text:
    M. D. C. Cane v. E. C. Hart.
    "Whore the record does not contain sufficient evidence to enable tho Court to determine the rights of partios, the judgmont of the District Court will be reversed, and the causo remandod to tho Dislriot Court for new trial.
    from the District Court, Parish of Caddo,

      Weems, J. Geo. Williamson, for appellant. L. M. Nutt, for appellee.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

Plaintiff alleged in this suit that, in 1846, she bought a slave from defendant; that she had been evicted of the slave, and asked for judgment against defendant because of the warranty of defendant against the eviction of the slave.

Judgment was rendered in the District Court against defendant, and he has appealed.

The evidence adduced does not show for what cause plaintiff was evicted; and, with the evidence before us, it is impossible to ascertain whether the right of the person evicting plaintiff existed before or after the sale of the slave by defendant to plaintiff. C. C. 2478.

Wo think that justice requires that this case should be remanded.

It is ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that this case be remanded to said Court for further proceedings according to law, plaintiff to pay the costs of this appeal.


source: Caselaw Access Project

author: Taiaaeerro, J.

license: Public Domain

text:
    Paulina Pickett et al. v. Wm. Brown et al.
    Xong silonco of partios protending ownorsbip of proporty converbod to public uso, and tho peaceable and uninterrupted use and possession by the public, is ovidenco of dedication of tho property to tho public for public use.
    Wo deed or act of conveyance is nocossary to dedicate land or rights in immovablo property to tho public.
    Tho dodication of property for public uses may bo inforred from facts and circumstances, which leave no reasonable doubt upon the mind of the intention of tho owner to mako such a disposition.
    There is no particular form necessary to a dedication of land to public use. All that is required is tho assent of the owner of the land, and tho fact of its boing used for the purposes intended.
    APPEAL from the District Court, Parish of Caddo,

      Weems, J. J. W. Jones, for appellant. Geo. Williamson and Nutt & Leonard, for appellees.
    The facts are stated in the opinion of the Court.
   Taiaaeerro, J.

The plaintiffs bring this action to recover three town lots in the city of Shreveport. They aver ownership of the property and complain that the defendant is in possession and illegally withholds it from them. Subsequently, the defendant Brown, in possession as lessee from the city of Shreveport, abandoned the property, and plaintiffs, by an amended petition, proceeded against the city of Shreveport, adopting against the new defendants all the allegations and demands set forth in their original petition. The defendants, by their attorney, put in a general denial, and aver that the title to the property claimed by plaintiffs is vested in the city of Shreveport for public uses; that it was so dedicated by the original proprietors of the ground, who laid out the city, ahd that the property claimed by plaintiffs has been held and considered as appropriated for public uses since the inebrporation of the city, on the 20th of March, 1839; since which time the city has held peaceable possession of and exercised ownership over said lots of ground.

It appears that one Larkin Edwards, in whose favor a grant of six hundred and forty acres of land was made, and which now embraces the city of Shreveport, being a part of the land obtained by the Government from the Caddo Indians, sold his grant on the 24th day of January, 1835, to Angus McNeil and other persons, who formed themselves into a company and established the town pf Shreveport. This company was formed on the 27th of May, 1836, and it remained in existence until the 14th of December, 1841. The company, during- this period, sold a large number of lots and parcels of ground within the incorporated limits; and in 1843, it proceeded, by judicial partition, to divide all the lots remaining unsold. The decree of partition was rendered on the 14th of December, 1841, and the partition was effected on the 10th of May, 1843. This act seems to have been made with great care and exactness. It assigns to each of' the co-proprietors his share of the unsold lots, designating each lot by its number, and specifying the square or block in which it is situated. By the plat or diagram of the city of Shreveport presented in the record, it appears that the street called “ Commerce street,” running up and down the river, is the nearest street fronting the river. Between Commerce street and the margin of the river, there lies a scope of ground constituting what is commonly called an “ open space;” a term usually employed in legal parlance to designate the ground running immediately along the margin of a river or water course, in front of a town, and extending back to the front, or nearest buildings to the river. The lots in controversy in this case are situated upon the open space bettveen Commerce street and the water’s edge.

The plaintiffs urge that defendants have no title, by any of the modes prescribed by law, for the transfer of real estate. They contend that the lots they sue for are not necessary for public use, and that the corporation has never so appropriated them.

The defendants contend that the property in controversy was dedicated for public use by the original proprietors who laid off the town. They present no other title.

That the dedication of property for public uses may be inferred from facts and circumstances, which leave no reasonable doubt upon the mind of the intention of the owner to make such a disposition, we think there can be no question.

The case of the City of Cincinnati v. The Lessee of White, decided by the Supreme Court of the United States, and reported in 6 Pet. Rep., is clear on the point. This doctrine is recognized in various decisions of the Supreme Court of thisjjState. To several of these we shall presently refer.

Let us now inquire into the facts presented in this case, to ascertain how far the defendants are sustained in their plea of dedication.

By the act of partition referred to, and which was effected on the 10th day of May, 1843, after much care had been taken to ascertain all the unsold property belonging to the company within the incorporated limits of the city, it does not appear that any disposition whatever was made of the ground lying between Commerce street and the river. There is no evidence that the company ever exercised any act of ownership over it. There is no fact shown to raise the slightest presumption that the Company ever intended to interpose any claim to the property. The long silence, as it seems, of those plaintiffs themselves, and the peaceable and uninterrupted possession of the property by defendants for the public use, of the “ open space,” from March, 1839, to the institution of this suit, in January, 1861, are facts also to be noticed in forming a conclusion on the subject. Grounds situated like those forming the subject of this litigation, are indispensably required for public use. Commerce and navigation demand the use of the shores of navigable streams, and their operations can not be performed successfully without the free use of them. Open grounds must bo loft in front of cities and towns, on the margins of navigable streams, and the public and free use of them must be conceded ex necessitate rei. The plaintiffs offered to prove that the particular lots in dispute are not necessary for public use. One witness testified that he knew of no public use the lots could be put to. The plaintiffs show that these lots, or some of them, were leased out by the corporation to private individuals for their private use, and that this was done to raise revenue.

The question, as to whether any portion of the open space is necessary for public purposes, is clearly coram non judice, and can not be considered. If the original owners had dedicated the entire open space for public uses, it is not material to inquire to what uses it is subjected. In the great controversies which have arisen in regard to the ownership of front grounds or open spaces, at New Orleans, the important object aimed at was to establish ownership to the dedicated space, in order to own the immensely valuable property arising from the alluvial accretions of the Mississippi. To several of the cases reported, in reference to these contestations, we have been referred by both parties in this case. In the case of'the Municipality No. 2 v. Orleans Cotton Press, Judge Bullard, who delivered the opinion of the Court, held that there was no sufficient showing that Madame Delord, the original owner of the land in dispute, in laying out lots for sale, intended to divest herself of the ownership of the property; and this was the point on which the case turned. But, the same able Judge recognized the doctrine in 6 Peters, before cited, that “ there is no particular form necessary to a dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the purposes intended.”

This doctrine is again held in the case of The New Orleans and Carrollton R. R. Co. v. The Town of Carrollton, 3 An. 282; likewise in 7 An. 223 and 198, the same rules are approved. These, and other cases that have arisen in our jurisprudence, follow and adopt the principles announced in the case quoted in 6 Peter’s Reports. It is there laid down that 1 ‘ neither a deed nor a grantee is necessary” in the matter of dedication of property to public uses.

From the facts enumerated in this case, we think that the inference is clear that the company that owned the land upon which the city of Shreveport stands, intended to dedicate the public place in that town lying between Commerce street and the river, to public uses. All the conditions required by the authorities we have noticed, to render a dedication complete, seem to us to be fulfilled in this case.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, adjudged and decreed, that the property in controversy in this case be and the same is hereby decreed to belong to the corporation of the city of Shreveport, for public uses; that said corporation be quieted in its possession of the same, and that the plaintiffs and appellees pay costs in both Courts.


author: TaiiIAeebeo, J.

text:
    Asman Gaines v. Oran Dorsett.
    Promissory notes, and other obligations for the payment of money, made during the late war, the maturity of which was made dependent on atreaty of peace between the then belligerents, became matured, by the lapse of the time agreed on, after the oossatiou of hostilities between the belligerents.
    APPEAL from the District Court, Parish of Rapides,

      Lewis, J. W. A. Seay, for appellant. E. T. Lewis, for appellee.
    The facts are stated in the opinion of the Court.
   TaiiIAeebeo, J.

This spit is brought upon a promissory note, drawp ftS follows;

“Alexandria, February the 17th, 1863.

“One day after the trety of peas, I promise to pay Asman Gaines the jest and full some of one thousand dollars, for value receive of him.

Orín Dobsett.”

The defence is that “the time of payment has not arrived, and that the sole condition on which it depends being contra bonos mores, the obligation is extinguished.” In the Court below judgment was rendered for plaintiff, and defendant appealed.

We must conclude that the parties meant, by the term fixed for payment, the termination of the war. The term having arrived, the debt became exigible. We can not infer that the obligation is null on the ground that it is contra bonos mores, because the contracting parties thought proper to fix the term of payment one day after “ the treaty of peace.”

The judgment of the District Court is therefore affirmed, with costs in both Courts.


author: Taliaferro, J.

text:
    John H. Lewis v. Owen Franks.
    Garnishees cited lo appear and answer through their agents, cannot be made liable by the answers of their agents.
    APPEAL from the District Court, Parish of Caddo,

      Weems, J. J. C. Beall, for appellant. Null <& Leonard, for appellee.
    The facts are stated in the opinion of the Court.
   Taliaferro, J.

The plaintiff in this case brings suit against the defendant, a resident of the State of Ohio, on a claim of eight hundred dollars and interest, for services rendered defendant as pilot on the steamboat Ham Howell, in the year 1859, and cited John Thatcher and William Thatcher as garnishees. A curator ad hoc was appointed to represent the absentee, and citation made upon him. He denied specially that defendant was ever owner or part owner of the steamer Ham Howell, and plead the prescription of one, two and three years. Upon these pleadings the parties wont to trial. Judgment was rendered in favor of the plaintiff for six hundred dollars, with interest at five per cent, per annum, from the 1st of April, 1859, and that he have judgment over against the garnishees, John Thatcher, and Wm. Thatcher, agent, for the sum acknowledged by the answers to be owing by John Thatcher to the defendant. From this judgment the defendant appealed.

On the trial of the case, the curator ad hoc excepted to the introduction of the answers of the garnishee, (William Thatcher, for the reason that they were not categorical, and that William Thatcher being only the agent of John Thatcher, was incompetent to. answer interrogatories propounded to John Thatcher, an absentee ; and, if competent at all, that he could only be so under an express authorization to that effect. The exception was overruled, and the point reserved by the defendant’s counsel in a bill of exceptions.

This Court has, in several cases, deoid'ed that garnishees, cited to appear and answer through their agents, can not be made liable by the answers of their agents. 6 An. 562. 7 An. 190. 3 N. S. 57.

As the exception in this oase must be sustained, it is unnecessary for us. to examine the other points presented by the pleadings.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided; and it is further ordered, adjudged and decreed, that this case be remanded to the lower Court, to be proceeded with according to law; the plaintiff and appellee to pay the costs of this appeal.


author: Tabiafeeeo, J.

text:
    John A. Booty v. W. H. Cooper.
    Fhe possession of a promissory note, payable to bearer, is prima facie evidence of ownership, and the holder has the right to institute suit upon it in his own name.
    Where there is nothing in the record showing lex loci contractus or authorizing it, the Oourt will not allow, interest at the rate of twelve per cent, per annum.
    APPEAL from the District Court, Parish of Caddo,

      Weems, J. Hides <& Hall, for appellants. J. W. Jones, for appellee.
    The facts are stated in the opinion of the Court.
   Tabiafeeeo, J.

This suit is founded on a promissory note drawn by defendant, in favor of Augustus J.,( Booty or bearer, for the sum of four hundred and seventy-nine dollars and sixty-hine cents, dated 25th of November, 1861, payable one day after date, and stipulating interest at the rate of twelve per cent, per annum, from date.

The proceeding commenced by the attachment of three bales of the defendant’s cotton, on the ground that the defendant was a non-resident of the State. A curator ad hoc was appointed, and citation was served upon him. A citation directed to the defendant was posted up at the Courthouse door. When the case came on for trial, an exception was taken to the legality of the proceedings in attachment, on the ground that various formalities had not been observed, and, among them, that no legal service of the attachment was made on the defendant.

The Court sustained the motion to dissolve the attachment and dismissed the proceedings as in case of non-suit. The suit was renewed and the same property attached. Upon trial of the case the Court rendered judgment in favor of plaintiff, allowing, in part, the defendant’s reconventional demand, and the defendant appealed.

We see no force in the defence set up against the plaintiff’s demand. It is contended by the defendant that plaintiff failed to show that the note sued on had been transferred to him, or that he had any interest in it. The note is a negotiable instrument, payable to bearer. The possession of the note is prima facie evidence of ownership, and the holder had the right to sue upon it in his own name.

There is nothing in the record showing the lex loci contractus, nor any thing that enables us to award twelve per cent, interest upon the note sued upon.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and avoided; and it is further ordered, adjudged and decreed, that the plaintiff recover from defendant the sum of four hundred and seventy-nine dollars and sixty-nine cents, with interest thereon at five per cent, per annum, from 26th day of November, 1861, until paid; and that the attachment be sustained, recognizing a privilege in favor of plaintiff on the property attached, and that defendant have judgment for twenty-five dollars on his reconventional demand. It is further ordered, adjudged and decreed, that the plaintiff and appellee pay the costs of this appeal, and that the defendant pay all other costs,


author: Hyman. C. J.

text:
    Leonard Trichel, Administrator, v. Henry C. Myers and Philip Myers.
    Purchasers at Sheriff’s sale are bound, as to the terms of payment, by the terms announced by the Sheriff at the time of sale.
    APPEAL from the District Court, Parish of Natchitoches,

      Byan, J. J. M. B. Tucker, for appellant. Wm. H. Jack and B. B. Baniell, for appellees.
    The facts are stated in the opinion of the Court.
   Hyman. C. J.

Plaintiff, as administrator of the succession of Lucien Trichel, sued defendants on their note, made by them, on the 8th September, 1864, wherein they promised to pay in solido, one year after its date, to the order of plaintiff, as administrator aforesaid, the sum of $1,137, with eight per cent, interest. • •

The note was given for personal property, purchased by Henry C. Myers, at the sale of property belonging to said succession. The property was sold by the sheriff, and the property sold to Henry C. Myers was sold on a credit of twelve months.

The sheriff announced, in making the sale, that when property was bought fora less sum than fifty dollars, Confederate money was to be paid, subject to discount; and defendants contend, from this announcement, that property sold on a credit was also to be paid in Confederate money ; and their defence to this action of the plaintiff is that their contract was to pay in the obligations of the so-called Confederate States.

There is no satisfactory proof that the property, sold on a credit to H. C. Myers, was to be pgid in Confederate money; and the Court cannot presume that which was not proven, or that the terms of sale were different from those announced.

This case does not differ from the case of Pierre M. Backen, Adm’r, v. A. W. Hamilton, et al., decided at this term of the Court.

Plaintiff is appellant from a judgment rendered against'him in the District Court. This judgment must be reversed.

It is ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed.

It is further decreed that plaintiff, as the administrator of the succession of Lucien Trichel, recover from the defendants, in solido, the sum of one thousand one hundred and thirty-seven dollars,' with interest thereon at the rate of eight per cent, per annum, from the 8th day of September, 1864, till paid,, and the costs of suit in both Courts.


author: Hyman, C. J.

text:
    Jules Tardos v. Meredith Calhoun.
    This case involves only questions of fact.
    APPEAL from the District Court, Parish of Bapid.es,

      Ryan, J. Thomas G. Manning <& H. M. Hyman, for apellant.
    This case was tried by jury in the District Court.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

Suit was brought in this case to enforce a contract of sale of two hundred and fifty bales of cotton, by defendant to plaintiff.

The words of the contract are as follows, to wit:

“State oe Louisiana, Parish oe Baeides.

“Beit remembered that M. Calhoun has sold to J. Tardos (French subject), the quantity of two hundred and fifty bales of cotton, yet unginned and in the seed, from that on his plantation in the Parish of Bapides, near the junction of the Cane Biver with the Bigolet Branch of the Bed Biver; said cotton not to be in quality under low middling, and not over middlings; but to be, as near as possible, in equal parts of both. When ginned and baled, the bales to be as near as may be of 450 pounds of clear ginned cotton.

“ It is agreed that the said Tardos is to furnish bagging and rope and twine, for the baling of the same, and M. Calhoun is to gin and bale it, gratuitously, holding it subject to the order of purchasers for shipment. The cotton is now, from this date, considered as delivered to the said J. Tardos, and at his risk and hazard. If there is any deficiency in the weight of the quantity of cotton from 450 pounds to the bale, the same is to be made up or deducted, according to the present price. The cotton is sold at the rate of thirty dollars per bale of this weight, paid in Treasury notes to the seller, the receipt of which is hereby acknowledged, said Treasury notes being United States.

J. Tardos,

M. Calhoun.

“H. Boyce,

“J. Calhoun,

Witnesses.

“ 29th January, 1864.”

Plaintiff had the cotton sequestered. Defendant released it from sequestration by giving bond and security for its delivery to plaintiff, in the event that judgment should be rendered against him.

Plaintiff, in his petition, claimed the ownership of the cotton, and prayed, in the alternative, that he recover of defendant the cotton or its value.

The defence of defendant, in his answer, is that most of the cotton was burned, and that plaintiff must sustain a portion of the loss. by the burning.

The case was tried by a jury, who rendered “a verdict in favor of plaintiff.”

On this verdict, the Judge of the lower Court rendered judgment, decreeing that defendant should deliver to plaintiff two hundred and fifty bales of cotton, and pay the costs of suit.

From this judgment defendant has appealed.

The defendant adduced a mass of evidence, showing that he lost seVej ral thousand bales of cotton by fire, on several of his plantations, but failed to adduce any satisfactory evidence showing that he had lost by fire or otherwise, any quantity of unginned cotton, on the plantation from which he sold to plaintiff the two hundred and fifty bales; and his argument before this Court is that, as he has lost such a quantity of cotton from all of his plantations, plaintiff should lose proportional with him, and that, therefore, plaintiff is entitled to recover only fifty bales of cotton.

It is unnecessary to answer such_ a position as that assumed by defendant.

The clause in the contract, wherein plaintiff assumed the risk of the loss of the cotton sold to him, differs in nothing from the risks that the law-imposed on him by the nature of the contract. ,See Civil Code, 2413,1910, 1911.

Plaintiff has asked, in his answer to the appeal, that the judgment of the lower Court bé so amended as to give him a judgment for the value of the cotton, as proven, in the event defendant should neglect to deliver the same.

It is ordered, adjudged and decreed, that the judgment of the District Court be so amended as to require of the defendant the delivery to plaintiff of two hundred and fifty bales of ginned cotton, weighing 450 pounds each, such as was sequestered, within thirty days from the time of filing this decision (or a copy of same) in the District Court for the Parish of Bapides.

It is further decreed that, in the event that the defendant should neglect to deliver the cotton to plaintiff within thirty days after this judgment shall have been filed in the District Court, that plaintiff recover of defendant the siim of two hundred and twenty-five dollars, for every bale that defendant shall fail to deliver within the time specified.


author: Tauiapeeeo, J.

text:
    Milched S. Cutliff v. Battle, Syndic, et al.
    A PPEAL from the District Court, Parish of Caddo,

      Weems, J. A. B. Levissee, for appellant. Jones & Harris, for appellees.
    The facts are stated in the opinion of the Court.
   Tauiapeeeo, J.

In the year 1840, the plaintiff (at that time a widow) intermarried with R. A. Cutliff. At the time of this marriage the plaintiff owned several slaves, viz : a negro woman named Milly, and her three children, Jim, Mary and Lawrence. After the marriage, the woman Milly had five other children, Allen, Alfred, Henry, Rose and Emily. The plaintiff also owned an improvement on public land called “Summer Grove,” lying in the Parish of Caddo. At this place she erected a valuable dwelling house, and made other improvements upon the place. The improvements were estimated to be worth two thousand dollars. She also owned some household furniture. Finding her husband’s affairs were becoming deranged, and fearing that, on account of his embarrassed situation, she might lose her claims against his estate for the reimbursement of large amounts which she claimed to be due her for her separate property, which had been sold by her husband, and the proceeds of which he had appropriated to his own use, the plaintiff, in the year 1860, instituted suit against her husband for separation of property, and praying judgment decreeing the slaves, Mary and her children, to be her separate property, and to be put into possession of them. She also prayed judgment against him for the value of several of the slaves before mentioned and for the value of the improvements upon the “Summer Grove” place, which the husband, after marriage, entered at the Land Office, at Natchitoches, and which he afterwards sold, and appropriated the proceeds for his own benefit. Sbe also prayed judgment against him for the value of certain household property (her separate property) the proceeds of which were likewise similarly appropriated by her husband.

Subsequent to the filing of the petition, her husband made a surrender of property, and a syndic was appointed. The plaintiff thereupon proceeded against the syndic, H. J. G. Battle, the present defendant, substituting her petition already filed, and praying-judgment against the syndic.

The syndic answered by a general denial; and averred that the property claimed by plaintiff belonged to the insolvent. He charged fraud and collusion between the plaintiff and her husband, R. A. Cutliff, and prayed the dismissal of the plaintiff’s suit, and that the property to which plaintiff set up claim be decreed to be the property of the creditors, for whom he acted.

We find in the record several bills of exception, which relate chiefly to the admission of testimony. They seem to contain nothing requiring them to be specially considered.

The plaintiff appears to have already made out her ease.

• The counsel for the syndic made the point that plaintiff and her first husband, Blackwell, were married in the State of Virginia, and lived, afterwards, in Alabama, until 1833, when they removed to Louisiana, bringing with them the negro woman Milly and children. That the ownership of the woman Milly and children vested in Blackwell, the husband, according to the laws of Virginia and Alabama.

It is not apparent why the syndic aimed to show an outstanding title to the slaves in controversy in a third party, nor is it important to inquire, as events, which have occurred since the triál o'f this case, have put to rest this branch of the litigation.

The judgment of the District Court, with a slight modification, must be confirmed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be amended, so far as to annul that part of it only which decrees the woman Mary and her increase to be the property of the plaintiff; and that, in all other respects, the judgment be affirmed, with costs in both Courts.


author: Labatjve, J.

text:
    J. Franklin Ford v. Jacob Miller.
    Where a tufcor makes a promissory note, the consideration of which is the board and tuition of the . minor, and he is removed from the tutorship, and is not credited with the amount of the note in his settlement of his account with the.minor, or the tutor which succeeds him, the payee of the note cannot recover of the maker if he had knowledge of the consideration — it is a charge on the estate of the minor.
    APPEAL from the District Court, Parish of Bossier,

      Weems, J. F. M. Ford, for appellant. Snyder & Gh'iffin, for appellee.
    The facts are stated in the opinion of the Court.
   Labatjve, J.

This suit is brought against the defendant to recover the sum of $248 88, with interest, on a note executed by defendant as tutor, in favor of plaintiff, dated April 6th, 1861, and due 1st March, 1862. .

The defendant was tutor to the minor, Miss Caledonia Alford. The plaintiff held an account against the latter for board, tuition, etc., for parts of the years 1860 and 1861; this account was made in the name of the defendant, as íutoj §aj$ minor, and amounted to $248 8§, corresponding exactly with the amount of the note sued upon. The plaintiff gave a receipt at the foot of the account, as follows : Received note for the above, of .Jacob Miller, tutor.

It is admitted that the consideration of the note was for board, tuition, etc., as stated in the account; that the defendant was tutor of the minor but a short time, and that he resigned, and his resignation accepted as tutor, but his bond, as such, has not been canceled; that the account for which the note was given was never used as a voucher, in any settlement between the minor and her tutor, the present defendant, or his successor; nor has ever the said minor been charged with the amount' of said account.

Upon that evidence of the facts of the case by the admission, the District Court gave judgment for the defendant, and the plaintiff appealed.

The defence is that the defendant acted as tutor of the minor, and is not bound personally.

We are of opinion that the District Court decided correctly. The tutor was a legal agent for the minor, who justly owed the account for which the defendant, acting as tutor, gave the note. There was no novation ; the account was only liquidated by the note; the same relation of creditor and debtor continued between the said plaintiff and the tutor. C. C. Art. 2188. Smith v. Brown, tutor, 12 An. 299, 810.

The judgment of the District Court is affirmed, with costs.


text:
    R. R. Roberts v. Sylvester Murray.
    Where no exception is taken to the admission of * contract in evidence, at the trial of a cause in the Court a qua, on account of the absence of a United States revenue stamp, the Supreme Court .will presume that the original, offered in the District Court, was properly stamped.
    APPEAL from the District Court, Parish of Bossier,

      Weems, J. A. H. Pierson, for appellant. L. M. Nutt, for appellee.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

This suit was instituted by plaintiff to recover ten bales of cotton from Sylvester Murray. After the suit was brought, Murray died, and it was revived against the administratrix of his succession.

The administratrix, in her answer, denied all the allegations of plaintiff, and averred that the cotton sued for was destroyed by an overflow, without the fault of Murray.

Judgment was rendered in the District Court against the succession of Sylvester Murray, and the administratrix thereof has appealed,

L. M. Durr bought the cotton sued for from Sylvester Murray, and transferred it to the plaintiff.

The cotton was not’ delivered, but remained in Murray’s possession.

Only one witness was introduced to prove its destruction, and he testified that he did not know, of his own knowledge, that the cotton in controversy was destroyed.

This witness swore that he did not know where he lived in the year 1862; and it seems that the District Judge had little confidence in his evidence. Other witnesses, in some respects, contradicted this witness’ evidence; and we cannot conclude that the Judge erred in his estimate of the evidence of the witness.

There being no proof that the cotton was destroyed, the seller is bound to deliver it.

The defendant contends that the judgment should be reversed because, the contract of sale was received in evidence without having a stamp, as required by the revenue laws of the United States Government,

The defendant did not object to the admission of the contract of sale in evidence, and there is nothing in the'record to show or indicate that it was admitted without a stamp; and this Court cannot presume that the District Court authorized a wrong to be perpetrated on the Government, - by permitting an unstamped-obligation to be used as evidence.

It is decreed that the judgment of the District' Court be affirmed, with costs.


author: Labauve, J.

text:
    W. J. Rosenthral v. L. Baer.
    It is not necessary to put the defendant in default before instituting suit against him, if, fromtbe nature of tbe case, the demand would be of no avail if made.
    APPEAL from the District Court, Parish of Caddo,

      Weems, J. Looney & Wells, ior appellant. T. T. <& A. J). Land, for appellee.
    The facts are stated in the opinion of the Court.,
   Labauve, J.

This suit is brought to recover of the defendant the value of certain merchandise deposited by plaintiff with the defendant, in the year 1862. The answer of the defendant is a general denial. He specially denied that the plaintiff ever, at any time, stored with him any goods w-hatever, and that he never was called on or requested to deliver any merchandise to plaintiff.

The District Court gave judgment ia favor of plaintiff for 1300, with iu« terest, and the defendant took this appeal.

The first question raised by defendant in this Court is one of law : whether it was incumbent on plaintiff to put defendant in mora, before bringing this suit ? We are of opinion this case is not for damages suffered by plaintiff in consequence of the passive breach of defendant in failing to comply with an agreement by which he had bound himself to do something; but it is an action brought to make defendant pay certain goods deposited with him, and which he is alleged to have used. Besides, the petition alleges an active breach in saying that the defendant has used the goods. C. C. Arts. 1925, 1926. A demand would have been vain, as the defendant denies specially that any goods were ever deposited with him by plaintiff.

On the merits, the case depends entirely on facts, and the Court below was satisfied [with the proof ; and we are not prepared to say that the Court erred. We are of opinion that the pleadings and evidence sustain the judgment of the District Court.

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


author: Taltaeerbo, J.

text:
    J. H. Reynolds v. H. J. Battle, Syndic.
    This caso involves only questions of fact.
    APPEAL from the District Court, Parish of Caddo,

      Weems, J. Williamson <& Levissee, for appellant. Looney <& Wells, for appellee.
    The facts are stated in the opinion of the Court.
   Taltaeerbo, J.

This suit originates in the failure of R. A. Cutliff, a builder, to fulfil a contract entered into by him with the plaintiff, to erect for plaintiff certain buildings in the city of Shreveport. The work to be done was specified in a written contract, and the price fixed for its completion at ten thousand two hundred dollars. It was stipulated in the agreement that “ the said Cutliff takes from said Reynolds a dwelling-house and five acres of land, being the half of ten-acre lot No. 25, at the sum of $4,500, cash.” The contract was afterwards amended, by which the builder undertook to add an additional story to the building, as at first contemplated, for the additional compensation of four thousand dollars, the work to be completed and the building delivered to plaintiff by the 1st of January, 1860.

pirtliff filed a petition in August, 1§§0, praying the benefit of surrender, and presented his schedule of debts. He placed upon this schedule the five-acre lot of ground, which he was to get from Eeynolds in part payment for the work he obligated himself to do. Eeynolds made objections to the lot being placed on the bilan, and protested against its being considered a part of the insolvent’s property; but without effect. He thereupon took out an injunction, praying to be recognized as sole owner of the lot, and that the syndic, the defendant in this case, be ordered to erase the entry of said lot from the schedule of the insolvent’s property. In answer to the injunction, the syndic contended that the title to the house and lot of ground had passed to Cutliff, by the agreement between him and the plaintiff. He further alleged, that plaintiff had been occupying the house and lot in dispute, from the 27th day of May, 1859, and 'that he owed rent for the same, etc. Judgment was rendered in the Court below, in favor of the plaintiff, for the sum of two thousand one hundred and eighty-three dollars and fifty cents, with five per cent, interest from judicial demand; that the building contracts be annulled,, and that the plaintiff be declared the legal owner and possessor of the undivided one-half of ten-acre lot No. 25, and the buildings and improvements thereon, etc.; and that the entry on the bilan of assets, of the undivided half of ten-acre lot No. 25 and improvements, be stricken from the same, and the costs of suit to be taxed.

We see no grounds for altering the judgment.

The contract is clearly a conditional one, in which the resolutory condition is implied, and the course taken by the plaintiff seems to have been . the proper one for him to pursue.

There seems to have been but little controversy in regard to the amount claimed by plaintiff, as due him in money. The indebtedness appears to have been clearly made out.

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

Civil Code, Articles 2040, 2041, 2042.


text:
    Lewis, Snapp & Co. v. Thatcher & Co., and Lewis, Sharp & Co. v. T. M. Gilmer.
    P ersons having privileged claims on a steamboat or other property, under the allegation that it is all the property the debtor has from which to satisfy his debts have the right to require the proceeds of sale brought into Court to bo distributed among all the creditors, according to their respective privileges.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.
    The facts are stated in the opinion of the Court.
   Hyman, C. J.

Plaintiff, who trades, as he' alleges, under the name of Lewis, Snapp & Co., filed his petition in the District Court, Parish of Caddo, and alleged therein that Tarbell and Jacobs, were the owners of the steamboat Wm. A. A. Douglass; that they were indebted to him for $1,939, with interest, as evidenced by four notes of hand; that the consideration of these notes was the sale of his interest in the boat to them, and that, to secure the payment of the notes, he had the vendor’s privilege on the boat, and prayed judgment against them for said sum and interest, and that his privilege be recognized and enforced.

He further alleged, that John Thatcher, styling himself Thatcher & Co., had instituted suit against said Tarbell & Jacobs, as owners of the boat, upon a note purporting to be given for supplies furnished and money advanced for the use of the boat, and had sued out a writ of provisional seizure, under which the boat was seized. That, subsequently thereto, Thatcher had obtained judgment against Tarbell & Jacobs, and that a privilege on the boat had been decreed to him,- in the judgment, and had caused a writ of sale to be issued, directed to the sheriff of the Parish of Caddo, ordering him to seize and sell the boat, and that the sheriff had seized and was proceeding to sell the boat under the writ.

He further alleged that all the proceedings of Thatcher were done to defraud him (Snapp), and that the boat seized was all the property Tarbell and Jacobs owned to pay their debts.

■ He prayed that the judgment in favor of Thatcher be declared null; that the sheriff be enjoined from paying the claim of Thatcher out of the proceeds arising from the sale of the boat, and ordered to retain the proceeds, subject to the order of the Court. He further prayed for general relief.

The order of Court was granted, as prayed for.

Shaw and Zunts filed an intervention, and claimed that they were entitled to the proceeds of the sale of the boat, because of their being privileged creditors of Tarbell & Jacobs.

The District Judge decreed that there be judgment in favor of Thatcher, judgment of nonsuit against plaintiff as to Tarbell and Jacobs, and that Shaw & Zuntz be non-suited.

From this judgment plaintiff has appealed.

The plaintiff had the right, under Article 301 of the Code of Practice, to enjoin the sheriff from paying the claim of Thatcher out of the proceeds of the sale of the boat, seized under his allegations that it was all the property owned by Tarbell & Jacobs to pay their debts ; and to require the proceeds of the sale to be brought into Court, to be distributed among all their creditors, according to the order of their respective privilege, or by hypothecation.

The transcript does not inform us what is the amount of proceeds derived from the sale of the boat; and no distribution can be satisfactorily made before this amount is known to the Court.

Plaintiff also filed suit against T, M. G-ilmer, for like cause of action as that brought against Thatcher, set forth like allegations, and prayed for like order.

A similar judgment was rendered in favor of Gilmer as that rendered in favor of Thatcher. The plaintiff also appealed from that judgment, and the same transcript contains the two suits, the evidence in both suits being the same.

It is ordered, adjudged and decreed, that the judgments in the above-named cases be reversed, and that the cases be remanded to the District Court, to be proceeded with according to law; appellees to pay costs of appeal.


text:
    The City of Shreveport v. David Le Rosen.
    Parol evidonce cannot be admitted to ohange the torm3 of a written contract, or to enlarge or restrict its meaning.

      \ PPEAL from the District Court, Parish of Caddo, Weems, ,T.
    The facts are stated in the opinion of the Court.
   Labauve, J.

The plaintiff alleges that the defendant was erecting a house in ten-acre lot No. 4, in the said city, the greater part of which house was in the public road known as the Texas Road, thereby obstructing said road. That said road was necessary for the public use, and was dedicated to the public use, and has been used as a public road ever .since said city was incorporated, on the 20th March, 1889.

The plaintiff prays that the defendant be enjoined from erecting said house, and ordered to remove the same out of said road.

The defendant answered by a general denial, and pleaded that he was the owner and possessor of the lots in question, without any servitude. He pfays for judgment dissolving the injunction and allowing him two hundred and fifty dollars damages as attorney’s fees, and five hundred dollars, damages for hinderance in building his house, and for the removal of the same and the losses resulting therefrom; and if he be compelled to submit to a right of way, that he be paid' five hundred dollars, to- be assessed as the law requires, and for costs. This.answer was filed on the 21st April, 1866.

The plaintiff, by an amended petition, pleaded prescription, acquerandi causa, of ten, twenty and thirty years.

The Court below, after having heard the testimony, gave judgment for plaintiff against the defendant; the latter appealed.

Before the filing of his answer, the defendant had sold, by public act, passed on the 16th of April, 1866, to the plaintiff, the ground claimed for the road in question. This act contains a plain sale of the ground, for two hundred dollars. It makes no reference to this suit, neither to any damages sustained by defendant in consequence of the injunction, nor does it contain any stipulation relating to a compromise between the parties in regard to the damages claimed by the defendant.

On the trial of the case below, the plaintiff offered to prove by parol evidence the animus of the parties to the above act of sale. The defendant objected to the testimony; but the Court overruled the objections and admitted the testimony, and the defendant took his bill of exceptions. Wo are of opinion that the Court erred. This act is a plain sale, and parol evidence cannot be received to show that it is anything else, nor that the parties intended it also as a compromise and settlement of all difficulties between them. C. C. Art. 2256.

The plaintiff, in order to avoid damages, introduced below evidence to show that the road had been acquired on the lots in question, by prescription and dedication; but we are of opinion that, having bought privily and simply from the defendant, the said lots to be used as a public road, the plaintiff admitted that the road was not acquired, and that the defendant was still the owner of the ground on which the said road passed. It might have been otherwise, if this sale had been made as a compromise or transaction of the suit. It follows that the plaintiff had no right to enjoin the defendant, who was erecting a house on his own property. But wo arc of opinion that, having taken his house down voluntarily, before the result of the suit, the defendant cannot claim damages on that ground, but, wo believe, is entitled to damages for the improper issuing of the injunction, and that one hundred dollars should be allowed to him.

Wo are also of opinion that tho Court erred in perpetuating the injunction at the cost of the defendant; upon tho contrary, it should have been dissolved,

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled and reversed. It is further ordered and decreed, that tho injunction be dissolved and the suit dismissed, and that the plaintiff pay to the defendant one hundred dollars damages, with five per cent, interest per annum, from tho date of this judgment, and that plaintiff pay costs of snit in both Courts.


author: Tahiaeerro, J.

text:
    Wright & Williams v. Mrs. M. D. C. Cane et al.
    Tne partition of property among hoii’S, made without oomplianco with the formalities and requirements of the law, is a nullity.
    And the offorb of one of the heirs to enforce by suit the partition thus informally and illogally made, does not ratify the partition and cure the defect.
    APPEAL from the District Court, Parish of Bossier,

      Jones, J. L. M. Nutt, for appellee.
    The facts are stated in the opinion of the Court.
   Tahiaeerro, J.

Larkin Edwards, formerly of the Parish of Caddo, died in the year 1812, leaving a small succession, consisting of land, slaves and personal property. He left six heirs.: Larkin, Newton C., Ann, Emily, a predeceased daughter (who left children), the wife of one Irwin,. and Matthew J. Edwards. Soon after the death of their ancestor, five of these heirs entered into a partition, before a notary public, of all the property of the estate, excluding Matthew J. Edwards, and ignoring his rights and rejecting him as a co-heir. This act of partition seems not to have been preceded by an inventory or any order of Court. Jacob Irwin, as father and natural tutor to his minor children, represented them in the proceeding. At the time of this division of the property, Matthew J. Edwards was a convict in the penitentiary, at Baton Rouge. After his term of imprisonment was ovér, he returned and brought siiit against his sister Emily, wife of James Sherriek, for four hundred dollars, estimating that sum, as it seems, to be the amount which each heir should contribute to make up his share in the estate. His legitimacy was contested, but without success. He was duly recognized as an heir, and obtained judgment for the amount claimed. Execution subsequently issued upon this judgment, and was returned not satisfied. This was about the year 1812. Afterwards, in 1858, Matthew J. Edwards sold, by notarial act, to Joseph Williams, one of the-plaintiffs in this case, all his rights in the succession of his father, Larkin Edwards, deceased. By notarial act, Emily Sherriek having, as appears by an admission in the record, previously purchased the share of Larkin Edwards, Jr., sold to James H. Cane “her right, title, interest and claim in and to” certain parcels of land described in the act, and specified to contain two hundred and forty-two acres. Her interest and share is specially deolared in this act to be one undivided half of said parcels of land. The declaration of the quantity sold is repeated in the conveyance. “The vendor hereby declares that by this act she only sells and conveys to the said James H. Cane, one undivided half of said tracts or parcels of land herein described.” These tracts are referred to in the act of sale as being the same partitioned to Larkin Edwards, Jr., and Emily Edwards, wife of James Sherrick, by act before Joseph E. Beal, on the 10th of June, 1842.

The plaintiffs bring suit against the defendants for the interest and share of the lands belonging to the estate of Larkin Edwards, which they derive from Matthew J. Edwards, one of tho heirs.

The action is one of partition. The defendant filed an exception, alleging non-joinder of parties, etc., and in an amended answer she sets up title to the lands in controversy, and pleads the prescription of ten years and all other prescriptions applicable to her defence.

- The judgment of the District Court was in favor of the defendant, and plaintiffs have appealed.

There is some obscurity in the ¿Headings as well as in regard to tho titles of the parties. The plaintiffs set out that Emily and Larkin Edwards, Jr., together with Ann Edwards, wife of Sherrick, sold their interests to James Cane. By reference to the informal partition, before referred to, it is seen that all the lands of Larkin Edward’s estate were assigned to these three heirs, Larkin, Jr., Emily and Ann. The counsel for defendant, in his written argument, seems to take the declaration of plaintiffs, that the three heirs named sold their shares of the property to Cane, as an admission that defendants owned all the land.

In the brief of defendant’s counsel, he argues that the suit instituted by Matthew J. Williams, in 1842, against his sister, for her proportional contribution to him in money, to make up his share in the estate of their common father, as a ratification of the partition, and that plaintiffs are estopped by that ¿>roceeding.

We consider the partition by the five heirs a mere nullity, vesting title in no one. We are unable to concur with the District Judge that the suit brought by Matthew J. Edwards against Emily Edwards, was a ratification of the partition. It is not easy to perceive that a sane person would ratify an act which ex¿>ressly excludes and cuts him off from his share of an estate to which he is legally entitled, without receiving an equivalent in some form. We cannot regard the act, relied upon by defendants’ counsel as a ratification, in any other light than as depending upon the condition of obtaining payment of his share of the common estate from his co-heirs; and a ratification with a condition is no ratification at all. It does not appear that anything was ever received by the excluded heir from his father’s estate.

The personal action brought by him against his co-heir was, perhaps, not a well-considered proceeding on the part of his attorney; but Courts should be slow to give force to injudicious proceedings when their tendency is, as in the ¿¡resent case, to inflict manifest wrong.

The plea of prescription is better founded. The defendant shows a title translative of property, dated on the 11th of April, 1845, and alleges a peaceable possession of moro than ten years prior to the institution of plaintiffs’ suit. This plea is resisted on the ground that Edwards, under whom plaintiff holds, was in duress during most of the term by which defendant seeks to make good his title. We do not feel ourselves called upon at this time to decide the question of prescription; but the disposition which we shall make of this case, requires us to say that we find nothing in the evidence showing that defendant has such a title to all the land as will enable her to prescribe for the whole. The succession of Larkin Edwards owned two hundred and ninety-four acres of land. We. find title in the defendant to only one hundred and twenty-one acres, as shown by the act of sale from Emily Sherrick and husband. He shows no deed or title, of any kind, from Ann Edwards, the wife of Abner Sherrick. On the contrary, we find, evidence in the record showing that Ann Edwards sold her interest in the land to McWilliams; and also a sale of the same land from McWilliams to Wright, one of the plaintiffs. The defondant shows no title other than the one.from Emily Sherrick and husband, that could avail him as a basis for the prescription of ten years.

We are of opinion that the exception of the defendant, as to the want of proper parties is well taken.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; that the case be dismissed as of nonsuit, reserving their respective rights to all the parties. It is further ordered, that the costs of this suit in both Courts be sustained by plaintiffs.


author: Hvman, C. J.

text:
    John S. Powell v. H. Markham.
    Whore an architect; or other workman lias undertaken to erect a building by the job, the workman or architect is answerable in damages when his work falls to ruin, in whole or in part, on account of the badness of his materials or work, but is not liable for unfitness of soil or for the refusal of the owner to have tho excavations in the soil properly proparod for the building.
    A XA. PPEAL from the District Court, Parish of Caddo,

      Jones, J. Looney & Wells, for appellant. Beall & Chapman, for appellee.
    The facts are stated in the opinion of the Court.
   Hvman, C. J.

Plaintiff-sued to recover'of defendant $1,863 21, with eight per cent, interest from 12th July, 1860, and to have his privilege as undertaker enforced, on a house built on lot eight, in .block forty, in the town of Shreveport, upon the following obligation':

“ Shreveport, La., July 12, 1860.

“ One month after date, I promise to pay to John S. Powell or bearer, the sum of- one thousand eight hundred and sixty-three dollars and twenty-one cents, with eight per cent, per annum, interest, for furnishing the brick, materials, and building the brick dwelling-house on lot of ground number eight, in block number forty, corner of Edwards and Travis streets, in the town of Shreveport; on which said building I hereby grant, and the said John S. Powell retains, the privilege allowed by law for furnishing said- materials and building said dwelling-house; and I agree that his said privilege may be enforced according to law, to pay and satisfy this obligation, should the same not be punctually paid at its maturity.

Hendeeson Maekham.”

Defendant, in answer, admitted the execution of the obligation, but alleged that the consideration for which it had been given had failed; that the materials, and workmanship of the house were imperfect; that the house was cracking and crumbling to pieces, and threatening to fall, and that, by reason of the badness of the materials and workmanship of the house, he had been damaged $2,500, and prayed that judgment might be rendered against plaintiff for this sum, as damages.

Judgment was rendered by the District Court in favor of plaintiff, for $1,863 21, with interest at the rate of eight per cent, per annum, from 12th July, 1860, decreeing the enforcement of plaintiff’s privilege, and in favor of defendant for one thousand dollars in reconvention.

From this judgment the plaintiff appealed.

It appears from the evidence, that the brick walls of the house erected by plaintiff for defendant (the consideration of the obligation sued on) were cracked in various places; that the materials, of which the walls were composed, were good, and that the-walls were well put up, in a workmanlike manner; that the soil of Shreveport is unfit for brick buildings, and that most of the brick houses erected thereon are cracked; that the walls of the house were built according to the directions of defendant, and that defendant refused to have the excavations for the foundations of the walls made deep and broad, when informed by plaintiff’s agent of the possibility that the excavations were insufficient.

This evidence does not show any defect in the materials in the walls, or in their erection.

In contracts of this character the workman or architect is answerable in damages when his work falls to ruin, in whole or in part, on account of the badness of his materials or work, and is not liable for unfitness of soil or for the refusal of the owner to have the excavations in the soil properly prepared for the building. C. O. 2733.

It is ordered, adjudged and decreed that, that part of the judgment of the District Court which decrees that defendant recover of plaintiff one thousand dollars be avoided and reversed. It is further decreed, that there be judgment of nonsuit against defendant, on his claim for damages, and that, in all other respects, the judgment of the lower Court be affirmed.

It is further decreed, that defendant pay the costs of this appeal.


author: Tax,iai?eebo, J.

text:
    Succession of Wm. G. Kerley.—Opposition of Peter Hickman.
    Community property is liable for community debts; the estates of minor heirs are merely residuary. The validity, as well as the rank of debts, may be contested in the Court of the concurso. On the arena of the tableau all the creditors are plaintiffs and defendants, and it is thero that their respective claims are to be contradictorily settled.
    APPEAL from the District Court, Parish of Caddo,

      OresweU, J. Manning, for appellee.
    The facts are stated in the opinion of the Court.
   Tax,iai?eebo, J.

The contestation presented in this case, grows out of conflicting claims of creditors litigated in the Court below upon the tableau of an insolvent’s succession. The tutor of a minor had caused to he placed on the tableau two claims in favor of his ward, for which he claimed a legal mortgage taking precedence of the claims of the other creditors. One of these claims is for $4; 434 92, alleged to be for the proceeds of sale of several slaves belonging to the minor, and which were sold by his father, then living, who was his natural tutor. The other claim is for the Bum of $1,729-19, alleged to be money which belonged to the minor’s mother, and which was received by Ms father and converted to his own use. For tMs last claim suit was brought against the administrator of the father’s estate, a judgment obtained, and the claim was placed on the tableau in that form. A judgment creditor for a large sum, claiming a judicial mortgage to precede that of the minor, opposed both the claims of the minor as being without any just foundation, and prayed that they be disallowed. Judgment was rendered in conformity with the prayer of the opposing creditor, and the tutor appealed.

It appears that Y/m. Q-. Kerley, who was father to the minor, married Susan C. Kay at Nashville, Tennessee, in the year 1839 or 1840. That he afterwards lived in the State of Arkansas, and from there removed to Caddo Parish, Louisiana, about the year 1837 or 1838, and there died in 1856. His wife died in the same parish in the summer of 1850. Kerley qualified as natural tutor to his minor son, Dick Menifee Kerley, the sole heir of his mother. Kerley was unfortunate in his business pursuits, became much involved in debt, and several judgments were obtained against him by creditors. A suit was filed against him by Ms wife for a separation of property, in which it was alleged that she and her husband had- acquired a community property worth $5,000, and that her husband received, in 1844 or 1845, money of hers to the amount of $2,000. It is not shown that this suit was prosecuted to judgment. Under executions issued by creditors, ten slaves, the property of Kerley, or of the community existing between him and -his wife, were seized and sold in May, 1849, purchased by E. N. Wood, and by Mm sold to Mrs. Kerley in January, 1850. The minor, not long after the death of his mother, was removed to Kentucky, where a guardian was appointed to him. The slaves purchased by Wood, and sold to Mrs. Kerley, were, after her decease, placed upon an inventory as the- property of the minor in right of his mother. Some of these slaves were sold by the tutor, W. G. Kerley, during his administration, and this sale forms the basis of the claim for $4,434 91. The other slaves under Kerley’s administration as tutor, were removed, after the death of Kerley, by the Kentucky guardian to that State.

It is contended by the opposing creditor, Hickman, that the property treated as the minor’s was,- in fact, property of the community and subject to its debts. That the sale from Wood to Mrs. Kerley was a simulation and conveyed no title; and if valid, it did not change the character of the title. He avers that the judgment allowing Kay, the guardian of the minor, to remove the slaves to Kentucky was illegal, as it affected his rights as -a creditor, and prays that the slaves be returned to the estate.

The tutor, Kay, the appellant, holds that an opposition to an administrator’s tableau Of distribution puts at issue nothing more than the question of rank among the creditors. That the issues tendered by the opponent are substantially suits to annul judgments, and can not be tried in the form of an opposition; and admitting they might be so tried, the judgment appealed from is a nullity for want of parties.

The validity, as well as the rank of debts, may be contested in the Court of the concurso. On the arena of the tableau all the creditors are plaintiffs and defendants, and it' is there that their respective claims are to be contradictorly settled. 9 L. 387. 3 L. 559. 1 N. S. 481. 4 An. 195. 14 An. 648.

The recpnventional demand of the opponent, Hickman, that the slaves, as he alleges, of the succession of Wm. G. Kerley, which were removed to Kentucky by the tutor, has been withdrawn, and we are left to determine only the validity of-the claims set up in behalf of the minor. There having been no dissolution of the community existing between Wm. G. Kerley and his wife, the property purchased by her from Wood necessarily fell into the community. In such cases the law looks to the time of the purchase rather than to the party purchasing. C. C. Arts. 237.

Being property of the community, it was liable for the community debts. The minor’s rights were merely residuary. In regard to the claim of seventeen hundred and twenty-nine dollars and nineteen cents, it seems clear that no lien or privilege can be legally claimed for it. It is in proof by the testimony of the wife’s guardian during her minority that the money was paid over to her husband shortly after the marriage in the State of Tennessee, and before the parties came to reside in Louisiana. 2 Rob. 501. 6 An. 703. C. C. Arts. 3298, 3299, 3300.

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


text:
    Virginie Tauzin, Wife of T. T. Bossier, v. A. S. Deblieux, Adm’r.—A. Dennison, Widow, Intervenor.
    ’i lie husband has tho administration of his wife’s dowry] •
    Where the wife’s dowry consists of money, and the husband loans the monoy and tnkos a note thorofor in his own name, the note is his property; the wife has no property in the noto; her husband is indebted to her for the amount of money he has taken from her dowry.
    APPEAL from the District Court, Parish of Natchitoches,

      Chaplin, J. A. H. Pierson, for appellant, Deblieux. C. F. Branguei, for Intervenor. II. Safford, for appellee.
    The facts are stated in the opinion of the Court.
   Labauve, J.

The plaintiff alleges in substance, that, after the death of her father, Louis Tauzin, her brother, Emile Tauzin, administered upon his estate, and was appointed her tutor. That about the month of May, 1860, her said tutor paid to her, on account of his indebtedness to her in that capacity, the sum of $4,500; that on the 8th May, 1860, she loaned this money to Suzette Buard, who executed her note in solido with Mathieu Hertzog for said sum, bearing .eight per cent, interest from date, payable on the 8th May, 1861; that said note, for convenience of collection, was made to the order of her said brother, Emile Tauzin ; that before the maturity of said note, the said Emile Tauzin died, and this note was placed on the inventory of his estate as belonging to him or some third party.

She prays that the defendant be ordered to deliver said note to her, or its proceeds.

The defendant, Deblieux, answered by a general denial, but he admitted that the note of Madame Buard, claimed by plaintiff, was found in the succession of Emile Tauzin, and is payable to his order, and his succession appears to be entitled to the proceeds thereof.

In this suit intervened Azunia Dennison, wife of said Emile Tauzin, deceased.

She alleges substantially that she is the just arid legal owner of the note sued for ; that in the spring of the year 1860, her tutrix, Celeste Dranguet, filed her final account of administration, and paid over to her said husband, in cash, a large amount of money, say $7,948, belonging to her; that the money for which the note was given, was a part of the same received as aforesaid ; that at the time of said investment, said Emile Tauzin had no funds of his own, nor other funds than the amount belonging to her, and that said note was really taken by him for her benefit, etc.

She prays that plaintiff’s demand be rejected, and that judgment may jbe rendered in her favor, decreeing her to be the owner of said note, and that Deblieux, administrator, be ordered to deliver the same to her.

The case was tried upon, these issues, and the District Judge, after having hoard the evidence, gave judgment in favor of plaintiff, Virginio Tauzin, for the note sued for ; from this judgment both the defendant and intervenor took this appeal.

Wo will first proceed to examine the claim of the plaintiff, Virginio Tauzin.

The evidence and admissions show that Emile Tauzin was administrator of Louis Tauzin, deceased, appointed as such on the 4th December, 1855, and that he was appointed as tutor of tho said plaintiff, Virginie, on the 17th December, 1855. A tableau and accounts of the succession of Louis Tauziu wore homologated on January 5tli, 1861. Mrs. Buard owed / a note' of $5,000 to Choppin ; Mrs. Buard being called on for a settlement, Emile Tauzin was asked to procure the funds, he answered he had money, but that it belonged to Ms sister, Virginie, who being called on for the loan of $4,500, consented, and Mrs. Buard gave the note which was made payable to Emile Tauzin, who required the note to be payable to him; Tauzin objected to the note being made payable to Virginie; Emile Tauzin paid the money; Hertzog came to Emile’s, and ho, Emile, counted the money to Mm ; he asked Emile why ho did not make the note in Virginie’s name ; he said it did not matter; that ho would settle with her afterwards, as soon as he would know the exact amount coming to her; Emile was asked for a guarantee that the money would be coming to Virginie, and the memorandum marked C was made, it being the intention to serve as her guarantee; Emile said he would place the money at interest, and she would have the benefit of the interest, and at the settlement of tho succession he would transfer the note ; this loan was intended for her benefit. The claims of Virginie against Emile Tauzin were based on her being one of the heirs of Louis Tauzin; the reason why $4,500 was agreed on between Emile and her as the amount coming to Virginie at that time was not known, was, that it was supposed that that would be about the amount coming to her after deducting $1,700, the price of a slave, and her store account; the money never came to Virginie’s hands, but passed from Emile’s to Matt. Hertzog, subject to a settlement; the note never passed into Virginie’s hands; it was signed and handed to Emile in May, 1860; this giving of money and taking the note, was subject to a settlement to bo had hereafter ; Emile had no other money than what belonged to his wife; he was married January, 1860, and he died about 20th Eebruary, 1861; the note was always in the possession of Emile; Virginie asked Mm for it before she left the house, and lie refused to give it; that among tho credits inventoried as belonging to the succession of Emile Tauzin, was found a note of Mrs. Buard for $4,500, with Mathieu Hertzog as security, dated 8th May, 1860, and due 8th May, 1861, with eight per cent, interest from date, and that said note is the one in controversy. It is admitted that there has been no final settlement of the succession of Louis Tauzin, deceased, by Emile Tauzin, as his administrator, based on the final account homologated, and there has been no account of the tutorship of the plaintiff filed by Emile Tauzin. Emile said, before his death, that he was willing to give up the note in case of settlement, but that he could not get to any compromise; the money given for the note was belonging to Mrs. Azunia Dennison', wife of Emile Tauzin ; the plaintiff refused to take the note when offered to her, as she said the account was a false one; she said she had a copy of the account furnished by Emile Tauzin; there never was a settlement between Emile Tauzin and Virginie.

The memorandum alluded to in the above admission, reads thus :

Je consens d’aecepter en payment de mon avoir, ouvrant de la succession de feu Louis Tauzin, selon qu’il apparaitra sur le tableau final do la dite succession, un billet solidaire de Mad.'Venar L. A. Buard et de Matheu Hertzog, fait en faveur d’Emile M. Tauzin etpassé le 8Mar. 1860, attendu que se dit billet depasse en couvreur le moutant de mon avoir, je lui rembourserai le surplus et dans le cas eontraire, il se remboursera la difiérenos; il est ainsi entendu que j’acceptorai le billet au méme taux d’interests recus par lui

(Signed) Yibginie Tauzin.

The whole of this transaction is simply this : Emile Tauzin was the administrator of Louis Tauzin’s estate, and also tutor to the plaintiff, Virginie, who is an heir of said Louis Tauzin; but there was not any final settlement of said estate, nor any account rendered by said Emile of the tutorship of plaintiff, showing what was coming to her from said estate or from her tutor; the money loaned belonged to Emile, and the whole understanding was that, when, on a settlement, the amount coming to Virginie would be known, she was to take in payment said note, either party reimbursing the other the difference. The plaintiff did not give a receipt for the amount; the' note is given to Emile, who kept it all the time; the money was placed at the risk of Emile, and not of Virginie; the conduct of the parties and the written consent of Virginie, introduced in evidence, show that the whole amounted to a mere project, which dejiended upon the ascertaining of the share of said-Virginie in the estate of her father, and coining to her through the hands of said Emile, her tutor. There is nothing in the record showing whether anything at all is coming to said Virginie. The admission shows that Emile, as tutor, had not rendered a full account of the tutorship, accompanied with a delivery of the vouchers; and this agreement or understanding is null and void, under Article 355 of Civil Code.

We conclude that plaintiff has no right to the note claimed by her.

We now come to the claim of Azunia Dennison, intervenor.

The said Azunia Dennison and the said Emile Tauzin, deceased, entered into a marriage contract, on the 15th February, 1860, where we find tlie following clause :

The future wife brings into marriage certain effects, now in tbe bands of ber tutrix, consisting of notes drawing interest of tbe capital sum of $9,248 83 and $318 17, in cash, as appears by an account of administration and tutorship filed by said tutrix, etc. Under tbe law, these effects and money formed a part of ber dowry. C. O. Art. 2318.

Tbe husband enjoys tbe dowry during tbe marriage. O. O. Art. 2327. Tbe income or proceeds of the dowry belong to tbe husband. C. C. Art. 2329. Tbe husband has alone tbe administration of tbe dowry. O. C. Art. 2330.

It is contended on tbe part of tbe intervenor that tbe money given for tho note was a part of ber dowry received by ber husband, and that, therefore, the note is ber property. We cannot maintain that position; tbe husband having- received tbe money and used it in loaning it, (admitting that it was the same money, which is not proved) became responsible to ber for the money, and she acquired no title to tbe note which was tbe property of tbe husband.

We are also of tbe opinion that tbe intervenor has failed in ber demand. It is therefore ordered and decreed that tbe judgment appealed from be annulled and avoided. It is further adjudged and decreed that plaintiff’s demand be dismissed. It is further decreed that tbe intervenor’s demand be rejected, and that tbe plaintiff and intervenor pay costs, each one-half, in both Courts.


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    Marie Henriette Rachal v. Joseph Le Roux, her Husband.
    i umphornalproporty which is not administered by tho wife, separate and alono, is considered undor the administration of the husband.
    Whoro there is no ovidonoe showing that tho wlfo administered her paraphornal property separately and alono, it is tho presumption that tho husband used the funds for his own uso.
    APPEAL from the District Court Parish of Natchitoches,

      Weems, J. J. W. Jones and Land, for appellant. Nutt S Leonard, for appellee.
    Tbe facts'are stated in tbe opinion of tbe Court.
   Labauve, J.

The wife sues her husband in separation of property, on the ground that tbe disorder of bis affairs inducod ber to believe that bis estate may not be sufficient to moot ber rights and claims.

The defendant, not appearing, a judgment by default was rendered against him ; no third person intervened in tbe suit. Tbe plaintiff, having proceeded to make her judgment final, was nonsuited by the Court, who thought that she had failed to make out her case. The plaintiff took this appeal.

On the 29th April, 1839, these parties entered a marriage contract, wherein it is declared :

“Les futurs époux declarent par ces presentes qu’ils remarient d’aprés les lois qui gouverment le régime de la communicaté. Le futur époux declare par ces presentes, apporter en marriage pour et ces considérations de son prochain marriage avec Mademoiselle Marie Henriette Rachal, la somme de mille deux cents piastres : A la dite demoiselle mineure, sous l’assistance de son sus dit tuteur, le montant net de la somme qui lui reviendra dans les successions de sa mere, de son grand pfere et de son pére.’ The expression used by the husband, “ that he brings into marriage, for and in consideration of the marriage,” is implied and understood as used by the wife, preceding the words, the net amount, etc. She then declared that she brought into marriage the net amount accruing to her in the successions mentioned; and we are of opinion that whatever she received afterwards from said succession formed a part of her dowry; whatever in the marriage contract is declared to belong to the wife, or to be given to her on account of the marriage by other persons than the husband, is part of the dowry, unless there be a stipulation to the contrary. C. C. Art. 2318. The settlement of the dowry may include all the present and future effects of the wife. C. C. Art. 2319.

The evidence deary shows that v she received, by public act, from her tutor, her husband also appearing in the act as authorizing her to receive, on the 7th May, 1841, the sum of §4,550 47, coming to her from the succession of her father and mother. This amount is a part of her dowry. The following amounts are also shown to have been received by her, the husband signing the receipts as authorizing her:

On the 23d July, 1844, the sum of §1,000, as coming to her from the succession of Widow André St. André. On the 31st December, 1846, her husband also signing the receipt as authorizing her, the sum of §53 55, coming to her from same succession. On the 17th June, 1851, her husband also appearing in the receipt as authorizing her, the sum of §588 95; these divers sums, amounting to §1,644 50, are paraphernal. O. O. Art. 2360.

The paraphernal property which is not administered by the wife separately and alone, is considered to be under the management of the husband. O. O. Arts. 2362, 2363.

There is no evidence showing that the .plaintiff administered her paraphernal property separately and alone, and therefore, the presumption is that the husband used the funds for his own use. We consider that this is not an open question. See the case of John v. jRace, not reported, decided last year. Breaux, Jr., v. Le Blanc, Adm’r, 16 An. 145.

The embarrassment and insolvency of the husband are already proven.

We are of opinion that the District Court erred in non-suiting the plaintiff.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled and avoided. It is further ordered and adjudged, that the plaintiff be separated in property from her said husband, who is hereby decreed to pay to her the sum of four thousand five hundred and fifty dollars and forty-five cents, as dotal funds, with five per cent, interest per annum from judicial demand, 3d October, 1865, till paid, with a mortgage upon the immovables and privilege on the movables of defendants, dating from the 5th May, 1841. It is further decreed and adjudged, that the defendant pay to his said wife the further sum of sixteen hundred and forty-four dollars and fifty cents, with five per cent, interest, from the 3d of October, 1865, till paid, with a mortgage on the landed property to secure the payment of $1,000, dating from the 23rd July, 1844; to secure the payment of $55 55, dating from the 31st December, 1846; and to secure the payment of $588 95, dating from the 17th June, 1851,

It is further ordered and decreed, that the said wife be authorized to resume the administration of her property, without the interference of her said husband; and that the said defendant and appellee pay costs in both Courts.


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    Daniel Bennett v. M. D. C. Cane et als.
    Bastards, adulterous or incestuous children, who aro prohibited by law from inheriting anything more than mere alimony, cannot take property as legatees.
    Where children are prohibited by law fi’om receiving property as heirs, they cannot receive as logatoes by last will.
    APPEAL from the District Court, Parish of Caddo,

      Eagen, J. Nutt <6 Leonard, for appellant. J. W. Duncan and JR. Jones, for appellee.
    The facts are stated in the opinion of the Court.
   Labatjve, J.

This suit is brought to set aside the will of Samuel Bennett, deceased, so far as the defendants are concerned.

The District Court decided in favor of plaintiff, and the defendants appealed.

The deceased died in September, 1853, without descendants, but leaving for heirs brothers and sisters, or their representatives, and an olographic will, as follows, so far as regards the defendants :

“I do give and bequeath unto the children of Mary D. C. Alexander and herself, who was formerly Mary D. C. Bennett, and more recently Mary D. C. Cane, all my landed property, together with my half of all the negroes held in community with her former husband, James H. Cane, deceased, which is now lying, living and being in this State, and for the children (in the plural and singular), to come into possession as soon as the youngest becomes of age, or as soon thereafter as the mother may think prudent after I leave this world. ” * * * *

The plaintiff sues as heir and assignee for six-seventh parts of the estate. The heirship of plaintiff and his assignor's is clearly proven.

The ground of action is alleged to be :

“ That Mary D. C. Alexander, to whom, with her child, all the property of said Bennett in Louisiana, and set forth in the petition, is given, is the natural daughter of said Bennett, and never was aeknowled by him; and that, therefore, said Bennet could not make said”will in her and her daughter’s favor, to the exclusion of his brothers and sisters living, or their representatives.”

The testimony clearly shows that the said defendant, Mary D. C. Cane, is the illegitimate daughter of the testator.

Parol evidence was offered and admitted by the Court below, to show the heirship of plaintiff’s asssignors. The defendants objected to the testimony, and the objections being overruled, a bill of exceptions was taken to the ruling of the Court.

"We are clearly of opinion that the Court did not err.

The defendants also objected to proof going to establish the illegitimacy of the said Mary D. C. Cane, on the ground that she, being a free white person, it was against good morals and against the policy of the law to allow proof of illegitimacy to be made against her in this case, and the law prohibited it. The Court admitted the evidence, and the defendants excepted to the decision of the Court.

We are of opinion that the Court did not err.

If the defendant, Mary Cane, wanted to claim alimony against the estate of the deceased, under the provisions of Art. 9M of the Civil Code, the door would be opened to her to show that she was an illegitimate child of the deceased, although not acknowledged by him. Civil Code, Art. 226. We sep no good reason why the rule should not work both ways; besides, we are satisfied that the law never intended to put an unacknowledged illegitimate child in a better position than one who is acknowledged ; which would certainly be the case if the illegitimacy of an unacknowledged bastard could not be proved ; for, then the bastard would be considered as a stranger, and could receive all that a testator could dispose of in favor of any one, even to the prejudice of his own legitimate children.

The testimony clearly establishes the illegitimacy of the said Mary D. O. Cane, and not being acknowledged, she is then a bastard (C. U Art. 220), and carino fc receive the testamentary disposition in her favor.

We are of opinion that the Art. 914 of the Civil Code, although found in irregular successions, applies to her, to wit: “Bastards, adulterous or incestuous children, shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above-mentioned, the law allowing them nothing more than amere alimony."

If she be prohibited from receiving as an heir, under said article, how can she take as a legatee ? Would the law permit her to receive as a legatee what it refuses to her as an heir ? Do not the same reasons and motives apply in one case as in the other ? Ubi eadem est ratio, eadem cst lex.

We are of opinion that she cannot receive the legacy made in her favor by the will in question, and that her legal incapacity also excludes her child or children, who are considered in law as interposed persons. C. C. Art. 1478.

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


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    The Same v. The Same.
    — On Motion eor Rehearing,
    The law reprobates the begetting of illegitimate children, and only grants to natural children,!, o., those illegitimate children who have been acknowledged by their natural parents, the right to reoeivp from their natural parents by donations mortis causa, beyond what is nooessary to procure them sur. tenance, or an occupation or profession.
   Hyman, C. J.

A rehearing has been applied for in this case.

The law reprobates the begetting of illegitimate children, and only grants to natural children, i. e., those illegitimate children who have been acknowledged by their -natural parents, the right to receive from their natural parents by donations mortis causa, beyond what is necessary to procure them sustenance, or an occupation or profession.

This right .so to receive is to a limited extent, and on a certain contingency.

Such right is not given to bastards, i. e„ those illegitimate children who have not been acknowledged by their natural parents. O. O. 1470, 1473.

A rohearing is refused.


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    Pierre Onezime Broussard v. Marie Emeranth Broussard.
    The right to make a demand available by exception does not relievo it from prescription in a direct action.
    If a party, having the right to proceed by exception or direct action, solectstho latter mode of proceeding, he must submit to the rules governing direct actions, ono rule of which is, that actions may be defeated by prescription.
    APPEAL from the District Court, Parish of Vermillion,

      Simon, J. M. B. Girard, for appellant. B. O. Bryan, for appellee.
    The facts are stated in the opinion of the Court.
   Taliaferro, J.

On the 11th of November, 1856, the defendant in this ease instituted a suit against the present plaintiff, in the District Court, sitting in and for the Parish of Vermillion, for various sums of money alleged to have been received by him on her account; and, on the 22d of June, 1858, she obtained a judgment against him for '$2,843, with five percent. interest from judicial demand.

It will be convenient to notice that the suit just mentioned is numbered 416 on the docket of the Vermillion Court. P. O. Broussard, the defendant in that case, acquiesced in the judgment rendered against him, and soon after payed it off. Broussard, who is the brother óf M. E. Broussard, had, previous to the year 1854, acted for a number of years as a kind of curator to his sister, who labors'under infirmities which render her incapable of transacting her own business.

Qn the 11th of November, 1858, the present suit now before this Court was filed by P. O. Broussard, against the defendant M. E. Broussard, in the District Court of Vermillion, and is numbered 597 on the'docket of that Court. In his petition, plaintiff sets up against defendant various items of indebtedness, arising, as he avers, from amounts paid by him to. several persons, for board and attention furnished his sister; for board and services rendered at different times by plaintiff himself, and from having paid for her a debt of fifty dollars, and eighty-threa.cents. The answer is a general denial, and the prescription of one, three, five, seven, eleven, fifteen and thirty years is plead. Judgment was for tho defendant, and plaintiff appeals.

We find, from tho transcript, that defendant left the plaintiff’s domicil about the month of October or November, 1854, and that service of citation was made upon her, in this case, on tho 12th of November, 1858; the interval constituting a period of about four years. It seems that the debt of fifty dollars and eighty-three cents was paid for defendant by plaintiff, on the 14th of December, 1840. This being a liquidated claim, the plaintiff might have set it up in compensation against the defendant in her suit against him, numbered 416. But he had the right clearly to pursue his remedy by action, as he has done. It is contended that prescription against this claim was interrupted because of its susceptibility of being made an off-set against the defendant’s claim in suit No. 416, and that prescription would only begin to run against it from the time of P. O. Broussard’s payment of the judgment rendered against him in that suit. It seems to us, that so long as the claims set up against P. O. Broussard, in suit No. 416, could have been enforced against him, he might have pleaded the off-set in question in compensation. But the right he had to make it available by exception does not, in our view, relieve it from prescription in a direct action. If a party having the right to proceed, either by exception or action, selects the latter mode, he must submit to the rules governing actions; and one of these rules is that actions may be defeated by prescription. 13 An. 250.

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


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    Estate of Marie Anne Olivier.—Opposition of Joseph Langley et als.
    Whore ono oí the children of a deceased parent furnished necessaries for the support of the deceased, and attended to tho v/ants of the parent during sickness and old age, it furnishes a just charge on the estate of tho deceased, and the heirs must contribute to the payment of the chnrgo.
    APPEAL from the District Court, Parish of Calcasieu,

      Mouton, J. J. il. Overion, for appellant.
    The facts are stated in the opinion of the Court.
   Labatjve, J.

Andrew Langley, one of the heirs of said deceased, and administrator of her estate, having previously rendered an annual account on the 1st of September, 1858, on the 12th of September, 1860, filed a final tableau of his administration and distribution among the heirs; the opponents opposed the same on divers grounds ; the other heirs did not oppose it. The Court below having heard the testimony, sustained in part the oppositions, and homologated the tableau simply as regarded those of the heirs who had made no opposition, and annulled it as far as concerned the three opponents. Andrew Langley appealed.

• We have carefully examined the record and the judgment complained of, and we are of opinion that the Judge has properly applied the law governing the case, and done justice between the parties, with one exception, in regard to an account of $266 74,' claimed by said Andrew Langley, against the said succession, and which was rejected, the Judge being of opinion that it had not been sufficiently proved. The testimony upon that point is as follows :

T. B. Langley, one of the heirs, and brother of the appellees, knows that the administrator during lifetime of-Mrs. Olivier furnished her provisions, corn, meat, sugar and molasses, also powder, shot and medicines. The deceased looked to Andrew Langley to supply her with what she needed, and was confined twelve years to her bed before she died; and for five or six years before her death, Andrew Langley supplied her with what she needed. The slaves of the deceased being mostly young, and women, made no crops, and constituted the family of the deceased. Considering the relations which must naturally exist between a mother and son, we are of opinion that this proof was sufficient, and that this claim should have been allowed to the appellant. This sum of $266 74 being allowed to Andrew Langley, and there being ten heirs, the virile share of each opponent in the estate is reduced by $26 60, which must figure to their debit, and increase pro tanto the respective balance duo by them. In all other respects, the judgment appealed from is correct, but must be amended as'folloWs :

It is therefore ordered and decreed that Joseph Langley pay six hundred and forty-three dollars and forty-two cents, with eight per cent interest per annum, from the 13th October, 1859, till paid.

That Leandre Bertrand pay seventy-five dollars and thirteen cents, with eight per cent, interest per annum, from 20th May, 1857, on twenty-five dollars and thirteen cents; and the like interest, on the like sum, from the 20th May, 1858 ; and the like interest, on the like sum, from 20th May, 1S59, till paid.

That the succession of Eli Langley, represented by his widow and administratrix, Marie Gertrude Casaneuva, pay the sum of two hundred and forty-seven dollars, with eight per cent, per annum interest, from the 1st February, 1860, till paid.

It is further ordered and decreed, that the judgment of the District Court, as amended, be affirmed, and that the o}3ponents and appellees pay the costs of this appeal, each one-third.


author: Taliaeebro, J.

text:
    Edwards Ogden v. John G. Wilson.
    Tho sotting aside of a continuance in a suit, without notice to tho adverso party, ia irregular, and tho judgment will bo reversed.
    APPEAL from the District Court, Parish of Avoyelles,

      Edwards, J. John E. King, J. H. Overton and A. B. Irion, for appellant. E. N. Oullom, for appellee.
    The facts are stated in the opinion of the Court.
   Taliaeebro, J.

The plaintiff brought this action in May, 1861, alleging himself to bo the owner of an undivided half of a plantation, called the “Revelry Plantation,” situated on Bayou Boeuf, in the Parish of Avoyelles, and that the defendant is owner of the other half of that property. He further sots forth that in March, 1858, he leased the undivided half of the said property belonging to him to the defendant, for the term of three years ; that at the expiration of the lease the defendant refused to deliver to him the leased premises, and refused to recognize him as owner of any part of the property.

Plaintiff prays to be docreed owner of an undivided half of the plantation, and that a partition be made of it, and that experts be appointed to effect the same.

Tho defendant was cited but filed no answer. The Court commenced on the 5th day of February, 1866. On that day the case was continued.

On the 8th, Court met “iiursuant to adjournment,” and on that day the continuance was set aside, and a judgment by default taken, no notice having been given to the defendant of the motion to set aside the continuance.

The act of lease shows that plaintiff, in making the lease, acted for himself and as natural tutor of his child, Euphrosine Ogden.

Judgment was rendered in conformity with the prayer of the petition, and the defendant has appealed.

The setting aside the continuance, without notice to the adverse party, was clearly irregular. 3d L. 145.

The record discloses the want of proper parties and proper proceedings in tho Court below to give effect to a judgment of partition. C. C. Arts. 1217, 1252, 1259.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. And it is further ordered, adjudged and decreed, that this case be remanded to the District Court for further proceedings, according to law.