text:
    No. 1398.
    Erastus F. Chandler and Augutus B. Chandler v. Anthony Barrett, Executor.
    Tlie rule that testaments are more easily avoided than contracts, on the ground of mental unsoundness, does not refer to the amount of intellect required iu a testator. So far as the latter is concerned, a will may be made by any mind which has tlio soundness and strength necessary to endure the conflict involved in the making of a bargain.
    Insanityds never presumed.
    If a testament present a series of wise and judicious dispositions, the 'onus is upon the heirs who attack it to prove unsoundness of mind at the date of its execution.
    If by facts occurring near tbe time of the date of the testament and preceding and following it, the heirs have proved an habitual state of insanity, then, and notwithstanding the wisdom of the will, the onus would be shifted on the legatee to prove the sanity of the testator during the intermediate time, that is, at the date of the testament.
    If, however, no habitual state of instanity is established, and the acts of folly are rare, and occur at periods distant from each other and from the date of the testament, the testament, if net destitute of good sense on its face, will be presumed to be the offspring of a healthy volition and a lucid memory.
    The opinions of medical men are received xipon questions of professional skill; but they should state the facts on which such opinions are based, and the opinions themselves are not conclusive but must be weighed as other evidence.
    from tbe Second District Court of New Orleans, Theard, J. Fourth District Court, presiding.
    <L F. Boyd and M. 0. Bunn fot plaintiff and appellees, Ate. T. Steele, for defendant and appellant.
   Howe, J.

The plaintiffs in this case allege that they, together with a minor brother and minor sisters, are the solo heirs of Mrs; ChristinA Chandler, their father’s sister, who died in New Orleans on the second of August, 1866. That on the twenty-fourth day of July, 1866, the deceased executed an instrument called and known as her last will and testament before A. Hero, Jr., notary, by which she bequeathed all her property to the defendant Barrett, constituting him universal legatee and sole executor; that the will has been admitted to probate upon application'of the defendant, but that it is null and void for the reasons that at the time of making the will, and for many years prior thereto, the testatrix was totally disqualified and incapable of making a will; and also for other reasons, which having been abandoned by plaintiffs it is unnecessary to discuss. They pray that the will may be annulled and avoided, and that the plaintiffs with their minor brother and sisters may be adjudged to be entitled to inherit and possess the estate, and for general relief.

The defendant pleads the general denial; especially denies the relationship of plantiffs’father; avers that the testatrix, “Christina Chandler, at the age of seventy years lived alone, uncared for and neglected by the plaintiffs who lived yery near to her,” and asserts that the deceased “when she made her will and until her death exhibited more than ordinary proof of sanity and capacity to do business.”

There was judgment' for plaintiffs and the defendant has appealed.

The only question in the case, in the view we have taken of it, is, whether Christina Chandler, on the twenty-fourth day of July, 1866, had testamentary capacity, or whether on the contrary she was in-testable by reason of unsound mind ? The question, we must say, is not very clearly presented by the pleadings, but it seems from the whole record to have been the main point at issue. And here we may remark that, while it is true as stated by this co.urt in Aubert v. Aubert, 6 Ann. 106, and urged by plaintiffs at bar, that testaments are more easily avoided than contracts on the ground of unsoundness of mind, yet this distinction applies to such matters as those of notoriety and interdiction and not to the amount of intellect required in a testator. So far as the latter is concerned, a will may. well be made by any mind which has the soundness and strength necessary to endure the conflict involved in the making of a bargain.'-- It would be unreasonable to require that a testator should have more mental vigor and a more lucid memory than a person-who makes a contract. (See Merlin, Repertoire, vol. 13, page 550; Stevens v. Van Cleve, 4 Wash. C. C. R. page 267; Converse v. Converse, 21 Vermont 168.

It appears from the evidence that Christina Chandler resided in Missouri in 1825; that her husband died in that year; that soon after his death she became the mother of a son Thomas W. Chandler; that in 1835 she removed to Vicksburg; where she remained until about 1850; tliat slie thou came to New Orleans and lived here with her son ■up to the. time of his death in April, 1865; and that she survived him about sixteen months, managing his succession of which she was sole heir, and living alone in the same house in Canal street where she had ■lived for some time before. In considering the question of her alleged unsoundness of mind at the time her will was made there are some elementary principles which may guide us to a just conclusion. “ The lioman law,” says Com. Delisle (Donations et Test aniens, page 82), “ furnished rules on this point which still deserve to be followed. If the testament present but a series of wise and judicious dispositions, it is for the heirs who attack it to prove unsoundness of mind at the date of the testament. If it contain dispositions such as woidd cause insanity to be presumed, although susceptible of being justified by peculiar circumstances, it is for the legatee to prove by witnesses the sanity of the testator as against the terms of the testament. But if by facts occurring near the time of the date of the. testament, and preceding and following it, the heirs have proved an habitual state of ■insanity, we are constrained to think that then, and notwithstanding the wisdom of the act, the legatee should be held to prove the existence of soundness of mind during the intermediate time. If, however, the acts of insanity were rare and occurred at periods distant from each other and from the date of the testament, the testament would sustain itself, and woidd be presumed to have been made in a lucid interval, at-least if the act was not destitute of good sense and betrayed no insanity.”

“Tiie presumption,” sajrs Toullier, “is always in favor of the act. Insanity is never presumed. The advanced age of the donor, the forgetfulness of his family, the largeness of the legacy, the low rank of the legatee, will not of themselves suffice to decide that the testator is not of sound mind.” Droit Civil, vol. 3, p. 44. See also Marcade, vol. 3, p. 403, Duranton, vol. 8, p. 167.

“ The presumption of sanity does not cease,” says Troplong, “because the testator has experienced some transitory intellectual derangement at a time anterior to the testament.” Donations et Tesfcamens, vol. 2, p. 56. And the same writer animadverts with characteristic energy upon the tendency he has observed “to transform a morbid susceptibility, an ejihemeral, excessive excitement, a superficial trouble, into one of those profound alterations which destroy the reason.”

The English law seems to be the same upon these points. In the case of Chambers v. The Queen’s Proctor (2 Curteis 415, cited by Bay, p. 272, and Jarman on Wills, vol. 1, p. 72), the deceased was an attorney who made his will on the fifteenth November, 1839, and committed suicide the next day. He labored under singular delusions, having no foundation in truth, on the three days next preceding the day on which the will was executed; among others that the benches of the T-n-ns Temple wore about to disbar him on account of an imaginary trivial fraud lie Rad practiced on them, and that in consequence thereof he was a lost man and must be got out of the country. It appeared that delusions equally gross possessed his mind in 1838. But the court (Sir Herbert Jennor) said that the first point to be considered was whether habitual insanity had been proved, “because it is admitted that where habitual insanity does not exist the proof of actual insanity at the time the will was made must come from those who impeach the act. The court, therefore, must look for proof of habitual insanity or insane delusion from those who oppose this will-,” there being no evidence of actual insanity at the moment the will was made, the court was of opinion that no habitual insanity had been proved, and the will was therefore sustained. (See also Fulleck v. Allison, 3 Hazzard 527.

In the common law States of our own country, the same general rules have been laid down. Clark v. Fisher, 1 Paige 174; Jackson v. Van Deusen, 5 Johnson 144; Halley v. Webster, 21 Maine 461.

Turning to the evidence in the record we find the principal acts of folly relied upon by plaintiffs to be that about the year 1850 or 1851, the testatrix, Christina Chandler, ran up on the roof of a house as if trying to escape from an imaginary robber; that about 1856 she had a delusion that her brother had killed seven men and cut them up and thrown them in a well; that “ some time before the war ” she took all her bed clothing and her clothes and burned them; that about 1863 she informed one of the witnesses that her son and a young lady had bought a large kettle and she believed it was their purpose to boil her up in it; that during the last illness of her son, about sixteen months before her own death, she was very miserly in her housekeeping, to his discomfort; that about two weeks before her death she offered to will her property to a neighbor, Mrs'Hannegan, if the latter would attend to her wants in the way of nursing, and afterwards offered to will it to Mr. Hefferon, another neighbor, if he would go in and take care of her during her last illness; that on another occasion, the date of which is not fixed, she had a fear of being poisoned by her son, and refused for a time to drink water from his cistern; that her habits were those of a miser, and that she was afraid of being cheated and robbed; that some time prior to September, 1861, calling at the house of the plaintiffs’ father, Maryland K. Chandler, she would say when she came to the gate, “ Maryland, will you kill me ?” and he would jokingly reply “ yes,” and she would then call the witness her sister-in-law.

The plaintiffs also rely on the opinions of experts, but the experts do not seem to agree as to what was the character of Mrs. Chandler’s mental aberration. They do not appear to have considered her imbecile nor afflicted with dementia. In their opinion the unsoundness took the form of mania of some kind. The judge of the court who recused himself and was called as a witness, thought her of unsound mind; that she seemed to distrust everybody except the Judge of the Second District Court, to have a morbid fear of being robbed and cheated, and to have “a mania for penurious conduct.” He thought, however, that she knew how to keep her money, that she was not violent, and he did not deem it his duty to interdict her. He did not see her after 18G5. The first medical witness thought her insane and seemed to lay much stress upon the delusion in 1863, in regard to he;1 son, and her manner at that time, and her conduct when her son was ill in April 1865. He did not see her for about six months prior to her death except as he saw her passing in the street. The second medical witness declared that she “was afflicted with what is called.moral insanity, which is characterized by cruelty to one’s kindred.” He did not see her after April, 1865.

We may here observe that while it is true that experts may give opinions, and that the opinions of medical men are freely received upon questions of professional skill, it is equally true that they ought also to state the facts on which those opinions are based, and that the opinions themselves are not conclusive, but must be weighed as other evidence.

5 La. 276 ; 4 Ann. 377; 1 Jarman on Wills 78.

We have given a careful consideration to the testimony of these experts, and are constrained to think that no habitual state of insanity has been established by it. Nor do we think the other witnesses have established such a state. Penuriousness or miserly conduct is hardly evidence of such a condition. The desire of the deceased to leave her property to her neighbors, provided they would nurse her in her last hours, seems tohave been an effort to attract a kindly attention, and we might adopt in this regard the language of ChanceEor Kent, and say: “It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities.” Van Alst v. Hunter, 5 John. ch. 148.

The fear which Mrs. Chandler had of being robbed and cheated, wo do not think unnatural in an aged woman who .appears for upwards of a year before her death to have lived alone unvisited by a single one o£ her relatives. The plaintiffs and their mother do not seem to have seen her since 1861; although for the greater portion of the time from 1861 to 1866, they resided within three miles of her house. From the squalid style in which she Eved it is as likely that the burning of bed clothing and clothes “some time before the war,” that is at least six years before the will was made, was a sanitary precaution as that it was the act of a lunatic, and even if it was an act of Pyromania, it was never repeated in any form.

As for the delusions which perplexed her mind at different times during a period of sixteen years, it is to be observed that they were few in number, were not permanent in their character, and were separated from each other and from the date of the testament by long periods of time. They were undoubtedly morbid, and we may presume they indicated cerebral irritation at the time they appeared, but we find no trace of them in the evidence after the year 1863, and the will was made in 1866.

We are of opinion, therefore, that the plaintiffs have not overcome Hie presumption of sanity which must exist in favor of a will so rational as that of the testatrix in this case; and wo are confirmed in this opinion by the testimony for the defense. We there find Mrs. Chandler, four weeks before her death, consulting a lawyer in regard to a suit which had been brought against her, and stating the facts to him with clearness and accuracy. Two days after she calls again upon her counsel, informs him correctly of her family relations, of the fact that' she has no descendants, and states her desire to make a will so as to dispose of her property as she pleased. She mentions the fact that she knows Mr. Hero, and is advised to employ him as notary. On the day the will was made, Mr. Hero with these witnesses went to her house. She told him she desired him to make her last will and testament; she dictated to him the ideas as written down in the will; she told Mm that no one had taken care of her (moaning; doubtless, no one whose natural duty it was to care for her); that Mr. Barrett had, and would continue to do so. She then informed the notary that she had some money m tiie house, gold coin, wliich she did not wish to keep there as she had some time before been robbed of her paper money. She then went, with assistance, into the next room and brought a basket containing six or seven rolls of paper, in each of wliich she said there were one hundred dollars, except one ■which contained sixty dollars. The money was counted by the notary, and, as he says, proved to be in amount what she had stated. The money was then handed to Mr. Barrett for safe keeping, apparently, as she did not wish to keep it there.” She then told the notary that Mr. Barrett had constructed a tomb for her in one of the cemeteries (a fact elsewhere appearing in the evidence), and that as part of the consideration of Ms services, she desired to transfer to him certain vaults she owned, and the written transfer was thereupon made. The plaintiffs urge that this was an act of insane folly, inasmuch as she had given him already over six hundred dollars, gold, and had bequeathed him all her property; but we cannot so regard it. She had given him the gold for safe keeping, and as for the rest' of her property it was uncertain when she would die, the defendant might not have come into possession for years, she might have used it up as well as the gold before her death, or she might have revoked her will. We think the act quite business like. The notary and the witnesses -were in her presence about two hours. She seemed a very avaricious woman, wfiio deprived herself of all the luxuries and many of what are generally considered the necessities of life, but to all of these four witnesses she seemed to he perfectly rational and to have an excellent memory. Her capacity for business, her determined frugality, her knowledge of her property and of her legal rights, her prudent administration of her son’s estate for fifteen months prior to the date of the testament, appear elsewhere in the evidence both for plaintiffs and defendant. That she was very penurious and very eccentric is plain enough, hut that she was habitually insane is something we cannot affirm. She had in former years, without doubt, on occasions separated by long intervals of time, suffered from irritation, of the brain, but from the evidence we must deem it to have been of the transitory kind, which occurring long anterior to the time of the testament, docs not cause the presumption of sanity as to that act to cease. If the plaintiffs had shown that before these isolated acts of folly occurred her habits of mind were different, and that these acts indicated a permanent and morbid change, if they had shown that the delusions which visited her at various times continued to manifest themselves in some form down to the time she made her will, as if the result of a chronic state, in short if they had brought themselves within the rule that where the insanity is proved to have been habitual, the burden of proof is shifted on the legatee, the result might have been different. But as the case comes to us, it seems to fall under the rule we have cited, that if the acts of insanity are rare and. occur at periods distant from each other and from the date of the testament, the testament, if not destitute of good sense, and betraying no folly on its face, will sustain itself to be presumed to have been the offspring of a healthy volition and a lucid memory.

Por the reasons given it is ordered and adjudged that the judgment appealed from be reversed and avoided, and that there be judgment in favor of defendant with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Ludeling,"C. J.

license: Public Domain

text:
    No. 1958.
    The State of Louisiana, ex. rel. Elizabeth Adams, Natural Tutrix, v. The Judge of the Second Judicial District of the State of Louisiana.
    Tli© District Judge has no discretion in granting a suspensive appeal where the appellant tenders hi3 bond with legal surety for an amount exceeding by one-haltf the amount of the judgment
    Tho rule laid down in Art. 574 of the Code of Practice, that the Judge shall fix the amount of the "bond for a suspensive appeal does not relate to a suspensive appeal from a judgment for a specific sum. "Where the facts show that the relator is entitled to a suspensive appeal, the Judge may be compelled by a writ of mandamus to grant the appeal.
    -from the Second Judicial District of the State of Louisiana. Pardee, J.

      Cotton & Leovy for relators, Pon A. Pardee in personam.
   Ludeling,"C. J.

Tho answer of the Judge of the Second Judicial District of Louisiana, shows that on the fifth day of December, 1868, a judgment was rendered dissolving an injunction in the suit entitled, Elizabeth Adams, Natural Tutrix, v. Martin Dermody, F. J. Herron, United States Marshal, and A. H. De Meza, with three hundred dollars damages and costs against the plaintiff and lier surety on the injunction bond, in solido. The judgment was signed on the fourteenth of December last. Within the legal delay, a petition for a suspensive appeal from the judgment was ¿led and presented to the judge, who granted the order “upon the appellant giving bond, with good and solvent security conditioned as the law directs, in the sum of forth-five hundred dollars.”

The reasons given by the judge to justify his conduct are not sufficient.

Article 575 of the Code of Practice gives the appellant the right to a suspensive appeal, provided “he give his obligation, with a good and solvent security, residing within the jurisdiction of the court, in favor of the appellee, for a sum exceeding hy one-half tiie amount fob which the judgment was giyen, if the same be for a specific sum.”

The judge has no discretion in sileh matter.

Article 574 of the Code of Practice, which provides that the judge shall state at-' the foot of the petition the amount of the bond, does not relate to suspensive appeals from judgments for a specific sum. Victor Duperron v. Van Wickle, Sheriff, et. al., 1 R. 324; Rachel v. Rachel, 11 An. 636; Surget v. Stanton, 10 An. 318.

Nor is the discretion given to the judge by article 574 absolute and uncontrollable. He must exercise a' sound legal discretion to attain the ends intended by the law, to wit, the security of the costs only.

The judgment appealed from was for three hundred dollars and costs. The bond for one thousand dollars, which was tendered, was sufficient, as it exceeds in amount by one-half the sum “for which the judgment was given.”

Another reason assigned by the judge was that the Second District Court of the State of Louisiana had not authority to issue an injunction to restrain the Marshal of tlio United States from executing a writ, issuedfrom the Circuit Court of the United States, and that the injunction was absolutely null and void, and therefore, no appeal can be taken from the judgment dissolving the injunction and awarding-damages against the plaintiff. This is a non sequiiur..

Whether the Second District Court had jurisdiction or not, the party cast in the injunction suit had a light to have the judgment reviewed by this court, on appeal.

It is therefore ordered that the mandamus issued in this case be made peremptory.

Reporter. — This case merely involves a question of fact, as to amount of the interest, and presents the same points as the preceding, reported above — No. 1958.


author: Howell, J.

text:
    No. 1956.
    State of Louisiana, ex. rel. Mrs. C. Lyons, Natural Tutrix, v. The Judge of the Second District Court for the Parish of Orleans.
    for a Mandamus.

      G. BossUus & Alfred Philips for petitioner for mandamus.

   Howell, J.

The relator asks for a peremptory mandamus, directing the Judge of the Second Dirtrict Court for tho parish of Orleans to grant a suspensive appeal from a judgment decreeing that widow Fry recover “from the succession of her late son, L. W. Lyons, the sum of fifty dollars per month from the death of her son, the same to be paid by the natufial tutrix of her grand children, at the end of each month.”

The judge answers that the monthly allowance being under five hundred dollars, no appeal lies, and that a suspensive appeal would be a denial of the relief granted imposed by law, and an irreparable injury to the party who is in necessitous circumstances. The latter grounds relate to the merits, which are not before us.

The petition for alimony was filed on the nineteenth of October, 1863, claiming a monthly alimony of one hundred dollars per month from tho death of tho son (seventeenth of April, 1867), and the additional sum of one hundred dollars per month to be paid monthly during the life of the petitioner, and judgment as above was rendered December 7, 1868.

It is manifest that the amount allowed by tlie judgment as duo and exigible at the date of the demand exceeds the ■ sum of five hundred dollars and is hence within the jurisdiction of this court.

The particular form in which the decree is written out, does not change the amount in dispute at the date of the suit as fixed by tho decree itself. The aggregate amount of the monthly installments due by the judgment, at least at the date of instituting the suit, if not at the date of the judgment, can be safely taken as the amount in dispute.

It is therefore ordered that the mandamus issued herein be made peremptory, and the Judge of the Second District Court for the parish of Orleans directed to grant the relator a suspensivo appeal from tho judgment rendered by him on the seventh of December, 1868, in favor of widow Fry, and against tlic succession of L. W. Lyons, deceased, for alimony from the date of the death of said Lyons.


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

text:
    No. 1197.
    William D. Smith v. Charles D. Stewart, et. als.
    The exchange of prisoners between the sovereign and the insurgent, engaged on the one side by force of arms to subdue the rebellion, and on the other to establish their independence, does not of itself constitute the insurgent a belligerent power.
    The blockade of tho insurgent ports by the sovereign does not constitute the insurgent a belligerent within the sense and meaning of the term “belligerent" as used in international law, because the sovereign might accomplish the sajne result by interdicting commerce through those ports by municipal regulations.
    The fact that a revolted province or portion of a country may have acquired the status and position of a belligerent power does not ipso facto give it the position and status of a defacU government. A government defacto arises onlywherethe established government has been subverted by successful rebellion, and the new government exercises undisputed sway for the time being over the entire country.
    In the late conflict between tho United States and the so called Confederate States, before the the Confederate States could have claimed tho destruction of a defacto government, it was necessary for thorn to show undisputed control over the whole country claimed, with the ability to maintain that position.
    A recognition, by any other independent power, of the Confederate Slates as an independent power before they had demonstrated their ability to maintain their new government would have been a casus belli'between the United States and such power.
    ON MR. CHIEF JUSTICE LaUELISG’S OPINION — ON REHEARING.
    Prescription runs against all persons, except such as are included in some exception established by law. O. C. 3iS7, Thó existence of war is not among the exceptions established by law that will work an interruption or suspension of prescription.
    The inability to sue will not avail against the plea of prescription, except in the cases specially excepted by law. C. C. 2512, 3488.
    The maxim contra non valcntem agerenon curv'd prescriptio has no application in our system of jurisprudence. Where the Legislature has prescribed rules regulating prescription, and enumerated the causes that interruptor suspend prescription, the courts will admit no other exceptions than those made by the law.
    A .j[A. PPEAL from the Parish of Pointe Coupee, Seventh Judicial District, Cooley, J.

      Hace, Foster cC F. T. Merrielc and A. Frovosty for plaintiff and appellee; Fdward Philips for defendant and appellant.
   Taliaferro, J.

The plaintiff in this action alleges that the defendant Charles D. Stewart and eight others in April, 1802, destroyed by fire two hundred and seventy-five hales of cotton, tho property oi plaintiff, which he avers were worth eighty-five thousand dollars. He prays judgment in solido against the defendants for that sum with interest and costs.

Tho defendants .filed separate answers. In the court below, the case was continued as to all the defendants except Stewart, between whom and the plaintiff the present controversy lies. Judgment was rendered in favor of the plaintiff for twelve thousand dollars, and the defendant appealed.

The defendant’s answer denies that the cotton belonging to plaintiff was burned at the time specified; and avers that if it were, it was burned by the militia of Pointe Coupee parish, acting under orders from the regularly constituted authorities of tho State, and specifies as constituting those authorities the Governor, in his capacity of commander in chief of the army and navy of the State, and of the militia thereof, and others, subordinate officers of the militia of the State; as welL as by the authority of and under the orders of the officers of the Confederate States - Government, whose orders and authority were at that time obligatory and binding upon the defendant, and which he was compelled to obey. lie avers that at that time the militia of the parish were acting under orders from the commander in chief; that he was compelled to be a member of the regiment of Pointe Coupee militia, and that as such, nothing was done by him except what he did by the orders of officers whose commands he could not disobey. He pleads the prescription of one year in bar of the plaintiff’s action.

The issues made in this case are—

First — Is the action prescribed?

Second. — Was the authority under which the defendant acted a lawful authority?

] Third. — Did he act under compulsion?

And first as to the question of prescription.

The learned and able opinion delivered in this ease by the judge a quo enables us without difficulty to arrive at a satisfactory conclusion under this head. It is shown that from the time of the capture of New Orleans by the national forces in April, 1862, a continuous state of ■alarm and agitation prevailed in the parish of Pointe Coupee and the adjacent country, during the remainder of the war. Especially from the beginning of the year 1863 to the spring of 1865, the parish of Pointe Coupee was scourged by alternate raids of the military forces of both the hostile parties. Battles and skirmishes were frequent; while that state of affairs continued the people were panic stricken from the danger with which they were surrounded. Perturbation and terror wore in the ascendant. In that district of country at that time the Ciceronian maxim “ Silent leges inter anna,” was fully illustrated. It is' shown that during the year 1862, after the plaintiff’s cause of action arose, there was only one term of cora-t held in the parish, and that that was a mere formal opening of the court without the purpose of transacting business. That there was no court held during the years 1863 and 1864; and that the first court held afterwards was at the December term, 1865, under the Constitution of 1864; there having been but the one court, and that a mere nominal one, from the twenty-ninth of April, 1862, to the first Monday of December, 1865. It is shown that the defendant, shortly after the burning of the plaintiff’s cotton, removed to Texas, where he remained three years. The petition in this case was filed on the third day of January, 1866, and the citation served on the fourteenth of March of the same year. But were the officers and the judge of that court, whoso sittings were of such rare occurrence, officials deriving their commissions and authority from a legal source? It is contended that the contrary has not been proved, and admitting the court to have been inci mp¿tent, still the plaintiff by diligence might have filed his suit and had citation served and thus have been enabled to save his claim from prescription. By the expression “ of competent jurisdiction or not” in article 3484 of the Civil Code, relied upon by the defendant, we understand courts of constitutional and legal origin, although incompetent as to jurisdiction of the subject matter, It is shown that, the State in its then abnormal condition, passed an edict by which suitors who had not sworn allegiance to the Confederate authorities, wore prohibited from.instituting suits in the courts; and from this the political status of the officers of these courts may readily be inferred.' In view of the confusion and dismay of the time and the general distraction of the country, it is not reasonable to expect diligence to be used in the prosecution of legal rights. In the furor and excitement of that period, the closing of the courts, of more than doubtful legality if open,' and the general neglect óf all business, except that of war, it would have been a vain and useless thing for the plaintiff to institute an action; and had it been practicable, it doubtless would have brought odium if not danger upon him tq have instituted the pre.sent action.

We think the evidence fully warrants us to determine that in this case there was a suspension of prescription under the equitable principle invoked by the plaintiff, contra non valentón agere non currit pre-scrip lio.

It is in consonance with the spirit of our laws and the jurisprudence of the State to recognize the rule where facts obviously show the equity of its admission. 11 An. p. 730 and cases there cited.

Second. — Was the authority under which the defendant acted a lawful authority ?

• This inquiry, seemingly, though we apprehend not necessarily, involves the consideration of the much mooted question, did the late Confederate States constitute a government defacto?

We regard this question rather as a political than a legal one. It does not in our view come properly within the range of judicial action. Courts should be governed in questions of this character by the authoritative declarations of the national government. Authorities are not wanting to sustain this opinion. But, it is urged upon us that the action of the general government during the war towards the States lately in rebellion, was such as to recognize them as a belligerent power, and as having a government de facto; and that they have been so acknowledged by other powers. This subject has been pressed upon our consideration with much ability and zeal in this case, as well as in others, and we deem it proper to examine it.

In entering unwillingly upon this task, we shall first inquire into the character of this alleged recognition of the late Confederate States as a belligerent power by the- United States government. When independent powers, governments de facto et de jure, engage in war against each other, they are called belligerents. Certain recognized rules and usages applicable to their condition of hostility and to their relations to neutral powers are called belligerent rights.. The terms belligerents and belligerent rights are properly applicable only to sovereign powers engaged in war. In all other cases they apply sub modo, and in'a limited and qualified sense. In the case of sovereign powers engaged in war they recognize each other as sovereigns. In the case of rebellions where one party strives to obtain its independence and the other to reduce the insurgent to obedience, no such recognition occurs. Yet, in the latijer case, modern warfare admits, in tho interest of humanity, the humane treatment and exchange of prisoners; a concession to that extent, of a belligerent right in favor of the insurgent power. In blockading the Southern ports during the late war the United States government chose to exercise a belligerent right, when as a sovereign, it might have accomplished the same object by interdicting commerce through those ports by municipal regulations. This act of blockading the Southern ports and the exchange of prisoners are construed into a recognition by the United States of the alleged status of the Confederate States as a belligerent power. But constructive belligerency and constructive governments de facto are novel elements of international law, and not yet incorporated wo imagine in the law of nations even in “its newest state.” What is the evidence that the late insurgent States were ever recognized as constituting a de facto government either by the United States or any other power 1 ' It is not shown, nor, we imagine, can it be, that any formal declaration of such recognition has ever been made by any government, by the issuing of any proclamation or State paper importing a national act. No ambassador, minister plenipotentiary, charge de affairs or other functionary of that order was ever sent to Richmond to treat with the government of tho Confederate States. No official of that character, sent by the government of the Confederate States to foreign powers was ever recognized and received in that capacity. If Lord John Russell, in speeches before political meetings, spoke hopefully of the Confederate cause; and if now and then, a member of Parliament said in his place that tho Confederate States were a government de facto and ought to be recognized, it was matter of but little import. Whatever else may have been said or done in England or in Prance touching these matters, it is certain that no solemn act of either government was ever announced declaring the Confederate government a government de facto.

Conceding, however, that the Confederate States were a belligerent power, did that constitute them a government defacto? Certainly not. It is contended nevertheless that its status was that of a de facto government because the insurgent. States established a government and exercised jurisdiction over the country which they embraced. In ex-ambling this proposition, we must look dispassionately at tlie stem array of facts that como witliin the field of view.

What then is a government de facto?

A government defacto arises only where the established government has been subverted by successful rebellion, and the new government - exercises undisputed sway for the time being over the entire country j or, where the people of any portion of a country subject to the same government, throw off their allegiance to that government and establish one of their own; and show, not only that they have established a government, but also their ability to maintain it. This principle is founded upon reason and the fitness of things, and is therefore a rule of international law'. The recognition of the government of a revolted State or province by a neutral power, is casus belli for the sovereign claiming dominion over the revolted country, if such recognition precedes the exhibition by the newly formed government of its ability to maintain its independence. Where recognitions of revolted States have occurred without this manifestation of the ability to sustain their new condition, they have been simply interventions with the intention of war.

During the cruel and fanatical war waged against the Netherlands by Philip the Second of Spain, England recognized their independence for the purpose of becoming a party to the war ; fearing that if the Netherlands were subdued, both the government and church of England would be in danger from the power and fanaticism of Philip. What lias been the uniform usage of nations on the subject of recognition! Numerous examples might be given. A few will suffice. When in 1778, Prance entered into treaties of alliance and commerce with the British North American colonies,-then in a state of revolution, she adopted these measures upon the express declaration that “the people of these colonies were in the public possession of tlioir independence, and above all that their former sovereign had shown by long and painful effort the impossibility of reducing them to obedience.”

The uniform course of the United States towards the various provinces of Spain on the American continent, which, from time to time, within the last half century, have been in a state of revolt, has been scrupulously to abstain from the recognition of any of them as de facto governments until Spain herself had abandoned the contest, or it became morally certain that her power could never be reinstated.

Now, at what time did the insurrectionary States, in the late unhappy conflict, exhibit to the world their ability to maintain their so called government against the gigantic power of the United States? If they" never did this, the claim set up for them as a defacto government must fail; Aside horn the fact of their inability to maintain the government they set up being proved by the actual failure, it may justly be said that the result of the conflict was apparent from the beginning. What are the facts 2 The Southern States revolted and established.a govern-meat founded as they declared upon the great principle of slavery, and with the avowed purpose of perpetuating it. They did this in defiance of the moral sentiment of all Christendom. They had, no doubt, the good wishes of the few who yet.remain hostile to the march of liberal sentiment, and who cling to the idea of the divine right of kings. But on which side in the fearful strife were the sympathies of the masses of mankind? True, the Confederate States had a constitution, a congress, a president, officers of state; but to what purpose were these things, without the power to uphold them? One-half the population of the revolted States was ready at any moment when the opportunity occurred to rise in opposition to the new government, as all sane men know it would do. No inconsiderable number of the other half helped also to swell the armies of the Federal government. Spread over an immense extent of country, and occupying at first all the strongholds within the arena of war, the weaker party were enabled to maintain the unequal contest for several years; but was it tlieless certain how it must terminate ? Cut off from all intercourse with foreign countries by a powerful navy, the exhaustion of the country was slow indeed, but gradual and certain. A merciless conscription which dragged into the Confederate ranks all the efficient men of the country, was wholly inadequate to supply armies to repel the outnumbering forces that were advancing in every direction. The desertion of the laborers left the fields uncultivated. Without money, without manufactures, and without producers, food, clothing and the munitions of war began to fail. No intervention by any of the powers of Europe was to be expected. The public sentiment of England, in unison with that of the sovereign^ restrained the ministry; while the judgment and caution of Napoleon kept him from venturing alone upon a measure by no means free from hazard,.in view of his tenure of the throne of France, and of the well defined position of Russia touching intervention by any of the European powers.

In juxtaposition with this state of things, it was seen that upon the white basis the population of the loyal States was more than fourfold that of the Confederate States. From that population the Federal forces were not only continually recruited, but continually increased. Abounding in manufactures of every kind, with producing capacities unexampled in the history of any people; with money and credit commensurate with the exigencies of the cxisis, the armies of the Federal government were better clothed, better fed, better armed and better paid, than the same vast nxunber of men going forth to war, have ever been, in ancient or modern days. With these facts glaringly before the eyes of the world, can it be said that the Confederate States at any time exhibited their ability to maintain the government they established?

The advocates of the proposition that the Confederate States were a defacto government resort to English history for authorities to support their position. Wo think they are not fortunate in doing so. During the long continued wars carried on by the rival houses of York and Lancaster, when the kingdom was in turn held by the one or the other of the parties, de facto governments were alternately established, because intervals of long duration occurred between these alternate occupations of the crown, and during which all strife had ceased. Such was the case during the usurpation of Cromwell. He was in the undisputed possession of the go'vernment for a long period, during which he had no opposition. For this reason the Cromwell government was a de facto government; and we do not see that it proves anything that Sir Matthew Ilnle, an undoubted loyalist, held office under it, and that he afterwards he'd office under Charles the Second. The words of Lord Hale, quoted with such confidence are very significant on this point. Ho says: “the right heir of the crown during such time as the usurper is in plenary possession of it, and no possession thereof in the heir, is not a king within the act, on the subject of treason.” The authority of Sir Michael Foster is also to the same effect. He says: “ a king even de facto in the full and solo possession of the crown, he is a king; within the statute of tieason.” It is clear that all those examples drawn from English history, and the authorities cited, make good the premises we have laid down. They all show conclusively the conditions to bo absolute and plenary possession without interruption; and no possession of the realm in the adverse claimant. It is matter of history that these conditions were not fulfilled in the case of the Confederate government. From a very early period of the contest the Federal occupation of territory within the limits of the Confederate States was gvaduallv extended, until the whole country was occupied, or at least, until the Confederate authority was entirely subverted. We conclude finally that by the principles of international law, and the general usage of nations, the late government of the Confederate States did not attain the status of a government defacto. The authority then set up under the government of the late insurgent States was illegal and void. It cannot therefore avail the plaintiff.

Third. — The third inquiry is, did the defendant act under compulsion? The evidence sufficiently discloses that he was a willing and ardent soldier in the war against king cotton. We think he rendered willing rather than compulsory service. But it is no where shown by the record that he was actuated by malice or ill feeling against the plaintiff. Jt is true that ho acted in the matter of cotton burning conjointly with the other defendants UDder a militia officer; but we are rather inclined to think that the militia was a kind of machinery introduced with the view of giving an apparent legalization to the predetermined acts of those who advocated the ruinous policy of destroying cotton. But it is contended that the skirts of the defendant are not free from the flame and smoke of the burning staple. One witness says that the plaintiff set fire to some of his own cotton. It is shown that he caused cotton bales to be lianled out from under Ms gin, to have them in readiness for tlio cotton burners when they arrived, and that he advocated the burning of cotton. The testimony of the one witness in regard to the plaintiff's burning a part of his own cotton appears to have been disregarded on the trial below; and that portion of the testimony showing that he was in favor of the destruction of cotton to prevent its falling into the bands of the Federáis also shows that he held it premature to burn cotton at that time. It is clearly established that when the torch was about to be applied to his cotton, he protested against the act and earnestly requested time to remove it out of the way of the enemy, stating that he expected a boat in a short time by which he intended to send his cotton up the river, far in the interior.

There is another feature in these transactions worthy of notice. The proclamation of Governor Moore directed the burning of all cotton within the limits of the State, which was in danger of falling into the hands of the Federal forces, and provided that where it could be removed out of their reach, that it should be done. TMs clothed the militia officers with a margin of discretion, which (as they acknowledged the legality of the order) it was their duty to exercise with propriety and judgment. It is not shown by the record that there was danger at all of the capture of cotton by the Federáis; on the contrary, it appears that when their vessels of war went up the river, none of the cotton remaining was taken by them! Neither is it shown that at the time the plaintiff’s cotton Was burned there was immediate and imminent danger of its capture; so that the plaintiff was deprived forcibly of the benefit of the proclamation, which gave him the privilege of removing his cotton if lie were able to do so. The party acting under the illegal authority by which defendant seeks to shield himself, certainly appears not to have exercised a sound discretion in their proceedings, carried on as they were, under mistaken zeal and remarkable delusion.

This case was tried in the court below before a jury. The verdict was against the defendant. We find nothing in our review of the case that,authorizes us to alter it.

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

MEMORANDUM OR AUTHORITIES CITED BY E. T. MERRICK ON ARGUMENT — on Rehearing.

The charge of the Judge is correct and is good law. C. C. 2295, 229G. If it wore calculated to mislead, which it is not, still a new trial ought not to bo granted because the facts warrant the verdict. Hen- ' nen’s Dig. pages 97, 99; Nos. 1, 11, 35, 1G, 24, 27, 32, 35, 37.

Governor Moore had no authority to authorize any one or justify any one in burning the cotton of the people. The Constitution of 1852 under which he was acting gave him no such power. Defendant filed a justification. His warrant fails him. His ansuisi1 ealls it a rebellion.

Even a de facto government cannot grant away tlio public domain, much less take the property of citizens for tho purpose of opposing tho government de jure. See Garcia v. Hatehell, 8 N. S. 398, 401. 12 Peters 522, Garcia v. Lee.

In a lawful government “ all instructions from tho executive which are not supported by law are illegal, aud no inferior court is bound by them.” Brigktly’s (New) United States Digest of Decisions, p. 144. Sec. 86 and cases cited.

Prescription, 4 Sarigney, p. 420, Berlin Ed.

(2) “ The u-tile temp ús is only applicable to such periods of time which are established by general laws and not those established by tho will of individuals as where the Judge has fixed a delay in the progress of a suit.”

(3) “The utile tempns does not avail in all the cases which we have here mentioned but only where the prescribed period of time is a year or less, never when it has reference to more than a year.

“ This rule does not need a.uy proof, for only two prescriptions, a year and one hundred days come under it and for both it is incontestable.” See Mackelday, Brussels Ed., p. 102, p. 111. See Stat. at Large, 12 vol. 590, 1262.

Quia tractabus de uiilibus diélms frequeue est videamus quid sit experi-undi potestatem Habere. 1, 44, 3.

“Because it is frequently discussed as to what are useful days no will see what is meant by having the power to prosecute one’s rights.

It is in the first place necessary that the person shall have tho ability to institute a suit/«oirías agendi. It is not sufficient that the defendant presents himself, or has some one in tho place who shall be capable of defending him; there must not be any cause which prevents the plaintiff from instituting his action. (Nulla idcona causa, imjpediater e.rperirej. Thus, if he is a prisoner or with the enemy, or absent on account of the republic, or in bonds (in vincidis) or if he is detained in another place, or in another country (regione) by bad weather (tempertate), so that he can neither come or send a mandate to another to sue for him, he is considered as not having the ability to act (expuramdi potestatem non ItabetJ. It is clear that he who is sick, but still able to employ another in his case has the power to act. No one will doubt that a person has not the power of acting who cannot be heard before the pretor. Those days only are considered useful on which tho pretor renders justice.” Dig. Lex. 1. Lib. 44. Pot. 3.

ON REHEARING.

Ludeling, C. J.

The question to be considered first, is that raised by the plea of prescription.

The acts complained of were committed on the twenty-ninth of April, 1862; the citations in this.suit were served on thirteenth and fourteenth, of March, 1866. The prescription of one year, barring actions resulting from offenses or quasi offenses, had accrued, therefore, unless it was interrupted or suspended. It is not pretended that there was any interruption of prescription. .

But it is alleged that the proscription was suspended from the date of tho commission of the act which injured the plaintiff, until thefifteenth of June, 1865, by reason of the existence of war and civil commotion in tho country, and the impossibility to sue tho defendants before the reorganization of the courts, after tho cessation of hostilities, and the maxim, “ contra non valenlem agere non currit prescription is invoked.

The textual provisions of the Civil Code, on the subject, seem plain and unambiguous; and if the question were now presented for the first time for adjudication, there could not be much room for doubting how to determine it. Article 3420 declares, “Prescription is a manner of acquiring property and discharging debts by the effect of time, and under the conditions Regulated nr laav.” Article 3487 declares “ Prescription. mns against all persons, unless they are included in some exception established by law.”

The exceptions are enumerated in the Code. The existence of a state of w.ar is not among the exceptions established by lato, neither is the inability to sue, except in a few instances expressly mentioned. C. C. 2512; 3488 et seq.

It is manifest, therefore, that the rule “contra non válentem agoré non eurrit preseriptio” is not recognized in the Code, except in cases expressly mentioned.

But, notwithstanding the plain and positive provisions of the Code, our predecessors have, in some instances, recognized the maxim, and under its equitable rule havre relieved parties against whom prescription was pleaded. As might have been expected when Judges depart from the plain provisions of Avritten law to decide according to the equity or necessity of each case, conflicting opinions have been the result. And so long as courts continue to act under the notion, that their equity poAvers authorize them to correct, control, moderate or supersede the laAV, with the view of enforcing rights which are just, great uncertainty and confusion will ensue; and as Mr. Justice Blackstone says, courts of equity “will rise above all law, either common or statute, and be most arbitrary legislators in every particular case.”

In Babel v. Pourciau, it was held that “this court has settled a different jurisprudence in regard to the proceedings in actions on bills of exchange and notes payable to bearer or order, etc., and has held that the maxim 1 contra non válentem’ resting solely on jurisprudence cannot bo applied to such a prescription, without violating the manifest spirit and intention of express law ; that that prescription running against minors and interdicted persons, thereby indicated the policy of the larv maker, and his intention that it should be strictly enforced

Wo reiterate that the maxim cannot be applied to suspend the course of prescription against bills of exchange, notes, etc., because it is in opposition to the plain and positive provisions of the Civil Code.

But it is equally a violation of the manifest spirit and intention of express larv,” to permit the maxim to apply to the prescription of actions for damages, resulting from offenses and quasi offenses.

Article 3506 says: “The prescription mentioned in the preceding article, and those prescribed above in the first and second pa/ragraphs run against minors and interdicted persons, reserving, however, to them their recourse against their tutors and curators. They run also against persons residing out of the State.” .

The prescription pleaded in this case is mentioned in the first paragraph of section third, chapter third of the Civil Code, and therefore, that, prescription also “ running against minors and persons interdicted,” and “persons residing out of the State,” it is manifest that the legislators did not intend to permit the application of the maxim to it, any more than to the proscription against hills of exchange, etc.

The rule “ contra non valentem” is applicable to both classes of cases, or to neither. We think it is not applicable to either. Hatch v. Gilmore, 3 An. 510.

Our attention has been called to the opinion of the Supreme Court of the United States in the case of Hanger v. Abbott, 6 Wallace, p. 542, in which that august tribunal held, that “the rule of the present day is that debts existing prior to the war, but which made no part of the reasons for undertaking it, remain entire, and the remedies are revived with the restoration of peace.”

That this should he the rule wo believe, but that it is the rule, we doubt. And we are sustained in our view of the law by the high authority of the Supreme Court of the United States. In McElmoyle v. Cohen, 13 Peters 327, the court said: “It would bo strange if in the now well understood lights of nations to organize -their judicial tribunals according to their notions of policy, it should be conceded to them in every other respect than that of prescribing the time within which suits shall be litigated in tlioir courts. Prescription is a thing of policy, growing out of the experience of its necessity; and the time after which suits or actions shall be barred, has been from remote antiquity fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction. This being the foundation of the right to pass statutes of prescription or limitation, may not our States, under our system, exercise this right in virtue of their sovereignty?” In McIver v. Ragan, 2 Wheaton, p. 28, it was admitted that the case was within the act of limitations of the State of Tennessee, and not within the letter of the exceptions, and Chief Justice Marshall, as the organ of the court, said: “Wherever the situation of a party was such as, in the opinion of the Legislature, to furnish a motive for excepting him from the operation of the law, the Legislature has made the exception. It would he going far for this court to add to those exceptions.”

In the case of the Bank of the State of Alabama v. Dalton, reported in 9 Howard, p. 250, the defendant was sued on the very day he moved into the State of Mississippi. The statute of limitations was pleaded in bar of the suit; and the plaintiff insisted that as the laws of Mississippi did not operate on cither plaintiff or defendant, nor on the foreign judgment, until the dag on whieh the suit was brought, no bar could be interposed, founded on the lapse of time, as none had intervened. Here, it would seem, was a case where there had been no utile iempus, and in which the maxim “contra non -valentcm a gore non carrit prescription might bo applied, if court-swore at liberty to supply it. Yet neither the Mississippi court, nor the Supremo Court of the United States, would relieve tlie plaintiff under that rule. The Supreme Court of the United States held, that “the acts of the Legislature furnish rules of decisions,” * * * * “the question is one of legislative power, and not of practice.” * * *■

“ The act itself malees no exceptimi in favor of a x>arty suing under the circumstances of these plaintiffs. So the Supreme Court of Mississippi held in the case of McClintock v. Rogers; and this is manifestly true on the face of the act. The Tegislature having made no exception, the COURTS of justice CAN make none, as this would he legislating.’'1 And after having reaffirmed what was said in McIver v. Ragan, already quoted in this opinion, the court declared “ The rule is established beyond controversy. It was so hold by the Supreme Court of New York in Troup v. Smith, 20 Johns. 33; and again in Callis v. Waddy, by the Court of Appeals of Virginia, and also in Hamilton v. Smith, by the Supremo Court of North Carolina, and in Cocke & Jack v. McGinnis, in the Supreme Court of Tennessee. Nor are we aware that, at this time, the reverse is held in any State in this Union. It is the doctrine maintained in Stowell v. Zouch, found in Plowden’s Reports 353, and not departed from, by the JEnglish courts, even in cases of civil war, when the courts of justice were closed, and no suit could be brought.” “ As the act of limitation has no exception that the plaintiff can set up, and as none can be implied by the courts of justice, * * * it is our duty to affirm the judgment.” 9 How. 250.

And Mr. Marcade commenting on article 2251 of the Napoleon Code, corresponding with article 3487 of our Civil Code, alludes to the great confusion and uncertainty which anciently existed in France on the subject of the suspension of prescription, in consequence of the application by judges and authors of the rule “ contra non valentem,” and he remarks, “Le Code a porte remede a cet etat de dioses, et prevenu tout danger de ce genre pour l’avenir, en declarant formellement, par notre article 2251, que la prescription court contre toute personne qui ne pent pas invoguer une exception estable par la loi. Ainsi c’ est desormais la loi qui sera lo seul guide a suivre; les considerations d’equite qui eussent per entrainer aujourd ’liui tel esprit et domain tel autre seront sans valeur; et toutes les fois qu’on se demandera si tel cas, a raison de sa gravite, ne doit pas etre regarde comme mettant a l’abri de la prescription, il ne s’agira, pour repondré, que de voir si ce cas ventre ou non clans Vune des exceptions posees par le Code.”

And he concurs with M. Duranton and M. Coins-Delisle in their views that war, pestilence and other cases of vis major, are expressly excluded Horn the causes which suspend prescription, by the terms of the article. Marcade Prescription, p. 150. Rev. do dr. franc, et etrang; 1847, p. 285-302. Duranton, Nos. 285, 286.

So we think. “Prescription runs against all persons, unless they are included in some exception established by law.” Art. 3487, C. C,

Reporter. — The first opinion iu this case was pronounced by Mr. Justice Taliaferro of the Supremo Court, organized under the Constitution of 1864, in which the maxim contra non valcntem, etc., was ap-l>lied. A rehearing was granted and the case was transferred to tho present Supreme Court, organized under tho Constitution of 1868. Chief Justice L«doling confined his review on tho rehearing to the plea of proscription, overruling the former decision on that point and thereby reversing the former decree. It may hero be noted as an index of the progress of j udicial opinion on the question of proscription, that wo of the judges of the present court, Messrs. Taliaferro and Howell, were members of tho Supremo Court immediately preceding this, both of whom were on the béncli at tho time tho first opinion in this case was pronounced, and both of whom now concur in tho new- doctrine established on tho suspension of proscription.

The Legislature of this State might have established an exception to meet the contingencies of this case, but they have not; and though tho plaintiff, and those similarly situated, may exclaim, in the language of M. Marcado “dura lex, mais il faudra toujo'urs ajoutcr, Seripta tamen.”

If our Code lias furnished us a rule, it is imperativo, even though it bo shown to be defective, and grave and weighty considerations of policy are apxicaled to in favor of another. Tho remedy is in the hands of the Legislature. 16 La. 394. '

This view of the case renders it unnecessary to notice the bill of exceptions taken to the charge of tho District Judge; and in other respects tho former opinion rendered in this case meets with our approbation.

It is therefore ordered and adjudged, that tho decree of this court, rendered ou tho twenty-fifth of February, 1867, be avoided, that the judgment of tho District Court be annulled; and that the verdict of tho jury be set aside. It is further decreed that there .be judgment in favor of tho defendants, and that the plaintiff and appellee pay the costs of both courts.