text:
    C. Carpenter, Curator, v. Featherston & Amis—S. F. Butterworth Warrantor.
    Where an. instrument was attested by two witnesses, and aftorwarcis acknowledged by the parties
    , before the Parish Judge, when no witnesses were present — Beld: That it was not an authentic act, and the copy was inadmissible in evidence, until an effort had been made in vain to obtain the original.
    When the subscribing witness to an act under private signature, resides out of the .State, proof of the genuineness of the signature of the party to the act, and of the absent subscribing witness, should be received jireparatory to the introduction of the act in evidence.
    An uncertainty in the description of the property sold forms no objection to the admissibility of the act of sale in evidence.
    An objection to an act under private signature, offered in evidenco, that it has no date except that of the day when it is offered, goes only to the effect of the evidence.
    APREAL from the District Court of the Parish of Madison, Farrar, J.

      Hynes t& Bemiss, for plaintiff and appellant.

      C. Roselias and Sparrow Montgomery, for defendants.
    C. C. Briscoe, for warrantor.
   Merrick, O. J.

This suit was instituted by tlie plaintiff, as representative of Harriet King, the deceased wife of Thompson L. King, for a partition of certain property, land and negroes, in which it is claimed the Succession of Harriet King was interested.

The defendants deny the right of the plaintiffs. The ease ,was before this court on an appeal by the defendants in 1849, and remanded for a Dew trial. Since that period, one of the minor children of the deceased, has attained the age of majority, and the other has departed this life, also leaving a minor child, to whom a tutor has been appointed. The major heir and the tutor have, by amendment, made themselves parties, and the case has been put at issue by the present defendants and the warrantor.

The second trial resulted in a verdict in favor of the plaintiff for an undivided half of certain slaves and their hire, and an undivided fourth of certain other slaves and their hire, and against the defendants, and judgment in their favor over against their warrantor. Judgment was also rendered in favor of the defendants on the other issues. All parties appealed.

The plaintiff calls our attention to certain bills of exception, by which his testimony was excluded, and the defendants and warrantor claim final judgments in their favor.

The first bill of exception taken by plaintiff’s counsel, was to the refusal to receive in evidence a copy of an act of copartnership entered into between John E. Hunter and F. L. JCing, in 1836. The instrument purports to be attested by two witnesses. Subsequently, the parties went before the Parish Judge, and acknowledged that they signed the act the day of its date. The copy was properly rejected. When the two witnesses signed the act as such, the Parish Judge was not present. When the parties acknowledged the act before the Parish Judge, no witnesses were present. Hence the instrument is not authentic, and cannot be proven by a copy and secondary evidence, until an effort has been made to obtain the original in vain. Lawrence v. Berris, 13 An. 611; Civil Code, 2231.

The second bill of exception was taken by the plaintiff to the refusal of the District Judge to permit proof of the signature of one J. Woodhouse, to an act of sale under private signature, of his interest in the plantation of Hunter & Woodhouse to Thompson L. King. This act was dated Rodney, January 30, 1836, and was attested by three witnesses. The proof shows, that two of the subscribing- witnesses were dead, and that the other lives somewhere in Ohio. The witnesses should have been heard to prove the signature of Woodhouse. It is said in Sexton v. McGill, that it is the uniform practice of our courts to receive proof of the signature oí a party to a written instrument, where the subscribing witness resides out of the State. 2 An. 195.

At common law, where a deed was perfected by affixing the seal of a party without his signature, it was a matter of much importance, that the subscribing witness should be produced and, in his absence, that liis (the witness’) signature should be proved before the instrument could be offered in evidence. Hence, under that system, an instrument, whether under seal or not, is proven, in the absence or death of the subscribing witness, by proving the signature of the witness. 1 Greenloaf, sec. 575.

Our courts, on the contrary, have adopted the more sensible rule of admitting proof, in such case, of the signature of the party to the act, and the reason of the common law rule never having had any force in Louisiana, the doctrine of the common law ought not to be carried to such extremes as to embarrass the administration of justice. It seems inquiry was made for the witness, a summons was issued and returned, not found after diligent inquiry ; the instrument was dated at Rodney, in another State, and it seems it was not until the trial, that plaintiffs were informed that the witness lives in Ohio.

We think that the plaintiff ought to have been permitted to prove the signatures of Woodhouse and Overacher, the witness, preparatory to the introduction of the act under private signature. It is objected, that the description of the property sold is so uncertain, that the instrument would be of no value if offered in evidence. To this it may be replied that that, is sufficiently certain in the eye of the law which can be rendered certain. See Lea, Executrix, v. Terry, 15 An. 159.

Again : it is objected that the instrument would have no date except the day it was offered in evidence. This objection only goes to the effect of the evidence when received, and it may be that the plaintiffs may be able to establish its date at a period contemporaneous with F. L. ICing’s possession during the marriage. Until they were permitted to introduce the instrument in evidence, it would seem useless to prove the date of the death of the witnesses or other circumstances, showing the period of the execution of the instrument.

The third bill of exception is to the refusal to admit the notarial act mssed on the second day of December, 1836, before W. L. Poindexter, on the ground that the authority from King to Hunter to sign the act, had not been previously proved. As plaintiff’s counsel concede, that if the ruling of the lower court on the first bill is sustained, that this bill of exception must share the same fate, wre shall dismiss it without examination.

The plaintiff admits that there is an error in the date at which the jury commenced allowing hire for the interest in the negroes, which plaintiffs have recovered by their verdict.

We think, therefore, that justice requires that the judgment of the District Court should be reversed as to the whole case, and the same be remanded to the lower court for a new trial.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this ease be remanded for a new trial, with instructions to the lower court to permit the plaintiffs to prove the signatures of John Woodhouse and George Overacher, to the act under private signature, of date January 30,1836, preparatory to the offering of said act in evidence. And it is further ordered, that each party, viz, the plaintiffs, the defendants, and the warrantor, pay one-third of the costs of the appeal. ■

Land, J., absent.


source: Caselaw Access Project

author: Vooriiies, J.

license: Public Domain

text:
    George W. Munday v. J. H. Muse.
    The statutes granting a preference right to actual settlers on public lauds donated to the Stato, wero intended to benefit white persons who, being heads of families, or over twenty-one years of age, had made a settlement with a view to cultivation, and not of speculation. Actual residence is required; and the mere fact of cultivation, without residing on the land, cannot be considered a compliance with the law.
    APPEAL from the District Court of the Parish of East Feliciaua, Ratliff, J.

      R. J. Bowman, for plaintiff and appellant.

      Fuqua <& Kilbourne and P. Pond, Jr., for defendant.
   Vooriiies, J.

The briefs filed on behalf of the plaintiff and of the defendant have narrowed down to one point the investigation of the respective titles of the parties to the land in controversy. The question is, whether the defendant was entitled to a right of preémption under the Acts of March 17th, 1852, and of March 16th, 1853. If not, the plaintiff’s patent, derived from the State, must prevail; otherwise, the judgment appealed from must be affirmed.

The defendant purchased from Mrs. Pamela Muse’s succession the tract of land in question, whilst the latter, in her lifetime, had purchased her vendor’s right, title, interest and claim, as derived from the probate sale of the succession of Charles Ingram, deceased. The record does not disclose what was the nature of Charles Ingram’s titles; and, in the proces-verbal of sale of his succession, the property sold was described as : “ all the right, title, interest and claim of the estate of the deceased, Charles Ingram, to a claim of land on the Comite, containing six hundred and fifty acres, known as the Rourke Tract, and adjoining the lands of Robert Dunn."

The plaintiff, on the 8th of February, 1853, entered the land, and, on the 20th January, 1854, obtained a patent from the State Government. On the other hand, the defendant shortly afterwards, March 13th, 1854, made a regular application for a preemption right, and tendered the money to the State Treasurer, who, however, refused to receive the amount, but gave a certificate of the tender.

It is in evidence, that the defendant and his predecessors, although they did not live upon the premises, have cultivated the laud. Hence it is contended on his behalf, that ho was an actual settler, and that the preference right to enter the-same, granted by the Acts of 1852 and of 1853, cannot be defeated by the plaintiff’s entry and patent.

The statutes granting a preference right to actual settlers, intended to benefit white persons, who, being heads of families, or over twenty-one years of age, had made a settlement, with the view and purpose of cultivation, and not of speculation. The mere fact of cultivation, without residing on the land, could not, therefore, be considered as a compliance with the law. The statutes contemplated that the applicant would be a resident, — -an actual settler. If the object of the law had been merely to create an incentive to the cultivation of these lands, it is not conceived why it should have restricted this right of preference to six hundred and forty acres. Sage v. Cain, 14 An. 192.

That the Legislature meant, by the term “ actual settlers,” residents on the public lands, is also made evident from the fact that relief was extended to those who, (had not these lands been donated to the State of Louisiana,) would necessarily have had to apply to the Federal Government to obtain the right of preemption, as actual settlers and residents.

The defendant’s pretentions with regard to the title to the land in dispute, must give way to the patent exhibited by the plaintiff. The latter is entitled to the fruits or revenues of the property since the institution of this suit, as prayed for in his petition. These amount, under the assessment of the parties, to the sum of one hundred and fifty dollars per annum.

"With regard to the reeonventional demand for improvements, it is proper to observe that, previous to the institution of this action, the defendant was a bona fide possessor, by virtue of the purchase from the estate of Pamela Muse, deceased ; and, consequently, that he has a good claim for improvements made previously to that period. 0. 0. .495, 3414. But, as the proof on this branch of the case is not sufficiently definite, it will be necessary to remand the case for the purpose of enabling the defendant to introduce additional evidence in furtherance of his claim for re-imbursement.

It is, therefore, ordered and decreed, that the judgment of the District Court be set aside and annulled ; and that the plaintiff do have judgment against the defendant for the land in question, with the yearly sum of one hundred and fifty dollars for the fruits aDd revenues since the institution of the present action, together with the costs incurred in both courts.

It is further ordered, that this case be remanded for the purpose of trying the defendant’s reeonventional demand.

Merbick, 0. J., declined to sit in this case.

Land, J., absent.


author: Merrick, 0. J.

text:
    Adonis Petit v. G. L. Rousseau.
    An incumbent, of mi office \vho has boon defeated by another, in <an election for the same office, and contests the right of his opponent, will be responsible to him for the fees of the office ponding the contest, should it be decided th.it such incumbent hail no right or claim to hold such office.
    PPBAL from the District Court of the Parish of Iberville, Beale, J.

      Samuel Matthews, for plaintiff and appellee.

      R. & II. Marr, for defendant and appellant.
   Merrick, 0. J.

The point to be decided in this case, will be understood by the following quotation from the brief of defendant’s counsel, viz :

“ This is an action for the recovery of the fees of the office of Parish Recorder, of the parish of Iberville, received by the appellant pending a contested election.
“ The election was held on the 2d of November, 1857 ; and the parties to this suit were the candidates. The plaintiff received a majority of the votes ; and defendant, the incumbent, contested the election. The cause was tried, and a verdict and judgment rendered, on the 10th of February, 1858, in favor of the present plaintiff, declaring him to have been duly elected. The next day the contestant abandoned his right of appeal; and, immediately upon his adversary presenting his commission, he surrendered the office to him.
“The first question that presents itself is, whether the plaintiff can rightfully claim the fees of office pending the contest. In Borgstede v. Clark, 5 An. 733, this court regarded a suit contesting an election, as a matter of public concernment, and refused to allow costs to the successful party. The statute requires a certain number of voters to sign the petition contesting the election; and it is obvious, as the court held, that it is not analogous to, or subject to the rules which govern ordinary civil suits touching private rights.
“ The successful candidate is not entitled to the office until he is commissioned by the Governor. Pending the contest he was not the officer, and was not entitled to the fees. The contestant was the incumbent; and he was authorized and required to remain in office and to discharge its duties, until his successor was commissioned and qualified. This is precisely what the contestant did, and nothing more.
“ It seems to us, therefore, that the only basis of such an action would be a malicious withholding of the office ; and the measure of recovery would bo the damage resulting from such a tort.
“ In this case no such thing is shown to have existed. The contestant had a right, and the voters who signed his petition had a right, if they believed that the person receiving the majority was not duly elected, to have a judicial inquiry into the legality of the election ; and all the citizens of the parish were interested in seeing that that the person commissioned and inducted into the office had been duly elected. The contestant did nothing to prolong the contest: for on the next day after the verdict of the jury and the judgment of the court were rendered in favor of his adversary, he formally abandoned his right of appeal, and authorized the Cleric to issue the necessary certifícale, so that the Governor might commission, forthwith, the successful candidate. It was nothing more, so fav ag yie j^cord developes the facts, than an honest exercise, by the contestant, of a legal right, in a matter of public concernment, which lie abandoned as soon as a verdict and judgment could be had upon that right.”

It may be true, as asserted by counsel, that the defendant ivas honestly of the opinion that his adversary was not entitled to the office, although the returns were in his favor. But it is equally as true, that he was entitled to the office ; that the defendant was mistaken, and that by means of the contest, the defendant had secured the emoluments of an office which really belonged to another.

The case seems to come within the principle which governed the case of Sigur v. Crenshaw, 10 An. 291.

The defendant ought not to be permitted to derive any advantage from a contest which he provoked, and in which the result proved he was in the wrong1.

"Were a contrary doctrine to prevail, it would be the interest of the incumbent in every lucrative office, to contest the election of his successful opponent. For the emoluments of the office might pay the cost of counsel fees, &c., and leave a large margin ot profit. We think that justice forbids that the contestant should derive this advantage from his position over his adversary. He ought to account to the plaintiff for the emoluments which he has received pending the litigation.

The verdict of the jury and judgment of the court gave the plaintiff $450. This was based upon the declarations of the defendant himself. If his statement were erroneous, he ought to have explained the same by more satisfactory evidence. He cannot complain that his own declarations were taken as the best estimate of the amount of foes received by him, while detaining the office without just cause.

Judgment affirmed.

Land, J., absent.


author: Buchanan, J.

text:
    Philip Huff v. S. A. Freeman et al.
    Whore interrogatorios on facts and articles aro not required to be answered in open court, nor to bo sworn to before the Clork, the answers sworn to before a Justice of the Peace and filed in court before the trial of the cause, cannot be objected to on the ground of their not being filed until after the dny fixed in the order of court for their being answered.
    An affidavit for continuance, which does not mention the names of the absent witnesses, is insufficient.
    A second ap dioation for a continuance, for a ground which had already on the same trial been made and overruled, should not be heard.
    One who is bound as joint and several obligor with both plaintiff and defendant upon the face of the note which is suod on, cannot bo heard as a witness to fix the sole and exclusive liability upon one oí the partios, although released by the other party who offers his testimony.
    APPEAL from the District Oourt of the Parish of East Feliciana, Ratliff, J.

      Fuqua & Kilhourne, and D. C. Hardee, for plaintiff and appellant.

      James H. Muse, for defendant.
   Buchanan, J.

This suit was instituted in 1846 upon two promissory notos signed by a married woman and her husband, and by two other persons, one of whom was the plaintiff himself. The form of each note was an obligation in so-lido of the signers.

Tlie petition charges that these notes, although made in this form, wore given, in truth, for debts of Freeman and his wife; and that the plaintiff was only security as to Freeman and wife; that plaintiff is holder of the two notes in question, and claims judgment upon the same from Freeman, Mrs. Freeman, and Gaulden, the other signers.

With this cause of action is joined in the same petition a revocatory action against Freeman and wile, and a number of other persons, which does not seem to have been prosecuted any further.

The only defendant who has answered was Mrs. Freeman, who by her answer filed in 1848, and supplemental answer filed in 1851, denies liability to plaintiff upon the notes, and specially pleads : 1st, that she was a married woman when she signed the notes, and was legally incapable of binding herself conjointly with her husband for debts contracted by him ; 2d, that the consideration of the notes did not enure to her benefit; 3d, that she denies all fraud and charges of fraud.

In 1854, the defendant, Gaulden, made a transfer to plaintiff of all his, Gaul-den’s, right, title and interest in this suit.

The cause was only brought to trial in 1859. Interrogatories on facts and articles were propounded by plaintiff to Mrs. Freeman, which she was ordered by the court to answer under oath on or before the 12th of April, 1859. She did answer the same on the day mentioned (12th of April,) on oath, before a Justice of the Peace, and her answers were filed in court on the 14th of April, 1859.

On the 18th of April, 1859, the cause was taken up to be tried, and a jury empanelled, who, after hearing, rendered a verdict in favor of defendant. Prom the judgment rendered on this verdict plaintiff appeals.

Appellant relies upon bills of exception taken by him to various rulings of the court.

1. Plaintiff moved to take the interrogatories on facts and articles to Mrs. Freeman, for confessed, because they were not filed in court until after the day fixed in the order of court for their being auswered.

The court properly refused this motion. The order did not require the interrogatories to be answered in open court, nor to be sworn to before the Clerk.

2. Plaintiff, or rather a person named Jelks, who called himself “ one of the plaintiffs,” but whose connection with the suit does not appear upon this transcript, made an affidavit, when the case was called for trial, on the 18th of April, that the answers of Mrs. Freeman to interrogatories had taken him by surprise, and that he was not prepared to go to trial; that he expected to be able to contradict certain statements made in the said answers, (but did not mention the name of any witness by whom he expected to make such proof).

The court refused the continuance, and plaintiff excepted.

The court did not err. The answers to interrogatories were filed in court, as already said, four days before the trial. Plaiutiff had, therefore, abundant time to summon any witnesses to contradict those answers. Besides, the affidavit for continuance is insufficient on its face, for vagueness in description of proof.

3. Plaintiff {Jelks), after his first application for continuance was overruled, made another application, supported by an affidavit, giving the names of witnesses by whom he expected to prove certain facts in contradiction of defendant’s answers to interrogatories.

The court properly refused this application, on the ground that a party cannot ask a second time for a continuance of the cause on the same trial, for a ground which had already been the subject of an application for continuance, and overruled.

4. Plaintiff offered the testimony of M. G. Gaulden, one of the defendants, taken under commission, after giving Gaulden a written release “ of any and all liability to me as one of the signers of the notes herein.” The testimony of Gaul-den was offered by plaintiff for the purpose of proving that the consideration for which the notes were given had enured to the exclusive benefit of Mrs. Freeman ; and that the other parties to the notes were but sureties. The court properly rejected this testimony, on the ground, that though released by plaintiff from responsibility, Gaulden could not be permitted to fix by his own testimony the sole and exclusive liability upon Mrs. Freeman, to pay the notes sued upon, when, upon the face of the notes, the witness was bound as a joint and several obligor with Mrs. Freeman.

A release of liability to the party who offers the witness, cannot have the effect of releasing the liability of that witness to the party against whom he is offered ; and such would have been the effect of the admission of Gaulden, as a witness in this cause.

The judgment of the District Court upon the verdict of the jury is, therefore, affirmed, with costs.

Merrick, C. J., having been of counsel, recused himself.


author: Merrick, O. J.

text:
    Ann Joyce, wife of A. Rogerson, v. Duplessis and Zacharie.
    An authority given to an agent to collect a debt carries with it the authority to sue for it, and issue execution upon the judgment obtained.
    In an action brought against a party for damages for au illegal seizure of property pointed out by a person acting as his agent, judgment will bo rendered against him if in liis answer lie denies only the authority of the agent (o issue execution; he must deny the whole agency to relieve hinisolf from responsibility.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      T. H. Howard, for plaintiff and appellant.

      H. C. Miller and Ogden <& Stansbury, for defendants.
   Merrick, O. J.

The suit is brought to recover damages for the unlawful seizure of plaintiff’s property.

The defendant, Zacharie, in pierson, placed in the hands of a collector, Outlaw, a small claim lor collection against Rogerson, the husband of the plaintiff, for the rent of a store. Outlaw, finding all other means to collect unavailing, instituted suit before a Justice of the Peace of New Orleans, and obtained judgment, which he proved up by a Clerk from Mr. Zacharie’s office.

The plaintiff caused an affidavit to be made, proving her ownership of the property in question previous to her marriage, and had the same delivered to the Constable, Duplessis. Outlaw, as agent of Zacharie, caused the execution to issue, and directed the seizure. Tie had previously informed Mr. Zacharie’s clerk that he was going to seize the property at Rogerson’s house. Under the execution, the plaintiff’s household furniture was seized and removed by the Constable. During the pendency of the suit before the Third Justice of the Peace, and seizure, Zacharie was in Europe, and the first knowledge he seems to have had of the seizure, was the commencement of this suit. He became angry at the seizure, directed its release, and paid the Constable Ms costs.

There have been two trials of this cause; the first resulted in judgment against Duplessis and Zacharie for $300. A now trial was granted and judgment was rendered against Duplessis for $300, and in favor of Zacharie.

An attentive examination of the defendants’ answer and the testimony in this case, satisfies us that Outlaw was authorized and expected by Zacharie to take all needful steps to collect the debt. Had he lost it by his negligence, he would have been responsible to Zacharie for it. And it is worthy of remark, that Zacharie, neither in his answer, nor in his conversations after suit brought, denied Outlaw’s authority to sue and issue execution, and direct the seizure of property. In his answer, he says he denies that he was actuated by malice or ill will, or that he, or any person authorized to act for him, made the seizure complained of with arty knowledge of the pretended, claims of plaintiff. Zacharie, in his conversation with Duplessis, told him that he never seized the property of a woman for rent; and wherever he speaks of the affair, he simply denies that he authorized the seizure. There is, therefore, nothing in these denials which throws discredit upon Outlaw’s statements. The question then arises, whether Zacharie, who had no knowledge of the acts of Outlaw, nor of the execution itself, is bound by them ?

If it be admitted that Outlaw was authorized to take out the fi. fa. and direct the seizure of Rogerson’s property under it, the question must be answered in the affirmative; for a man is responsible for the negligent and improvident acts of his agent in the execution of the trust. He cannot deny the authority of the agent in that particular thing; he must deny the agency altogether. O. O. 2299 ; Parsons on Contracts, vol. 1, p. 62 ; Fitzgerald v. Ferguson, 11 An. 396.

We are not aware of any law which made it necessary that Outlaw should have had a special power of attorney to authorize him to issue execution or point out property to be seized. His authority to collect the debt seems to us sufficient for this purpose, and Zacharie cannot now successfully object that he was not an attorney at law. Whatever judgment is rendered against Duplessis ought to be rendered against Zacharie. The estimate of damage made by the District Court seems high, but as it has been the result of two trials, we shall be governed by the same.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court, as to said J. W. Zacharie, be reversed, and that there be judgment in favor of the plaintiff, Ann Joyce, wife of said A. Rogerson, and against the said J. W. Zacharie, for three hundred dollars, and costs of both courts.

Buchanan, J., took no part in this decision.


text:
    Jesse Crawford v. N. Graves et als.
    A foreign administrator, who has qualified in a court of competent jurisdiction, has the right to sue for property brought into this State, belonging to the succession which ho administers.
    APPEAL from the District Court of the Parish of 'Washington, Wilson, J.

      R. & H. Man', for plaintiff and appellant.

      E. P. & T, C. W. Ellis, for defendants and appellants.
   Merrick, O. J.

This case is very similar to the case of Wingate v. Wheat, reported in 6 An. 238.

The defendants are the children aDd heirs-at-law of Mrs. Terry Crawford, deceased, late wife of the plaintiff, by her previous marriage with Benjamin Magee, deceased.

This action is in the nature of a possessory action to recover certain slaves owned by the deceased, Mrs. Crawford, which were removed from the domicil by herself and husband, in the State of Mississippi. The plaintiff, after her decease, and, as alleged, prior to the removal or absconding of the negroes, had obtained letters of administration upon her estate.

The defendants deny that plaintiff was appointed and qualified as administrator.

The plaintiff applied to the Probate Court of Pike County, Mississippi, for letters of administration upon his wife’s estate, and it was ordered that letters should issue, on taking the oath and giving bond in the sum of $12,000.

The bond was given, but the record does not furnish any copy of the oath; nevertheless, the letters issued.

We must presume that the condition upon which the letters were to be granted, had been complied with, or they would not have issued. Perhaps in Mississippi the oath is administered orally.

A court of competent jurisdiction has granted the letters of administration, and we have no means of revising its proceedings.

It is again urged, that his quality of administrator has never been confirmed or recognized by any competent court in Louisiana. It was not necessary. The property belonged to a succession legally opened in the State of Mississippi, in the county of the domicil of the intestate and her husband. The court of this domicil had jurisdiction of all the property of the intestate situated there, and consequently over the negroes which belonged to the deceased at the time of her death. The letters of the administration granted by such competent court were a title under which the plaintiff could protect his possession of all property confided to his care, by the court of the domicil and rerum sitarum.

This title for administration being legal, when granted, gives its possessor power to pursue and recover the property when abstracted from his possession and carried into other countries. 2 N. S. 20.

He does not recover in a representative capacity, but in his personal capacity, because he is bound to account for the property so entrusted to him. 6 An. 238; 1 An. 48 ; 8 An. 369.

Again : it is urged that the laws of Mississippi are not offered in evidence, and, therefore, it must be assumed, that the defendants are the forced heirs of Mrs. Terry Crawford, deceased, and as such, were seized and possessed of the negroes in controversy, as part of her estate, from the date of her death. If so, it is then argued by the defendants, they have their mother’s right of possession and her right to institute all actions, even possessory ones, and as a consequence, no possessory action can lie against them. They further urge, that there arc no debts against the succession, and the court is called upon to do a vain thing, as the property must be immediately returned to them by the administrator.

The argument appears to us far from conclusive. The administrator has the custody of the property entrusted to him by a decree of a competent tribunal, to which he is bound to account. This legal custody necessarily excludes the corporeal possession of the heir residing in another jurisdiction.

It cannot be a vain thing to restore the possession of property to those who have been wrongfully deprived of the same. They ought not to be forced to account to any other jurisdiction than that which, has conferred the power, and which holds the obligation of the administrator to account.

Moreover, it is important that our citizens should understand, that nothing can be gained by the direct or constructive invasion of the legal rights of those residing beyond our borders. This property must be returned to the State of Mississippi, to be. administered and disposed of according to the law of the domicil of the deceased.

The proof does not show any direct agency of the defendants, in removing the property from Mississippi. But their refusal to return the negroes to the plaintiff, makes them as much responsible civilly, as if they had been guilty of the criminal offence of enticing away or clandestinely removing the slaves to the State of Louisiana.

The proof fixes the value of the services of the slaves at fifty dollars por month. If the laws of Mississippi give the defendants the rights which they allege, the administrator will doubtless be held to account for the hire of the slaves which he receives. But he is entitled to recover, in order that he may account.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now here ordered, adjudged and decreed, that said plaintiff do recover of the said defendants, the possession of the said slaves Jacob, Dick, Harry, Leah, John, Eliza, Samantha, Milly, Isham, Rachel, Emily, Esther, George, Bob and Moriah, and further recover of the defendants, in solido, the sum of fifty dollars per month, for the hire of said slaves, from the 30th day of August, 1858, until said slaves are delivered to the plaintiff. And it is further ordered, that the defendants pay the costs of both courts.

Land, J., absent.


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

text:
    Levicks, Barrett & Kuen v. Andrew J. Walker.
    A stipulation in a contract, that the property of the debtor shall be sold without appraisement, in the event of non payment at maturity, is a pact which ought not to he recognized by a court in the decree rendered upon such comtract.
    APPEAL from the District Court of the Parish of Carroll, Farrar, J.

      Sparrow <& Montgomery, for plaintiffs and appellants.

      F. F. Montgomery, for defendant.
   Merrick, C. J.

This suit is brought upon a promissory note executed in Pennsylvania, wherein the maker describes himself as residing in Montieello, Carroll Parish, Louisiana.

In the note, the defendant promises to pay, without defalcation and “ without any any relief whatever from the appraisement or valuation laws.”

Plaintiffs claimed judgment in this form against defendant, and the same being refused, thereupon they appealed.

We think the stipulation in a contract, that the property of the debtor shall be sold without appraisment in the event of non-payment at maturity, one of those pacts which ought not to be recognized by our courts in the decree rendered upon such contract. The law 1ms, by express provisions, ordained the mode in which its own officers shall enforce tho judgments of the courts.

Parties regulate their own conduct by their stipulations, but they cannot prescribe rules of proceeding for public officers, nor demand that the courts of justice shall depart from the usual modes of enforcing their decrees. If before judgment, the creditor may stipulate the manner in which the same shall be executed, the principle will sanction an endless variety of modes of execution of judgments, and, indeed, the parties may waive all formalities and all delay, and may even consent that some other person than the Sheriff, shall sell the property of the debtor and execute the decree of tho court. And if a decree giving effect to such contract be legal, then also tho sale under it would be legal, and other creditors might find themselves deprived of tlioir common pledge without notice. In view of our complicated system of mortgages and privileges, and the restrictions upon sales where parties are in insolvent circumstances, as well as the responsibility imposed by our law upon the Sheriff and his sureties, we are of the opinion that such stipulations ought not to be inforced. If they be not immoral, they may be considered as affecting the rights of others and void. C. C. 11.

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

Buchanan, J.,

separate opinion, concurring. I adopt, as my own, the following opinion, which was prepared in this case by Mr. Justice Land, who is now absent:

The defendant is sued on his promissory note for the sum of seven hundred dollars and eighty cents, which he stipulated to pay six months after date, to the order of the plaintiffs, without defalcation, and without any relief whatever from appraisement, or valuation laws.

There was judgment against the defendant, under which he is entitled to the benefit of appraisement by the law of this State, and the plaintiffs have appealed, and assigned as error, the refusal of the Judge to render a judgment, without the benefit of appraisement, as prayed for in their petition.

Tho plaintiffs are merchants residing and carrying on business in the city of ■Philadelphia, at which place tho note was dated, and was executed by the defendant, without specifying any place of payment.

It is true, as contended, that the right to the benefit of appraisement given by the law to a debtor in case of the forced alienation of his property for the satisfaction of his debts, may be waived by him, and his property sold at the first offering for cash, for whatever price it may bring. But the waiver in such a case, must be in a more solemn and authentic form than that of a mere promissory note, otherwise the waiver would become a mere formula in such instruments, and the entire policy of the law thereby defeated, to the injury of both debtors and creditors,


text:
    J. H. Abels v. M. C. Glover.
    ■\Yheu the vondor refuses to comply with bis obligation of delivering the thing sold, be waives, by such refusal, a formal putting in default.
    A party is not required to demand performance of him who has already expressly refused to perform his obligation — Lex neniinem cogit ad vana.

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

      Collens & Woolridge, for plaintiff and appellant.

      J. Magne, for defendant.
   Merrick, O. J.

This suit is brought to recover damages for the non-delivery of certain property in Missouri, given in exchange for city lots, and also to recover hack the difference in price, $491 12, between the property received and that given in exchange. This difference in price, was equalized in the act of exchange by the transfer by the defendant to the plaintiff, of a claim to that amount, against one George Leach.

On the trial, the defendant excluded all testimony on the ground, that the petition contained no sufficient allegation of the putting in mora. Plaintiff excepted, and prosecutes this appeal from the judgment of nonsuit against him. The only question, therefore, is whether the proof ought to have been received under the petition ?

The allegation in regard to Leach’s claim is, “ that said Glover (the defendant) has deceived your petitioner, and that the claim which he transferred to petioner against George Leach, never had existence, and was not due by Leach, and is not now due, and that, moreover, said Leach is insolvent and has no means to pay ; that said Glover is bound unto petitioner for the amount of said claim.”

After alleging that one George Leach is in possession of the property received in exchage under an unexpired lease, or some other contract, and that he refuses to deliver possession, notwithstanding every possible diligence to obtain it, petitioner alleges, that “ he has informed said Glover- of the facts, and said Glover refuses to do any act by which petitioner can get possession; that said Glover well knew of the existence of said contract between him and Leach, and did not give petitioner any knowledge, but fraudulently concealed the same from your petitioner, to his great injury and damage.”

Petitioner, after showing the expenses which his attempt to obtain possession had occasioned him, to the amount of over $400, alleges further : “ That he has suffered damage by beiDg deprived of the possession of said lands, and the fraudulent acts of said Glover, in keeping secret the contract between Mm and Leach, and his neglect and refusal to put petitioner in possession thereof.”

The allegations appear to us to be sufficient to authorize the introduction of the proof offered by the plaintiff. If the pretended claim against Leach had no existence, the defendant was bound for the $491 12, under his obligation of warranty' — for he who sells a debt or incorporeal right, warrants its existence at the time of the transfer, though no warranty be mentioned in the deed. C. C. 2616.

The law also imposes upon the vendor the obligation of delivering the thing sold. O. 0. 2450, 2631.

If he refuse to comply with his obligation, lie thereby waives a formal putting in mora by such refusal. The party is not required to demand performance of him who has already expressly refused to perform his obligation — for lex nominan cogit ad vana. 3 Rob. 358 ; 18 La. 513.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for a new trial, with instructions to permit the plaintiff to introduce proof to sustain the allegations of his petition ; the defendant paying the costs of the appeal.

Land, J., absent.


author: Merrick, C. J.

text:
    Succession of John Spivey.
    The Act or 1855, conferring upon Clerics of courts power to homologate accounts uud tableaux of (Ustribution after thirty days notice, does not deprive the courts of the power, as previously exercised, to homologate such accounts and tableaux after ten days notice.
    APPEAL from the District Court of the Parish of East Feliciana, Ratliff, 3.

      Muse & Hardee, for opponent and appellant.

      C. McVea and /. B. Smith, for administrator.
   Merrick, C. J.

“ In the year 1838, John Spivey died, and Robert Bonner applied for letters of curatorship upon his estate. On the 8th of November, 1838, he took the oath of office. In the year 1839, the curator obtained an order of sale, and sold most of the property, amounting in the aggregate to $1321. In the year 1851, about twelve years after he was appointed curator of this estate, Emily J. Spivey, the present appellant, aided and joined by her husband, Jacob Heitzler, brought suit against him to make him account for his curatorship, alleging herself to be the only surviving heir of her deceased father, John Spivey. Service of this petition was made upon Bonner in February, 1851. After this no proceedings were taken until January, 1856, when S. Benjamin, as administrator of Bonner, (who had died in the moan time), filed an answer, in which he plead the general issue.

“ A trial of these issues resulted in a judgment, which was signed on the 6th of February, 1858, decreeing the plaintiff to be the heir of the deceased John Spivey, and ordering S. Benjamin, Bonner’s administrator, to file an account of the estate of said Spivey, and to account to said Emily for all the assets and moneys of said estate, as the only surviving legal heir. On the 7th July, 1859, more than a year after this order was made, S. Benjamin filed the account, together with a petition asking for the heirs to be cited; on the same day he obtained the following order from the Clerk upon his petition, to-wit: “ Let the account which accompanies petition be duly published in the American Patriot; and let the heirs of John Spivey, if any there be in the parish of East Feliciana, be duly cited to appear and show cause why said account should Dot be homologated and made the judgment of this court, and the administrator be discharged from all liability on account of the same.”

“ A decree was signed on the 4th of August, homologating this account. And on the same day, Emily Spivey, aided and joined by her husband, filed a motion for a new trial, in which motion she set up various grounds of error in the decree of homologation. The first ground set up is, that the decree was premature, having been rendered without any service in accordance with the order obtained; and she being the only legal heir, that any homologation without citing her would in no manner be binding upon her. That the account was only published ten days instead of thirty, as required by law. She further alleges, as grounds for a new trial, that the administrator had not accounted for the whole of the property as per inventory; and that his vouchers were allowed by the court without proof; that the notes of said deceased, which the curator pretends to have paid, she does not believe to be genuine.

“ She further alleges, that some of the credits are entirely spurious, and that no such amounts were ever paid by the curator, and in fact, no receipt appears upon a single voucher. A bill of exception was reserved to the refusal of the court to grant the motion.”

The appellant contends iu this court, that she was entitled to notice, by citation, of the filing of the account; both because it was so ordered by the Clerk, and because it is required by law, and that the account could be homologated only after thirty days notice. The Act of 1855, relative to Clerks, confers upon them power to homologate accounts aud tableaux of distribution on the first Saturday of every month. But this power is coupled with the condition that the heirs residing in the parish should be cited, and the account notified for thirty days. See Acts 1855, p. 51, secs. 8 and 9. This provision of law does not take from the courts the power to homologate the like accounts and tableaux of distribution, as previously exercised, nor does it require that the publication should be made in such case in any other manner than provided by law. The statute expressly exempts from repeal the Articles of the Civil Code and Code of Practice on the same subject. See sec. 31, p. 54.

The Civil Code requires but ten days publication of the account and tableau. 0. 0.1058,1172.

The notices published in the paper in this case called upon all persons to show cause why the account should not be homologated in ten days. The account itself had been filed under a decree provoked by the appellant in a regular suit instituted by her, but not within the delay allowed by such decree.

The appellee had a right to cause his account to be homologated by the Judge in open court after ten days notice. The notices actually published, were in this form. It does not appear to us, that the clause in the order of the Clerk, directing the resident heirs to be cited, could vitiate the publication. The Clerk could not have homologated the account, without such citation. But the powers of .the District Court holding its terms at stated periods, or after due publication, are not so restricted. It may homologate, after ten days notice in the newspaper of the filing of the account.

The motion for a new trial is not even accompanied with an affidavit; and instead of averring surprise on the ground of the want of citation and thirty days notice, the appellant rests her legal rights upon the face of the papers and the want of such citation and notice.

The motion for a new trial was properly overruled.

On inspection of the account and tableau of distribution, it will be seen there were matters subject to the action of the decree, and it cannot, therefore, be viewed as a nullity. How far it is conclusive upon the rights of parties, can be determined whenever it shall be pleaded as the thing adjudged. Lang v. His Creditors, 14 La. 237; 3 An. 384; 12 An. 338.

Judgment affirmed.


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

text:
    James C. Savage et al. v. Joseph S. Williams.
    Where the decree of the court recognizes the necessity of a sale of the property of an intestate, to pay debts due by his succession, and the purchaser is in good faith, his title cannot be questioned, although the debts might have been paid by the future revenues of the crops.
    In an action for the partition of the effects of an ordinary partnership, brought by tho surviving partner as administrator, where tho deceasod has left minor heirs, they cannot properly be represented by an attorney for absent heirs, and it is not competent for such administrator and attorney, without other parties, to obtain a valid decree for a partition, and they are not proper parties to represent the succession in a sale to effect such partition.
    The administrator has the right to apply in good faith for the sale of property to pay debts, but he has no right to incumber such sale, by requiring the purchaser to buy other property than that of tho deceased, nor to demand a larger proportion of cash than the wants of the succession may require ; and if he, himself, become the purchaser at such a sale, it cannot be maintained.
    Whero the surviving partner in an ordinary partnership, is the administrator of the deceased partner’s succession, ho has tho capacity, by the express provisions of the Act of 1854, to purchase at a succession sale of his effects.
    Where property has been sold by an administrator, and for want of proper parties the sale is re scinded, it cannot be taken from the administrator, but must be left in his hands to be administered according to law.
    Where the representative of a succession claims a partition of property m which minors are inter-rested as boniiiciary heirs, whether residents or non-residents, they should be made parties or represented according to tho rules prescribed for partitions.
    APPEAL from the District Court of the Parish of Lafourche, Roman, J.

      Michel <& Koontz, for plaintiffs and appellants.

      Benjamin, Bradford, & Finney, Bush, Beatty <6 Attain, A. Beatty and C. Belcher, for defendants.
   Merrick, C. J.

Tames Savage, deceased, the father of the plain tiSs, and a resident of Alabama, and the defendant, Joseph S. Williams, were jointly interested in an agricultural partnership in this State.

On the death of James Savage, Williams obtained letters of administration on the estate of his deceased partner, and having had an attorney appointed to represent the absent heirs, he filed his petition for a partition of the common property, and the sale of the other property of the succession, to pay debts.

The whole partnership property was sold in globo to the administrator, at its appraisement. The six slaves, the separate property of the deceased, were sold in the same manner, to one Jas. B. Mobdy, and tho next day transferred to the defendant, Williams.

This suit has been brought to rescind the sale on several grounds. We shall proceed to notice those mentioned in plaintiffs and appellants’ brief! in the order in which they are presented.

I. It is objected, that at the time the administrator applied for the sale, there were no debts, and no necessity for the sale of the property.

So far as this question affects the sale of the six slaves, the separate property of the intestate, we are of the opinion, that where the decree of the court recognizes the necessity of the sale, and the purchaser is in good faith, his title cannot bo questioned, although the debts might have been paid by the future revenues of the crops. But in this case the District Judge was satisfied of the existence of debts.

II. It is contended, that if the sale bo considered as ordered in the action of partition, the proceedings are irregular and illegal; that Williams could not bring the action as [administrator, and that Mr. Hall, attorney for the absent heirs, could not stand in judgment to represent the minors. This point presents the real difficulty of the case.

Williams and the deceased were ordinary partners. The action of partition was the communi div¡dundo and not the familia erciscunda.

The petition of the sale of the property hold in partnership, describes Williams as administrator, and states that: “ Petitioner claims a partition of said partnership effects, and avers that a partition in kind cannot be effected, as said effects cannot be conveniently divided, as diminution in value, loss and inconvenience, would thence result to all parties interested.”

In another place he says, the common property “ should, for the purposes aforesaid, and as required by them, be sold for cash, $40,000, the purchaser to assume the debt due the Bank of Louisiana, of $42,500, and interest payable according to the terms and conditions of the loan, and the residue on a credit of one, two, three, four and five years.”

It would thus seem, that the action was realy intended as an action of partition.

It then becomes important to consider whether it was properly brought.

Were it not for other provisions of the Code and the adjudications, we might suppose that the attorney for the absent heirs could stand in judgment in a proceeding where the administrator was personally interested, to demand a partition of property held in common with the intestate. See C. O. 1204, 1213, 1654, 1655.

But it seems, a partition cannot be demanded except all parties in interest, are parties to the suit, and properly represented. 17 La. 346 ; 4 An. 56 and 260.

In the case of Hooke v. Hooke et al., it seems to be conceded that a curator ad hoc might represent the absent minor. 6 La. 472. And it was contended in the case of Berluchaux v. Berluchaux, 7 La. 544, where it is held that a tutor ad bona, was a proper party under Art. 1092 O. O.

The Act of 16th of February, 1825, relative to the action communi dividundo, provided expressly that a curator ad hoc should be appointed for such defendants as may be minors or absent persons, and that the person so appointed, should defend the suit. 2 Moreau, page 296, sections 3 and 4. Arts. 295 O. O. and 115' and 116 Code ofPractice, seem also to indicate a curator ad hoc or ad lites, as the proper person to represent the absentees, while 1252, 1266 and 1299, presuppose a tutor has been made a party where the minors are not emancipated.

Article 1092 O. 0., already cited, speaking of vacant and intestate successions, says : If the heirs who are absent be minors, the appointment of a curator of absent heirs does not take place, and the succession is administered by the tutor or curator ad bona, who must be appointed for the minor according to law and the modification established in the section relating to the benefit of inventory.

Article 115 O. P., speaking of persons against whom actions may be brought, says generally : “ If the minor be absent, the suit must be brought against Ms curator ad lites, who shall answer both in his own name, and that of the minor.”

So Art. 946 : If the father and mother' of a minor reside out of the State, and are not represented in it, and the minor be also absent, he may be provided with a tutor or curator by the Judge of Probates of the place where he has interests to assert or defend.”

Art 963 provides for the appointment of curators of absent persons.

The next Article, viz, 964, says : “ The above provisions shall not be so construed as to prevent persons having claims against a minor, or a person absent, from pursuing the same previous to a curator or tutor having been appointed as above prescribed; but in such cases, the person so claiming must, in his petition, pray the court to which it is addressed, to appoint a tutor or curator ad hoc to defend the minor or absent person in the action.” See also Code of Practice, Arts. 194 and 195.

Now, in the action of partition, the rights of the parties are adverse to each other; one may wish and have a right to sell for cash, as the plaintiff did in this case. Others may desire a salo on ti mo, and it is for the District Judge to order the sale where there are minors, on the advice of a family meeting, accordingly. O. C. 1263, 1264, 1265.

Minors may also be authorized by a family meeting to purchase. Then the accounts are to be stated, deductions made, and the lots to be drawn. It does not seem to be within tlio duties of the attorney appointed to represent the absent heirs, when a curator of a vacant estate or administrator is appointed, to attend to these duties. Neither does it seem to us competent for the administrator and such attorney, without other parties in the same proceeding, to obtain a valid decree for a partition; and if not, then there were not the proper parties to represent the succession for the sale to effect 'a partition, for such sale is but an incident of the partition.

Again : if it be said that notwithstanding the language of the petition, it was really a proceeding to pay debts, and, therefore, the administrator had authority to apply to sell for such a purpose, and a sale thus made must be protected by the decree, it may be successfully answered. If is true, the administrator has the right to apply in good faith for the sale of property to pay debts, but ho has no right to incumber such sale by requiring the purchaser to buy other property than that of the intestate, nor to demand a larger proportion of cash than the wants of the succession may require. As a partner in a suit for a partition, with proper parties, Williams liad the right to require $40,000 in cash, if his interest in the property amounted to so much, and also that the whole property should be sold, if it could not be divided in kind. But as administrator, he had no such right. If there were not otherwise sufficient funds to pay debts, it was his duty to sell the undivided interest- of the deceased partner in the plantation and slaves, for such terms as would, while paying the debts, be most advantageous to the estate. And in this case, had it even been required that so largo a sum as $20,000 should be raised in cash on behalf of the estate, it might be assumed as probable, that there might have been found a much larger number of bidders, with $20,000 in cash on hand, than were present at the sale with $40,000, and more persons might be supposed ready to buy an estate estimated at fifty thousand dollars, than at one hundred thousand dollars, and thus a greater competition would have been produced. It is possible, if this course had been pursued, that the administrator would not have found an opportunity of selling the undivided half the estate purchased, at an advance of $8,315.

Viewed as a partition, as alleged by defendant, the proceeding cannot be maintained for want of parties.

Viewed as a succession sale, it cannot be maintained in the hands of the administrator as purchaser, because he could not embarrass and prejudice the same, by imposing the condition that his own properly should be sold with that of the succession, and that $40,000 of the price should be cash.

We have looked into the act of sale from the defendant, Williams, to Britton, aud do not find that the former undertook to sell the particular one undivided half of the plantation, slaves, <fec., which he had acquired at probate sale, but an undivided half thereof. As he was the owner in his own right, of one undivided half, there is no reason to disturb Britton in the possession of the property-acquired by Mm. The undivided half still in the hands of Wtlliams, must be declared to belong to the Succession of James Savage, deceased.

III. This objection has been already considered.

IV. It is again urged, that the administrator, acting in a fiduciary capacity, could not buy property under his administration, at a sale provoked by himself. The Act of the Legislature passed a few days before this sale, removed the disability. The Act took effect from its passage. Mr. Williams, being a partner in “ an ordinary partnership” with the deceased, had the capacity, by the express provisions of the Act to purchase. See Acts of 1854, p. 155.

If Mr. Williams were a member of the Legislature which passed this statute, as asserted, it -would not deprive him of its benefit. It was the law of the land.

As he might have bought the six slaves himself, it is idle to inquire whether, as to them, Mobely, was or was not a person interposed.

The property in the six slaves, as already said, must be decreed to belong to the said Williams and his vendee, because the administrator had the capacity to purchase, and they were properly sold to pay debts.

The plaintiffs in this action, who sue to rescind said sale of the common property, cannot take the ODe undivided half of the same from the administrator, but it must be left in his baud, to be administered according to law; and when he files his final account, he can be held to account for such revenues as may be due, and he can obtain payment or credit for all legal disbursements on account of the estate.

It is, therefore, ordered, adjudg’ed and decreed by the court, that the plaintiff’s demand for said six slaves named Rosa, Amelia, Enoch, By, Jefferson, and Amanda, be rejected, and the defendant and his vendee quieted in their title to the same ; and it is further ordered, adjudged and decreed, that the one undivided half of said plantation and slaves hold in common between said Joseph S. Williams and said James Savage, deceased, and described in the inventory of his succession, be declared null and void, and that said undivided half be held to be still, in the hands of said Joseph S. Williams for administration, and he is hereby directed to administer upon the same according to law ; and it is further ordered, adjudged aud decreed, that the suit be dismissed as to said Francis Webb, as in case of a nonsuit, and that there be judgment in favor of the succession of the said Alvin S. Britton; and that said last mentioned succession and said Webb recover their costs; and it is further ordered, that the plaintiffs recover their costs against said Joseph S. Williams in both courts.

Same Case — On a Re-hearing.

Merrick, C. «T.

There is a petition for a re-hearing in this caso.

It is urged, in substance, that the succession ol' Savage was vacant, and that the heirs were unknown ; that Williams was entitled to a partition, and yet, if the decision made by us is law, a partition could not take place, because a curator ad hoc could not be appointed to an heir whose name was unknown ; or if the partner did sue for a partition, and it turned out that the unknown heirs were majors, the proceedings would be valid; if minors, null.

'Die question for our decision is not so much what is convenient or inconvenient in making’ a partition, as it is what is the law.

The Act of 1842, reenacted in 1855, declares that the successions of persons domiciled out of the State, leaving property in this State at their demise, shall be opened and administered upon as are those of the citizens of the State; and the Judge before whom the succession shall be opened shall proceed to the appointment or confirmation of the officer to administer it under the name and in the manner pointed out by existing laws. Acts 1855, p. 398 ; Phillips’ Dig. 539.

The Act of 1848, reenacted the same year, accepts for minors such successions as fall to them with the benefit of inventory, and such acceptance by operation of law is declared to be equivalent to a formal acceptance. See Acts 1855, p. 444, sec. 16 ; Phillips’ Dig. 339.

In view of these two statutes, it is difficult to believe that the Legislature contemplated any distinction between resident or non-resident minor heirs. The succession is accepted with the benefit of inventory as to all.

It would then seem, that where the representative of a succession claims a partition of property in which minors are interested, as beneficiary heirs, adversely to them, they should be made parties or represented according to the rules prescribed for partitions.

As to the other matters argued in the petition for a re-hearing, we think they have been sufficiently considered.

Re-hearing refused.

ORDER CORRECTING A CLERICAL ERROR IN DECREE.

Merrick, O. J.

Whereas in this case it is manifest that a clerical error has

intervened in the decree in the omission of the words “ said sale of,” after the words “ it is further ordered, adjudged and decreed, that the,” and before the words “ one undivided half of said plantation,” &c.; it is ordered, that this, our explanation oí said error, be certified with the decree.

Land, J., absent.


text:
    Theresa H. Smelser v. Mrs. L. H. Blanchard.
    During the pendency of a suspensivo appeal, the power of the District Court to order the sale of property, is superseded, and such a sale would he void.
    "Where the court has ordered the sale of property on terms of credit, and it is sold for cash, the sale would be void for want of an order of sale.
    The executrix being invested by law with powers of administration only, could not ratify a sale which was void for want of a proper order to sell.
    l PPEAL from the Second District Court of New Orleans, Morgan, J.

      W. D. Hennen, for plaintiff.

      E. Rawle, for defendant aad appellant.
   Merrick, 0. J.

“ The petitioner states that she is the executrix of Levi Smelser ; that, for a long time after the death of her husband, she was confined in prison, and compelled to leave the administration of the affairs of the estate to others, and that its interests were greatly jeopardized and threatened with a complete sacrifice, through the gross mismanagement and carelessness of the said agents. The executrix also states, that, amongst other property, there belonged to the said estate a certain lease of certain houses in Tchoupitoulas street, which said lease was to terminate, by its terms, eight years after its date, to wit, 1st of November, 1852 ; and, at the expiration thereof, the lessee or said estate was to be entitled to receive and claim the estimated value of said houses from the lessor, Mrs. Blanchard.

The petitioner then alleges, that a petition was filed in her name, by her attorney, Mr. Browne, setting forth the necessity of selling said lease, and that an order was granted by the court; the property was offered, but not sold ; that, afterward, on the 11th of December, 1855, Todd t& Co., creditors, took a rule on the executrix, which was excepted by the said Browne, to show cause why property of the estate should not be sold to satisfy their claim, and the rule was made absolute.

“ Petitioner complains that no property whatever was specified in said rule, nor in the judgment; that a copy of the judgment, making said rule absolute, was delivered to Beard, auctioneer ; and on the 27th of December, 1855, the auctioneer pretended to sell the lease, for the price of one dollar, to Mrs. Blanchard.

“ The executrix further states, that no order for the sale of said property was ever rendered by the court; that no property was specified in said rule, nor in the judgment; nor was the application made in the name of petitioner by her said agents, as they should have done, to have some specific property sold.

“ The petitioner prays that the sale of said lease be declared null and void, and that Mrs. Blanchard account for receipts, &c.

“ The defendant denies all that is not admitted; states that she is owner of the lease, and in possession ono year and eleveD months at the time of service of the petition.”

Judgment was rendered in the lower court, rescinding the sale of the lease, on the executrix paying the defendant $500, and the latter appeals.

The executrix at one time applied for the sale of the lease, and the same was ordered by the court to be sold by J. A. Beard, auctioneer, for one-fourth cash, and balance on a credit of six months. No sale was effected under this order.

Subsequently, S. M. Todd & Co. obtained an order on a rule against the executrix, requiring her to sell property for the payment of debts. This order was general; no property was pointed out, no terms were fixed, and no auctioneer was empowered to make the sale, and a suspensive appeal was taken from the same.

Nevertheless, pending the appeal, the Clerk issued a commission to sell, and J. A. Beard, the auctioneer, sold the lease for cash, and the same was bought in by the defendant, for one dollar. This sum appears to have been paid over to the executrix, for it figures in the account.

The auctioneer was without authority to sell. During the pendency of the suspensive appeal, the power of the District Court to sell, was not only superseded, but that court had made no order to sell the lease for cash.

If the appellant refer to the decree upon Todd & Co.’s rule as authority, that merely directed the executrix to take steps to sell. If she refer .to the first order, and that can be considered still in force, it will not justify the sale, because the terms were different, viz, one-fourth cash, and the remainder on a credit of six months.

The sale, then, was void, for want of an order of sale. Robert v. Brown, 14 An. 597.

But it is supposed that the receipt of the price by the executrix, amounts to a ratification of the sale.

The executrix being invested by law with powers of administration only, could not ratify a sale void for want of an order to sell, and the tender of the price as a prerequisite to the action, does not seem in the present case to be absolutely essential, as an account is to be adjusted between the parties. Robert v. Brown, 14 An. 597.

The appellee prays for an amendment of the judgment by reducing the amount allowed by the District Judge for insurance, taxes, &c., &c., by striking therefrom the premiums paid for insurance. The clause in the lease is somewhat ambiguous, but as the policies of insurance taken out by the defendant could not have benefited the succession in the event of the distraction of the houses built by Smelser, to which this clause in the lease appears to refer, we think the amount of the premiums, viz, one hundeed and sixty-two dollars, less one dollar, the price of the lease, ought to be deducted from the $556 27, allowed by the District Judge. Sec Farrell v. Klumpp, 13 An. 311.

We attach no importance, it will be perceived, to the unfounded allegations that the agents of the plaintiff were unfaithful, and rest the case upon very different grounds.

The affirmance of the judgment will only settle the right of the parties to the date of judgment appealed from.

It is, therefore, ordered, adjudged and decreed by the court, that tho judgment of the lower court be amended, by reducing the sum allowed the defendant from $556 27, to the sum of three hundred and ninety-five dollars and twenty-seven cents, and that the judgment, so amended, be affirmed; tho appellant paying the costs of appeal — and that the rights of the parties accrued or acquired since the date of the judgment of the lower court be reserved to them.

Büchanan, J., took no part in the decision of this case.


author: Duffel, J.

text:
    A. Brother, Syndic, v. Dennis Cronan.
    Although the voudee may have good cause for suspending the payment of the price, in order to relieve himself from the payment of interest, which was stipulated, he is required to make a deposit of the price.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Benjamin, Bradford <& Finney, for plaintiff.

      J. McConnell, for defendant and appellant.
   Duffel, J.

The defendant contends that he owes no interest on the price of the land by him acquired at the public sale of Peter Conrey’s estate, pending his suit against the Succession of McDonogh et al., reported in 12 An. 269.

It is true, that if the buyer has just reason to fear that he shall be disquieted in his possession, (and it is admitted that such fear did in this instance exist,) he may suspend the payment of the price. O. 0. 2535.- But even in such a case, the vendee, in order to relieve himself from the payment of interest, is required to make a deposit of the price. C. 0. 2536, 2537.

The fact that the syndic in the suit against McDonogh, el al., sought to have the adjudication declared null, did not authorize the plaintiff to keep both the price and the property ; had the purchaser accepted the deed of sale and complied with the terms and conditions of the public adjudication, no such demand would have been made. C. 0 2539.

It is no answer, that the land in question produced no fruit; in the first place, because the payment of interest was stipulated ; and in the second place, because real, or landed property, is always susceptible oí producing fruits. C. C. 2531; Caldwell v. His Creditors, 9 La. 267; Acts of 1852, p. 95.

Judgment affirmed, with costs.

Land, J., absent.


author: Voorhies, J.

text:
    O. Talamon & Dessommes v. John Myers.
    Where a note payable to order is transferred by special endorsements, the party who sues on it must prove the special endorsements to entitle him to recover.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      J. L. Tissot, for plaintiffs.

      Race <& Foster, for defendant and appellant.
   Voorhies, J.

The plaintiffs sue as holders of a promissory note drawn by the defendant, John Myers, to the order of 0. Talamon. There are 'two special endorsements : the first by 0. Talamon to 0. Talamon & Co.; and the second by 0. Talamon <6 Co. to the plaintiffs, 0, Talamon S Dessommes.

The only question presented is whether the petition should have disclosed or alleged these special endorsements, and proof administered of their execution. The District Judge admitted the note in evidence, overruling the objections of the defendant, who thereupon took a bill of exceptions.

It was incumbent on the plaintiffs, if not to allege the endorsements, at least to prove them. 2 Greenleaf Evidence, § 163; 5 An. 642, Ferguson, Adm’r, v. King, Curator; 13 An. 457, S. Robb & Co. v. Bailey; 10 An. 460, Clannon v. Calhoun.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that the plaintiffs’ demand be rejected as in case of nonsuit, with costs in both courts.

Land, J., absent.


author: Com?, J. Buchanan, J.

text:
    Tufts & Hobart et als. v. T. J. Casey.
    Tito decision in the case of Lewis v. GerJce, 12 An. 828, aiik-inetl, to tlio eil'eot that the proceeding by sequestration, under the Act of 1826, against the property of an insolvent who has absconded, is a different and distinct proceeding from that under the insolvent laws for a forced or voluntary surrender.
    A creditor who has proceeded by way of attachment, prior to the proceeding by sequestration, acquires a privilege on the property attached, and a preference over the other creditors.
    PPFAL from the Fourth District Court of New Orleans, Price, J.

      Semmes & Labatt and G. LeGardeur, for opponent anil appellant.

      Benjamin, Bradford & Finney, Durant & Honor, Bonford, Singleton & Clack and Mott & Fraser, for appellees.
   Com?, J.

On the 22d of April, 1858, Abrams, being a creditor of T. J. Casey, who had absconded from New Orleans, caused to be issued the first attachment, and property belonging to Casey personally was seized under this writ, which produced at the sale $3,251 85.

On the 27th of April, 1858, before Abrams had obtained judgment upon his claim, throe creditors of the firm of which Casey had been a member, filed a petition under the 6th sectiou of the Act of 29th of March, 1826, entitled “ an Act supplementary to an Act entitled ‘ an Act relative to the voluntary surrender of property, and to the mode of proceeding, as well for the direction, as for the disposal of debtors’ estates, and for other purposes.’ ” They represented that Casey was established in business in Now Orleans, as a merchant and trader, till about the 20th of April, 1858, when lie absconded, in order to avoid the payment of his debts, and pray for a sequestration of his property, and that his creditors may be called to appoint syndics, to be put in possession of his property by way of forced surrender.

The order was granted, a meeting was held, ami Henry Renshaw was appointed and qualified as syndic of the creditors of Casey.

A tableau of distribution having been filed by the syndic, Abrams opposed its homologation, and prayed that the tableau be amended by placing him as a creditor for $4,900, with five per cent, interest from 12th of April, 1858, and as a privileged creditor, to be paid lo the exclusion of other creditors, for the sum of $3,251 81, lo be paid out of the proceeds of the property that had been attached by him.

The District Court granted him his claim, but without any privilege, and ho has appealed.

Opponent maintains in this court, that previous to the passage of the Act of 1826, no law existed in Louisiana, empowering the creditors of a debtor, who had fled from the State, to seize his property and distribute it ratably among the mass of his creditors; that anterior to its enactment, an absconding debtor’s property was liable to attachment, and a privilege could be obtained by an attaching creditor, over others less vigilant.

That if the Act of 1826 has been repealed, it will follow that the law now stands precisely as it did prior to the ' passage of the Act of 1826, and the attachment of Abrams must be sustained and bis claim paid by preference.

Opponent admits that this controversy presents the same cprstious which arose in the case of Levois v. Gerke, reported in 12 An. 829.

This court, in that case, decided, on a re-hearing, that the 6th section of the Act of the 29th of March, 1826, (Session Acts, p. 140,) which provides for a sequestration of the property, and a meeting of the creditors of any merchant or trader who shall abscond or conceal himself, in order to avoid the payment of his debts, is still in force.

If the court erred in the interpretation given to the legislative will, by decreeing this statute to be still in force, it has been in the power of the Legislature to have corrected the error. Two sessions of the Legislature have been held since that decision, and the Legislature have not passed any Act repealing this statute. Under these circumstances we consider it unnecessary to examine again the questions determined in Levois v. Gerke.

2. As this statute is in force, its effect is to deprive opponent of the right to be paid by preference, as the first attaching creditor.

In Collins v. Duffy, 7 An. p. 40, this court said, it has indeed been often hold, that process of attachment subjects the property attached to the payment of the attaching creditor. But the principle supposes that the debtor has the possession of his other property for his other creditors. If he has made a cession of all his property to all his creditors, it has been always held, that the property attached follows the cession ; that the attaching creditor has no preference, but the syndic must distribute its proceeds equally among the creditors, if there be no lawful cause of preference.

In the present case, Abrams had obtained the attachment, but had not a judgment upon his claim at the time of the meeting of the creditors of Casey and of the cession. We are, therefore, of opinion that Abrams hasno privilege by virtue of his attachment. Marr v. Lartigue, 2 M. 98; Hanna v. Creditors, 12 M. 32; Fishe v. Vose, 3 R. 457.

3. Opponent asks whether the required proof is to be found in the record, to show that Casey was a “ merchant or trader,” within the scope and meaning of the Act of 1826.

In answer to this, it is sufficient to say, that the plaintiffs’ petition contains the allegation that Casey was a merchant or trader, and that opponent does not deny it in his opposition, but asks that the tableau may be homologated, after being amended according to his demand.

As this question was not raised in the District Court by the pleadings of opponent, the latter cannot raise it in this court.

Judgment affirmed, with costs of appeal.

Same Case — Ox a Re-hearing.

Buchanan, J.

This was a proceeding by sequestration of the property of an absconding merchant or trader, by three of his creditors, under the Act of 1826 ; which Act was held by us, in the ease of Levois v. Gerke, not to have been repealed by the Act of 1855, relative to the voluntary or forced surrender of property.

The appellant, M. Abrams, had instituted a suit by attachment against Casey, previous to the sequestration issued in this suit, and had seized under said attachment, on the 22d of April, 1858, the household effects and furniture of said Casey, then in his residence on Canal street, in the city of New Orleans. The proporty thus seized was still under seizure when the sequestration was issued in this case. It was taken possession of, together with other property sequestered, by Henry Renshaw, appointed syndic at a meeting of Casey’s creditors, and was sold by him for the sum of $3,251 85, as appears from his tableau of distribution filed in court. The appellant opposed the said tableau, claiming to be paid the proceeds of the property attached by him, by privilege. From a judgment, refusing such privilege, Abrams appeals.

A preliminary question is raised in this court,, which was not made by the pleadings in the court below, to wit, that Thomas J. Casey was not a merchant or trader, within the terms and meaning of the statute of 1826.

The argument of the counsel of appellant on this point is, that it was not necessary for him to object to the proceedings on this ground; but that it should have been shown affirmatively by the sequestering creditors, that their debtor, Casey, was a merchant or trader.

We are of opinion, that it was for the appellant, or any other party interested, to make the specific objection, and thus to have given the plaintiffs in the sequestration, or the syndic appointed by“ the creditors, an opportunity to prove that Casey was in fact a merchant or trader, as they have sworn, in suing out the writ of sequestration. The question not having been raised in the court below, it might operate as a surprise upon the appellees, to allow it to be raised for the first time here, as no evidence can be offered in this court on the subject.

We proceed, therefore, to examine the merits of the controversy, on the assumption that the proceedings of appellees have been regular under the statute of 182G.

The case of Levois v. Gerke, 12 An. 828, is not to be understood as having assimilated the proceeding by sequestration under the sixth section of the Act of 29th of March, 1826, to a surrender, either voluntary or forced. That case was the subject of two decisions, as the report shows. In the first decision, it was held by the majority of the court, that the proceeding by sequestration of the property of an absconding debtor under the Act of 1826, came within the term of “ a forced surrender of property,” and that inasmuch as it had not been reenacted and incorporated in the Act of 14th of March, 1855, “ relative to forced surrenders and the mode of making the same,” it had been swept away by the repealing clause of the latter Act.

But two Judges, composing a minority of the court, were of the opinion that the proceeding in question was not in eifect either a forced or a voluntary surrender ; and of that opinion was a majority of the court, upon a re-hearing granted.

The doctrine, as finally settled in Levois v. Gerke, is, that the proceeding by sequestration under the Act of 1826, is a peculiar remedy, which supplies an hiatus in our preexisting legislation, and distinct from the insolvent laws, although pursued in the ulterior stages of the remedy, in a manner resembling the settlement of insolvent estates under the statutes relating to voluntary and forced surrenders.

We feel bound, therefore, to say, that the sequestration sued out by the plaintiffs and appellees, did not take away or impair the rights acquired by the appellant under his prior attachment.

The appellant, by his attachment, acquired a privilege on the property seized, which entitles him to a privilege and preference over the other creditors of Thomas J. Casey. C. P. 722; 3 Rob. 106 and 276; 6 An. 444.

The attachment had not ripened into a judgment, at the time of the sequestration. But the appellant has made, contradictorily with the appellees, proof of his debt satisfactory to the court below and to this court.

It is, therefore, adjudged and decreed, that the judgment heretofore rendered by this court herein, be set aside and avoided ; and it is now ordered, adjudged and de. creed, the the judgment of the District Court be amended as regards the appellant, Mordecai Abrams ; that the tableau of distribution filed by Henry Renshaw, syndic, be corrected, by placing thereon the said appellant as a creditor, for four thousand nine hundred dollars, with legal interest from 12th of April, 1858, until paid, and costs of said Abrams’ opposition in both courts, with first privilege and preference for three thousand two hundred and fifty-one dollars and eighty-five cents, proceeds of the property attached in the suit of said Abrams against Thomas J. Casey, and now in the hands of the syndic of Casey, appellee.

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


author: Yoorhees, J. Yoorhies, J.

text:
    S. E. Herwig v. J. W. Beach.
    It is not sufficient that the creditor, in a proceeding to arrest a debtor, should swear that all the facts, and allegations in the petition arc ti'WG to the best of his Icnowleüge and belief; lie must swear positively lo the specific claim on which lie sues, and to his belief of the truth of the other allegations in his petition.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Durant <& Horner, for plaintiff and appellant.

      Hunton <& Miller and Emmerson & Huntington, for defendant.
   Yoorhees, J.

The question presented is, whether it bo sufficient, in a proceeding to arrest a debtor, that the creditor should swear “ that all the facts and allegations in the petition are true to the best of his knowledge and belief.”

The District Judge correctly decided that such an affidavit, coming from the party himself, did not meet the requirements of the law.

The Code, Art. 214, requires the creditor to •“ swear, in the petition which he presents to that effect to any competent Judge, that the debt or the damages which he claims, and the amount of which he specifies, is really due to him.” The 215th Article declares that “ the oath prescribed in the preceding Article may be taken, either by the creditor himself, or, in his absence, by his attorney in fact, or his agent, provided either the one or the other can swear to the debt, from his personal and direct knowledge of its being- due, and not by what he may know or have learned from the creditor, whom he represents.” This was amended by the Act of 20th March, 1830, p. 168, sec. 16, which provides that “ in such case, it shall be sufficient for the agent or attorney to swear to the best of Ms knowledge and belief.” The law, as it now stands, has this difference between the oath of the party and the oath of his agent or attorney; the former must swear positively to the specific claim or debt which he sets up; whilst the latter’s affidavit, to the best of his knowledge and belief, is sufficient. In other respects the principal and the agent must make the same affidavit.

In the case of Jewell et als. v. Jewell et als., 1 R. 317, the court stated : “ It appears to us that, on an indictment for perjury, those expressions “ to the best of his knowledge and belief,” would not avail the traverser, if it were ps-oved that the material statements in the petition, were false to his knowledge......the affidavit is as positive in point of law, as if the words “ to the best of his knowledge and belief” had been entirely omitted.”

Without questioning in the least the correctness of that decision, which was rendered in an injunction suit, we cannot extend its application to a case of arrest, where the lawgiver has expressed himself otherwise, and discriminated as to the nature of the oath, which even the creditor himself is to take. The agent may swear to the best of his knowledge and belief, with respect to the defendant’s indebtedness; aliler, when the party himself takes the oath.

Judgment affirmed.

Land, J., absent.

Same Case — On an Application for a Re-iieartng.

Yoorhies, J.

In the application for a re-heariug, the plaintiff’s counsel present two points which deserve to be noticed.

It is contended that, inasmuch as the Act of March 20th, 1839, had no special reference to the remedy by arrest, but to all conservatory Acts, which may accompany the demand, — the decision in this cause is, in point of fact, in conflict with the case of Jewell v. Jewell. This would undoubtedly be the result, had the law, independently of the Act of 1839, required similar affidavits from the party for the writs of arrest and injunction.

The Code of Practice, Art. 304, requires the party who enjoins to state “ under oath the fads which, according to his belief, render an injunction necessary.” But, for the arrest of the debtor, the creditor “ must swear, that the debt or the damages which he claims, and the amount of which he specifies, is really due to him and that he verily believes that the defendant is about to remove, Sc.” In the latter ease, the party must take an oath of a two-fold character; he must swear positively, as to the debt, and to his belief as to the balance; whilst in the former, it is sufficient for him to take an oath as to his belief, with regard to all the allegations in the petition of injunction. Hence it is, that there cannot be the slightest conflict between this case and that of Jewell v. Jewell.

The appellant’s counsel further contend that the Act of 1839, in laying down the rule that must govern the agent’s affidavit, is not exclusive as regards the oath to be taken by the principal. “ The amendment, therefore,” say they, “ does not touch the affidavit of the principal, but leaves it as it was before the Act of 1839 was passed.” This is exactly what we have decided ; and, having ascertained that the plaintiff’s affidavit for the defendant’s arrest was not a compliance with the Oode of Practice, upon this subject, we dismissed the action.

Re-heariDg refused,


text:
    Succession of St. Julien Tournillon.—Julien Tournillon, Fils, v. Mary Tournillon, Wife of Coltman.
    The child is bound to collate, in the partition of the succession of his father, the amount of his debts assumed by his father and paid by the succession.
    Money paid by the grand-father for tlio tuition of Ins grand-children, although he gives his note or draft for the amount, must be collated by the child at tho partition of his father’s succession.
    APPEAL from the District Court of the Parish of Assumption, Roman, J.

      J. H. Ilsley, for plaintiff and appellant.

      Mills S Leblanc, for defendant.
   Buchanan, J.

It is admitted of record, that the mortgage debt of the appellant, Julien Tournillon, of tho 5th of April, 1849, and the mortgage debt of his father, St. Julien Tournillon, deceased, were included in and constituted the con «deration of tho mortgage debt of the 23d of April, 1855 ; the whole of which latter debt has been paid by the estate of St. Julien Tournillon.

The District Jndge correctly ruled that the appellant was obliged to collate, in the partition of his father’s succession, tho amount of his own debt to John Lear, thus assumed by his father, and discharged by his father’s succession. C. C. 1306, 1307,1308, 1321,1322, 1323,1324,1326.

It is contended by the couusel of appellant, that the assumption of the son’s debt by the lather was a contract of the latter, for a valuable and sufficient consideration, passing from the son to the father, which exempts the former from the charge of collation. But this argument lias no foundation in the facts of the case. It leaves out of view, that by the contract of the 23d of April, 1855, the lather became security for a debt of the son, as well as the son for a debt of the father. Nay more, the father, by that contract, was accepted as a new debtor in the place of the son, by the creditor of the son. The pretension which is here set up on behalf of appellant, amounts to no less than a charge of a commission of twenty-five per cent, for endorsing a note for the accomodation of the maker of the note : — the consideration of the note being itself, to the extent of one-i'ourth, an antecedent debt of the endorser himself!

The statement of such a charge, is its refutation.

The judgment of the court below in relation to the charge of wages of slaves of Julien Tournillon, fils, for the year 1856, is sustained by the evidence.

The item of $393 for money paid to U. S. Landry, is a proper charge against the appellant, being for the tuition of his daughters, although his father had given his note or draft for the amount.

The appellee, Mrs. Coliman, has filed an answer to the appeal, by which she prays an amendment of the judgment in her favor, by reducing the item of three thousand dollars, allowed by that judgment to the appellant for his services as agent or manager of the plantation.

The evidence shows that the parties agreed to leave the question of the appellant’s compensation to Mr. M. S. Bringier. The award of Mr. Bringier is contained in a letter, which, as the District Judge observes in his reasons for judgment, is obscure in its phraseology, and contains an apparent contradiction. A careful inspection of this document does not, however, authorize us to say with confidence, that tho interpretation put upon it by tho District Judge, incorrectly expresses the intentions of the arbitrator.

R is, therefore, adjudged and decreed, that the judgment of the District Court , , J ° “ be affirmed, with costs.

Duffel, J., recused himself for cause of relationship to one of the parties.


text:
    Oliver Palmes v. Bernard Kendig.
    In the redhibitory action, where it is shown’ that the slave was so sick at ajiospital as to render a bodily tender impossible, it is sufficient to show, that an offer, in writing, bad been made to return the slave.
    PPEAL from the Fourth District Court of NewjjOrleans, Price, J.

      M. M. Cohen, for plaintiff.

      Semmes & Labatt, for defendant and appellant.
   Buchanan, J.

This is an action of redhibition for sickness of a slave sold by defendant to plaintiff’s vendor, with full guarantee, within one year prior to the institution of suit. By the terms of the conveyance to plaintiff, ho was subrogated to his vendor’s action of warranty against defendant.

The existence of the redhibitory malady at the time of the sale, to the knowledge of defendant is proved.

The only question raised by the argument in this court, is the sufficiency of the tender made before suit instituted, as alleged in the petition.

The proof of this tender consists in two letters, written by plaintiff and his counsel. The delivery of the letter dated 30th of November, 1857, to defendant, on the day of its date, is admitted. It reads as follows :

New Orreans, November 30, 1857.
Mr. B. Kendig :
“ Sir — I now hereby tender to you the slave Clara, or Hager, purchased by me from II. R. Rhodes, to whom you sold her, by act passed before James Graham, Notary Public, on the 23d of December, 1856, fully guaranteed, and who subrogated me to all his rights and actions of warranty against you. Said slave is now at Dr. Stone’s hospital, subject to your order, and I am ready to deliver her to you at any time and place you may designate. I also ratify the letter of my counsel, M. M. Cohen, Esq., to you, under date of November 19,1857, claiming a rescission of sale, and a return to me of 'the purchase money, with interest, and all costs, damages and expenses, and tendering to return to you said slave.
“ Respectfully,” &e.”
The proof of tender is sufficient. It is proved by Dr. Anfoux’s testimony, and by the. documentary evidence introduced, that the slave was under treatment in Dr. Stone’s hospital, and so sick as to render a bodily tender of her to the defendant, out of the question, consistently with prudence or humanity. Cottle v. Wilson, 1 Au. 4 ; Dixon v. Chadwick, 11 An. 215.

Judgment affirmed, with costs.

Land, J., absent.