to take effect. It declares that the tax herein imposed shall be a first lien and privilege upon the property subject to the same, from the date of the assessment made by the said Board of Levee Commis sioners, p. 30, sec. 3. How then can it be said, that the tax to be assessed by them under this law, could bind persons who had no property here when the law itself .was'passed, and have had none since its passage?

As thé third opponent owned the land when the assessment was'made by the Board of Commissioners, it may be that it is subject to assessment in his hands. But that question cannot arise in this case, as there is. ho' reconventional demand, and the question in this suit is the one already considered, viz., does Joseph Tem-pleton owe the tax levied under the statute .of 1859 ; and if so, does it operate as a mortgage and privilege upon the property of the third opponent, bought in 1858, almost a year previous to the assessment of the levee tax against Joseph Templeton ?

It appears to us that the order of seizure and sale against Joseph Templeton issued improvidently, and that the seizure of the property of Samuel Templeton was illegal. The judgment of the lower court must, therefore, be reversed. See 15 An. pp. 89, 107.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed ; and it is now ordered, adjudged and decreed, that said defendants, the Board of Levee Commissioners, and said S. D. Olivier, said tax collector, do release said property seized by them to pay said tax of said Joseph Templeton, and restore the same to the said Samuel Templeton, as the owner thereof. And it is further ordered that said board of levee commissioners, and said S. J). Olivier, pay the costs of both courts.


author: Me&rick, O. J.

text:
    Robert P. Ford v. Catherine P. Danks.
    Whefe no complaint has been made in regard to the manner in which an agent’s duties have been performed, he is presumed to have acted within the sphere of his authority*

      Per curiam: The policy of our law is to discountenance all restraints upon the rights of the ownefi* of property to use and dispose of the same as he shall see fit.
    The abandonment of service, even, for a day, gives the employer a right to dispense with the employee’s further services.
    Appeal from the District Court of the Parish of Terrebonne, Roman, j.

      Aycoclc & Woods, and F. S. & J. S. Goode, for plaintiff. Connelly & Right- or, for defendant and appellant.
   Me&rick, O. J.

This is a suit brought by an overseer to recover §800, his alleged wages for the year 1858, He had judgment in- the District Court upon the verdict of a jury, and the defendant appeals.

The proof and admissions in the brief show that the plaintiff was employed by the defendant at the rate of §800-per annnm. It is further shown that the plaintiff entered upon his duties as overseer and continued so employed until the 20th day of March, when he left the plantation, declaring that he would not oversee upon the same, because the defendant had sold the place to Dr. Robertson, and that ,he intended to claim his year’s wages. But being advised by others, that it would be better to return and be discharged, he went back and slept on the plantation that night. He was absent again on Sunday, but on Monday morning, he took possession of the negroes, and countermanded the orders of Dr. Robertson after having then or previously wantonly broken to pieces a pair of stocks which belonged to the place, and which he had made with the assistance of one of the negroes. :

Dr. Robinson, who was the son-in-law of the defendant and her agent, called the plaintiff to the house and offered to pay him for the time he had been employed at the rate of §800 per annum. This was refused by plaintiff, who on leaving, demanded his year’s wages. In the conversation the plaintiff claimed the right to continue to oversee. Robertson informed him that after having once abandoned the place, he had no right to return, and that he did not desire, and had not engaged his services. .

The defendant sold the plantation to Robertson the day before Ford left the same, on the Saturday previous to his discharge by Robertson. Anterior to the trial the defendant made a legal tender of §198 and costs. The plaintiff reserved a bill of exception to the competency’of Robertson as a witness :

The following points are made in this court by the plaintiff’s counsel.

1st. Dr. Robinson was not competent as a witness, because he was bound as agent for his fault in discharging plaintiff.

'' 2d. The contract is personal in its' character, and the sale of the plantation was a discharge of the overseer.

3d. That if the second proposition is not sustained, it is then contended, that plaintiff was discharged without cause.

4th. And defendant contends that after plaintiff had voluntarily abandoned the place for the avowed purpose of recovering his entire wages for the year, he can no longer be hoard to say that he has been discharged without cause.

' I. R does not appear to us that the District Judge erred in receiving Dr. Robertson’s testimony. There is nothing to show that the defendant has made any complaint in regard to the manner in which the agent’s duties have been performed. The plaintiffs action is based upon the supposition that he had been discharged by the defendant, which should not be the case if the witness had acted without authority. See Ducros v. Jacobs, 10 Rob. 454, 455. 1 Greenleaf, Evidence, No. 416.

II. We see nothing personal in the contract with the overseer in the sense intended by plaintiff’s second proposition. He is employed to oversee a certain plantation. There is nothing in the nature of duties to be performed, which may not as well be performed for the vendee as the vendor. If the party who employs the overseer should die, the latter would be expected to continue to perform his duties for the benefit of the heir, the administrator or legatee, who might be put in possession by the probate court, and this .is but reasonable, for the overseer has a privilege upon the crop for the wages of the whole year, and equity demands that he should do all in his power to earn the salary which is thus secured to him.

Again while the law secures the salary of the overseer by the privilege upon the crop, we cannot think it intended to impose so heavy a penalty upon the alienation of a plantation as the forfeiture of the wages of the overseer. The policy of our law, on the contrary, is to discountenance all restraints upon the rights of the owner of property to use and dispose of the same as he shall see fit.

Ill & IV. The testimony is clear that on the Saturday after the sale, the plaintiff left the plantation with the intention of recovering his whole year’s wages, which, it seems, he supposed were due by the sale of he plantation ; that he had determined to oversee for the vendee, Dr, Robertson, &c.; that he returned only after he had been advised that it was necessary that he should be discharged in order to recover his year’s wages, and for the purpose of making a case by provoking such discharge. VWe are of the opinion that the abandonment by the plaintiff, even for a day, gave the defendant the right to dispense with his further services.^ We are therefore of the opinion that the jury erred in rendering a verdict for the salary of the whole year. The tender made on the 6th day of June 1860, appears to have been sufficient.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be avoided and reversed ; and we do now order, adjudge and decree, that the reconventional demand be rejected, that the plaintiff do have and recover judgment against the defendant upon the demand contained in his petition for the sum of one hundred and ninety eight dollars, and all costs which may have accrued in this suit prior to and on the sixth day of June, A. D. eighteen hundred and sixty, and that the plaintiff pay all costs subsequent thereto, including the costs of appeal.


author: Duefel, J.

text:
    Louis Ranson v. C. H. Labranche et als.
    A plaintiff in a case of damages ex delicio must make his case certain to entitle him to a recovery. A probable case will not satisfy the exigence of the law in.an action.
    No damage will be allowed on a simple charge of negligence, imprudence or want of skill, unless such negligence, imprudence, or want of skill, be conclusively established.
    Appeal from the District Court of the Parish of St. Charles, Burthe, J.

      T. J. & A. G. Semmes, for plaintiffs and appellants. H. St. Paul and D. Augustin, for defendants.
   Duefel, J.

The plaintiff charges that, by reason of a crevasse which occurred on the plantation of the defendants, on the 3d of May, 1858, he sustained damage, by the loss of his entire crop, &c., to the extent of one hundred thousand dollars; which he now claims.

The action is based, first, upon the neglect and default of the defendants, in not constructing their levee according to the regulations of the Police Jury of the Parish of St. Charles ; secondly, in not keeping their levee in proper repair..

It is therefore evident that the burthen of proof is with the plaintiff, and that he must fail, unless he makes good, at least, one of his counts. A probable case will not satisfy the exigence of the law in an aetion of this kind, nor will the fact of a crevasse raise a presumption against the defendants; in short, the plaintiff must make his ease certain, to entitle him to a recovery. Greenleaf on Evidence, vol. I, sec. 80, 4th ed.; Morgan v. Mitchell, 3 N. S., 576; Gibson v. Foster, 2 An. 507.

Having thus laid down the rule which, we think, should govern in cases of this kind, we will now proceed to the evidence.

And first: the evidence shows that three other breaks occurred in the levee of the defendants in 1858; but the loss is attributed to the first crevasse, and we are satisfied that the three subsequent ones had for immediate cause, the diversion, in part, of the force of the current from its usual channel, in consequence of the crevasse of 3d May, 1858, thus adding to the ordinary pressure of the water against this levee, an unforeseen an unexpected current.

On the first point. Did the defendants neglect to construct their levee according to the regulations of the Police Jury ?

The defendants’ levee was made in 1853, and the ordinances of the Police Jury were promulgated in the same year: the 24th article provides that “ every levee which shall contain- one perpendicular foot of water (mass), and not above three feet, shall have at least five feet base for each and every foot in height; every levee which shall contain more than three perpendicular feet of water, and not above five feet, shall have at least six feet base for each and every foot in height; every levee which shall contain more than five perpendicular feet of water, and not above six feet, shall have at least seven feet base for each and every foot in height; every levee which shall contain above six perpendicular feet of water, shall have at least eight feet base for each and every foot in height. The summit of every levee shall be of the breadth of one-third of its base. Finally, every levee shall be of such a height, that after the settling of the earth, it be still raised one foot above the level of the water when highest.”

The weight of evidence tends to the conclusion that the river rose higher in 1858 than it had for years before, by at least five inches, and that the levee was from eight to twelve inches above the water on the day of the crevasse. Thus it is evident, that we cannot with certainty affirm that this levee was wanting in height before the year 1858, even by subtracting therefrom the elevation of seven or eight inches, which had been made during the rise of the river. Planters are not required, at their peril, to calculate, within a fraction, the dimensions of their levees, when, as is the case in the'Parish of St. Charles, syndics are appointed to inspect the levees, and to direct and order the necessary works and repairs : a reasonable compliance, on their part, with the police regulations, when not otherwise in fault, will not subject them to heavy damages.

The summit of the levee and its height, were only taken a few hours after the occurrence of the crevasse, at a distance of about ten feet from the break ; the summit was found to be three and a half feet and the height six and a half feet, from which known facts it was demonstrated, by calculation, that the base could only have beenjtwenty-three feet, when, under the ordinance, it should have been at least thirty feet, with a breadth of ten feet on the summit.

Thejonly witness who measured the top and height of the levee, and who speaks of its width, on top, and base, says: The measurement was taken eight or ten feetjfrom the crevasse; much of the levee had already been washed away. The portion of the levee which witness measured, had not been washed away when he took the measurement.”

When we consider that the river was at that time at an unprecedented height ; that the levee had been elevated some seven or eight inches in haste; that it had been fascined during the rise to prevent its further degradation, and to guard it against the beating waves of the raging element; we cannot, on a vague expression of a single witness, that the levee had not been washed away, conclude that the summit of the levee was deficient in width when constructed, or prior to the rise of 1858. And it results, as a natural consequence, that as we have no known or admitted summit, no base, in the case at bar, can be ascertained by calculation. We therefore conclude that the plaintiff has failed to make out conclusively his first point.

On the second point: Have the defendants neglected to keep their levee in good repair?.

The 23d and 39th articles of the regulations of the police jury, provide, in substance, that all owners of land on the Mississippi river, shall constantly keep in perfect repair, a road and levee on the whole front of their land, and shall, as soon asBapprised and required by the syndic, dig and fill up, every year, the holes which crawfish, muskrats or other animals may make, and use all means to prevent the progress_of such holes as may appear during high water.

The evidence shows that there was a crawfish hole, at the very spot where the levee gave way, which increased from five to twelve inches in size; that the hole made its first appearance in 1854, and was considered, during the high water of 1858, dangerous by several persons; that no attempt was made to stop it, although two days before the crevasse, the plaintiff’s overseer expressed to the defendant’s overseer his fears of a crevasse on account of this hole, the reply of the latter being that there was no danger. The defendant’s overseer also stated to the plaintiff, “ that he could not make a breastwork outside of the levee, as such work might be injurious and occasion a breach in the levee; nor could it be made inside, as it would stop the road and be making a piece of new levee, not likely to succeed ; and that there was no danger, in fact.”

On the other hand, the defendants show that they were very particular in keeping their road and levee in apparently good order and repair; that they worked yearly on their levee, and never received any order from the syndic; that the hole spoken of above had, the year before, been stopped by cutting the levee, filling up and ramming the dirt down; that the levee was protected by an old levee immediately in front, a plateau or batture existing between the two ; that as the river rose, the plantation hands were kept working on the levee all the time, keeping a watch during the night; that the levee had been all fascined with planks and pickets lined with bagasse. One of the witnesses says that “ there was always a great deal of work done on the levee at Labranche’s. There was a workman employed on their plantation, who always worked at least two .months every year on the levee.”

The syndic who had been named, the day after the crevasse, in the place of Rixner, who had resigned on the 24th April, 1858, says : “ Has known the La-branche plantation since his childhood. Passed there frequently. Always saw the plantation in very good order — fences, roads, ditches and levees, always well taken care of, &c. When the witness first saw the crevasse, at 9 o’clock a. m., on the day it occurred, the break was about thirty feet wide. The balance of the levee, near the crevasse, appeared good, and would not have been condemned by witness in his capacity of syndic.”

N. St. Martin, sworn, says : “ Has been sheriff of the parish since the last fourteen years. In said capacity has had occasion to travel up and down the coast; has always found the Labranche plantation in good order, as to roads, fences, levees, &c.”

Dr. Lestrade, sworn, says : “ The levee of defendants appeared as good as that of any other planter. The roads, ditches, &c., are as good as the best that witness is in the habit of seeing in St. Charles and St. John the Baptist.”

Another witness says that he has seen crawfish holes in almost all the levees in the Parish of St. Charles in 1858.

Loriot, the defendants’ overseer when the crevasse occurred, says : “ Never worked in stopping crawfish holes in high water; has seen such attempts made, but unsuccessfully. Has seen many such holes as the one mentioned, in front of other plantations, and in the levees. There were some at Bourgeois’, at Chauvin & Levois’. There were two at R. Taylor’s. Some of the holes spoken of above were stopped at low water, after unsuccessful attempts to stop them in high water. Was present when they attempted to stop one at Taylor’s; the attempt did not succeed.”

Champagne, being sworn, says: “ During the night of the crevasse it rained very heavy — terrible weather. The wind was very high, blowing from the northeast. The wind and waves so strong that the mailboat could not make the landing at Taylor’s. Witness could not stand on the levee, the waves washed over it. The boat landed at McCutchon’s, on the opposite side. Saw crawfish holes in the levees, one at Champagne’s, one at Zéringue’s, one at Labranche’s. The last one did not appear worse than the others. The one at Davis’s looked larger. It is not easy to stop holes during high water.”

Another witness, Touzanne, says : “ On the day of the crevasse, on the whole distance, from Labranche to Davenport, found that the river passed over every levee, with the exception of three plantations, viz., Dorvin’s, Ohaqvin & Levois’, and Davenport’s. Has seen many crawfish holes this year (1859): witness has attempted to stop at least fifty such holes; never succeeded. In 1858 saw a good many; in fact, there were holes in almost every levee. Never knew of attempts to stop crawfish holes to prove successful. At Taylor’s, they tried two or three times, without success. At Bougere’s they had boxed a hole, and the box was in the road ; still the water continued to flow. At Bourgeois’, they had boxed the hole outside of the levee, and the attempt was equally unsuccessful. At Augus-tin’s, the box was made both inside and outside of the levee, with no better success. At none of these places did crevasses occur.”

Ursin Cliteaux, Taylor’s overseer, being sworn, says: “ In 185V, had two crawfish holes in his levee (Taylor’s levee); one had about three inches diameter ; made a great deal of work to stop it, but did not succeed. The first work which witness did was a breastwork outside, in high water, when the hole was discovered. 'When the river went down, dug almost the whole depth of the levee, and two-thirds of its width on a length of one hundred and twenty feet. It was dug at a depth of seven feet. Witness would then put about one foot of dirt and ram it down. Did so until the hole appeared completely stopped. Notwithstanding all this work, the hole is still running.”

Theodule Broa, being sworn, says: “ Before the crevasse, saw crawfish holes all along the coast, and in St. John the Baptist; saw one at Labranche’s, at Chauvin & Levois’, at Whitehead’s. The weather was terrible on the night of the crevasse — heavy wind, strong lightning. The evening preceding the crevasse, passed before the Labranche levee at eight o’clock in the evening. In going down before night, saw the hole in the Labranche levee, which he did not believe dangerous, from having seen similar holes in other places.”

The sheriff, St. Martin, says that about eight days before the crevasse, Lake stated to him that there was a dangerous hole in the Labranche levee, but that he did not consider it more so than similar ones which he had seen. “ If witness had deemed it dangerous, he would have considered it his duty to notify the owners.”

Touzanne, a witness for plaintiff, says: “ Last year (1858) the river was higher than witness ever saw it; in many places the water passed over the levees, and planters had to overtop them all the time. In that year the States of Louisiana, Mississippi and Arkansas were inundated by a great many crevasses. Almost all the levees were cut by crawfish holes.”

Mayronne, another witness for plaintiff, says : He considered the whole parish as being in great danger. The weather was very bad, and had been the day before, and during the night; there was a great deal of wind and rain. The waves were heavy, the storm was very violent; the rain was such as to wash the levees and roads.”

Leche, another witness for plaintiff, says: “ All along the coast, from Zé-ringue’s up to Boussel’s, the levees had to be raised in haste to keep up with the water, by means of planks, dirt and bagasse. The same work had been done on the Labranche levee. It appeared like anywhere else. With the exception of the hole mentioned by witness, the Labranche levee appeared very sound.”

Levet, still another witness for plaintiff, said, on his cross-examination : “ Witness trades on the river as high as Donaldsonville. From Donaldsonville to the city, all the planters were very busy working in raising their levees, in consequence of the high stage of the water. The water was very high before the crevasse, and running over almost all the levees,” &c.

We attach very little importance to the circumstance that the summit of the levee was only, on the day of the crevassev three and a half feet in width, for the pickets and bagasse placed in front show conclusively that it was to prevent its further deterioration; that the levee had been previously mined by the waves, would not, under the evidence, be questioned by planters bordering the Mississippi ; and no blame can attach on this score, when, as the facts show, the defendants employed the means in use in the neighborhood, and kept their hands constantly at work on the levee.

Beason would teach us that when, as was the case here, the same state of things existed in a whole community without any apprehension of danger, excepting from a few, and with the honest belief by many, based on facts, that the cause of the danger, if any danger existed, could not be guarded against, no damage will be allowed on a simple charge of negligence, imprudence or want of skill, unless such negligence, imprudence or want of skill be conclusively established.

A close examination of the whole case, satisfies us that the defendants must be fully acquitted of any imputation of gross neglect, and leaves us in doubt, to say the most, of any want of care, prudence or skill on their part. We cannot say, from the evidence, that the calamity was not wholly due to the act of God.

It is therefore ordered, that the judgment of the District Court, which was in favor of the defendants, be affirmed, with costs.

Land, J., absent.


author: Merrick, C. J. . Merrick, O. J.

text:
    Hamilton M. Wright v. Oakey, Hawkins & Co.
    Where a third person in whose possession property of the defendant is attached intervenes in the suit and bonds the property, his liability on the bond will be irrevocably fixed by a final judgment against him, in the same manner as the defendant himself would have been bound if the property had been released on a bond executed by him.
    A third person for whose advantage a stipulation is made is entitled to an equitable action to support the stipulation ; and where the proceeding against the surety on a bond for the release of property attached is not by rule under the Act of 1839, but by a direct action on the bond, the assignment of the bond to thejplaintiff by the Sheriff is not essential.
    APPEAL from the Fourth District Court of Kew Orleans, Price, J.

      Clark & Payne, for plaintiff. R. Mutt, for defendants and appellants.
   Merrick, C. J.

This suit is the sequel to the case of Wright v. White, decided in this Court, term before the last. In that case judgment was entered in favor of plaintiff against White , with previlege upon the property attached. This property had been delivered to Oakey, Hawkins & Co., intervenors, upon their giving bond, with defendant John D. Rein, as surety. An execution issued upon that judgment, and was returned, no property found after demand of Stansbury, (attorney for absent defendant), Hawkins R. Mott, attorney for intervenor and attorney for plaintiff. This suit is instituted upon the bond of Oakey, Hawkins S Co., principals, and John D. Bain, security, as forfeited. The defendants excepted to the petition on the grounds :

1st. “ That they had been sued by Mrs. White et als., for the cotton attached, that they had called plaintiff in warranty, and the rights of all parties should be tried and decided in that suit.”

2d. That if this suit is allowed, they are in danger of being compelled to pay the proceeds of the cotton twice, and besides lose the money advanced on it.”

3d. Because the present proceeding is oppressive and unjust.”

“ The exception was overruled. The defendants then plead a general denial, and especially, liability on the obligation sued on. Judgment was entered for plaintiffs for the amount of proceeds of the cotton and interest, and the defendants appealed.’.’

Where the defendant in attachment bonds the property, it is upon condition that he and his surety will satisfy such judgment as may be rendered against him in the suit pending.

The courts by analogy have extended this provision to third .parties where property has been seized in their possession; and they are permitted to bond on the same condition.

When the defendant releases the property on bond he undertakes to make successful defence to the action, and if he fail, his liability upon the bond becomes irrevocably fixed by the final judgment. So, too, with the intervenor : he undertakes to justify the delivery of the property to himself in the suit to which he has voluntarily made himself a party, and it behooves him to consider whether he be able to maintain himself in such controversy. He assumes by his intervention that he is the agent of the true owner, and that he has the right to intervene on account of the property. If he fail, he becomes responsible upon his bond and he cannot be permitted to litigate the action again upon other issues. There must be an end to the controversy.

Whatever has been said in the case in 2 Rob. 611, contrary to the above conclusion, is overruled. See Kendall v. Brown, 7 An. 688.

Judgment affirmed.

Same Case. — Applicatton for a Re-hearing.

. Merrick, O. J.

An application for a re-hearing has been filed in this case, in which a point made by appellants in their original brief, and overlooked in the opinion rendered by us, is again called to our attention.

It is contended “ that the bond sued on is not the property of the plaintiff, but still remains the property of the Sheriff,” inasmuch as the bond was not transferred to the sheriff/

The Act of 1839, p. 163, sec. 3, amending Art. 269 of the Code of Practice, declares, “ that in cases of attachment, when the defendant has given his bond, with security, as by said article provided, and fails to satisfy the judgment rendered against him, the plaintiff may, on the return of the sheriff that no property has been found, and on exhibiting to the court said obligation duly transferred to him, obtain judgment against the surety on said obligation, upon motion after ten days previous notice to said surety, which motion shall be tried summarily and without the intervention.of a jury, unless the surety shall allege under oath that the signature to the bond purporting to be his, is not genuine, or that the judgment has been satisfied.”

It is argued that the law does not make vain provisions, and that it is essential to the action that the bond should be duly transferred. It is further contended that the bond (of the intervenor, we presume,) might in certain contingencies belong to the defendant.

Although the bond itself is made payable to the sheriff, yet the condition shows, that the primary object of the instrument is to indemnify the plaintiff and substitute for his benefit the obligation of the defendant or intervenor and surety in the place of the property attached. Now our law without assignment of the instrument, expressly gives the third person for whose advantage a stipulation is made, an equitable action. 0.0.1884,1896. 0. P. 35. '

There are two modes of proceeding then, allowed upon such bond, one a regular suit, by formal citation ; the other by motion under the statute.

This is an action in the first of said modes. Moreover, no issue was made that the bond was not transferred, and it was offered in evidence'without objection.

Whether in a rule or motion, under the statute, a party can proceed without - showing an assignment of the bond to himself, (where the proper defence is made), it is not necessary now to determine.

The petition for a re-hearing is therefore refused.


author: Yoorhies, J.

text:
    P. Pelanne v. A. Coudreau.
    The owner of a building is not personally liable to a sub-contractor who has been employed by the contractor in making additions or works upon the building.
    The contract between the owner and contractor, while it is not binding on the sub-contractor, may still be used in evidence to show in what capacity the former were acting.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      C. Bufour, for plaintiff. G. LeGardeur, for defendant and appellee.
   Yoorhies, J.

The defendant, A. Coudreau, is the owner, of a building, the verandah of which was put up by the plaintiff, P. Pelanne.

The point of disagreement between these parties, is as to the person who is bound for the payment of these works; and this presents the question, whether the owner, of the house, or the contractor, is personally responsible to the plaintiff.

The contractor, examined as a witness, states that he made the contract in his own name with Pelanne. By the contract between the defendant and this witness, the latter had bound himself to furnish the verandah and to pay the workmen. On the other hand, it appears that Coudreau himself selected the pattern of verandah to suit himself, and was often at the foundry to attend to the matter. But it must be observed that, in the contract to build his house, he had reserved to himself the right to select the pattern.

There is, therefore, no conflict in’ the evidence; and, although the contract between the owner and the contractor be not binding on the plaintiff, yet it serves to show in what capacity the former were acting in the premises. The contractor is, under the evidence, the only party that dealt with the plaintiff.

The defendant is not personally liable for the amount of the plaintiff’s claim. The judgment of the court below does not, however, prejudice whatever rights or privilege which the latter may have as a sub-contractor: there need be no reservation in this court.

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


text:
    Patten, Lane, Merriam & Co. v. Powell & Brother.
    Sureties on. an attachment bond are not parties to the suit,, stricli juris, and need not be made parties • to an appeal.
    The general rule which requires that all parties interested in maintaining the judgment appealed from must be made appellees to the appeal, is limited in its operation to the parties to the suit, and does not extend to third persons interested in the judgment as rendered.
    Third persons may appeal from a judgment when they allege that they have been aggrieved by it, but the law does not require the appellant to make them (when not parties to the cause) appellees.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Singleton & Clack, for plaintiffs and appellants- Durant & Honor, for defendants.
   Land, J.

This case has been submitted on a motion to dismiss the appeal, on the ground that the sureties of the defendants have not been made parties to the appeal.

The suit was commenced by attachment, and the defendants appeared and released the property seized by the Sheriff under the writ, by giving bond and security in pursuance of law. They afterwards took a rule on the plaintiffs to show cause why the attachment should not be dissolved; the rule was made absolute, and the plaintiffs appealed from the interlocutory decree dissolving the attachment, without making the sureties parties to the appeal thus taken. The only question presented for our decision, on the motion to dismiss, is whether the sureties of the defendants are parties to the suit, and as such have an interest in maintaining the judgment appealed from by the plaintiffs.

The sureties have an interest in maintaining the judgment appealed from, for the effect of the decree is to discharge their liability on the bond given for the release of the property attached, but they are not’ parties to the suit in which the judgment was rendered ; they are not made parties by the pleadings ; nor is there aDy law which makes them parties to the suit in the absence of pleadings.

The general rule which requires that all parties interested in maintaining the judgment appealed from must be made appellees to the appeal, is limited in its operation to the parties to the suit, and does not extend to third persons interested in the judgment as rendered.

The law provides that third persons who were not parties to the cause in which a judgment has been rendered, may appeal from the same, when they allege that they have been aggrieved by the judgment, but the law does not require an appellant to make third persons who were not parties to the cause, appellees to his appeal, although such third person may have an interest in maintaining the judgment and may be aggrieved by its reversal.

It is, therefore, ordered, adjudged and decreed, that the motion to dismiss the appeal be overruled.


text:
    Robert A. Hunter, State Treasurer, v. Robert W. Williams et als.
    The State is hut a trustee of the lands granted it by Cpngress, or their proceeds, for the benefit of the inhabitants of the townships, and where notes are made payable to the State Treasurer he may well stand in judgment for the rescission of the sale for the non-payment of the price.
    The action to rescind a sale for non-payment of the price is prescribed by ten years. The Court has the right to grant some indulgence to the debtor, provided it does not exceed six months.
    Appeal from the District Court of the Parish of Carroll, Farrar, J.

      Andrew R. Hynes, for plaintiff and appellant. Goodrich & DeFrance, Sparrow <& Montgomery, and Short & Parham, for defendants.
   Merrick, C. J.

The case appears to he correctly stated by defendants’ counsel in their brief, from which we quote as follows, viz : “ This action is founded on four notes drawn by Wyley Davis in favor of George C. McWhorter, Treasurer of the State of Louisiana, or his successors in office, each for the sum of one hundred and sixty dollars and sixteen cents, dated 20th January, 1851, payable on the 20th January, 1852, ’53, ’54 and ’55, respectively, with six per cent, interest from date. These notes were given for the purchase of school land sold under the provisions of the statutes providing for the sale of the school lands on the consent of the citizens of the township.” The citations are not in the record. The answers were filed December 6,1859.

“ The petition sets forth the price was not paid by any of the parties into whose hands the lands had passed; that the act of sale was a commutative contract, etc., and that the plaintiff has a right to have the price paid, or to have the land surrendered, as upon the dissolution of the contract, and Knox, (administrator of Wyley Davis,) William G. Connor and R. W. Williams are made parties to the suit. Knox, the administrator of Wyley Davis, filed an answer showing the condition of the succession of Davis, how it had been sold, and the disposition which had been made of the proceeds, and pleads the prescription of five years.”

“William G. Connor, in his answer, takes the position that the probate sale released all the liens on the laud created by mortgage or otherwise, but calls the administrator in warranty, and Williams calls Connor in warranty.”

The prayer of the petition is, that R. W. Williams be ordered to pay the price for which the property was sold, and in default thereof to surrender the land, in compliance with, the resolutory condition of the sale.”

The judgment of the lower Oourt is, that the plaintiff recover three hundred and twenty dollars, with six per cent, interest from the 20th January, 1851; and that if R. W. Williams does not pay the amount by the 6th day of June, 1860, then that the plaintiff have delivered to him the land for the use of free schools in the State of Louisiana, etc.”

“ From this judgment the plaintiff appeals, and the defendants have also filed a. prayer for the correction of the judgment, upon the grounds that if the plaintiff has any right of action on the notes which are not .prescribed, it can only be against the succession of Wyley Davis, or the heirs of Wyley Davis, who have received the proceeds arising from the probate sale ; that the probate sale extinguished all right of action on the mortgage, so far as to enforce it against the land. The defendants contend, also, that even if the right of action to enforce the mortgage on the land does exist, it could only extend to two of the notes, as two of them were prescribed when the action was brought.”

The record comes up without any evidence, and the case depends on the admissions contained in the answers of the defendants. The only evidence of a demand of payment of the notes of the vendee is this suit, in which plaintiff demands the price, and in the event of non-payment, the rescission of the sale. There is no proof in the record showing that the land was sold at the probate sale of the property belonging to Davis’s succession.

Defendant contends that the State Treasurer has not the right to prosecute this suit for the rescission of the sale; that the probate sale extinguished the mortgage as to the thing, and that the action of rescission cannot lie against a third possessor holding under a probate sale.

Plaintiff contends that the plea of prescription will not avail defendants. We see no objection to the form of the action. The notes are made payable to the State Treasurer, and we think he may well stand in judgment for the rescission of the sale for the non-payment of the price. The State is but a trustee of the lands or their proceeds, for the benefit of the inhabitants of the townships, &c. See Act of Congress, 15th Feb., 1843.

It is unnecessary to consider the question whether a probate sale extinguishes the action of rescission with the vendor’s privilege, for there is no evidence in the record of any such sale.

We are of the opinion that this suit in the alternative, and defendants’ denial of plaintiff’s right, are a sufficient putting in default to entitle the plaintiff to demand a rescission of the sale for the non-payment of the price.

The defendants rely upon the plea of prescription. They admit that two of the notes given as part of the price are still due. The action to rescind a sale for non-payment of the price, is prescribed by ten years. See Jones v. Crocker, 1 An. 442, and George v. Lewis, 11 An. 654. Article 2540 C. C. gives the court the right to grant some indulgence to the debtor, provided it does not exceed six months. In this case the defendants have had a credit up to this date, of over ten . years, and they avail themselves of the delay to plead and insist upon prescription to two of the notes! Under these circumstances, we do not feel disposed to accord to them any further delay, and we will at once rescind the contract. See 14 An. 713.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the-lower Court be avoided and reversed; and we do now order, adjudge and decree, that said sale of said school lands described in plaintiff’s petition to said Wyley Davis be rescinded ; and said lands are hereby ordered to be restored by the defendants to the lawful authorities of the State, for the benefit of the schools of the district to which said lands belong; and it is further ordered, adjudged and decreed by the Court, that the defendants pay the costs of both Courts, and that their rights in warranty against each other be reserved them.


text:
    Driver & Pierce v, William L. Miller and George H. Kirk.
    The testimony of the drawer of a draft in a suit against himself and first endorser, to the effect that the paper was accepted tor their accommodation, is insufficient to charge the endorser. It is clear that such imperfect proof, tending to avoid the very promise of the drawees, implied by the acceptance in favor of the payee>could not have the effect of defeating the action.
    Appeal from the Second "District Court of New Orleans, Morgan, J.

      L. Costera and C. Hunt, for plaintiffs. R. & H. Marr, for Kirie, defendant and appellant.
   Merrick, C. J.

This suit is brought by the plaintiffs, as the acceptors of two drafts, to recover the amount paid upon the same from the drawer and first indorser, on the ground, that the paper was accepted for their accommodation. The proof shows that the drawer, William L. Miller, bought of one Langhorn one-fourth interest in the charter of the steamboat Messenger, and that Langhorn was the debtor of George H. Kirie, the indorser, on account of the charter of the boat; that Miller handed these drafts to Langhorn, and that the latter delivered them to Kirk in payment. Kirk negotiated them in bank. There is negative proof tending to show that Kirk had no dealings with Driver & Pierce, but Miller had. It is also shown that Miller promised Langhorn to procure their acceptance.

The drawer, Miller, was examined as a witness by the plaintiffs. He corroborates the other witnesses as to the indebtedness of himself and Langhorn to Kirk, but adds, Said drafts were accepted by plaintiffs, for the use and benefit of George H. Kirk.

There was judgment against Miller by default, and against Kirk, on the above testimony, on a trial of the issue made by his answer. He appeals.

We are of the opinion that this declaration of the witness is insufficient to charge the indorser. The whole testimony shows that the drafts were given to pay a debt to Kirk. It is not shown that he had any conversation with the acceptors, neither do we discover any circumstances tending to show that Kirk had applied to plaintiffs to accept this paper for his accommodation.

The whole case, therefore, stands upon the vague statement of the dra wer (who was paying a debt to the drawee) that the drafts were accepted for the use and benefit of the latter. This testimony, we have just said, appears to us insufficient to charge the indorser, with the amount paid by the acceptor for the real benefit of the drawer. If such proof were^competent to defeat a bill of exchange in the hands of the draw'ee or holder for value, it would lose much of its usefulness as an instrument of commerce. Suppose Kirk, who gave a full consideration for the same, had continued to hold the acceptance, and had sued the plaintiffs thereon, would this proof have defeated his recovery ? It is clear that such imperfect proof, tending to avoid the very promise of the drawees implied by the acceptance in favor of the payee, could not have the effect of defeating the action. It cannot be any more favorably considered in a suit brought by the acceptor against the party in whose favor he made a promise of payment for value. See the case of Connelly v. Bourg, Sheriff, et al., recently decided.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court as to said George H. Kirk be avoided and reversed; and it is now ordered, adjudged and decreed by this court, that there be judgment in favor of the defendant, George H. Kirk, and against the plaintiffs’ demand against him; and it is further ordered, that said Kirk recover his costs in both courts.


author: Land, J. Land, J.

text:
    Succession of James Erwin.—G. W. Denton v. Charles Fonda, Curator.
    A negotiormn gestar has the right to he refunded the taxes assessed on the property and paid by him during the continuance of his possession ; though no privilege exists therefor.
    The privilege of the City of New Orleans for taxes extends for only two years.

      On a re-hearing: — A contractor by municipal authority has no right of action against the proprietor for filling up lots in the City of New Orleans, unless he shows that the contract was adjudicated to him as the lowest bidder, in pursuance of the 22d section of the Act of the 21st March, 1850.
    Appeal from the Third District Court of New Orleans, Duvigneaud, J.

      D. C. Labalt, for Denton appellant. Durant & Hornor, G. Schmidt et als.> for appellees.
   Land, J.

G. W. Denton filed an opposition to the tablean of distribution presented to the Court in this succession, claiming to be paid the sum of eight hundred and thirty-one dollars and twenty-nine cents, with eight per cent, interest thereon from the first of May, 1859, by privilege and preference to all the other creditors of the estate.

The grounds of the opposition are, that for a series of years, the opponent believed himself to be the real and true owner of certain lots of ground situate in this city, valued at about six thousand seven hundred dollars; and that as owner, he was assessed by the city of New Orleans and the State of Louisiana, for the taxes due thereon, and paid the several tax bills demanded within the period above mentioned. That by virtue of the payment of said taxes, he became subrogated to all the rights and privileges of the eity and State upon said lots of ground, and has the right to be reimbursed the amount of taxes paid, in preference to all other creditors of the succession of Erwin; because, in a suit lately pending in this Court, a final decision has been rendered against him, decreeing said lots of ground to be the property of said succession, and to have been the property of said estate, at the dates of the assessment and payment of the taxes aforesaid.

The opposition was entirely rejected, and G. W. Denton has appealed. The Judge a quo erred. The opponent, as negotiorum, gestor of James Erwin, or of his representatives, had the right to be refunded the amount of taxes assessed on the property and paid by him during the continuance of his possession. The liability of the owner of real estate to refund to the party evicted, the amount of taxes paid by the latter on the property whilst in his possession, has already been determined by a decision of this Court; and the principle of that decision, so well founded in equity, to say nothing of the law, we are not disposed to question or disturb. It maybe that the payment of these taxes prevented an alienation of the property, which would have defeated the title of Erwin, and secured the right in his succession. See Weber v. Coussy, 12 An. 535.

The opponent, however, is not entitled to a privilege on the property for the reimbursement of the taxes paid by him, by virtue of a legal subrogation, as claimed in Ms opposition to the tableau of distribution. The payment of the taxes extinguished the debt, and with it the privilege granted by law; and the opponent did not occupy any of the legal relations specified in article 2157 of the Civil, Code, which create a subrogation by operation of law. And his right to retain the property until the amount of taxes paid should be refunded to him, was lost by his failure to make such a demand in the petitory action. The opponent, consequently, only has the right to a judgment, as an. ordinary creditor, against the succession.

The heirs of James Erwin, who are appellees, have joined in the appeal and prayed for an amendment of the judgment homologating the tableau, and ask that the privilege of the city of New Orleans for taxes due by the succession, be reduced from seven to two years. The heirs are entitled to the amendment prayed for, because the law expressly limits the existence of a privilege for taxes to two years, to be computed from the first day of April of the year for which they may have been assessed. See Acts of 1855, sec. 43, p. 512, which is the re-enactment of the Act of 1850, sec. 35, p. 138.

The heirs also pray that the judgment be so amended as to determine the share of the expenses of the administration of the succession, for which they are liable. This object can be best attained in the lower Court, on a rule taken by the heirs for that purpose..

It is therefore ordered, adjudged and decreed, that the judgment homologating the tableau of distribution be amended, and that the opposition of G, W. Denton be sustained, for the sum of eight hundred and thirty-one dollars and twenty-nine cents, with interest thereon at the rate of five per cent, per annum from the first of May, 1859, and that the same be placed on the tableau of distribution, as an ordinary debt, and paid by the Curator in due course of administration. And it is further ordered, adjudged and decreed, that the privilege in favor of the city of New Orleans for taxes, be reduced to two years, and that said privilege be recognized and enforced only for the taxes due from the succession for the years 1857 and 1858. And it is further ordered, adjudged and decreed, that the judgment homologating the tableau, thus amended, be affirmed, at the costs of the succession, in both Courts.

Same Case. — On a Re-hearing.

Land, J.

We granted a re-hearing in this case to consider a second opposition filed by G. W. Denton to the Curator’s tableau of distribution. As this opposition was not disposed of by the judgment appealed from, we did not consider it in the opinion prepared in the first instance; but as we are satisfied that Denton is concluded by the judgment of the lower Court homologating the final tableau of distribution, although it is silent as to this particular demand, it is our duty to pass upon the merits of his second opposition.

The opponent claimed in his second opposition to be placed on the tableau as a privilege creditor for the sum of two hundred dollars and eighteen cents, the costs of filling up certain lots which he at the time held and possessed as owner, but which were afterwards adjudged to be the property of the succession of James Erwin.

The contractor who filled up the lots, sued Denton for the sum above mentioned, which he paid with a conventional subrogation to all the rights of the former.

Whether Denton has a right to recover from the succession of Erwin the amount paid to the contractor, depends on the question whether the latter could have recovered the cost of filling up the lots, in an action against the succession, for the only rights which Denton claims to enforce, are those which he acquired from the contractor by the effect of the subrogation.

It has already been held that a contractor by municipal authority has no right of action against the proprietor, for filling up lots in the city of New Orleans, unless he shows that the contract was adjudicated to him as the lowest bidder, in pursuance of the 22d section of the Act of the 21st March, 1850 ; and as Denton has failed to show that the contract was adjudicated to tho contractor as the lowest bidder, in pursuance of the provisions of the statute, he has failed to show any right of action in him against the succession of Erwin. See Session Acts 1850, p. 164; Fox v. Sloo, 10 An. p. 11; Fox v. City of New Orleans, 12 An. 154. As the contractor had no right of action against the succession of Erwin, Denton acquired none by the effect of the conventional subrogation.

It is therefore orde-ed, adjudged and decreed, that our former judgment, which virtually bars said second opposition Of G. W. Denton, remain undisturbed.


author: Voorhies, J.

text:
    G. B. Shepherd v. Bertrand Haralson.
    A public officer appointed by the Governor during the recess of the Senate, and afterwards confirmed, dates his term from tho original appointment, and not from the time of his confirmation,.although a new commission then issued.
    Appeal from the District Court of the Parish cf East Baton Rouge, Avery, J.

      Goode & Tuclcer, for relator. Dunn <& Herron, for respondents.

      Goode & Tuclcer, for relator. Dunn <& Herron, for respondents.
   Voorhies, J.

The plaintiff and the defendant set up adverse claims to the office of Register of the State Land Office.

This office was created by legislative enactment. The statute gives the appointing power to the Governor, by and with the advice and consent of the Senate; and it'limits the duration of the term to two years, without assigning any specified time for its commencement or termination.

B. Haralson had been appointed for the first time, on the 21st March, 1856. His term of office having expired by limitation, he was again commissioned on the 21st April, 1858, during the recess of the Senate.

At the following session of the Legislature, this recess appointment was duly confirmed ; whereupon anew commission issued on the 16th March, 1859.

On the other hand the plaintiff, G. Shepherd, was commissioned on the 17th March, 1860, the Governor’s appointment being duly confirmed by the Senate.

The question at issue is, whether Haralson is entitled to a full term from the date of the confirmation of the recess appointment. He contends that the confirmation vacated the recess appointment, and operated a new appointment from that period. In support of this position reference is made to the case of United States v. Kirkpatrick, and to various opinions of Attorneys General of the United States.

We have no disposition to question the correctness of these authorities ; nor is it conceded that they have a direct bearing upon the point at issue in the present cause. But our court has already expounded the law in this respect, and held, in a similar case, that' the confirmation, by the Senate, of the Governor’s recess appointment, was but the constitutional mode of completing the appointment. 5 A. 534, Gilly v. Kelly. And, as stated by Mr. Justice Preston, this ruling was in accordance with the practice of our State Government.

Besides, this construction of the law has the manifest advantage of carrying out the litteral intent of the law by limiting the incumbent to the period or term prescribed by the statute. Nor should the decision above referred to be lightly disturbed, for the reason that it was a recognition of the sound practice of the government in that respect, — and that the executive, and one branch of the Legislative department, have since acted accordingly upon that construction of the law.

The 48th article of the Constitution, on the subject of vacancies, has no application to the case at bar. There was no vacancy in the office at the date of Haralson’s recess appointment; but his term of office had expired by limitation! He had then been reappointed, and had qualified under that commission.

Judgment affirmed.

Merrick, C. J. took no part in this case.


author: Vooehies, J.

text:
    Wm. C. Peyton v. A. A. Enos.—J. C. W. Spiers, Intervenor.
    Curators or administrators are iorbidden to purchase any property entrusted to their administration Such a sale is null and void. This does not apply, however, to a sale made by an heir of his interest in the succession to the administrator r such a nullity is Relative, and docs not avail any ono except tho vendor.
    The authority of the thiDg adjudged takes place only with respect to what was the object of the judgment. The thing demanded, must ho the same • the demand must he founded on the same cause of action ; the demand must bo between the same parties, and formed by them against each other in the same quality. C. C. 2265.
    Appeal from the District Court of the Parish of Caddo, Creswell, J.

      Vinans & Heath, for plaintiff. Hodge & Austin, for defendants, intervenor and appellants.
   Vooehies, J.

This is a petitory action for an undivided share in five slaves. The plaintiff claims to be the owner by purchase, of the interest of three of the heirs of Josephine Dunn, deceased. The surviving husband of the deceased, an intervenor in this cause, claims the ownership of the slaves for himself, and joins the defendant in assailing the transfer of title, set up by the plaintiff.

I. These slaves were the paraphernal property of Josephine Dunn, deceased. They were donated to her by her father, in the State of Mississippi, she being at the time, with her husband, domiciliated in the State of Louisiana.

II. It is contended that the purchase from the heirs of Josephine Dunn, deceased, is null and void, the plaintiff being at the time the administrator of the estate.

Curators and administrators are forbidden to purchase any property entrusted to their administration. C. 0. «^¡¡*9? 1784. Such a sale is declared to be .null and void. This is, however, a relative nullity, “ introduced exclusively in the interest of owners of the property of which that article forbids the sale.” Rogron, C. N., 1596 ; 3 Delvincourt, pp. 66, 126, Notes; Ross v. Ross, 3 An. 536. We must not be understood as holding that a sale made of his interest in the succession by an heir to the administrator, is a nullity, under the operation of the prohibitory law above considered. ■ Locré, vol. 4, pp, 195,149. Bat if there be nullity, then it is relative, and does not avail any one except the vendor.

This view of the law defeats the defendant and intervenor, who now question the validity of a sale, to which they were not even parties.

III. The plea of 'res judicata is without foundation; the demand in the former action was not founded on the same cause of action. C. C.2265.

J. C. W. Spiers had brought a possessory action against W. C. Peyton. The latter claimed the right to retain possession, in his capacity as administrator and as transferee of the rights of J. H. Spiers. The matter was compromised-. A consent judgment was rendered, giving up the possession of the slaves to the present intervenor, and adjudging to him the title of Peyton. Now the interest which Peyton sets up in the present action, has been acquired subsequently to rendition of this judgment; and as regards the succession of Josephine Dunn, deceased, it can hardly be contended that the judgment, rendered by consent in a possessory action, can debar a subsequent action in the petitory form.

The District Judge was correct in overruling the plea of res judicata.

It is therefore ordered, adjudged and decreed, that the judgment of the' Court below be affirmed, with costs ; and it is hereby ordered, that notice of the rendition of the present judgment shall be served by the Sheriff of the Parish of Caddo, upon the parties, in accordance with their agreement on file in this case.

Land,-J., recused himself in this case.


text:
    Josephine Acosta v. Maria Marrero.
    The language used by the Notary in drawing up a nuncupative will by public act may be ungrammatical, but iC it leaves no ambiguity as to the fact that the language ‘of the clause “revoking besides all other wills, &c.,}> is that of the testator, and not an inference of the Notary, the will cannot be set aside.
    Appeal from the District Court of the Parish of St. Bernard, Foulhouze, J.

      F. Percy and L. Castera, for plaintiff and appellant. C. Bienvenu and L. Chauvet, for defendants.
   Voorhies, J.

Several grounds of nullity are alleged against the validity of Roca Acosta’s last will,— a nuncupative testament by public act; but the appellant urges only one of them, relating to the dictation of the will.

It is contended that the testator did not dictate his last disposition to the notary, and especially the revocation of any former will.”

The clause, in the will, which has given rise to this controversy, reads as follows:

“ Et le dit testateur ayant déclaré ne rien avoir a ajoutcr au présent testament, je lui ai donné lecture a haute et intelligible voix en présence des témoins sus-nommés, et le dit testateur nous a déclaré le bien eomprendre et entendre et y persévérer comme contenant ses derniéres volontés, révoquant en outre tous autres testamens, codiciles, ou autres dispositions pour cause de mort voulant et entendant que le présent testament soit seul valable et soit exécuté dans tout son contenu.”

This clause, the last one in the will, comes after the testator had disposed of his estate, and appointed his wife as his testamentary executrix. It is there stated that the testator declared that this was his last will; and, as it is in this connection that occurs the statement “ revoking besides all other wills," &c., the declaration obviously embraces the revocation. The language is ungrammatical ; but it leaves no ambiguity as to the fact that the concluding part of the sentence was the language of the testator, and not an inference of the Notary.

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