text:
    No. 1158.
    Succession of Edward Robson—Joachin Badeaux, Administrator v. Heirs and Creditors.
    Aii adminiatrutoi’ can. pay the debtfc of the succession only upon the authorization of the Court—the balance in his hands, after paying the debts, must be paid over to the heirs, or their legal representatives, by order of the Court. If he pays without such authorization, he does so at his peril.
    A PPEAL from the Third District Court, Parish of Lafourche, (fu/es, J.

      Louis Bush, for plaintiff.

      Blake & Jordan, for opponents.
   Howedd, J.

This is an appeal by the administrator of this succession from a judgment sustaining an opposition to a provisional and a final tableau filed by him. He was appointed in January, 1859; on 4th May, 1866, he filed a provisional, and on 5th June following, a final tableau, "both of which were approved by the natural tutrix, and widow in community, except one item, the sum of §400, charged as paid on 12th July. 1860, to one J. C. Potts, for account of Mrs. Robson, the widow and .opponent, and for which the administrator took, retained until the trial of the opposition, on 22d December, 1866, a due bill from the said Potts in favor of Mrs. Robson, bearing eight per cent, interest from 1st April preceding its date.

• This was clearly a>n pnauthQrigpd paymept pr disposal of the funds of the susepssio.», .and .he ygcoggigecl (is a charge against it. It it? not shown that the creditors or heirs have been benefited thereby, nor does it appear that the widow in community could, at that time, control this amount in the hands of the administrator. The assumption that this was a loan, which the widow and tutrix authorized the administrator to make of the funds of the succession, cannot be maintained. An administrator can pay the debts of the succession only upon the authorization of the Court, and any balance that may remain to the heirs or representatives. C. O. 105(i, 10G6. If he pays to cither, without such authorization, ho does so at his own risk.

The effort of the administrator, in this instance, to show a want of ratification on the part of the opponent of this transaction, does not succeed in relieving him. The evidence is vague and insufficient. We are of opinion that the lower Court did not err in sustaining the opposition to this charge in the administrator’s account.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: InsLEY, J.

license: Public Domain

text:
    No. 890.
    J. N. Delee v. Mrs. Mary Hatcher.
    Where a reoonventional demand grows out oi' the plambiíE’s causo of action, a verdict tor one party is necessarily a verdict against the othor.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      W. F. Kernan, for plaintiff and appellee.

      Cross cC Hardee, for defendant and appellant.
   InsLEY, J.

The plaintiff sues to recover from the defendant the sum of three hundred and twenty dollars, for building a cotton gin-house and press, on the plantation of the defendant.

The defense was, that the gin-house, etc., was so defectively constructed that it fell down on a calm day, in February, 1865, about two years after its completion ; and that the material used in the said building was thereby destroyed, and was a loss to her.

She reconvened, and claimed damages to the amount of five hundred dollars for the loss of the material.

There was a trial by jury, and a verdict was rendered in favor of the defendant for one hundred and seventy-five dollars as damages, and from a judgment thereupon rendered the plaintiff has appealed. The verdict of the jury seems only to have responded to the reconventional demand, and not to the plaintiff’s claim.

It has been held that, when the reconvcntional demand grows out of the plaintiff’s cause of action, a verdict for one party is necessarily a verdict against the other. Kelly v. Caldwell, 4 La. 40. 6 An. 222. No objection is made in this case to the form of the verdict, and it is unnecessary, therefore, for us to say whether the same is or not defective.

A careful examination of the facts of the present controversy has satisfied us that it must bo governed by Article 2733 of the Civil Code, which is a modification of Article 1792 of the Code Napoleon ; and, referring to. this last article, Mareadé considers it as much a matter of public order as of private interest; and it is for the undertaker, in the exercise of his art, to ascertain if the materials to be employed in a construction are suitable.

The badness of the workmanship comprehends not only a defect of construction, but, likewise, the using of bad materials, notwithstanding these materials be furnished by the proprietor, as it is the duty of the undertaker to reject them. Yol. 6, p. 536, Art. 1.

Applying Article 2733, as exporurded by the erudite French commentator, to the facts of this case, as they were presented to the jury, and as they are extant upon the record, their verdict in favor of the defendant was certainly a correct one.

The plaintiff deems the amount of damages awarded excessive; but, as in this particular the verdict is not manifestly erroneous, and it has been sanctioned by the Judge a ano, we are not disposed to set it aside.

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


author: Labauve, J.

text:
    No. 1247.
    Bernard Marigny v. G. R. Carradine, Sheriff.
    The police jury oí tlie parish of St>. Tammany are prohibited, by the charter, from, imposing laxes on the town of Mandeville, in said parish.
    A PPEAL from the District Court, Parish of St. Tammany, Ellis, J.

      Alfred Hennen, for plaintiffs and appellants.

      <í. H. .Penn, for defendants and appellees.
   Labauve, J.

The substance of the petition is : Petitioner is a proprietor in the town of Mandeville, in said parish, and holding valuable real estate in said town; that by the act, 6, incorporating said town, passed 24th March, 1840, land or taxable property situated in said town are exempt from parish taxes. That George Carradine, sheriff of said parish, demands of petitioner the payment of the parish taxes for the; years 1862, 1863, 1864 and 1865, as will fully appear by the notice of said sheriff, annexed to the petition; that plaintiff has erroneously paid the taxes of 1862; that Carradine threatens to seize and sell the property of petitioner to pay said illegal taxes.

Petitioner prays that said George Carradine, sheriff, may be cited an'd enjoined from collecting from petitioner, any parish tax for said parish of St. Tammany.

The District Judge, after hearing the evidence, perpetuated his injunction as regards the parish tax of 1862, and dissolved it as to the balance. The plaintiff appealed.

This case involves a question of law: has the police jury of the parish of St. Tammany the right and power to impose parish taxes on property situated in the limits of the town of Mandeville, in that parish?

The 6th section of the act of incorporation of said town, reads as follows:

“Beit further enacted, etc., That all the powers devolved until this day upon the police jury of the parish of, St. Tammany, so far only as the incorporated limits of said town, be, and they are hereby transferred 1.o the town council of said town, except the imposing and collecting of the State taxes.” Here this maxim, “expressio vnins esi exclusio aJ/erivs,” must apply.

This action is clear, and leaves no room for interpretation. Civil Code Article 13. The Legislature had certainly the constitutional power to enact that clause in the charter of incorporation of this town, and no reason has been assigned why we should not give it full effect.

It is therefore ordered and decreed that the judgment appealed from be annulled and avoided, and that the injunction be perpetuated, and that the defendant, Oarradine, sheriff, pay cost in both Courts.


author: Howell, J.

text:
    No. 1338.
    P. A. Kugler v. Seymour Taylor.
    Notice of the transfer of an instrument, not negotiable, cannot defeat any equity or offset in the hands of a debtor, at the time of receiving the notice.
    The plaintiff, being a third party, holding a receipt not negotiable, possesses no greater rights than the party to whom the receipt was given.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, ,T.

      John MoVea, and Burgess and Ghaney, for plaintiff and appellant.

      Gross & Hardee, for defendant and appellee.
   Howell, J.

This suit is brought on the following instrument: “Received, East Eeliciana, La., November 15,1862, of Jules Bonnecage, agent of P. Machct, of Baton Rouge, the sum of five thousand dollars, in current funds, in full of fifty bales cotton, weighing twenty-five thousand pounds, being an average of four hundred pounds per bale, and twenty-five cents per pound. The cotton to remain on premises protected from the weather until delivered. (Signed) Seymour Taylor. ”

Plaintiff prays for the delivery of the cotton, or the payment of said sum of $5,000.

The defense is that no part of said sum was paid, but that defendant sold to Bonnecage, agent, one-fourth of his cotton to be paid for when the same could be moved to market—the object being to place the whole of the cotton in the name of a foreigner, and under the protection of a foreign government during the war, as is shown by a counter-letter of same date, with the receipt; that no part of the price of said fourth has been paid, and that the plaintiff is not the real owner of the receipt sued on, which is not negotiable, but is held by plaintiff to defeat the equities between the contracting parties.

The case was tried before a jury, and a verdict and judgment being rendered against plaintiff) he has appealed.

Our attention is directed to several bills of exceptions to the admission of the counter-letter, and other evidence, to establish the defense set np as against the plaintiff, an innocent third holder, and to the refusal of the judge a juo to charge the jury, that the plaintiff, being a third party, is not bound by the equities between the original parties, and that when defendant was notified that plaintiff was the holder of the receipt sued on, it was his duty to give notice of any existing equities.

The judge charged that “notice of the transfer of an instrument not negotiable, cannot defeat any equity or offset in the hands of the debtor at the time of receiving the notice.”

We think the judge did not err. The instrument sued on is not negotiable, and the doctrine invoked by plaintiff cannot apply in this case. The plaintiff possesses no greater rights than the party to whom the receipt was given.

The evidence shows the transaction to be .one which should not be enforced. 10 R. 521. 5 A. 235, 406, 410. Gray v. Thomas, Griswold & Co. 18 A. 412.

Judgment affirmed.


text:
    No. 1182.
    Elizabeth Jordan, Wife of R. D. Jordan, v. F. L. Mead, Testamentary Executor, et al.
    To the con tract oí lease three things are absolutely necessary : the thing, the price, and the consent.
    The price should be certain and determinate. C. O. 2640 and 2641.
    The mere occupancy of property does not necessarily imply the relation of lessor and lessee.
    A PPEAL from the District Court, Parish of Terrebonne, Gates, J.

      JR. I). Jordan and F. S. Goode, for plaintiff and appellant.

      Winchester Hall, for defendant and appellee.
   Howell, J.

On the 5th September, 1865, judgment was rendered upon two promissory notes, by the District Court in the parish of Terrebonne, against Washington Tanner, on his confession, in favor of E. L. Mead', testamentary executor ; execution issued thereon, and certain movable property was seized on 10th of same month, and on 4th November was sold for the net amount of §288 43. On 16th October, 1865, Mrs. Elizabeth Jordan, wife of R. D. Jordan, obtained judgment in the same Court against said Tanner, upon his confession, for §750, for three years’ rent of a tract of land, and the improvements thereon, with lessor’s privilege upon all the movables on the premises occupied by him.

On the 18th October, 1865, this suit was instituted by the said Mrs. Jordan, separate in property from her husband, as a third opxaosition, claiming a superior privilege on the proceeds of the property sold under the fieri faeicts, issued on the judgment in favor of Mead, testamentary executor ; the property thus sold being that alleged to be sirbjeet to the lessor’s privilege, allowed in the judgment in favor of Mrs. Jordan.

The defense is a general denial, and a special denial that plaintiff is separate in property ; that she is the owner of the property occupied by Tanner, or that any rent was due by him to plaintiff; and the averment, that the judgment for the alleged rent was obtained by consent, and for the purpose of defrauding Tanner’s creditors.

Judgment was rendered in favor of défendant, and plaintiff appealed.

The only question, which it is important to determine, is whether or not the evidence establishes, as against the defendant in this action, the relation of landlord and tenant between Mrs, Jordan and Washington Tanner, so as to entitle the former to the privilege accorded by law to lessors.

The record and judgment in the suit for rent were introduced to prove rem ipsam only, and we can find no evidence in the record to prove a contract of lease. Admitting that the act of 1865 (No. 42, p. 80), amending Art. 2653, and declaring that “no lease of real estate shall be proved by parol,” cannot be invoked in this case, and that parol evidence has been received without objection, such evidence does not establish a contract between the parties.

Article 2640 O. O. declares that, to the contract of lease, as to that of ■ sale, “three things are absolutely necessary, to wit: the thing, the price, and the consent. ” The price should be certain and determinate, and it may be fixed by a third person named. Arts. 2341, 2342. Here no determinate price is shown. One witness says the premises are worth twenty or twenty-five dollars per month; two others say that they are w’orth $250 per annum. No one says the occupant was to pay either or any sum. The acknowledgment of the occupant in the suit against him is not evidence against this defendant; and “the mere occupancy of property does not necessarily imply the relation of lessor and lessee, and thus give rise to the landlord’s lien and privilege. ” 11 R. 280. 7 A. 654. 17 A. 22.

Judgment affirmed.


author: Taliaeebro, J.

text:
    No. 708.
    George W. Clark v. George W. Pratt.

      A writ» of attachment will not be maintained, where the party left the State temporarily, on account, of the political agitation prevailing hero at the time, and it if? not shown that he has established a domicile elsewhere.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      8. P. Greves, for plaintiff and appellant.

      R. W. Knickerbocker, for defendant and appellee.
   Taliaeebro, J.

The plaintiff, alleging the defendant to be indebted to him in the sum of twenty-five hundred dollars, on account of partnership ■ transactions, in which he and defendant had been engaged several years ago in New Orleans, commenced this suit by attachment, regarding the defendant as a resident of the State of Illinois. Personal citation was ■ also made upon the defendant, who was at the time, of this proceeding in the parish of East Baton Rouge.

A motion was filed by defendant to dissolve and set aside the attachment, on the ground that the affidavit upon which it was founded is untrue, his residence being in New Orleans, and not in Illinois. The defendant also filed an exception to the jurisdiction of the Court, averring his domicile to be in New Orleans. The exception was sustained, and the attachment dissolved. The order sustaining the exception was rendered on the 17th July, 1865: that dismissing the attachment on the 15th of the same month. This appeal appears to have been taken from the last mentioned order. It is shown that the defendant left New Orleans in the summer of 1861 to avoid tlie political agitation then pending here, and removed to Illinois, where he resided several years; that he returned to New Orleans in 1864 and opened an office, expressing his intention to return here. He again went to Illinois, and remained there a period of eight months, and came again to Louisiana, and was engaged in trade at .Baton Rouge. A witness states that defendant, shortly after going to Illinois in 1861, sold his property there in order to return to New Orleans; that he always spoke of New Orleans as his home; that his earlier return to New Orleans was prevented by obstacles arising from the war; that when he went to Baton Rouge it was on transient business. Another witness states that defendant paid office rent in New Orleans during his absence; that he left New Orleans in 1861 on account of his political sentiments, and the prejudice existing in New Orleans against persons of Northern birth; that he expressed his intention of returning to New Orleans. The evidence, on the part of the plaintiff is, that several judgments were rendered'against the defendant at Champaigne, in a circuit court of Illinois; that he said his family was living at Champaigne, Illinois, and that he said he had been doing business at St. Joseph, Missouri. A witness said that in October or November, 1864, defendant told him he had a lot of whiskey in St. Joseph, which he intended to send to Clark to be credited to his account.

We conclude with the District Judge, that the facts proved show that during the defendant’s absence from Louisiana, he was the greater part of the time on the wing; in Illinois, at Memphis, St. Louis and St. Joseph, and that he did not establish a domicile at any of these places; that he constantly evinced his intention to return to New Orleans; and that this fact, connected with others, make it sufficiently clear that his domicile was not changed by having gone to Illinois, and other places, and abiding there during the distracted condition of this country, consequent upon a state of war.

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


author: Ibsi/ey, J.

text:
    No. 672.
    Henry L. Wolfe v. M. Poirier, J. N. Poirier and H. V. Babin.
    The Supreme Court will not dismiss an appeal on motion of appellant, without consent of appellee.
    Tt is not incumbent on plaintiff to prove the signatures of the drawer and first endorser oi a promissory note, when defendant is a subsociucnfcendorser; his transfer of the note by endorsement* admitted the validity of Ins title.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J

      J. A. Derussy, for plaintiff and appellee,

      li. W. Knickerbocker and J. M. MoGutchen, for defendant and appellant.
   Ibsi/ey, J.

The appellant has moved to dismiss'the appeal, on the ground that the debt sued for has been extinguished by the sale of the property of the drawer of the note sued on.

As the appellee has not consented to the dismissal or withdrawal by the appellant, this Court cannot maintain the motion of the appellant, which is overruled. C. P. Art. 901.

On the trial of the case, the endorsement of the defendant upon the note was proved, but the signature of the drawer and the endorsement of the payee were not shown to be genuine. This was not necessary, as the defendant, by transferring the note by endorsement, admitted the validity of his title to it.

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


author: Tadiaeereo, J.

text:
    No. 1242.
    Succession of Geo. W. Watterston, deceased—On rule taken by A. Penn and D. N. Hennen, Creditors—On Ashford Addison, Dative Testamentary Executor—to file a tableau of distribution, and increase the security on his official bond.
    Where the account filed by the executor makes a pi imu fade showing that lie lias no funds on hand to distribute, and the contrary is not made to appear, tho Court will not order him to filo a tableau of distribution.
    A PPEAL from the District Court, Parish of Livingston, lillis, J.
    IF¿7so?i & Pipián, for dative testamentary executor.

      Paos, Foster <& K. T. Merricl', for appellee.
    A. Hennen, for Penn. J). Jf. Hennen, ¡rro se.

   Tadiaeereo, J.

In May, I860, under an order of Court previously rendered, the dative testamentary executor of G-eo. W. Watterston, deceased, filed in the District Court of the parish of Livingston, an account or exhibit of the condition of the estate, and caused it to be advertised. In the month of August following, Penn & Hennen, two of the creditors of the estate, took a rule upon the executor to show cause why he should not file a lableau of distribution of the funds of the estate in his hands, and furnish additional security on his bond as executor.

In his answer to the rule the executor denies that the parties taking it are creditors of the estate; and, if creditors, that they have never presented their claims for approval or rejection. He, therefore, prayed that the rule be dismissed. In an amended answer he denied the allegations in the rule, that the sureties on his bond are insufficient. The objection, as to the sufficiency of the bond, seems afterwards to have been abandoned. On trial of the rule the judge of the District Court gave as reasons for dismissing it, that the account filed by the executor presented a prima facie showing that he had no funds in hand to distribute, and the contrary not being made to appear, he could not render an order for the filing of a tableau of distribution. From this judgment, discharging the rule, the plaintiffs in the rule have appealed.

It is proper here to notice that a motion was filed in this Court to dismiss the appeal; but we do not consider the grounds sufficient to enable-us to sustain the motion.

It would sew, to be ft iisejess thing' to order the exeentoj: to distribute funds, unless ho lias funds to distribute. The executor distinctly declares, by his account, that he lias no funds. The simple issue of whether he has or not, is therefore made up between him and the plaintiffs, who assume that he lias §5,622 1(5, in cash, which he ought to distribute. This assumption is certainly not warranted, from an inspection of the account. The plaintiffs made no opposition to the account, which it would seem they are required to do, by Article 1004 of the Civil Code. This question of funds or no funds, should, we think, be settled by the trial of an opposition to the account.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, without prejudice to the plaintiffs’right, if any they have, to oppose the executor’s account, the costs of this appeal to be sustained by the succession,


author: Tadiaeebko, J.

text:
    No. 1195.
    State of Louisiana v. Perique Vegas.
    The law prescribing the mode of drawing juries, directs that the list of jurors drawn for each term shall bo filod in the clerk’s offico as soon as completed, subject to the inspection of any person who may desire to examine it; in order that any objections which might or could be made, on account of any defects or informalities which may have occurred in the formation, drawing or summoning of jurors, or any other defect whatsoever in the construction of the jury, shall be made on the first day of the term.
    If the venire is not filod on or before the first day of the term, and the petit jury find a verdict of guilty, a new tnal will be granted.
    A PPEAL from the District Court, Parish of Assumption, Beauvais, J'.

      A. S. ITerron, Attorney General, for State.

      NicJiolls c0 LeBlurtc, for defendant and appellant.
   Tadiaeebko, J.

At the June term, 1866, of the District Court sitting in and for the parish of Assumption, the defendant was indicted and tried for the crime of murder. He was found guilty, without capital punishment. He moved in arrest of judgment and took an appeal. The grounds set up in defense, are :

1. That the venire has never been, returned, and that that omission vitiates all the subsequent proceedings.

2. That the indictment is defective in not repeating the words “then and there,” in its conclusion.

3. That no copy of the indictment was served upon th,e accused; and that lie was not served with a copy of the jury list—the law entitling him to a copy of “ a panel, duly certified by the sheriff.”

4. That talesmen were appointed prior to the returning of the venire.

5. That the foreman of the petit jury was appointed by the judge.

6. That the verdict was not rendered in the English language.

The term of Court, at which the accused was tried, commenced on the 18th of June, 1866—the indictment was found on the 19th. The defendant was tried on the 27th, and sentenced on the 30th.

The law' prescribing the mode of drawing- juries, directs that the list of jurors drawn for each term shall be “filed in the clerk’s office as soon as completed, subject to the inspection of any person who may desire to examine it.” Revised Statutes, p. 295, $3. It direpfej that “all or any objections which might or could- be made, on account of any defects or informality, which may have occurred either in the formation, drawing or summoning of jurors, or any other defect whatsoever, in the construction of said juries, shall be made on the first day of the terms of said District Court, and not afterwards. ” R. S. p. 296, l 3.

The venire in this case was filed on the 30th day of June—the day the defendant was sentenced, and two days after he was tried. It is plain that the laws quoted contemplate the filing of the venire in the clerk’s office before the commencement of the term of Court, or, at the farthest, on the first day of the term, otherwise they would require an impossibility. We think the defendant entitled to a new trial. The other points stated it is unnecessary to consider.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be canceled, avoided and annulled, and a new trial granted. It is further ordered, that' the case be remanded to the lower Court, to be proceeded with according to law.


author: Labatjve, J.

text:
    No. 884.
    Nancy A. Fenn et al. v. F. W. Carr.
    The sale of a negro woman as a slave, after the adoption of the Constitution of 1864, is an absoluto nullity.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      W. Id Kernan, for plaintiffs and appellants.
    I). J. Wedge, for defendant and appellee.
   Labatjve, J.

On the 1st day of January, 1865, the defendant sold to the plaintiff a negro woman, with full warranty, for the consideration of five bales of cotton and a note of Samuel Harrell for $200. The plaintiff now, alleging the nullity of this sale, and praying that it be declared null, claims of tho defendant $1,000, for the value of said five bales of cotton, and for the return of the note or its amount.

The defendant admits, in his answer, the sale, but says that he did not warrant the said negro a slave for life, and that plaintiff was fully aware of the nature of the title to said negro ; and plaintiff purchased an uncertain hope, and that he has no ground of action.

After hearing the testimony, the District Court gave judgment for defendant, and the plaintiff took this appeal.

The act of sale, introduced in evidence, shows that the defendant sold the negro woman on the 1st of January, 1865, as alleged by the plaintiff.

We are clearly of opinion that this sale was an absolute nullity, the negro woman being a free person on the 1st January, 1865. See the Constitution of 1864.

Plaintiff has proved that cotton was worth, in that parish, in January, 1865, from twenty-five to thirty cents per pound, but has entirely failed to prove the probable weight of the five bales of cotton. It is impossible for this Court to give a final judgment for plaintiff; the case has to be remanded, at the costs of the plaintiff, in order to ascertain the quantity of pounds of cotton he gave in payment.

It is therefore ordered and decreed, that the judgment of the District Court be annulled and avoided, and that tlie sale of the negro woman Listinia, sold by defendant to plaintiff, on the 1st of January, 1865, be declared a nullity. It is further ordered and decreed, that the case be remanded for a new trial, to ascertain the weight and value of the cotton on the 1st of January, 1865, and also whether the defendant should return the note of Samuel Harrell or pay its value ; and, as the case is remanded for the benefit of the plaintiff and appellant, it is ordered that he pay costs of appeal.


author: HoweiiIi, J.

text:
    No. 863.
    J. S. Bossier v. W. E. Kennedy et al.
    The fact that plaintiff bought succession property at sheriff’s sale, while it was advertised by the sheriff for sale in another cause, does not of itself render the sale null.
    A PPEAL from the District Court, Parish of St. Tammany, Jones, J.
    6?. H. P enn, for plaintiff.

      A If red Hennen, for defendant.
   HoweiiIi, J.

Plaintiff has appealed from a judgment sustaining a motion to dissolve the injunction sued out in this case, on the ground that no legal cause is set forth in the petition for the injunction.

The allegations are, that he is owner and possessor of certain lands purchased on- 28th October, 1865, at the succession sale of the estate of the late Joseph S. Bossier, made by the sheriff, as shown by an act of sale before the parish recorder, by the testamentary executrix of said estate, in pursuance to said adjudication; that the sheriff has advertised the same for sale on 4th November, 1865, under a pretended writ of seizure and sale, issued on 4th September, 1865, at the suit of W. E. Kennedy v. Joseph S. Bossier, or his succession, to the injury and damage of plaintiff, and that the defendant Kennedy is without claim of any kind against the said lands of plaintiff.

Such allegations, if established (and for the purposes of the rule are taken as true), will authorize an injunction of the threatened sale.

The fact that the sale to plaintiff occurred during the advertisement of the sheriff sale, does not, of itself, render said sale null. The evidence, which plaintiff may under his allegations adduce, may show the sale to him to be valid and to convey the property unincumbered.

We are referred to no law which requires succession sales to be made only on the first Saturday of each month, as in case of sheriff’s sales.

It is therefore ordered that the judgment of the lower Court bo reversed, the motion to dissolve dismissed, and the cause remanded to be proceeded in according to law, appellees to pay costs of appeal.


text:
    No. 1307.
    John G. Burton v. Thos. Kron et al.
    Plaintiff commenced a suit by executory process, to enforce tlie payment of promissory notes secured by mortgage on real property. Defendants enjoin tbe sale on tlie ground that tlie plaintiff is . without title to the notes. The notes bear no endorsement or assignment; in answer to the injunction plaintiff alleges a transfer to him by all parties in interest of the notes sued on: 7Md—That unless plaintiff shows a transfer of the notes, made in strict conformity to law, the injunction will be maintained.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.

      Wilson é Thompson, for plaintiff.

      Hennen S Perrin, for defendant,
   Howell, J.

John G. Burton, as holder and owner, obtained an order of seizure and sale upon three notes, amounting to §1,000, and secured by mortgage on real property in the town of Tangipaho, parish of St. Helena, in payment of which they were given by Tlios. Ivron, the purchaser, and Edward Bicks, the other defendant. The notes are made payable “to John J. Wheat, sheriff, for the use of the succession of Barbara Burton, deceased,” and bear no endorsement or assignment.

Kron enjoined the sale on various grounds, one of which, want of title in plaintiff, is urged in this Court. Plaintiff, in answer to the injunction, alleged a transfer to him by all parties in interest of the notes sued on, and by praying for a judgment changed the executory to ordinary proceedings.

Judgment was rendered dissolving the injunction, and condemning defendant, Kron, to pay the amount of the notes less §1,000 paid thereon, and ordering the mortgaged property to be sold ; from which defendant has appealed.

It appears that there are seven heirs to tlio estate of Barbara Burton, for the sale of whose property the notes in suit were given, and the only evidence which appears in the record to establish the alleged assignment 'to plaintiff, is an informal appearance by counsel, of several of said heirs, in the following form:

“Now comes Elizabeth F. Womack, B. Y. Burton, Madison Burton and JohD Burton, tutor, and Delia Strickland, wife of C. E. Strickland, legal heirs and representatives of Celia Burton, and representing that they had transferred to John Burton all their respective interests in the notes sued on prior to the institution of this suit, alleges that the injunction herein sued out should be dissolved, wherefore they join defendant in his prayer for the dissolution of said injunction, with costs and damages. By their attorneys. (Signed) Amitee & Wilson.”

Admitting that third persons can thus become parties to a suit, and through counsel make judicial admissions in such a manner, and for such purpose (which we are not prepared to do), we cannot consider this proceeding sufficient. It is apparent that some of the above parties are minors, and others married women, who are not properly authorized to appear in Court, and no legal assignment of their rights is shown, and, besides, one of the heirs, the minor, Thomas Amacker, is not represented, and the document itself is vague as to the alleged transferee, and the intestate or author.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of Thos. Kron, perpetuating the injunction herein, with costs in both Courts.


text:
    No. 6885.
    A. B. James v. City of New Orleans.
    Where the City Assessor for the City of New Orleans has placed an over valuation on property, thereby causing an increase on the taxes thereon, and the board of assessors fail or refuse to make the reduction in the valuation, the party aggrieved may recover, by suit in the civil courts, from the city, the amount that he has been compelled to pay, on account of the over valuation of the assessment.
    A PPEAL from the Fourth District Court of New Orleans, Price, J.

      John II. New, for plaintiff and appellee.

      Thos. II. Ilewes, City Attorney, for defendant and appellant.
   Howell, J.

Plaintiff obtained a judgment against the defendant for $399, the amount claimed, as paid under protest, for taxes in excess of the true valuation of his real property in the city, from which the latter appealed.

The city-attorney, in his brief, concedes that, upon the testimony, the plaintiff was entitled to have the valuation of his property reduced in accordance with his application to the board of assessors ; but contends that, upon the statement of Watkins, a member of the board, a reduction of $5,000 was made, thus leaving the difference in the appraisement of the assessors and that claimed by plaintiff to be only $19,000, instead of the sum set forth in the petition, the tax on which would be less than the amount allowed by the Court, which, he insists, is unsupported by evidence. In this the city attorney has fallen into an error of fact, as to the valuation on which the assessment should be made. By an agreement in the record, the cause was submitted in the lower Court “upon the pleadings, the tax bills furnished by the plaintiff, and the statements of John A. Watkins, J. B. Walton and Julian Neville.”

These tax bills show that iilaintiff’s property was assessed in 1857 (the year complained of) at $159,500, and in 1856 at $132,400, taken as the true basis for the assessment, making a difference of $27,100, the tax on-which, at 1)7 per cent., is $406 50, instead of $399, the sum allowed; and the testimony shows that said property was worth no more in 1857 than in 1856.

■ Plaintiff does not complain of the judgment.

The admission that plaintiff was entitled to the reduction claimed by him, in his application to the board of assessors, concedes his whole demand, as set forth in the petition and the evidence adduced.

Judgment affirmed.


author: Hyman, C. J.

text:
    No. 1252.
    N. K. Knox v. Wm. S. Booth.
    A lessor has a privilege on the growing crop of the year, to secure the payment of the rent; and the lessee cannot defeat the lien, without showing that he has been damaged by the intenerence of the lessor during the year. When it is agreed between the lessor and lessee that the lien shall be reduced to writing, and it is not done, the lessee must show, by evidence, that he has been damaged by the refusal, before he can claim the damages.
    A PPEAL from the District Court, Parish of East Baton Rouge, Avery, J.

      Bunn t& Herron, for plaintiff and appellant.

      Joor é Stafford, for defendant and appellee.
   Hyman, C. J.

Plaintiff alleged that defendant 'rented from him for the year 1866, a certain plantation in the parish of East Baton Rouge, and that the price defendant agreed to give for the rent of the plantation for that year, was 2,600 pounds of ginnfed cotton.

He obtained a writ of provisional seizure, and caused a part of the crop of cotton made on the plantation that year to be seized provisionally.

He prayed that judgment might be rendered against defendant, condemning him to deliver to him, plaintiff, 2,600 pounds of ginned cotton', or to pay the value of same with interest; that his privilege as lessor on the crop made on the plantation that year be recognized and enforced. Plaintiff further prayed for general relief.

Defendant, in his answer, admitted the contract of lease, but asked in reconvention judgment against plaintiff of $10,000 for damages, averring that he had suffered damages to that amount, caused by interruptions and molestations on the part of plaintiff during- the lease.

The case was tried by a jury, who returned a verdict in favor of defendant, releasing him from plaintiff’s claim.

The judge rendered a judgment thereon, rejecting plaintiff’s demand, releasing the property seized, and condemning plaintiff to pay the costs of suit.

Plaintiff has appealed from the judgment.

There is no evidence that authorized such a verdict.

There is no proof of damages done to defendant by plaintiff, by interruptions or molestations.

It is proved that plaintiff, in Juno, 1866, attempted to get rid of defendant as his tenant, because plaintiff doubted that defendant would pay for the rent of the land. Plaintiff failed in his attempt, and it is not shown that, by the attempt, the defendant was injured.

Defendant contends that plaintiff’s refusal to reduce the lease to writing, as was agreed upon, was an injury to him. If so, he has not shown it. He still held the land, and cultivated it. There is no proof in the record that ginned cotton was worth thirty cents a pound.

It is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further decreed, that defendant be condemned to deliver to plaintiff two thousand six hundred pounds of ginned cotton, or to pay plaintiff the sum of seven hundred and eighty dollars, with five per cent, per annum interest thereon, from the 1st day of October, 1866.

It is further decreed, that the provisional seizure be sustained.

It is further decreed, that the plaintiff’s privilege, as lessor, on the crop made on the plantation in the year 1866, be recognized and enforced.

It is further decreed, that the claim of defendant for damages be dismissed.

The defendant to pay all costs of suit.


text:
    No. 883.
    Evans White v. T. & V. McKee.
    The act of the pretended Legislature of Louisiana, approved June 10,1883, suspending prescription during the Avar, and for one year after tho ratification of the treaty of peace hetAvoen the Confederate States and the United States, isnotlaAv. The pretended legislators could not make laws: they AYere never tiualified ; they did not take the essential oath.
    A PPEAL from tlie District Court, Parish of East Eeliciana, Posey, J.
    . John Mo Vea and G. P. DeLee, for plaintiff and appellee.

      W. P. Kernan, for defendants and appellants.
    Defendants plead prescription of one year, under Article 3499, Civil Code.
    Plaintiff met this plea with the act of the Legislature, approved Juno 10th, 1863, which reads as follows :
    ‘ ‘ An act suspending all prescriptions.
    “ Sec. 1. Be it enacted, etc., That all prescriptions of any kind and every nature whatsoever, be and the same are hereby suspended during the existing -war, and for one year after the ratification of a treaty of peace between the Confederate States and the United States; provided, that this act shall not operate on any person having adhered to the public enemy, by taking the oath of allegiance to the United States, or in any other way giving them aid and comfort.
    (Signed) Adolphus Olivier,
    Speaker of the House of Representatives.
    H. M. Hyams,
    Lieut. Gov. and President of the Senate.
    “ Approved June 10th, 1863.
    Thomas O. Moore,
    Governor of the State of Louisiana.
    ‘ ‘ A true copy :
    P. D. Hardy, Secretary of State.”
   Hyman, C. J.

Plaintiff instituted suit in August, 1865, against Thomas McKee and Virgil McKee, for board and lodging due in the year 1862, and Thomas McKee is appellant from a final judgment rendered against him in favor of plaintiff.

In the lower Court the defendant, Thomas McKee, filed the plea of prescription of one year. He also plead in reconvention, and claimed judgment against plaintiff for the proceeds of six bales of cotton.

It appears, from the evidence, that the proceeds of the six bales of cotton were, by agreement, to be credited on plaintiff’s claim.

There is no proof in the record that prescription was interrupted or suspended.

The plea of prescription is valid. See Civil Code, 3499.

The authority referred to in plaintiff’s brief is not law.

The pretended legislators could not make laws ; they were never qualified ; they did not take the essential oath.

Let the judgment of the District Court against the defendant, Thomas McKee, be annulled, avoided and reversed, and let the suit of plaintiff against him, Thomas McKee, be dismissed.


text:
    No. 1245.
    C. H. Beigel, Wife of Michael Beigel v. Julius Lange and Henrietta Lange, his Wife.
    When tlie wife brings a suit on a promissory note in her favor, and alleges in the petition that her husband joins in the suit, with no allegation or evidence of a separation of property between them, and no stipulation against a community of acquests and gams, the Court will not presume the authorization of the husband, but, on the contrary, will presume a community between them.
    The note being given in favor of the wife, does not make it her separate property; it is still community property.
    A PPEAL from the District Court, Parish of Livingston, Ellis, J.

      T. G. W. Ellis and .í. W. Addison, for plaintiff and appellee.

      Marr & Foule, and Bradley, for defendant and appellant.
   Hyman, C. J.

Julius Lange gave his note to Catharine H. Beigel for SI,000. At the time that the note was given she was tlie wife of Michael Beigel.

Sho brought suit against Julius Lange and his wife, to recover of them the amount of the note with interest thereon, and in her petition she alleged that her husband joined in the suit, and assisted and fully authorized her to institute the same.

There was judgment against Julius Lange, condemning him to pay the plaintiff the amount of the note with interest, and the costs of suit. From this judgment ho has appealed.

There was no evidence adduced in tlie lower Court, showing that plaintiff’s husband had joined in the suit, or authorized his wife to institute it. There was no evidence that there was any stipulation between Michael Beigel and xilaintiff, that there should not be a community of acquests and gains between them during their marriage, nor that the note sued on was the sexiarate proxierty of xilaintiff. Without such evidence we cannot X>resume that the husband authorized this suit, but ure are to x>resume that there is a community between Michael Beigel and x>laintiff, and that the note sued on, being acquired during their marriage, is community proxierty. See C. C. 2369, 2371.

The note having been given in favor of the wife does not make it the Xiroperty of the wife. It is still community xiroxierty.

The plaintiff’s husband, not the plaintiff, has the control of the' note, and she has no right to recover judgment in his favor for the same. O. C. 2373.

Let the judgment of the District Court be annulled, avoided and reversed, and let this suit be dismissed, as to defendant, Julius Lange.


text:
    No. 705.
    Mrs. C. Duplantier et als. v. E. C. Wilkins and E. B. Preston, in solido.

    The plaintiffs, as lessors, have the first privilege on movables seized and sold on a plantation, except on tlie crops ; on which the laborers and overseer have a preference.
    The proceeds of the crop being exhausted, the sheriff has no right to pay the overseer out of proceeds of movables, to tbe prejudice of the lessor.
    Where large fees are charged by the sheriff and clerk, and the sheriff fails to annex to his return specific bills for their foes, the case will be remanded to adjust the fees of those officers.
    A PPEAL from the District Court, Parish of St. James, Beauvais, J,

      A. Robert, for xilaintiff,

      Fred. Landremw, for intervenor,
   Labauve, J.

The plaintiffs sue the defendants as lessees of a plantation, for §6,666 66, balance due for rent. A writ of provisional seizure was granted, and the sheriff, on the 10th of October, 1864, seized all the movable property attached to said plantation, all the fruits produced, gathered and ungathered, the mules, horses, cattle, and other animals, carts, etc., belonging to the plantation, the furniture and movable effects in the houses.

The plaintiffs, having obtained judgment, took out an execution, and the sheriff seized the property provisionally seized, and, after advertisements, sold the same on the 31st December, 1864, and made his return on the 20th March, 1865, by which he shows that the debts, expenses, costs

alleged to be privileged, and paid by him, amounted to...... $4,682 96

And the proceeds of sales.................................. 3,801 60

Balance in favor of sheriff.................................. $881 36

On the 17th April, 1865, A. Robert, of counsel for plaintiffs, suggested to the Court that J. Landry, sheriff, has seized and sold in. this case, movable property to the amount of $3,801 60, to satisfy the judgment herein of $6,666 66, exclusive of interest and costs, next to the laborers’ claim, amounting to $1,750 06, which has been paid, leaving a balance in his hands of $2,050 54; and, upon further suggesting to the Court that demand had been made for said balance, the sheriff refused to pay.

It was ordered by the Court that the said sheriff show cause why the above balance should not bo paid to plaintiffs or their attorney.

The Court gave the following decision :

1 ‘ In the within rule, after hearing the parties, the Court considers that the sheriff was correct in all his charges, except the two charges for notices of sale, and the charges for services of citations, petitions, writ of provisional seizure, Jiei-i facias, notice of trial, notice of judgment, mileage, ferry, etc., which were ordered to be reduced to tariff charge or fee bill.

“Rendered in open Court, April 22d, 1865.

(Signed) R. Beauvais, Judge.”

The plaintiffs took this appeal.

The plaintiffs, as lessors, had the first privilege on the movables and effects seized arid sold, except on the crops, on which the laborers and overseer had a preference. C. C. Arts. 2675, 3226. The éheriff took upon himself to pay the laborers $1,751 06, and to the overseer $990; when it is shown that the proceeds were even insufficient to pay the laborers ; having exhausted all the proceeds of the crop without paying the overseer, he had no right to take the proceeds destined- for trie plaintiffs, to pay the overseer; he must bear the consequences and suffer the loss. It is true that, upon the account of the overseer for §990, the District Judge seems to have given an exparle explanation, authorizing, its payment, in the following form :

“ The within bill has a privilege equal to that of the laborers. I cannot conceive that there can be a difference between the privilege of the white and black laborer ; this man’s claim is, and must be, included in my judgment ordering the payment of the laborers. R. Beauvais,

Judge Fourth Judicial District.

“St. James Parish, Jan. 20th, 1865.”

But, as it is observed above, the sheriff used all the proceeds of the ’ crop in paying the laborers. This account is therefore rejected.

The following charges paid by the shorift', for certain expenses, provisions and others, incurred-whilst the property was under seizure in the hands of the sheriff, are considered as costs in the suit and properly paid by the sheriff, besides the amount paid the laborers :

Paid Thomas Conway, superintendent of the bureau for conscripts, on

the plantation........................................... §26 65

Paid Homan & Olivier, for supplies............................ 597 45

Paid Poohe for gathering pecans.............................. 35 00

Paid F. Genre for rivets for corn mill......................... 8 00

Paid for supplies............................................ 102 75

Add amount paid laborers, and admitted by the plaintiffs...... 1751 06

Total allowed absolutely..................................§2520 71

Total amount of sale made by the sheriff...'................... 3801 (¡0

Deduet the above amount allowed absolutely.................. 2520 71

Balance in the hands of the sheriff, §1280 89

subject to be reduced by the fees of the clerk and sheriff, to be shown and exhibited by fee bills, made as prescribed and authorized by law. B. K. p. 124, H 2, 5 and 6.

The sheriff has failed to annex to liis return specific fee bills of his fees and those of the clerk, as required by law, and, in the absence thereof, we cannot decide.whether the large fees charged by said officers are correct oi” not; and the case, upon the rule, must be remanded, to determine-the just and legal amounts due said sheriff and the clerk for their fees. '

[t is therefor&.brdered and decreed, that the judgment of the District Court be annulled-and avoided ; that the amount of §990, charged by the-sheriff as paid to the overseer, be rejected ; that the case upon the rule be remanded,-, to-ascertain the just fees of the sheriff and the clerk, and, when fixed, the same shall be credited to the sheriff upon the balance bi $1,280 89, now in ,bis hands, according to the statement above, and the remainder .tOjbe.paid to the plaintiffs. It is further ordered and decreed,'! that the sheriff, pay the costs of this appeal.


author: Taliaferro,'J.

text:
    No. 1274.
    Charles Crane v. Micajah Harris.
    Whcro one party leases a livery stable and premises to two parties in partnership, and one oí the lessees purchases the interest of the other, and gives a warranty against all liability, and the lessor recqgniz^s the';sale and release of one of the lessees by the other, by receiving the rent and giv^ig him written notice that his lease will terminate at a certain date, the lessee who has been pleased is a competent witness to testify in a suit for damages between the lessor and lessee.
    A PPEAL from'the District Court,'Parish of East Feliciana, Posey, J.

      P. Pond, llY. ', and Me Vea & Hunter, for plaintiff.

      J. B. Smith, for defendant.'
   Taliaferro,'J.

The plaintiff,"together with one Jarrott, then, a partía er of his,’'leash'd'from tlieMefen.dant a livery stable and premises attached, as the plaintiff alleges, for the term óf five'years,'at a certain sum per annum, the plaintiff to be reimbursed at the expiration of the lease for all necessary repairs, work and improvements he might have to do upon the premises during his occupation of them. He avers that the defendant, in violation of the contract, sold the leased premises long before the expiration of the lease, and that the vendees were put into possession by the defendant to the great injury and damage of the plaintiff, who was compelled to abandon the property. He claims three hundred dollars for repairs, and one thousand dollars damages for the tortious act of defendant in dispossessing him.

The defendant denied all the allegations of the plaintiff, except that of having leased the stables, and claims in reconvention seven months’ rent of the premises, at .the rate of twelve dollars per month. The case was tried before a jury. A judgment was rendered in favor of the plaintiff for three hundred and forty-eight dollars, subject to a credit of thirty-seven dollars and seventy-five cents in favor of the defendant, and costs of suit. From this judgment the defendant appealed.

Four bills of exception were taken by defendant during the trial—throe of these relating to matters touching the claim for damages, which the plaintiff having abandoned by acquiescing in the judgment and asking that it be affirmed, need not be considered. The other was taken to the admission of the testimony of Jarrett, who was the partner of the plaintiff at the time the contract was entered into—the lease having been made to Crane & Jarrett by the defendant. It appears by the evidence that, some time after this contract was entered into, Jarrett sold his entire interest in the lease, the stock, vehicles and everything else relating to the business they were engaged in, to Crane ; and that, upon the first trial of this case, Crane executed in favor of Jarrett a release in full, in warranty as well as otherwise, from all liability that might arise out of the business they had been engaged in. Crane thereupon introduced Jarrett as a witness. The objection was that Jarrett, as a partner in the commercial partnership of Crane & Jarrett, was bound in solido to the defendant for the balance of the rent due the defendant. The record discloses that, long after the sale from Jarrett to Crane, the defendant notified the plaintiff individually of the termination of the lease, using (in the written .notice) this language : “ The lease you hold will terminate on the 80th June, 1858.” In April, 1858, he took a due-bill individually from the plaintiff for rent due at that time. He admits, in his answer, that he rented the livery stable to plaintiff ; avers that the plaintiff owes him for the use and rent of the property from the 1st January, 1858, to 1st of August of that year ; claims rent for that period from the plaintiff in the reconventional demand, and nowhere in his answer sets up any claim against the partnership. These facts seem to have satisfied the Judge a quo that the defendant did not look to the partnership, but to the plaintiff alone, for the payment of rent, and therefore, upon the release by Crane to Jarrett, admitted the latter to testify. In this, we think, the Judge did not err. Menam v. Worsham, 4 N. S. 198. The entire evidence warrants the conclusion that the verdict of the jury did justice between the parties.

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


author: Taliab'erro, J.

text:
    No. 1301.
    Clark & Thieneman v. A. J. Norwood and J. B. Smith.
    In a contract of sale of a lob of cotton a clause was inserted that all parties waive and renounce the benefit of any law requiring actual delivery by weighing, as a condition to complete the sale: IfeM—'That the sale is complete from the date of the signing the act, and the cotton is at the risk ' of the purchaser from that date without actual delivery.
    An agent having charge of cotton purchased is bound to exercise a prudent care over it, and preserve and ship it to his principal, but he is not responsible against an overpowering force, whereby the cotton is destroyed, and ruinous loss occurs.
    Where the evidence shows that the Citizens’ Bank wasin the habit of paying in Confederate treasury notes, or notes of the local banks, at the option of persons presenting checks for payment, the Court will not presume that the payment of a particular check was made in Confederate treasury notes.
    A PPEAL from tlie District Court, Parish, of East Feliciana, Posey, J.

      W. F. Kernan, Burgess & Ohaney, and Id Hardesty, for plaintiffs and appellants.

      Furqua & KiTbourne, and J. McVea, for appellees and defendants.
   Taliab'erro, J.

On the 14th February, 1862, the plaintiffs entered into an agreement with the defendant through Hawkins & Norwood, acting as his agents, the substance of which seems to be that the plaintiffs were to pay the defendant, Smith, three thousand dollars upon the signing of the contract, for one hundred bales of cotton, of the average weight of four hundred pounds, which cotton, as the act expresses it, was then “being stored, and to be stored on his plantation, “ Oak Grove,” near Williams-port, Pointe Coupee parish, Louisiana.”

This lot of cotton was to be sent to one of the cotton presses in New Orleans for the plaintiffs, “within four weeks from the opening of the port of New Orleans, either by the raising of the blockade or by other means;” and the seller bound himself to send the cotton to New Orleans at any time before the raising of the blockade, provided the buyers could obtain the permission of the governor to that effect. One clause of the contract is, that “ all parties waive and renounce the benefit of any law requiring actual delivery by weighing as a condition to complete the sale.”

The commercial firm of Hawkins & Norwood signed this obligation, and bound themselves to furnish the purchasers with the like number of bales of cotton, of like weight and quality as called for by the contract, either by purchase from others or out of other receipts or stocks in their hands.

The plaintiffs allege an entire failure on the part of the defendants to fulfill their part of their contract, and pray that they be condemned in solido to deliver to plaintiffs the said one hundred bales of cotton according to the terms of the contract, with interest on the value thereof, or, failing in that, that they pay the plaintiffs one hundred thousand dollars as damages, and for general relief.

The defendant, Smith, in his answer, admits the contract sued upon, and avers that he complied with it as far as it was possible to do so. That from the time of the sale the cotton was at the risk of the plaintiffs; that the cotton sold to plaintiffs, together with defendant’s entire crop, was destroyed by an overpowering force, which he was unable to resist, and without any fault of his; that all the cotton produced in the year 1861, on his plantation, called “ Oak Grove,” was burned by armed bands of men, on or about the 10th of May, 1862. He further avers that, under the agreement entered into with plaintiffs, they were to pay him three thousand dollars, upon his signing- the act, but that they have failed to do so; that the pretended payment made by them was in notes issued by the “ so-called Confederate States,” and that if said notes were received by his agents, they were so received without his authority, and that the said pretended payment is not binding upon him, and that the plaintiffs are indebted to him for the full value of the said cotton, viz: three thousand dollars, with five per cent, interest, from the 14th February, 1862. He avers that the dealing in and using Confederate treasury notes was contrary to law and good morals. He prays judgment in reconvention against the plaintiffs for three thousand dollars and interest, and tenders them a transfer of all his right to claim damages against the parties who burned the cotton.

The defendant, Norwood, admits he was a member of the commercial firm of Hawkins & Norwood, but denies that he ever signed or sanctioned the contract sued upon; that the act of guarantee or insurance expressed in the instrument sued upon, if signed with the partnership name, was an unauthorized act of his partner Hawkins, not within the range of the business they were engaged in, and not obligatory upon him. Upon these issues the parties went to trial before a jury, which rendered a verdict in favor of the defendants, rejecting the defendant Smith’s reconventional demand. The plaintiffs have appealed.

We think the evidence fully sustains the defense. It is sufficiently clear from the written contract, expressed as it is in terms somewhat obscure, that the plaintiffs bought of the defendant, Smith, one hundred bales of cotton of his crop, grown on the “Oak Grove ” plantation, in the year 1861. That in conformity with the agreement, Hawkins & Nor-wood received the plaintiffs’ check on the Citizens’ Bank, for three thousand dollars, which check was endorsed by Hawkins & Norwood, or some one authorized by them, and placed to their credit in the bank. It is equally clear from the words of the act and its general tenor and import, that from and after the signing of the instrument the sale was complete ; the hundred bales of cotton delivered and at the risk of the purchasers; that the only obligation remaining on Smith was that of using a prudent care over the cotton to preserve it, and to ship it to the plaintiffs in New Orleans in accordance with the stipulation in regard to that part of the contract; that before the time arrived, at which he was bound to forward the cotton to the plaintiffs in New Orleans, the entire crop produced on the “Oak Grove” plantation, in the year 1861, consisting of over six hundred bales, was utterly destroyed by fire, producing a ruinous loss, which the exercise of no prudence or means whatever in the power of the defendant could have prevented, and he is therefore exonerated by Art. 1910 of the Civil Code.

Smith, having complied with his part of the obligation, Hawkins & Norwood were no longer bound under their guarantee for Smith’s performance.

In regard to the reconventional demand set up by the defendant for the price of the cotton, we do not think it well founded. The testimony of the cashier and paying teller of the Citizens’ Bank is to the effect that at the time the check of the plaintiffs in payment of the cotton was received, the bank payed Confederate notes or notes of the local banks, at tjie option- of persons presenting checks for payment. This does not establish that payment was made in Confederate treasury notes. We see no reason why the judgment of the lower Court should be disturbed.

It is therefore ordered, adjudged and decreed that the judgment of the Distript Court be affirmed, with costs in both Courts. ■


text:
    No. 1284.
    Emily Smith, Wife, v. H. W. Strickland, Husband—Mrs. St. Helena Spencer, Intervenor.
    In an action by the wife for a separation of property, whero the creditor ol' the husband files his intervention on the day preceding the trial, and does not show due diligence, the intervention will not. be sustained.
    The articles of the two Codes upon this subject do not authorize an intervention to be filed»/ nng ainge of the came. They must be construed togothor, and applied according to the circumstances of each particular case.
    A PPEAL from tho District Court, Parish of St. Helena, Ellis, J.

      ■T. E Wilson, for appellee.

      Russell and McYe.a & Hunter, for appellant.
   Howell, J.

This caséis before us on a bill of exceptions taken to tho ruling of the District Judge, refusing permission to the appellant, a creditor of the defendant, on the day of the trial of tho canse, to intervene, on the ground that the plaintiff' could not bo forced to combat or resist the intervention until after service thereof, which had net been made; and, as Art. 2408 C. O. authorizes the creditors of the husband to become parties to the suit by the wife for a separation of property, and be. heard against her petition, the only question presented is one of diligence: Did the intervenor appear in time and in tho manner to be heard ?

She charged'that the suit by the wife was simulated, and instituted to defraud the creditors of the husband, and expressed herself ready to proceed with the trial; but did not ask that the plaintiff be served and cited, nor. for judgment against the defendant, her debtor. Her only object seemed to become defendant and resist the plaintiff’s demand.

Article 391 C. P. permits one to intervene, either before or after issue has been joined in "the cause, provided the intervention do not retard the principal suit; the person intervening must be always ready to plead, or exhibit his testimony; because he has always his remedy by a separate action to vindicate Ms rights.

Article 393 requires tho intervention to be formed by a petition addressed to the Court before which the principal demand has been brought; it must set forth the grounds on which the cause is supported. This pe-‘ tition must be served on the party against which it is directed, in order that he may answer to the same in the delay given in ordinary suits.

Article 394 declares that the judge cannot refuse to admit an intervention; but he must pronounce on its merits at the same time that he decicles tlie principal action ; if the demand be not sustained the person intervening- shall be decreed to pay the incidental costs.

According to Article 392, the intervenor is to be considered as plaintiff!'

In the case of Ardry v. Ardry, 16 La. 264, the rule was established, and was confirmed in Dunbroca v. Her Husband, 3 A. 331, that the intérvenors in such suits wore entitled to the delays necessary for serving citations upon the original parties; and for the latter to answer, although the effect might be to retard the progress of the cause ; but, in neither of those cases was the cause on trial when the intervention was demanded— in both citation was asked; in the former the plaintiff treated the intervening parties as properly in Court, by propounding interrogatories to some of them, thereby waiving- the faculty of opposing the intervention on the ground that it retarded the proceedings ; and, in the latter, the intervenors waived the right to oppose the progress of the cause by an agreement with the plaintiff. The facts and circumstances, as well as the pleadings in both cases, are different from those in this case, and cannot’ be said to be authority in favor of the intervenor here, who, not having conformed to the rules prescribed for interventions, cannot complain if those rules are not inforced for her benefit. She did not allege or show diligence, nor that the parties were hurrying- on the case with unusual rapidity. It is true the defendant’s answer was filed only on the day-preceding the day of trial and intervention, but the suit had been ifisti'-' tuted nearly six months previously, and the record shows that the causé had been regularly assigned for trial; and it was only when it was taken, up that the appellant attempted to intervene. This, we think, was'too. late, 'without some further showing than the appellant has made.

We do not understand the Articles of the two Codes upon this subject,'.' and the two cases above cited, are susceptible of such construction as to authorize an intervention at any stage of the cause. The Articles of the Codes must be construed together and applied according to the eircum-’ stances of e-ach case, under the rules of pleading.

Judgment affirmed.


author: InsLEX, J.

text:
    No. 1135.
    State of Louisiana v. Denis, Colored.
    In a criminal prosecution, where a witness has been examiuod by the State, and consigned to the defendant, he can only be re-examined by the tí tato for the purpose of explaining any facts which* may come out on the cross-examination, and must be confined exclusively to the cross-examination.
    The law has fixed no qualification of age, as to tbe competency to testifyin criminal matters. The* competency of a witness as to age, depends on his intelligence, judgment, capacity and un'dkV*' •standing, all of which must be left to the discretion of the judge and the jury. ' !*
    A PPEAL from the District Court, Parish of Jefferson, (Jazabat, J.

      B. C. Eliioit, District Attorney.
    A7! Commandeur, prosecuting for' the State.

      TV. T. Scott and E. H. McCahb, for the accused. .
   InsLEX, J.

The defendant, having been convicted and 'sentenced' to" capital punishment for tbe crime of rape, appealed from the judgment .of' the District Court, and the case comes before this Court on two' bills oT exception.

’The first bill was taken to tho ruling of the Court below, by which a witness for the prosecution, before leaving the stand, but after the close of her cross-examination by tho defense, was permitted to bo reexamined by the State.

It appears that, on her first examination-in-chief, the witness had stated that the accused had thrown her down by force, and used her like .a beast, and the reexamination was allowed in order to ascertain more clearly the nieaning of the language used by the witnéss.

' 'By the common law of England, which by our own law, governs in trials of crimes, offenses and misdemeanors (see 33 ?¿ of the act of May 4tii, 1805, Bullard & Curry, page 248, and which section is expressly preserved in force by the 73 section of the act relative to criminal proceedings, No. 121, of the session acts of 1855, also State v. Lacombe, 12 An. 196), a reexamination is allowed only for the purpose of explaining any fa'cts which may come out on the cross-examination, and must be confined to the subject-matter of the cross-examination. Roscoe Criminal Evidence, 173. Archibald’s Criminal Pleading, p. 157.

.The late Court of Errors and Appeals admitted that this was the common law rule of criminal evidence, but observed that many of the rules, with regard to the examination of witnesses and the introduction of evidence, had been much relaxed, and that it is now understood to be the universal practice of the Courts of this State, in both civil and criminal proceedings, to permit a witness, after having been examined-in-chief, consigned and cross-examined by the party introducing him, to be re'examined upon points touching which he had not before testified; that this was discretionary with the Court. The State v. Duncan, 8 Rob. 563 and 564. This doctrine was also entertained in the case of the State v. Parker, 7 An. 84, wherein the Court, having in view the act of 1805, expressed the opinion that the ancient rules of evidence are subject to change, where it is "indispensable to truth and justice, and that the whole tendency of modern decisions is to relax the strict rules of evidence with a-view to lay everything before courts and juries, which ought to have an influence upon the cases before them, and to leave the objections as much as possible, consistently with an orderly and speedy administration of justice to the credit of the testimony and witnesses.”

It is unquestionably true, that when the common law rules of evidence, in criminal proceedings, were adopted by the Legislature of this State; no rule was better Understood nor more firmly established than the one now under consideration. It had always been deemed a wise and salutary one, and had been uniformly adhered to.

’The-discretion, which in the cases referred to, is claimed for Courts to relax, to change, or to utterly disregard rules of criminal evidence, which the Legislature has decreed it obligatory on them to observe, would be effectually'to make the law a dead letter; cases might certainly occur, and this, perhaps, is one of them, wherein a relaxation of the rule might serve to advance the course of justice; but this is no reason why the general rules of evidence should not be observed, and until the law of evidence in criminal proceedings, now extant, is partially or wholly changed, our Courts are not justified in exercising their discretion in regarding or disregarding rules of evidence, which our Legislature has adopted as a system.

It was well said by Lord Kenyon, that “rules of evidence are of vast importance to all orders and degrees of men, and that our lives, our liberty and our property are concerned in the support of them.”

The second bill relates to the competency of a State witness, aged about eight or nine years.

The law has fixed no qualification of age, as to the competency to testify in criminal matters, and on that score there was no error in the ruling of the judge who received the testimony.

In a very late case, the State v. Ross and Rogers, 18 An. 342, this Court held that the incompetency of a witness as to age, depends upon his reason, intelligence, judgment, capacity and understanding, which are all matters of fact left to the discretion of the judge and jury,

The bill of exceptions discloses no reason to doubt that, in this case, that discretion was wisely and cautiously exercised.

It is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the case be remanded for a new trial, according to law,


author: Howeli,, J.

text:
    No. 1238.
    E. Carver & Co. v. W. H. Harris.
    A party bringing suit on an unliquidated demand must establish liis claim with legal certainty.
    A PPEAL from the District Court, Parish of Carroll, Farrar, J.

      Be France & Pilcher, for plaintiff and appellee.

      W. G. Wyley, for defendant and appellant.
   Howeli,, J.

This is a suit on an open account for two gin-stands, dated 4th March, 1857, with interest from 1st January,. 1858, when, it is alleged, the account was due.

The defense is a general denial and the prescription of three years.

There were two trials in the Court below, resulting each time in a judgment in favor of plaintiffs for SSOO, the amount claimed, and defendant has appealed.

Two witnesses (examined under commiss^m) testified on behalf of plaintiffs. By one, Charles I-Iarrod, it is shown that, in July, 1856, plaintiffs shipped two gin-stands, of eighty saw's each, to defendant, who, in 1857, gave a draft for their price on Brown, Cuddy & Co., which,was not paid, and in 1858 a note was given for the amount, on which plaintiffs have obtained judgment in another proceeding.

By the other witness, George A. Peck, it is shown that in November or December, 1856, defendant ordered two gin-stands, to be one hundred saws each, at four dollars per saw, to be paid for out of the next crop after the delivery, interest to be added after the next 1st January following the delivery. He says: “The account annexed, marked “A,” is correct, according to the terms agreed upon with defendant, and is also made in conformity to the instructions of the plaintiffs to myself concerning the sales of gins at that time.”

This account is not found in the record.

He says, further : “ The amount due by defendant foil due oil the next 1st January following the delivery of the gins at his landing. As the order was received in November or December, 1856, it would probably be executed in the following spring, which would be beyond the 1st January, 1857, and the account therefore became due on January 1st, 1858.”

He does not say that the gin-stands were delivered. He speaks hypothetically as to the execution of defendant’s order and the time at which the price would be due, according to the terms on which plaintiffs were then making sales. Such evidence is insufficient to authorize the judgment asked for. And particularly so, where the transcript contains the record of another suit for the price of two gin-stands, for which a settlement was had between the parties about the same time, and for which plaintiffs have obtained judgment. It is incumbent on plaintiffs to establish their demands with certainty.

' It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant as of nonsuit, with costs in both courts.


text:
    No. 1242½.
    Police Jury of New Orleans (Right Bank) v. Claus Garrett.
    Where the appellant allows three judicial days to elapse atfcer the clay fixed by the District Court for tho filing of the transcript in the Supreme Court without obtaining an order extending the timo, the appellee lias,the right to obtain the certificate of the clerk of the Supreme Court that the appeal has not been .filed. If the appeal is afterwards filed in the Supreme Court, it will be dismissed on rule to show cause.
    A. . PPEAL from the Third District (Joint of New Orleans, Felloices, J.

      T. F. Ccmus, for plaintiff and appellee.

      Collens & Wooldridge, for. defendant and appellant.
   Labauve, J.

It appears that the defendant obtained an appeal from a judgment rendered in the above cause, returnable to this Court on the second Monday of February, 1867; that he suffered three judicial days to elapse subsequent to the return day, without filing the record of appeal, and that plaintiff and appellee took from the clerk of this Court a certificate of the non-filing of said- appeal.

On the 19th of February, 1867, on motion ■ of defendant and appellant, it was ordered by this Court that the plaintiff and appellee do show cause on Tuesday, 26th February, 1867, at 11 o’clock, A. M., why the certificate of the non-filing of the appeal in this case should not be set aside and canceled, and why the record of appeal should not bo filed, on the following grounds :

“ 1. That the judicial day made on Thursday last should not be counted, with regard to appeal from the parish of Orleans, and said appellant having made a motion and showing on Monday last in due form.

2. That the facte .shown by the affidavit and certificate filed yesterday, clearly entitle the appellant to relief. ”

This rule and application must bo tested and disposed of under the dispositions contained in Article 888 of the Code of Practice, where it is directed that—

If the appellant lias not filed in the Supreme Court, on the day appointed by the inferior judge, the record from the Court below, and was prevented from doing so by any event, not under his control, he may, either in person or by attorney, apply to the Court, before the expiration of the three, days, after which the appellee may obtain a certificate from the clerk, declaring that the. record has not been filed, and may demand a further time to bring it up, which may bo granted by the Court,, if the event, causing its delay be proved to its satisfaction. i;’ *

The three judicial days having expired without a motion by the. appellant for an extension of time, to file the appeal, the appellee had aii acquired right to take the certificate, and we have in law no authority to set it aside and cancel it, except on proof, on the part of the appellant, that he was prevented from filing the appeal in the legal delay, by an event not wider 7iis control. The appellant has entirely failed to show any such event; lie lias not evou shown any duo diligence.

The rule is discharged, at the cost of the appellant.


text:
    No. 786.
    David S. Rhea v. Frederick Otto.
    When goods, produce, or other objects aro bold m the lump, they are at the vtoir hi the purchaser from the date of tile Bale, but'vvh.pn sol'l by tvoiftb* m* rn^iixure, they are at the ri«k of Gip '-elier until they avowoiithod or C. C.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      Dunn cC Herron, for pdaintifl.

      Fuqua <1 KmcTearhocker,. for defendant.
   Labauve, J.

The plaintiff claims of the. defendant a balance of §5,475, remaining due on the sum of §8,(175, price, of 95,000 pounds of seed cotton, sold and delivered to said defendant in the fall of 1863, at 8te cents per pound in the seed.

The answer contains a general denial, and an admission that defendant in the fall of 1863, purchased cotton of plaintiff through his authorized agent, OliviaL. Wooward, but that ho paid in full for'the same.

The Court, after hearing the evidence, gave judgment for defendanl, and the plaintiff appealed.

The only question in this case, is whether the cotton of plaintiff, after the agreement of sale, was at the risk of the plaintiff or the defendant. If sold in lump, it was at the risk of the purchaser; but if otherwise sold by weight, it remained at the risk of the seller. O. C. Art. 2433. The evidence shows, and the plaintiff’s petition admits, that it was sold at so many cents per pound.

Nothing shows that the cotton was at the risk of the buyer until weighed; some lots were weighed and delivered, and paid foy, as we are informed by the evidence, but there is no proof of any other cotton weighed and delivered.

The able opinion delivered by our learned brother below, and the testimony in the case, satisfy us that plaintiff has failed to make out a clear case.

We are of opinion that the District Judge gave a correct judgment, under the law and facts of the case, and for the reasons assigned by him his judgment must be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


text:
    No. 1287.
    Arthur Crawford v. Marion Chapman.
    The verdict of the jury must be supported by the testimony in the record.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      J. H. Muse, W. F. Kernan and Cross & Hardee, for plaintiff and appellee.

      Me Vea & Iiunler and J, B. Smith, for defendant and appellant.
   Hyman, C. J.

The sheriff of the parish of East Feliciana seized a lot of drags and medicines, the property of plaintiff, by authority of an execution, and on the 3d day of November, 1860, sold the same at public sale to defendant for $1,505.

On the 5th day of the same month defendant agreed to sell to plaintiff the lot of drugs and medicines, provided that plaintiff would pay in claims or money the amount that he, defendant, gave for the same. Plaintiff was to continue in possession of the drugs and medicines, and to sell them for defendant until defendant was refunded the money that he had paid for them.

On the 3d day of January, 1861, defendant sold the lot of drugs and medicines to P. Langworbhy.

In February,-1861, plaintiff brought suit against defendant. In his petition he claimed to be owner of the lot of drugs and medicines, by having paid for the same according to the above-named agreement.

He averred that defendant had sold to Langworthy other drugs and medicines belonging to him, plaintiff, than those included in the lot sold by defendant to Mm as per agreement, and that defendant had damaged him by the sale to' Langworthy $4,949 23.

For this amount he asked judgment against defendant.

There was a jury trial, and the jury having returned a verdict in favor of plaintiff and against defendant for_$3,000, the Judge rendered judgment in conformity with the verdict.

The defendant has appealed from the judgment.

There is no evidence in the record that justifies the verdict of the jury-

Plaintiff’s pretense of judment for the drags and medicines, is founded on a receipt of defendant for a number of small accounts placed by plaintiff with defendant for collection.

The receipt shows that the accounts were not taken in payment. It states that the accounts were to be collected by defendant or returned to plaintiff.

Many of these accounts were worthless, and others not owing, and it cannot be presumed that defendant took them in payment for his lot of drugs and medicines, when his receipt contradicts such presumption.

Plaintiff has not shown the quantity or value of any other drugs and medicines which belonged to him, and which defendant sold to Lang-worthy, beside those of the lot he pretends to have bought from defendant.

There is evidence in the record which shows that plaintiff did not consider that he was the purchaser from defendant of the lot of drugs and medicines, for after the sale of same to Langworthy, he inquired of him if he would take $500 for his bargain.

Let the judgment of the District Court be annulled, avoided and reversed, and let the suit of plaintiff be dismissed.


text:
    No. 1187.
    Nancy Schlatre and Husband and Elizabeth Deblieux and Husband v. Jacques Alfred Greaud.
    The purchaser of mortgaged property who assumes the payment of the mortgaged debt becomes personally liable therefor.
    A . PPEAL from the District Court, Parish' of Iberville, Posey, J.

      Johnson, Denis, Berault & Legendre, for plaintiffs and appellees.

      W. B. Robertson, for defendant and appellant.
   Labauve, J.

This is a devolutive appeal from an order of seizure and sale granted by the District Court of the Parish of Iberville, on the 22d November, 1865, for the sum of $16,000, with interest.

On the 27th March, 1858, Benjamin Deblieux and wife, two of the petitioners, being the owners of a plantation and slaves, by authentic act, sold to said J. A. Gréaud the two undivided thirds of the same, for the price of $66,666 66, payable as follows, as stated in the act of sale :

The purchaser, J. A. Gréaud, assumes to pay in lieu and place of the vendors, in the same manner and form as they are bound to pay, the two-thirds of the following mortgage debts which are due by the said vendors, as follows :

1. Amount due the Citizens’ Bank, is $13,050, of which two-thirds is................................................ $8,700 00

2. Amount due Widow W. Dodd, $16,000, of which two-thirds is................................................ 10,666 66

And the balance of the price remaining, say $47,300, payable as follows:

1. The sum of $35,379 42, payable in cash, the receipt whereof is hereby acknowledged respectively by the said Mrs. Deblieux and husband....................................... 35,379 42

2. The further sum of $11,920 58, payable in all the month of March next, 1859....................................... 11,920 58

Equal to the price of purchase......$66,666 66

In this act intervened Mrs. 'Widow Wm. Dodd, who agreed to postpone the payment of the 316,000 until the 1st of January, 1862, all interest to be paid annually.

On the 23d of December, 1858, by another authentic act; the saidDeblienx and wife sold out to said Gréaud the remaining undivided third, thus making him the owner of the entire property; and in this act of sale it is stated :

The price and consideration of the above sale, made to Jacques A. Gréaud, the purchaser, is $37,386, payable as follows :

The purchaser assumes to pay, in the lieu and place of the said vendors, in the same manner and form as they are bound to pay, the one-third of the following mortgage, debts, which are due. by the said vendors, as follows :

1. Amouut duo to the. Citizens’ Bank of Louisiana by the said vendors and purchase.!', is $12,690, the one-third is........ $4,200 Oil

2. Amount to the Widow "Win. Dodd, as per act passed before the undersigned notary, on the 27th March, 1858, is $16,000, payblo 1st January, 1862, the one-third is................ 5,333 33)

And the balance, of the price, say $27,852 66payable as follows :

1. The sum of $10,000, payable in cash, the receipt whereof is hereby acknowledged respectively by said Mrs. Elizabeth Deblieux and her husband, B. Deblieux.................. 10,000 00

2. The sum of $3,926 33).,', payable in all March, 1860, with interest at 8 por cent, per annum from date till paid...... 8,926 33)

3. The further sum of $8,926 S3);,, payable in all March, 1861, with 8 per cent, interest per annum from date till paid........................•........................... 8.926 33)

Equal to the price of purchase......$37,386 00

This act continues on and states that the purchaser has executed his two promissory notes accordingly, and to secure the payment thereof the one undivided third part of the. property heroin sold is to remain specially mortgaged.

The above sum of $16,000, assumed by said Gréaud, was created in favor of the Widow Dodd, in the acts of 3d January, 1849, and of 18th February, 1851; both acts wore, passed before the recorder of the parish of Iberville and duly recorded.

Mrs. Widow Dodd having dejDai'ted this life, Mrs. Deblieux and Mrs. Hchlatre, the plaintiffs (her daughters), were recognized her heirs and put in possession of her estate, and they brought this snit. Their quality of heirs is not disputed by the appellant.

But the defendant and appellant relies on two grounds only to sustain his appeal and to dismiss the order of seizure and sale :

1. That the mortgage given to secure the said debt was extinguished, for want of re-inscription, at the time the order of seizure and sale was issued.

2. That the defendant is a third possessor, and should be proceeded against as such.

This position is untenable ; for it is clear that the defendant, in assuming the mortgage debt’due Mrs. Widow Dodd, became personally bound and liable, in lieu oi the original debtor, for the debt thus assumed. The §16,000 was a part of the price of the property sold to him by Benjamin Deblieux, and was in law secured by the privilege of the vendor, and Mrs. Widow Dodd was authorized by law to proceed by order of seizure and sale of the property to satisfy her claim. Civil Code, Arts. 3216, 3238. Code of Practice, Arts. 732, 733, 734. 12 R, 279. 3 A. 603. ] R. 135. 6 R. 407. 16 L. 223. 15 L. 184. 8 A. 267. 17 R. 66.

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


text:
    1203.
    Nicholas O’Connor v. Charles D. Stewart.
    ■fo bind parties against their will, for a specific yum under provisions oí law, enacted in the public interest, all the formalities of suoli law must be rigidly observed; sucli parties may be liable on a quantum meruit, if it be shown that the work is necossary and useful to them.
    A PPEAL from the District Court, Parish of Pointe Coupée, (holey, O.

      J. Yoisl <& A. Provosiy, for plaintiff and appellant.

      F. H. Farrar, for defendant and appellee.
   Howell, J.

Plaintiff alleges that on the 16th January, 1859, the inspector of the Third Levee District of the parish of Pointe Coupée, after observing all the formalities of law and in accordance with the regulations of the police jury, sold and adjudicated to him at public auction, the building of a certain portion of a levee on a tract of land belonging to defendant, at the price of 95 cents per cubic yard, which amounted for the whole work, accepted by said inspector, to the sum of §2,768 30, for which he asks judgment with a lien and privilege on the land.

The defendant pleads a general denial, and specially denies that the requisite notices and advertisements were given or made in the manner required; that the adjudication was legally made; that tlio levee was properly and securely built, or that the regulations of the police jury were complied with by plaintiff

Judgment was rendered in favor of defendant, and plaintiff ajjpealed.

The evidence shows that the prerequisite written notice of the necessity of making the levee and specifying the place where such levee was to be built, its dimensions, the time when it was to be commenced and when completed, was not given to defendant; that the sale was advertised on 8th January for the 19th January, 1859; that the bond furnished by plaintiff was executed on 17th January, two days prior to the date fixed by the advertisement for the sale; that the levee was not of the height required by the police jury regulations, and that stumps and roots were covered up in the levee.

As it cannot be said that, under such a state of facts, the work was done in the manner required by law or the regulations of the police jury, the question is presented, can plaintiff recover in this action against the ’defendant, the proprietor, on the adjudication by the inspector, by which the parish authorities undertook to contract for account of defendant ? We think not.

In order to recover, we think it incumbent on plaintiff to show a strict compliance with all legal formalities and requisites, and the conditions of the contract or adjudication. To bind parties against their will for a specific sum under provisions of law enacted in the public interest, all the formalities of such law must be rigidly observed. Such parties may bo liable on a quantum meruit, if it be shown that the work is necessary and useful to them. These principles have been recognized in several cases reported in our books, though applied to different circumstances. See 2 N. S. 455; 5 L. 45; tí A. 177; 9 A. 67.

The District Court erred, however, in rendering a final judgment against plaintiff; it should have been one of nonsuit.

It is therefore ordered, that the judgment of the lower-Court be reversed, and that there be judgment against plaintiff as of nonsuit, with costs; defendant and appellee to pay costs of appeal,