text:
    Bazilie Fuselier and Husband v. J. D. Babineau.
    A judgment, against ttio tutor upon tlie account of tutorship does not conclude the tutor’s surety, although prima facie evidence against him.
    "When a solidary co-debtor pays in discharge of the whole debt less than the whole amount of the debt, ho cannot claim from his co-debtor reimbursement of his portion of the whole debt, but only of the amount paid.
    Any convention to the contrary between the creditor and the co-debtor making the payment, produces no effect upon the rights of the co-debtor, who was not a party to such convention.
    The surety on a tutor’s bond is not liable for what came into the tutor’s hands before signing the bond.
    The tutor is hound to pay interest on all sums of money of the minor, which come into his hands.
    from the District Court of the Parish of St. Martin, Martel, J.

      E. Simon and C. H. Mouton, for plaintiff and appellant. Martin Voorhies, for intervenors. A. DeBlanc and J. G. Olivier, for defendant.
   Buchanan, J.

Mrs. Fuselier, the plaintiff, sues defendant, who is one of two co-sureties of her late tutrix, for a balance of account of tutorship, due by the .latter, as settled by a judgment obtained by plaintiff against her said tutrix.

The bond, subscribed by defendant, on which this action is based, reads as follows :

“ State of Louisiana — Parish of St. Martin.

Know all men by these presents, that we, Julie Picard, widow of Simon David, and now the wife of Ursin Ozenne, and by him duly authorized, of the parish of St. Martin, and Antonio Bauvais and Joseph D. Babineau, of the same parish of St. Martin, are held and firmly bound unto Alphonse Robin, Judge of the parish of Pointe Coupee, and to liis successors in office, in the sum of thirty thousand dollars, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, &c., firmly by these presents, dated at the parish of St. Martin, this third day of January, one thousand eight hundred and thirty-eight. The condition of the above obligation is such, that whereas the above bound Julie Pi-card has been appointed by the Judge aforesaid, tutrix of Basilie Fuselier and Ludger Fuselier, her grand-children: Now, therefore, if the said Julie Picard shall well and truly fulfill the duties incumbent on her as tutrix aforesaid, and shall account for and pay over to the said Bazilie Fuselier and Ludger Fuselier, or to their legal representatives, or to such person or persons as shall be entitled to the same, when thereto legally required, all such sum or sums of money as shall come into her hands as tutrix aforesaid, then the above obligation to be void, otherwise to remain in full force and effect.

(Signed) J. P. Ozenne,

Ub. Ozenne,

Antoine Bauvais, Joseph D. Babineau.”

The petition in this case was filed the 3d of March, 1853. The defendant filed his answer the 3d of October, 1853. The parties went to trial, and judgment was rendered by the District Court on the 5th day of October, 1854, decreeing that plaintiff recover of defendant the full amount of the judgment against the tutrix, subject to certain credits.

An appeal was taken by defendant, which was decided by this court in May, 1856, remanding the cause for a new trial. 11 An. 393.

The case being thus reopened in the court below, a new party made her appearance in that court, to-wit, Julie Besirée Baumis, wife of Hiliare Oradnigo, and daughter and sole heir of Antoine Baumis, deceased, the co-surety of defendant in the bond of tutorship, who, on the 3d of March, 1857, filed a petition of intervention, alleging that, having been bound to plaintiff as heir of her father, and having been sued by plaintiff upon her said liability, she had, (by a notarial act, annexed and made part of the petition of intervention,) shortly after the rendition of the judgment of the District Court against defendant, settled in full with plaintiff for the claims of the latter, reckoning said claims at the amount fixed by said judgment, to-wit, $22 382 75 ; and had taken a subrogation from plaintiff, by the same act of the rights of the latter against defendant, under the bond of tutorship.

The petition of intervention goes on to aver, that by the judgment of the Supreme Court, subsequently rendered, an item -of $2,584 50, allowed by the judgment of the District Court, as a just claim of plaintiff against her tutrix and the sureties, had been rejected and disallowed; by means whereof, the intervenor was entitled to claim back from plaintiff the said amount, with accruing interest, as so much paid in error.

The petition of intervention concludes with a prayer for judgment against plaintiff for the sum paid in error ; and for judgment against defendant, for whatever amount the court may fix as due by said Babineau on his bond of surety-ship.

The act of compromise annexed to the petition of intervention shows, that, on the 24th of October, 1854, the plaintiff and the intervenor appeared before a Notary Public, and, after declaring that the intervenor was bound, insólido, with the .defendant, for the balance due by plaintiffs’ late tutrix ; and also, that such balance amounted, at the date of the act, under the judgment of the District Court, lately rendered against defendant in this suit, to a sum of $22,382 75 — • the act proceeds to recite that intervenor pays to plaintiff eighteen thousand dollars, in cash and notes of hand; of which sum, the parties agreed, that $11,191 31 i, was paid for the half of intervenor’s co-surety, Babineau, and 6,808 62£, for the half of the intervenor herself, in the joint and several obligation of the said sureties under their bond, and the judgment of the District Court.

As this contract is made the foundation of a pretention to render one of two co-sureties, liable to reimburse to the other about two-thirds of what has been paid by the latter to the common creditor, in discharge of the joint and several obligation of both, it is proper to repeat textually the form of words by which it is supposed that such an effect has been produced. The contract says :

“ Quoique la dame Julie Désirée Baumis et le sieur Joseph D. Babineau soient tous les deux responsables solidairement envers la dite dame Basilie Fuselier, de la somme de vingt-deux mille trois cent quatrevingt-deux piastres soixante-quinze cents, il est néanmoins convenu ici que chacun individuellement vis-a-vis l’un de l’autre, n’est débiteur que de la moitié de cette somme. La dame Baselie Fusilier, en pleine et enti'ere satisfaction de la moitié du dit jugement qui est due par la dame Julie D. Bauvais, consent á accepter d’elle la somme de six mille liuit cents liuit piastres, soixante-deux cents et demi; et pour l’autre moitié, qui est due par Joseph D. Bahineau, dont la dite dame Julie Desiree Bauvais se trouve responsa-ble en raison de la solidante, la dite dame Bazilie Fuselier, en pleine et entiere satisfaction de la dite moitié, consent á accepter la somme de onze mille cent quatrevingt-onze piastres, trente-sept cents et demi, ces deux sommes réunies formant celle de dix-liuit mille piastres, montant auquel ont été fixées les conditions du présent arrangement, ce quí a été payé ainsi qu’il est ci-aprés mentionué, dont quittance. Par consideration du paiement de la dite somme de onze mille cent quatrevingt-onze piastres et trente cents et demi, portion due par Joseph D. Bahi-neau, la dite dame Bazilie Fuselier subroge la dite dame Julie Désirée Bauvais dans tous les droits, titres et pretensions qu’elle a et peut avoir contre le dit Joseph D. Bahineau en vertu du jugement dont il est parlé plus haut.”

It is very clear, that from and after the date of this contract, or an-angement, as the act styles it, the plaintiff was without interest in this suit. She was paid and satisfied in full. And she so declares in her answer filed to the petition of intervention; claiming that the notarial act of the 24th of October, 1854, was a compromise or transaction, having the force of the thing adjudged between herself and the intervenor, who was subrogated both by the operation of law and an express stipulation to that effect, to all the rights, claims and demands of this respondent, against the said Joseph D. Bahineau, the co-surety of Bauvais."

We concur in this view of the position of those two parties (the plaintiff and the intervenor) in relation to each other; and view the suit, from the moment of the appearance of the intervenor in court, as being prosecuted exclusively for her account and benefit.

The defendant answered the petition of intervention, by alleging fraud and collusion in the judgment rendered in favor of plaintiff against Mr. and Mrs. Ozenne, in the parish of Pointe Ooupée, and pleaded various other defences.

Upon these issues the parties went to trial, and the judgment of the District Court was, that plaintiff take nothing by her action against defendant; and that all the rights and claims of the intervenor, Julie Desiree Bauvais, be reserved for future adjudication. The plaintiff and the intervenor both appealed.

The plaintiff has no cause to complain of this judgment. She has, by her own avowal, nothing to claim from the defendant. The only issue in this record which concerns her, is the claim made by the intervenor against her for restitution of the sum by which the first judgment of the District Court was reduced by our decision on the previous appeal; and also for restitution of such other sums as should be deducted in favor of defendant, upon the final decision of the cause. This issue, indeed, is disposed of by the construction which we have put upon the notarial act of the 24th of October, 1854, (C. C. Art. 3045,) and whatever difference of opinion there may be as to the nature and effect of the said act, there can be none in relation to another act subsequently passed between the same parties (the plaintiff and the intervenor) : by which act, the intervenor consents to receive, in full satisfaction of all claims made by her against the plaintiff, the sum of twelve hundred and fifty dollars, which sum the plaintiff paid the in-tervenor in an endorsed note ; and the intervenor thereupon declares that she has no claim of any nature whatever, against the plaintiff. And the intervenor, Mrs. Gradnigo, by the same act, discontinues her demand in intervention as against the plaintiff, Mrs. Fuselier, and all demands of deductions from the balance of the account of the tutorship of the plaintiff established by the judgment of the District Court of Pointe Coupée, and the arrangement or settlement by notarial act of the 24th of October, 1854 : Mrs. Gradnigo consenting to withdraw her intervention from court, or to permit judgment to bo entered up against her upon the same, at the option of Mrs. Fuselier. And it was further agreed between the parties to said act, that Mrs. Gradnigo might, if she thought proper, prosecute the present action against the defendant, in order to render available her recourse against defendant under the bond of tutorship ; that Mrs. Fuselier will only remain in said suit for the purpose of asserting the rights which she may have to the costs and expenses of the suit, and for no other purpose: it being well understood that if Mrs. Gradnigo concludes to prosecute further the present action, in the name of Mrs. Fuselier, that the latter shall not be held or bound either towards Mrs. Gradnigo, or towards any third person, for any sum, or for any fact resulting from the issue and decision of the suit; that is to say, that Mrs. Gradnigo will take the suit in the situation and condition in which it is at present, between the primitive parties, and will prosecute it in the same manner, to the same ends, with the same consequences and the same responsibilities, as if she had instituted it herself, and as if Mrs. Fuselier had never had any part therein ; saving and excepting that Mrs. Gradnigo will not be bound for any costs incurred to the date of the act, (12th of March, 1858,) other than those of her intervention, whatever may be the issue of the suit. The intention of the parties being to save Mrs. Gradnigo the delays of the new action which she would have to institute, in order to assert her recourse against defendant, did she not prosecute the present action.

The appellant, Mrs. Fuselier, being thus out of court, and the appellant, Mrs. Gradnigo, prosecuting her co-surety under her legal and conventional subrogation to the rights of plaintiff, as well as in virtue of the assignment and transfer of this action to her made, it remains to inquire what are the matters in controversy between the defendant and the intervenor.

This appellant argues that there are but three points left open by the former judgment of this court, to-wit:

1st. The amount received by Gabriel Fuselier, husband of plaintiff, by transfer of claims belonging to his wife.

2d. The confusion of the qualities of debtor and creditor in the intervenor.

2d. The plea of res judicata as to Mrs. Osenne’s interest in the succession of Ludger Fuselier, deceased.

We do not concur in this view of the present position of the cause. The decree is the only indication of what was decided by the court; and that decree simply remands the cause for a new trial, with leave to defendant to amend his pleadings.

There was no judgment for any particular items of the account of tutorship, or decree disallowing any particular item of said account. The whole of said account, or at least so much of it as the parties have commented upon, is before us for adjudication.

We have enounced, in our previous decision, the doctrine, that’the judgment against the tutor, upon the account' of tutorship, does not conclude the tutor’s sureties, although prima facie evidence against them. To this doctrine wo adhere ; and the party, who has, since the cause was remanded, stept into the shoes of plaintiff, is bound by it.

I. In examining the account, we commence by observing, that no matter what may have been the correct amount due by the tutrix and by her sureties to her ward, the plaintiff, yet the intervened’, who now occupies the place of plaintiff, can never recover more from 'her co-surety, the defendant, than the half of the amount, which she paid the plaintiff in satisfaction of her rights under the bond. Any deduction made by plaintiff from the amount justly due her, enures to the benefit of all the sureties pro rata. One of several solidary debtors, who discharges the common debt, cannot be allowed to speculate at the expense of his co-debtors. Article 2100 of the Code declares, that a solidary co-debtor who pays the whole debt, can claim from each of his co-debtors only the part and portion of each. But if the debtor was paid in discharge of the whole debt, less than the whole amount of such debt, wo are not to infer from this Article, that he can claim from his co-debtors reimbursement of the portion of each in the whole debt, but only of their portions in the amount paid. And any convention to the contrary between the creditor and the co-debtor who has paid‘the creditor, such as we have seen stipulated between plaintiff and intervenor, on the 24th of October, 1854, can have no effect upon the right of the co-debtor, who was not a party to such convention.

Mrs. Gradnigo, when she discharged the debt for which she and defendant were jointly and severally responsible, acquired, of right, (0. 0. 2157,) a subro-gation to the rights of the common creditor. But those rights were fixed by the creditor at the amount which she thought fit to accept from Mrs. Gradnigo, in satisfaction of the whole debt; and the legal consequences of the payment, as between the solidary co-debtors, were beyond the power of the creditor to modify or control. A stronger case than this, in favor of the pretentions of the inter-venor, was presented in Roman v. Forstall, 11 An. 717, where it was held, that the co-debtor, the transferree of a third person who had paid the debt, and taken a conventional subrogation, was only entitled to recover his co-debtor’s proportion of the amount -which had been actually paid.

II. The surety is not liable, under this bond, for anything that came into .the tutrix’s hands, before the signing of the bond.

III. The defendant is not liable, for reasons giving in our previous decision, for the item of $2,584 50, collected by Mr. Janin and applied to the payment of a debt of Mrs. Ozertne to Gabriel Fuselier.

IV. The grandmother, of plaintiff was not her presumptive heir, at the time she was appointed her tutrix.

V. Neither was she an heir of her deceased grandson, Ludger Adolphe Fuse-lier; and the allotment to her of a portion of his estate as heir, was an error which did not constitute res judicata against plaintiff, and might be, as it was, rectified by a subsequent judgment.

VI. The counsel of appellee argues, that interest was improperly charged the tutrix upon the various sums of money received by her.

This argument is based upon a variation between the expressions used in Art. 71, p. 70 of the Code of 1808, and Art. 341 of the Code of 1825. The former provides, that the tutor is bound to pay to his ward, interest at the rate of five per cent, on all sums which he shall have received on his account, from the time he shall have received such sums respectively, without being admitted to free himself from such interest, under pretence of his not having been able to lay the money out.

The Article 341 of the new Code, directs the tutor to invest in the name of his minor, the revenues which exceed the expenses of his ward, whenever they amount to the sum of five hundred dollars. And in default of making such investment, the tutor is bound to pay (by the Act of 1825, p. 198, ?¿ 1) legal interest.

The obligation of the tutor to pay interest on moneys of the minor ■which come into his hands, can scarcely be considered an open question, at this day ; after the many decisions recognizing such an obligation, since the Code of 1825 is in force.

We will content ourselves, therefore, with observing that the word revenves in the first paragraph of the Article 341, is to be taken as synonimous with the word funds in the second paragraph of the same Article ; and as meaning all moneys belonging to the minor, that come into the hands of the tutor in the course of administration.

We state the account of the liabilities of defendant, under the bond of tutorship subscribed by him as surety of Julie Picard Ozenne, as follows :

Items of judgment against the tutrix allowed—

Item No. 2, Capital, $ 179 03. Interest, $ 129 77. Commissions, $ 12 97

3, 1,003 18 720 00 72 00

4 237 89 160 27 16 02

5, 6,986 75 4,794 20 479 42

6, 5,964 30 3,799 70 379 97

7, 5,964 30 3,496 00 349 60

9, 1,007 48 484 75 48 47

10, 627 30 288 92 28 89

11, 971 70 456 11 45 61

5522,941 93 4,329 72 •151,432 97

Amount of capital.1522,941 93

Amount of interest. 14,329 72

i -

Total.1537,271 65

Deduct commissions of tutrix.$1,432 97

Deduct for minor’s education and support. 2,598 00

- 4,030 97

Balance (reliquat de tutelle).$33,240 68

Interest on saidbalauce, at 5 por ceut. from 20th December, 1852, to

2d April, 1853, date of Sheriff’s sale. 461 75

Total.$33,702 43

Deduct proceeds of Sheriff’s sale. 18,984 09

Balance due 2d of April, 1853.$14,718 34

Interest on said balance from April 2d, 1853, to Oct. 24,1854. 1,125 34

Total.§15,843 68

Due on account of tutorship, capital and interest, on the 24th of October,

1854, the day that the intervenor settled in full with plaintiff, and took a subro-gation of her rights against her co-surety, the defendant, (from the preceding page,). $15,843 68

Of which half was due by defendant to intervenor, in consequence of such payment, say. $7,92184

Of which was interest as above. 562 67

And capital. $7,359 17

The defendant is entitled to be credited on the above interest of $562 67 by the half of the proceeds of slave Kitty and some land sold under execution in January, 1855, and March, 1856, for $479 79, say.. $239 89

Balance of interest due by defendant. 322 78

Balance of capital bearing interest. 7,359 17

Total. $7,681 95

It is, therefore adjudged and decreed, that the judgment of the District Court, as regards the plaintiff and appellant, Bazile Fuselier, be affirmed ; that as regard the appellant, Julie Gradnigo, intervenor, it be reversed; and that said Julie Desiree Bauvais, wife of Hilaire Gradnigo, recover of Joseph D. Babineau, the defendant and appellee, the sum of seven thousand six hundred and eighty-one dollars and ninety-five cents, with interest at the rate of five per cent, per annum on seven thousand three hundred and fifty-nine dollars and seventeen cents of said sum, from the 24th of October, 1854, until paid, and costs of the District Court since (and including) the intervention filed herein, by the said Julie Grad-nigo. And it is further decreed, that the plaintiff, Basilie Fuselier, pay costs of the District Court previous to the filing of Mrs. Gradnigo's intervention; and that the costs of appeal be borne, one-half by plaintiff and one-half by defendant.

VooKnnss, J., recused himself on account of relationship to one of the parties in this cause.


source: Caselaw Access Project

author: "Vooriiies, J.

license: Public Domain

text:
    James Cole et als. v. Andrew Langley, Administrator.
    A marriage which was celebrated in this State while under the dominion or Spain, may be established by reputation.
    from the District Court of the Parish of Calcasieu, Martel, J.

      T. H. Lewis & Porter, for plaintiffs. J. II. <& T. Overton, for defendants and appellants.
   "Vooriiies, J.

The only question presented for adjudication under the pleadings and evidence in this case, is the legitimacy of the plaintiffs.

The deceased, Mary Ann Olivier, whose estate is under administration, had three children by her connexion with Nicolas Frugé, and some others subsequently, after the death of Frugé, with John Langley. With regard to the lat ter, it is admitted that they are heirs of the estate of their deceased mother and grand-mother. But it is contended by one of them, who besides being an heir, is a tutor of some of the minors and administrator of the estate, that the three children of Nicolas Frugé are natural children, if not bastards, their father and mother never having been married, but, as alleged, having lived in concubinage.

The testimony of the witnesses is conflicting in several particulars, as to the fact of these parties living as married persons or in concubinage ; but the weight of the evidence goes to show that they were considered as man and wife. Indeed the children took their father’s name; their mother was called Mrs. Frugé ; the issue were baptised as legitimate children at different intervals, in 1194, in 1796 and in 1798 ; and by these certificates of baptism it appears, not only who were the paternal and maternal grand-father and grand-mothers of these children, but that some of them officiated as God-fathers and God-mothers.

If there was still left a serious doubt as to the existence of a marriage contract between the deceased, Nicolas Frugé and Mary Ann Olivier, the testimony of Marcantel, one of the defendants’ witnesses, would remove the doubt, although he says, that Mary Ann Olivier told him that she had never been married to Frugé. This witness states :

He inquired of 31ary Ann Olivier how it was that some of her children were called Frugé and others Langley ; she replied, that the Frugés were the children of her first husband. Witness then asked her, if she had been twice married ; she replied, no, she had been to the priest to be married, that he wanted her to confess, which she refused, et qu’alors ils s’étaient pris sous le voile espagnol. This conversation took place about thirteen or fourteen years ago; can’t say the time exactly.”

Other witnesses state the same fact about her being married to Frugé sous le voile espagnol; and it is shown that this means, “ a ceremony wherein four persons hold up a white veil or covering over the parties in front of the priest, who performs the ceremony, whilst celebrating the marriage; and it is also necessary that the priest should officiate in such marriages.”

Alexander Hébert, who is one of the witnesses testifying to this fact, says further : that “ he has heard old people say, that it was usual to pursue this course under the Spanish government.” His declaration is entitled to a great deal of weight in this particular, from the fact that he once acted as groomsman at a marriage of this kind.

Now, if Mrs. Langley stated to Marcantel, that she was married to Frugé sous le voil espagnol (as she has stated to other persons,) it is inconsistent with the declaration that the priest would not officiate at her marriage, because she would not confess.

The mode in which the deceased’s answers were elicited by this witness, and this palpable inconsistency in the answers which he says were made by her to his queries, justified the District Judge in giving no weight at all to that portion of the testimony of this witness, evidently given to disprove the marriage of Frugé.

From a careful examination of the evidence on record, we are of opinion that the plaintiffs have proven their legitimate filiation, not only by the certificates of baptism, of which mention is above made, but by reputation.

In the case of Isaac Alloway v. Marguerite Babineau et als., this court said: “ We agreee with the District Judge, that the heirship has been established by legal evidence, it having been established by reputation, that the marriage of the plaintiff’s father and mother took place whilst Louisiana was under the government of Spain. Proof of marriage by reputation was sufficient under the laws of that country.” See also the cases of Patton et als. v. Cities of Philadelphia and New Orleans, 1 An. 98 ; of Hobdy v. Jones, 2 An. 944; of Succession of Provost, 4 An. 374 ; and of Holmes v. Holmes, 6 La. 468. See also 4 Partida, tit. 2d, law 6, p. 456 ; C. C. Arts. 212, 213, 214.

Judgment affirmed.


author: Voorhies, J.

text:
    Charles Leblanc v. Marie Ludrique, Widow.
    The title of a party to land purchased from the Government, and for which he has obtained a patent, cannot be defeated by any other claimant, unless he show an equitable or legal title m himself which existed prior to the issuance of the patent, and which could not be defeated by the subsequent action of the Land Department.
    In a contest of title between such parties, the application to enter, with the accompanying proof of occupancy and cultivation, are admissible in evidence as the muniments of title which form the basis of an equitable right, prior to the issuance of the patent.
    An endorsement of the Register of the Land Office on the application to enter, to the effect that the applicant, through a duly authorized agent, had tendered payment, and was refused in consequence of the land claimed having been erroneously sold to another, is only proof of the fact that a tender of payment had been made ; the Receiver had no authority to certify as to the agency, nor could he make a binding entry as to the invalidity of the previous sale.
    from the District Court of the Parish of St. Martin, Voorhies, J.

      Deblanc & Fuselier, for plaintiff. Simon & Gary, for defendant and appellant.
   Voorhies, J.

The plaintiff and the defendant sot up adverse titles to a tract of land, the ownership of which forms the subject-matter of the present controversy.

On the 27th day of September, 1841, Charles Leblanc, fils, filed in the Land Office at Opelousas, his application for a right of preemption. Subsequently, (on the 10th day of May, 1855,) he purchased the land from the Government and obtained a patent certificate of his purchase. It appears that since the year 1836, he has occupied and cultivated a portion of the land in controversy.

On the other hand, the defendant claims, as surviving widow of her deceased husband, Daniel Zeringue, in her own right and as natural tutrix of her children. Daniel Zeringue’s titles consist in the formal application to the Commissioners of the Land Office, for the right of preemption, by virtue of the Act of Congress of the 29th of May, 1830. lie occupied the premises for several years, abandoned the same, sold his buildings, and again came back; but then he did not occupy the land after returning, except by occasionally cultivating a portion of it. He died, however, without having paid the minimum price stipulated by the Act of Congress; nor does it appear that he ever attempted to do so, notwithstanding the allegations in the defendant’s answer: The record does not inform us as to the time when the township map was returned to the Land Office at Opelousas; but the testimony of Dupuis shows that, at the time of the purchase made by the plaintiff, it had been returned. Several months after the entry made by the latter, (how long after the return of the township map, we know not,) the defendant offered to pay the amount due for Daniel Zeringue’s preemption right; whereupon, the Receiver refused to accept the sum tendered, on the ground of the plaintiff’s previous entry, which he, however, considered to have been erroneously made. The intention of Daniel Zeringue, not to avail himself of the benefit of his.preémption, is also evidenced by Ms own declaration. Adolphe Dupuis, one of the witnesses, states, “ When Daniel Zeringue moved his fence, he told me he did so because he did not wish to have anything more to do with it; that it was the business of Mme. Adelard Deronnelle, who claimed by virtue of a double concession. That conversation took place before the plaintiff obtained his title, but since he had settled on the land as preémptor. Zeringue told me so when I was at his sugar-house, working at his mill; it was in a conversation on this subject.”

The plaintiff having purchased the land in question from the Government, is entitled to a judgment, unless the defendant have an equitable or legal title which could not be defeated by the action of the Land Department. But before examining this point, it is necessary to dispose of two bills of exception taken by both parties to different rulings of the inferior court.

It is set up as a grievance by the counsel for the plaintiff, that the District Judge erred in admitting in evidence the application of Daniel Zeringue, with the accompanying proof of his occupancy and cultivation, made for the purpose of taking the benefit of the Act of Congress of 1830, granting preemption rights to actual settlers. The objection goes to the effect and not to the admissibility of these documents; these are the muniments of title which form the basis of the defendant’s equitable rights, if any she have.

The other bill of exception is to the ruling of the court rejecting an endorsement of the Register of the Land Office on the application made by Daniel Ze-ringue on the 9th of October, 1830. The endorsement is in the following words: “ On this day, the 8th of September, 1855, Baptiste Calais, duly authorized, tendered payment for the land claimed in the within proof, and was refused in consequence of the said land having been erroneously sold to Charles Leblanc, Jils.” The Receiver had no right to certify as to the agency of Baptiste Calais; nor could he make a binding entry as to the invalidity of the plaintiff’s purchase. The endorsement, then, could at most go to prove the fact, not otherwise denied, that the defendant had, through her agent, tendered the purchase money for the preemption right of Daniel Zeringue, deceased.

If the defendant has an equitable title to defeat the plaintiff’s, it behooves her to make a showing to that effect. But, on the contrary, the abandonment of Daniel Zeringue of his preemption right, as above stated, is fatal to her pretensions. The title afterwards acquired by the plaintiff cannot be prejudiced by the steps taken by the defendant subsequently to her husband’s death.

The plaintiff’s counsel asks for an amendment of the judgment; but this application should have been made in the pleading's.

Judgment affirmed.


author: Büchaitaít, J.

text:
    Joseph Mast v. John C. Hamilton et al.
    Tlio Acts of 1852 and 1855 confer upon the Register of the State Land Office jurisdiction in cases only where conflicting claims arise between parties as to their rights to preemption ; but whore one of the parties claims a preemption right, and the other sets up title to the land by virtue of a patent issued by the State, the District Court has original jurisdiction.
    A party who has acquired a preemption right to swamp land donated to the State by the General Government, may maintain a real action against one to whom a patent has been issued by the State, to annul such patont, when the party bringing the action shows that he has not been able to perfect his title by making payment, because the land had not been convoyed by the General Government to the State, after which time payment could alone be required of him.
    When the preémptor in such a case had complied with the provisions of the Act of 1855, by making application and proof of settlement within six months after the promulgation of the Act; and before the lands selected, upon which ho had settled, had been approved and returned to the Land Office of this Stato, a patent had been issued to another person, over the protest of the proemptor — Held : That the patent issued was null and of no effect.
    PPEAL from the District Court of the Parish of St. Martin, Voorhies, J.
    íjL E. Simon, Sr., and E. Simon, Jr., for plaintiff. Debíanc & Fuselier, for defendants and appellants.
   Büchaitaít, J.

The plaintiff alleges that he has a right of preemption, as an actual settler, under the laws of the State, to a fractional quarter section comprised in the swamp or overflowed lands granted to the State of Louisiana by Acts of Congress approved March 2d, 1849, and September 25th, 1850; and that he has taken the steps required by law to secure his right of preemption, by making declaration under oath, and filing his application in the Land Office at Baton Bouge.

The petition further states, that defendant, in violation of plaintiff’s rights, was permitted to purchase the same quarter section of land under certificate No. 1671; that said purchase is null and void for the reasons,—

. 1st. That it was in violation of the laws of the State granting a right of preemption and preference to actual settlers on the overflowed lands, donated to the State by Congress.

2d. That plaintiff was an actual settlor on said land, and had made the proof and application required by the State laws, prior to the sale to defendant.

3d. That the.Begister of the State Land Office at Baton Bouge did not notify plaintiff either by letter, or by the notice and advertisement in public papers to preemptors, required by law, before selling the land.

4th. That the defendant, Hamilton, was a minor at the date of the sale to him of the land in question, and consequently, incapable of acquiring the same without the advice of a family meeting.

Defendant excepted to the action, 1st, for want of jurisdiction ; 2dly, that the petition discloses no legal cause of action.

It is argued upon the first of these exceptions, that the 3d section of the statute No. 248, of the Session Acts of 1852, and the first section of statute No. 37 of the Acts of 1853, confer upon the Begister of the State Land Office the jurisdiction and decision of conflicting claims to preference lights in lands granted by Congress to the State; the latter statute with right of appeal to the District Court; and that these statutes exclude original jurisdiction of the present action, in the District Court, in which it has been instituted.

The conflicting claims spoken of in the statutes referred to arc claims to a right of preemption of the public lands, set up by several individuals who pro-tend to have settled upon and cultivated the same land. But this is not a controversy of that kind. Only one of these parties asserts a right of preemption. See case of --■, decided at Monroe this year.

On the second exception it is argued, that this action is not possessory, because it does not assert a disturbance of plaintiff’s possession within a year ; and that it is not petitory, because it does not allege a title as owner in the plaintiff, to the lotus in quo.

The prayer of the petition is, that the purchase of the land from the State Land Office, by defendant, under warrant No. 1677, may be declared null and void, and that plaintiff’s right of preemption be recognized, as superior to defendant’s said purchase.

Granting that the form of this action does not bring it precisely within either of the real actions mentioned in the Code of Practice, we think that it is maintainable under the Acts of the Legislature giving a right of preemption to actual settlers on public lands. The plaintiff, it is true, does not ask to be declared the owner of the land in question; but the reason is, that he has not made payment to the State, which alone would give him a perfect title; and he has not made payment, because the land has not yet been conveyed by the General Government to the State; after which conveyance alone, payment is required of him by law.

The answer of defendants sets up title in themselves to the land.

The evidence shows, that defendant, Hamilton, on the 30th of April, 1855, purchased from the State, under warrant No. 1677, N. S., swamp lands, “ subject to the approval of the Secretary of the Interior,” the North half of the SouthEast fractional quarter of section 14 in township 8, South of range 6 East, in the South-Western Land District of Louisiana. A portion of this land had already been occupied, since the year 1852, by the plaintiff, whose application and proof of settlement have date the 2d of June, 1855, but were actually filed in the Land Office only on the 24th of September, 1857, although deposited among the papers of the office previous to the 1st of April of the year preceding. Plaintiff annexed to his application a protest against the issuance of a patent in favor of the purchaser, J. C. Hamilton, Jr.

The Register of the State Land Office testifies that the list of selections, including the land in controversy, has never, as yet, been approved or patented to the State, and that no notices could or did issue to the plaintiff; requiring him to make payment for Ms right of preemption.

The Act of 15th of March, 1855, provides that settlers on the public lands shall be entitled to make application therefor, and proof of settlement, at any time within six months of the promulgation of this Act, and to make payment therefor at any time within ninety days after the publication and notice hereinafter provided for, or within six months after the lands shall have been surveyed and returned to the State Land Office.”

The plaintiff complied with this Act, by making application and proof of settlement within six months of its promulgation ; and he cannot yet be called upon to make payment, as the selection of this land has not yet been approved and returned to the Land Office; neither have the publications and notices mentioned 5a the Act been made.

The defendant’s title shows upon its face, that the land sold was not approved or patented to the State; for it is there said that the “ above purchase and sale are made subject to the approval of the Secretary of the Interior.” Consequently, this land was covered by the Act of 15th of March, 1855, which was promulgated more than a month before the date of the purchase made by Hamilton ; and therefore, was binding' upon Mm in this instance.

Judgment affirmed, with costs.


author: VooRniES, J.

text:
    P. D. Hardy, District Attorney, v. H. F. Voorhies, Sheriff.
    The District Courts out of the parish of Orleans have neither appellate nor original jurisdiction in the trial of slaves accused of crimes or offences, nor can they interfere for the purpose of carrying into effect the sentence of the tribunal established by law for their trial.
    APPEAL from the District Court of the Parish of Lafayette, Martel, J.

      A. P■ T>. Hardy, in pro. per. Deblanc & Fuselier and E. Mouton, for defendant and appellant.
   VooRniES, J.

The slave, Modeste, the property of Mrs. E. Messonier, was tried for the murder of her mistress, found guilty by a special tribunal organized under the statute of the 19th of March, 1857, and ordered to bo executed, by the following sentence, to-wit:

“ Whereas the slaves, Modeste and Joseph, have been duly arrested, on the charge of having feloniously killed and murdered their mistress, Elise Messomer, in the town of Vermillionville, parish of Lafayette, on the 30th day of May, 1858, and whereas they have been brought before us, the undersigned, Justices of the Peace in and for the parish aforesaid, to answer to said charge, and after an impartial trial have, by us the undersigned Justices of the Peace, and a jury of ten slave-holders, duly summoned from the body of the parish aforesaid, been unanimously found and adjudged guilty of the felony and murder aforesaid: now, therefore, it is considered by the said court here, that the said slave, Joseph, be taken to the common Jail of said parish by the Sheriff thereof, and on Tuesday, the 15th day of the present month of June, 1858, in front of said jail, be hanged by the neck until dead; and that the slave, Modeste, be also hanged by the neck until she be dead, at the same place, fiftedn days after she has brought forth her child, she being now pregnant.”

The death warrant placed in the hands of the Sheriff states that:

Whereas the slave, Modeste, has this day received sentence of death - for the crime of murder, whereof she was found guilty according to the statute, made and provided in such cases : these are, therefore, in the name of the State of Louisiana, to command that, in pursuance of said sentence, you take the slave into custody, and her safely keep and confine in the common Jail of the Parish of St. Landry, until fifteen days after she has brought forth her child, she being now pregnant ; when, you are further ordered, between the hours of nine and four o’clock of that day, to do execution on said slave, Modeste, in front of the Jail of the parish of Lafayette, by hanging her by the neck until she be dead.”

■ Over a year having elapsed since this sentence was passed and the warrant placed in the hands of the Sheriff, the District Attorney called upon the latter to proceed to execute the culprit. This request uot being- complied with, the former instituted proceedings before the District Court, with the view of carrying the sentence into execution. Counsel were appointed to represent the slave, Modeste, in these proceedings, and the Sheriff made a party. After an investigation of the case, the District Judge decreed that the Sheriff should proceed to ñx a day for the execution of the slave, Modeste, and proceed to execute the warrant in every other particular.

The refusal of the Sheriff to comply -with the request of the District Attorney, and the objection raised by the counsel of the slave, to the right of the State to proceed with the execution, are based upon the fact that the sentence provides for the hanging of the convict only fifteen days after she will have given birth to a child, she being pregnant at the date of the trial; whilst on the other hand, it is contended on behalf of the prisoner, that this- condition has never been fulfilled.

It is not necessary, however, to pass on the merits of this controversy, as discussed in the briefs furnished by counsel. The District Court was, in our opinion, without jurisdiction in this matter. The remedy of the State possibly might be, to apply either to the Governor, or to the Justices who had presided in the case, for the purpose of having a day fixed for the execution. State v. Jonas, 6 An. 695; J. R. McDowell v. John W. Couch, ibid, p. 365; State v. Jerry, 3 An. 576 ; State v. Oscar, 297.

The District Courts have no jurisdiction, either original or appellate, for the trial of slaves accused of crimes and offences, except in the parish of Orleans by special Act. In the State at large, the only tribunals vested with jurisdiction in such cases, are those created by the Act of the 19th of March, 1857. An appeal lies directly from these tribunals to the Supreme Court, in the same manner and in the same instances as in appeals from the District Courts. An appeal from the Magistrates’ Court to the District Court would not lie in criminal proceedings against slaves; the interference of the latter, even for the purpose of carrying into effect the sentence of the former tribunal, is, consequently, unwarranted in law.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed ; and that the motion for a mandamus be discharged.


author: Land, J.

text:
    Alexandrine A. Louaillier v. Marie T. Castille, Administratrix.
    A judgment creditor of ail estate cannot sustain a petitory action against one who possesses property alleged to belong to tlio succession, when there is no administrator to whom delivery of possession of the property can he made.
    The insufficiency or want of advertisement in a Sheriff's sale is an informality within the purview of the Act of 1834 (reenacted in 1855), and under that Act is prescribed against after the lapse of five years from the date of the sale.
    from the District Court of the Parish of St. Landry, Martel, J.

      Swayze <& Moore, for plaintiff and appellant. J. H. & T. Overton and J. F. Morrogh, for defendant.
   Land, J.

This suit is iu the nature of a petitory action, by a judgment creditor of Jacques Lastropes, deceased, to recover on behalf of his succession, and to subject to the payment of plaintiff’s judgment a certain lot of ground, together with the buildings and improvements thereon, situate in the town of Opelousas.

This property was sold, several years before the death of Lastropes, by the Sheriff, under an execution against him, and the plaintiff sues to recover it for his succession, on the ground that his title was not divested by the Sheriff’s sale, for the reason that the sale was made without advertising the property, and without observing other formalities required by law.

The plaintiff alleges, that the administrator of the succession of Lastropes had been discharged from his office, before the institution of this suit.

The defendant excepted to plaintiff’s right or capacity to maintain the action, and also pleaded the prescription of five years against informalities in Sheriff’s sales, under the Act of the 10th' of March, 1834, p. 123.

The exceptions were sustained, and the plaintiff has appealed.

The general rule of law is, that a petitory action can only be maintained by the party in whom the legal title is vested, or by his legal representative. Article 44 of the Code of Practice declares, that the plaintiff in an action of revendi-cation, must make out his title, otherwise the possessor, whoever he be, shall be discharged from the demand.

The plaintiff’s petition alleges title not in herself, but in another who is no party to this suit, either directly or indirectly.

But conceding that a judgment creditor of an insolvent succession forms an exception to this general rule of law, under the authority of the decision in the case of Heda v. Fontenot, 2 An. 782, and can compel the delivery of property of the succession, in the hands of a third party, to the administrator, for the purpose of administration and the payment of debts, his right, nevertheless, must be exercised in due course of administration of the estate ; for, after the final discharge of the administrator, or other representative of the insolvent succession, there would be no one in office authorized to receive and administer the property which he might recover by judgment. In this case, for instance, how could a judgment in favor of plaintiff be executed ? To whom would the writ of possession command the Sheriff to make delivery of the property ? Who has authority to receive the property, to administer it, and distribute the proceeds of sale, as the law directs in matters of insolvency ?

The administrator of the succession was a necessary party to the suit, and for this reason alone, the plaintiff’s action would fail. But the most fatal objection to plaintiff’s demand, is the plea of prescription of five years under the Act of 1834, referred to above.

The plaintiff claims to exercise a right of action which vested in the deceased, Lastropes, and which survised to his administrator, that is to say, to set aside the Sheriff’s sale of his property, on the ground of the insufficiency of the advertisement ; but this right of action was subject to the prescription of five years, which had been long accomplished before the institution of this suit, and which could not, therefore, have been successfully prosecuted by either of them, as late as the 24th of August, 1858, the day on which the petition in this cause was filed, — the Sheriff’s sale having been made on the 11th day of January, 1849.

As the plaintiff is exercising a right of action which vested in the deceased, her demand is subject to all matters of defence which could have been opposed to a suit instituted by Lastropes himself, or his administrator, and is, therefore, subject to the plea of prescription of five years, under the Act of 1834.

The only ground of nullity specially alleged in the petition, and which can be passed upon by us, under the pleadings, is, that there was no advertisement of the property previous to the sale by the Sheriff. The insufficiency, or want of advertisement, is an informality, within the purview of the Act of 1834, (reenacted in 1855), and is prescribed against after the lapse of five years from the date of the sale. See Phillips’ Digest, p. 22, sec. 4.

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

Vooriiies, J., recused himself in this case.


author: Voorhies, J. Merrick, C. J.

text:
    Lobit & Charpentier v. Josephine Castille, Administratrix.
    Whore an administrator persists in refusing to file his account, after the expiration of the time fixed hy law, and fails to tender a good reason for the delay, the Judge shall order him to he arrestod and imprisoned until he renders the account. C. P. 1011.
    The subsequent Article enables interested parties to compel him to render an account, by imprisonment, or distraining his property and income.
    Upon the neglect of the administrator to pay the amount for which judgment has been rendered, and his failure to prove that he has no funds in his hands belonging to the succession, the creditor may take out an execution against such administrator's individual property ; but to do so, it is necessary that the judgment should be notified to him, and a rule taken on him in his official capacity.
    Where the remedy is resorted to, of having the administrator dismissed from office, and sentenced to pay interest and damages, he settles with his successor in office, and not with the creditor who has provoked the dismissal.
    The regular mode by which an ordinary creditor is to obtain payment of his judgment against an estate, is concurrently with the other creditors. C. P. 987,1054; C. C. 1168. This implies that an account and tableau of distribution should be filed, wherein each creditor may be classed, in order that he may receive his portion of the funds in the hands of the administrator.
    Where a creditor declines to pursue the ordinary remedy, and pursues the administrator personally, by a resort to the penal provisions of the law, he must bring himself within them before he can demand the penalty.
    The classification and order of payments ” referred to in C. P. 993, is that mentioned in a preceding Article (988), and the case is contemplated, where the administrator has funds, and is ordered to pay the same to the creditors, according to their rights, and not a case where funds are not in the hands of the administrator at the time of such classification.
    from the District Court of the Parish of St. Landry, Martel, J.

      Dupré <& Garland, for plaintiffs. B. F. Linton, for defendant and appellant.
   Voorhies, J.

The plaintiffs, having be.en classed as ordinary creditors of the estate of Onézime A. Boudreau, deceased, for the sum of f3,380 28, besides interest, brought suit four months afterwards, (31st October, 1856,) for the purpose of compelling the administratrix to render an account of the funds in her hands, subject to their claim, and to pay over the same within ten days after being notified. They further ask that, in case the defendant fails, within the time to be fixed by the court, to render this account, then she be made personally liable for the whole amount of their debt, that writs of execution do issue accordingly, and that she be dismissed from office, with ten per cent, damages.

The administratrix filed a general denial on the 24th of November, 1856; and on the 29th day of the same month, the District Judge ordered her to file, within sixty days, “ a brief statement of her condition, as administratrix of the estate of Onézime A. Boudreau, lowing the funds in her hands belonging to said estate.” This order was served upon the defendant personally, on the 12th day of Decern-bor, 185C. No account was filed by her in obedience to this mandate of the District Court.

ín the month of June, 1859, over two years having’ intervened, the suit was tried, and resulted in a judgment which awarded to the plaintiffs an execution against the property of the defendant personally. The latter then appealed.

In the meantime, writs of seizure and sale had been placed by the plaintiffs into the hands of the Sheriff, who had proceeded thereupon to seize and sell the hereditary rights of the defendant in the succession of her deceased father, Alexandre Castilla. These rights, appraised at $9000 on a cash valuation, were adjudicated for $1000 to the plaintiffs and Mrs. Frances Ritter, another judgment creditor. These proceedings are noticed in the opinions given by this court in the cases of Josephine Castilla v. L. V. Chacharé, Sheriff, et al., 13 An. 561, and Lobit & Charpentier v. Alexandre Castille, ibid, p. 563.

The question to be disposed of is, whether the plaintiffs have properly pursued their remedy.

The 1011th Article of the Code of Practice provides that, if after the expiration of the time given to the executor or administrator to file an account, he refuses or neglects to obey, the Judge shall issue a mandate, directing him to comply with the provision of the law ; and, if within the time allowed to obey this mandate, the administrator persists in refusing to render an account, without tendering a good reason for the delay, the Judge shall order him to be arrested and imprisoned until he renders the account. The following Article enables interested parties to compel the administrator to render the account, either by having him imprisoned until he does comply, or by having his property aud income dis-trained, or by using any other means which the law may afford. By the Article 1057 it is provided that, upon the neglect of the administrator to pay the amount for which judgment has been rendered, in one of the modes pointed out in the preceding Articles; or upon failure to prove that he has no funds in his hands, belonging to the succession, the creditor may take out an execution against the administrator’s own individual property. But in order to do so, it is, in the first place, necessary to notify the judgment to the administrator; and, in the second place, take a rule upon him, in his official capacity, for the purpose of obtaining payment of the judgment. James H. Stevens et als. v. Sarah A. H. Stephens, Administratrix, 13 An. 416; Collins v. Hollier, 13 An. 586; C. P. 1053, 1054, 1055, 1056, 1057.

In the case under consideration, the plaintiffs applied for an execution, without making any allegation that their judgment had been notified to the administra-trix. The order given by the District Judge to her, to file, within sixty days, a brief statement of her condition as administratrix, does not appear to have been predicated upon any information given by her to the Sheriff, that she had not sufficient funds to satisfy the plaintiffs’ demand ; nor do we find in the record any motion by the latter to compel the former to prove the truth of her declaration in this respect.

The plaintiffs have, therefore, failed to pursue the remedy provided in the 2d section of chapter the 1st of title III of the Code of Practice, and were not entitled to an order of seizure and sale against the property of the administratrix.

The different remedies given by law to the creditors of an estate, to enable them to coerce the payment of their claims, when evidenced by a judgment, have been blended together by the plaintiffs in this instance. Either of them, if carried out properly, would, however, afford ample relief to the party. Should an administrator, when catted upon with an order of court to file an account, refuse or neglect to comply, he might be imprisoned, and writs of distringas issued until a compliance. And if, on the other hand, resort is had to the remedy of an execution against the property of the administrator, the judgment should be notified to him in the first place. In case of non-success, a rule is then taken, under O. P. Art. 1056, aud enforced by the issuance of execution, in the contingency provided for by the next Article. The other remedy is to have the administrator dismissed from office, and sentenced to pay interest and damages; but, in the last instance, the administrator, upon being- dismissed, settles with his successor in office, and not with the creditor who has provoked the dismissal.

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

Same Case — Oír a Re-heakjng.

Merrick, C. J.

'A'petition for a re-hearing-has been filed in this case.

The counsel for the appellees inform us that they rely upon Article 993 of the Code of Practice, as authority for the judgment rendered by the District Court in this case.

The regular mode by which an ordinary creditor is to obtain payment of his judgment against an estate, is concurrently with the other creditors of the succession. C. P. 987,1054; C. C. 1168. This implies that an account and tableau of distribution should be filed, wherein each creditor may be classed, in order that he may receive his portion of the funds in the hands of the administrator. This mode of proceeding is just and equitable. It prevents one creditor from obtaining an undue advantage over the others, in the assets in the hands of the administrator, and ultimately, from enforcing a demand upon the innocent surety of the same.

When a creditor declines to pursue the ordinary remedy, and chooses to pursue the administrator personally, he resorts to the penal provisions of the statute and Code of Practice, and must bring himself within their provisions, before he can demand the penalty.

The classification and order of the payments,” spoken of by Article 993 of the Code of Practice, to which our attention is called, is that mentioned in a preceding Article in the same chapter of the Code, viz, Art. 988. It contemplates the case whore the administrator has funds, and is ordered to pay the same to the creditors according to their rights, and not a case where funds are not in the hands of the administrator at the time of such classification, Succession of Hart, 8 Rob. 121; Hickman v. Flenniken, 12 An. 268; C. C. 1168, 1170.

In the classification of debts in this case, the administratrix did not profess to have any funds in hand, and hence, she was not ordered to pay any sum to any one of the creditors, and the classification and order of payments spoken of by Art. No. 993 did not take place. No execution could, therefore, issue thereon in favor of the creditors, within ten days after its homologation, because no sum was awarded any one of them. The second step required by this Article was also abortive. It was wanting- in a tableau of distribution, from which to date the ten days, and it does not appear that a majority of creditors in amount have required a due proportion of tice sums subsequently collected.

There is no reason to disturb the judgment pronounced by us in this case.

It is, therefore ordered, that the prayer for a re-hearing in this case be refused.


author: Buchanan, J.

text:
    Gustave Harry v. Ozème Constantin.
    In an action for damages on account or slanderous words, malice is an essential fact, and should always be proved.
    from the District Court of the Parish of Lafayette, Martel, J.

      Deblanc <& Fuselier, for plaintiff and appellant. C. H. & E. Mouton, for defendant.
   Buchanan, J.

The plaintiff claims damages of the defendant, for slanderous words spoken by the latter, concerning the former. The petition charges that defendant, to avenge an imaginary wrong, has, within one year, knowingly, maliciously and falsely stated that plaintiff, for a sum of money, (pour une somme de-,) had hung the slave Joseph."

The answer specially denies that defendant ever slandered plaintiff, as charged ; avers that “ on one occasion, defendant stated to one Emile Begueneaud, that one Valery Saunier was playing a bad trick (une farce, un badinage,) upon plaintiff, by charging Mm with having executed the slave Joseph ; that defendant had always been friendly to plaintiff, and meant no malice against him, nor had he the least idea of insinuating, or of making Begueneaud believe that plaintiff had been guilty of such an act; that defendant afterwards had an explanation with plaintiff, and that plaintiff was satisfied with the explanation given, and said that he would punish Valery Saunier for what he had said.”

Upon this issue, the parties went to trial before a jury. Many witnesses were examined, and the verdict of the jury was in favor of defendant.

Plaintiff appeals.

The essential fact of malice does not appear to us to have been made out by the evidence, copied in the record. The allegation of the answer, that the report which the petition charges to have been circulated by defendant, was one that originated with another person, is fully proved by the witnesses examined in the cause. It is also proved, that this was made known to plaintiff, and that Saunier, the originator of the report, was confronted with him, and avowed the fact of his having told it to defendant, as alleged in the answer. The whole thing appears to have been a jest, in very bad taste, it must be confessed, invented by other persons than defendant, without the least foundation in truth, and which was not believed by any person.

A jury of the vicinage, acquainted with the parties and the witnesses, was the proper tribunal to decide an issue of this kind; and we perceive no sufficient reason for disturbing their verdict.

Judgment affirmed, with costs.


author: Voorhies, ¿T.

text:
    State of Louisiana v. E. Badon.
    ■Where the facts show that the Sheriff was authorized by the committing magistrate to talco the bond of an. accused, and the sureties ou the bond were approved by him, and the bond is clothed with the formalities required by law, the sureties on it will be bound, on the failure of the principal to appear.
    In calling upon the sureties on a bail bond to produce in court the body of the principal, the words “ instante)'” and “ in open court,” are not sacramental terms ; it is sufficient when the accused has failed to appear, after having been called at the courthouse door, to call upon his sureties.
    The failure of the Clerk to endorse a document as filed, which was offered in evidence, is of no consequence when the document is actually filed in the records, and is contained in the statement of facts.
    from tlie District Oourt of the Parish of Vermillionville, Voorhies, J.

      A. Olivier, District Attorney, for the State. R. F. Patten, for defendants and appellants.
   Voorhies, ¿T.

The appellants, who are the sureties of the accused on his bail bond, opposed its forfeiture in the lower court, on the ground : “ That the said bond, or pretended bond, was taken and acknowled by A. Légé, Sheriff of the parish of Vermillion, without any authority of law to take or accept bonds in such cases ; and that said bond is drawn and made payable to the State of Louisiana, and not to the Governor of the State.” This exception was overruled, and judgment of forfeiture was entered. Whereupon the sureties appealed.

We will proceed to notice the three points presented by the appellant’s brief:

I. That the bond was taken by the Sheriff, under a verbal demand or request of the Magistrate, and was never afterwards accepted by the Magistrate, or ratified by him by official order.”

The obligation or recognizance on its face is a valid one ; and, if the Sheriff has been legally authorized to act in the premises, its forfeiture should be decreed.

The record contains a written order directed by the Magistrate to the Sheriff to take the bond of the accused for his appearance during the trial on the commitment, and a subsequent written order, admitting the accused to bail, upon furnishing his bond for the same amount. But in the latter order, the Magistrate does not specially delegate to the Sheriff the-power to take the bond.

The two orders had in view the bailing of the defendant; and it appears that under them, the Sheriff took but one bond. The first order has for its object the bailing of the prisoner ponding the examination before the committing Magistrate, and the other order extended the time until the final disposition of the case before the District Oourt.

In inquiring' whether the Sheriff was authorized to act in taking the bond in question, it is proper not to lose sight of the first order which expressly delegated this power to him. The subsequent filing of this bond and transmission of it to the District Oourt, by the Magistrate, may, at- all events, be considered as an approval or ratification of the act of the Sheriff, if his authority could otherwise be questioned. In the very objection raised by the appellants, it is admitted expressly that the second order was accompanied by a verbal delegation of power from the Magistrate to the Sheriff.

In the case of the State v. Wyatt, 7 An. 702, the court said : “ The Sheriff had no power to bail the prisoner, but might perform the ministerial duty of taking the bond, when requested by the Magistrate. The Magistrate should have named and approved the security, and given a written order to the Sheriff to discharge the prisoner on his executing the bond ; but he proves that he sent the message to the Sheriff, and it is not for the security to dispute his own sufficiency, which the Magistrate subsequently approved. The proceedings of the Magistrate were extremely irregular, in such an important matter ; but the bond is most formal, was executed for a legal consideration, and has been forfeited, and judgment rendered upon it in strict conformity to law.”

In the case of the State v. Ansley, 13 Ann. 299, Mr. Chief Justice Merrick, as the organ of the court, said : “ Where a party enters into the obligation of sure-tyship for the appearance of a person charged with crime, he incurs a civil obligation, which, like all others, is to be considered in reference to the substance of of things. It is not an idle form; it means something. Now what docs the District Judge intend by his order ? What did the parties intend when they complied or attempted to comply with the same, and what obligation did they thereby incur ?

Wo think, inasmuch as the accused was in the custody of the Sheriff or his deputies, it may fairly be inferred that the Sheriff and his deputies, (uo other person being mentioned,) were intended as the proper persons to take the bond, and that neither the accused nor his sureties, who have put this construction upon the order of the court for the bond, and have secured his discharge upon this construction, can now be permitted to gainsay this conclusion, upon which they have acted.”

Under all the circumstances of the present case, it must be conceded that the Sheriff) Légé, had sufficient authority to act in the premises; and that the bond taken by him is not a nullity, inasmuch as it was based upon a written order of commitment and bail, and is clothed with all the forms and formalities required.

II. The second objection is : “ That the securities were never called upon to produce instanter in open court, the person of the defendant or accused.”

The appellants’ counsel contends, in his brief, that although the sureties were called upon to produce the body of their principal, yet the words instanter aud in open court, were not used. This is not a serious objection, and we cannot be expected to hold that these terms are sacramental. When the accused had been called at the courthouse door, and had failed to make his appearance at that time in open court, recourse was then had to his sureties, who were his legal custodians. The appellants themselves were not at the time mistaken upon the meaning of the action of the court, for it is but on appeal that they have discovered this objection.

III. The third objection is : “ That the bond was not in evidence, or produced on the trial, or before the court, as a part of the proceedings, it having never been fileld in court.”

The first document offered in evidence by the District Attorney, as appears by the statement of fact, was the bond dated 2d day of August, 1 858, taken by A. Légé, Sheriff. The case quoted in 12 An. 189, of The State v. Wilson, has no bearing whatever upon this point. The failure of a Clerk to endorse on a document that he has filed it, is of no consequence, when the document is actually filed in the records, and is carried on the statement of facts.

Judgment affirmed.


author: Vooehies, J. Merrick, 0. J.

text:
    State of Louisiana v. John Nicholson and George Wilson.
    In a criminal case, it is within the discretion of the District Judge to grant a continuance on the affidavit of the accused, of the absence of a material witness, who is a non-resident and not subject to the process of law, but tho appellate court cannot interfere with, the exercise of that discretion.
    ■Where the offence charged in tho indictmont was in tho words of the statute, uttering and giving in payment a forged and counterfeit bank note, lemming the same to he forged and comterfdted, and in the indictment the words, “ knowing the same to heforgedand comterfdted,” were omitted — Held:
    That the defect was not remedied by the charge in the indictment that the counterfeit bill was ut • tered and given in payment with an “ intent to defraud.”
    The statute of 1855, requiring that formal objections to an indictment shallbe taken before the jury are sworn and not afterwards, docs not apply to matters of substance essontial to the very existence of tho offence, and on such objections as formerly, the judgment may be arrested.
    By section 6th of the “Act to regulate tho mode of procedure in criminal prosecutions,” approved March 14th, 1855, the State is only relieved from the necessity of alleging and proving an intent to defraud some particular person, but is still required to allege an offence in other respects, corresponding with the statute which creates it.
    When the sentence against tho prisoner exceeds the maximum of imprisonment under the statute, the case will be remanded with instructions to the District Judge to pronounce judgment upon the verdict according to law.
    from the District Court of the Parish of St. Landry, Martel, J.
    P. J). Hardy, District Attorney, for the State. /. F. Morrogh, for defendants and appellants.
   Vooehies, J.

The defendant, George Wilson, was found guilty of uttering a forged and counterfeit bank check, and sentenced to imprisonment at hard labor.

I-Ie asks relief at our hands, on the ground that his application for a continuance in the court below was overruled.

The petition for a continuance states :

“ That George Bingham, a resident of Vicksburg, State of Mississippi, Eli Shepherd, residing on Pearl River, Mississippi, and H. Wheeler, a resident of Covington, State of Kentucky, are material and important witnesses for him in his defence, and with all due diligence which he might use, it would be impossible for him to procure their attendance at this term of the court... .That he hopes and expects to obtain the attendance of said witnesses at the next term of your honorable court, and that the affidavit is not made for delay, but in order that justice may be done in the premises. That though the said witnesses do not reside within the jurisdiction of this court, and are not subject to its process, yet af-fiant has every reason to believe that said witnesses, who are his friends and are well acquainted with him, will repair instantly here to testify in his behalf, as soon as they are informed of his situation.”

The prisoner is entitled to a continuance, when a material witness is absent; but it must appear that due diligence has been used to obtain his attendance, and that his presence will be procured by the next term of court. This rule is not without important qualifications, one of which is, that the absent testimony must be within the process of court. Wharton Am. Cr. Law, p. 595.

It is, however, within the discretion of the District Judge, according to the circumstances of the case, to grant relief to the prisoner; but this court could not interfere with the exercise of that discretion by the Judge of the inferior court.

If the latter did not attach much weight to the' prisoner’s statement that, although his witnesses were non-residents and not subject to process of law, he had every reason to believe that they would willingly appear on his behalf, we cannot interfere.

As these witnesses were not subject to the process of the court, it was useless to inquire whether, before finding of the indictment, it was the duty of the prisoner to use due diligence to procure their attendance.

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

On a Re-hearing.

The State of Louisiana v. George Wilson — same v. John Nicholson and George Wilson — same v. same.

Merrick, 0. J.

Since the opinions were delivered and the decrees of the court were rendered in the above entitled cases, the defendant, George Wilson, has applied for a re-hearing, and the parties, by counsel, have consented that these cases be consolidated and considered together, inasmuch as judgment was so pronounced by the lower court, under section 40 of the Act of the Legislature, approved March 14,1855. Acts of 1855, p. 135.

If the cases be so considered, they present other questions than those which we have decided.

It is, therefore ordered, that a re-hearing be granted said George Wilson, alone, in each of the above entitled cases.

And now, the parties consenting that judgment be immediately pronounced upon the re-hearing, we proceed to consider the questions presented by the appellant upon the records, as they now stand.

Record No. 557, has its defects supplied by the judgment in the other two cases, 558 and 559. The appeal in this case must be reinstated.

It is only necessary to consider one of the questions presented by the appellant, Wilson, in this case. His counsel objects that the indictment is defective, because it does not follow the statute and does not charge that the defendant uttered and gave in payment the forged and counterfeit bank note “ knowing the same to he forged and counterfeited.”

Although the foregoing allegation is omitted, the indictment does charge that the counterfeit bill was uttered and given in payment with an “ intent to defraud.”

The question then arises, whether the latter expressions in the statute (which has been averred in the indictment,) does not really comprehend the first, viz, a knowledge of the forgery ? It appears to us that it does not, and that knowledge of the forgery, or that the bill, &e., is a counterfeit, is an essential ingredient in the offence, and according to the ordinary rules of criminal pleading, ought to be alleged. It is possible that a counterfeit bill might be passed with an intent to defraud, without a knowledge of its being such, as where the accused supposed it was really a bill upon an insolvent bank, at the time that he uttered the same.

We cannot, therefore, but suppose, that the Legislature, in using both expressions, considered that both a knowledge of the false nature of the counterfeit, and intent to defraud, were essential to constitute the offence.

The new statute to regulate the mode of procedure in criminal cases, (Acts 1855, p. Ill,) does not preclude the defendant from urging this objection in this court.

The statute only requires that formal objections to an indictment, shall be taken before the jury are sworn, and not afterwards. It does not apply to matters of substance, essential to the very existence of the offence intended to be charged in the indictment. Such objections may be made as formerly, and the motion in arrest of judgment, was a proper mode of bringing the objection to the attention of the court. State v. Delerno, 11 An. 648.

But it may be supposed, that section 6 (p.112) of the statute, relieves the State from alleging the scienter in the indictment. We are of the opinion, that the object of this section is to obviate the necessity of alleging and proving on the part of the State, an intent to defraud some particular person. The State is still required to allege an offence in the indictment, in other respects corresponding with the statute which creates it. The judgment of the court in case No. 551 of this court, and No. 961 of the lower court, must be arrested and the accused discharged from custody under the same.

The reversal of the judgment in cause 551, leaves only two other convictions at the same term against George Wilson, and the penalty of ten years imprisonment-in the penitentiary cannot be inflicted. The maximum of imprisonment in each of the two remaining cases, cannot exceed three years, and these two cases must be remanded, with instructions to the District Judge, to pronounce judgment upon the verdicts therein rendered, according to law.

We adhere to the reasons given by us, why we cannot disturb the finding of the jury, on account of the motion for a continuance.

The following judgments will, therefore, be entered :

The State of Louisiana v. George Wilson — No. 557.

In this case, it is ordered, adjudged and decreed, that the judgment heretofore pronounced by us, be set aside, and the cause reinstated ; and it is now ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that judgment upon said verdict be arrested, and the accused, George Wilson, discharged from custody under said indictment.

State of Louisiana v. John Nicholson and George Wilson — No 558.

In this case, it is ordered, adjudged and decreed by the court, that the judgment heretofore pronounced by us be set aside, as to the said George Wilson only ; and we do now order, that the judgment of the lower court be avoided and reversed, as to said Wilson, but without disturbing the verdict of the jury. And it is further ordered, that this case be remanded to the lower court to be proceded in, and to pronounce judgment against said George Wilson, upon said verdict, according to law, and the views of this court herein expressed.

State of Louisiana v. John Nicholson and George Wilson — No. 559.

It is, ordered, adjudged and deered by the court, that the judgment heretofore pronounced by us as to the said George Wilson be set aside ; and we do now order, that the judgment of the lower court, so far as it effects the said George Wilson, be avoided and reversed, without disturbing the verdict of the jury. And it is further ordered, that this cause be remanded to the lower court to be proceed in, and to pronounce judgment upon the said George Wilson, according to law, and the views expressed by this court.


text:
    Heirs of Préjean v. Robin, Administrator.
    The proper construction of Art. 593 C. P. is that the tutor of a minor, like every other person who is sui jwis} can only appeal within. the year which follows the signature of the judgment: hut the minor whose interests are affected hy a judgment, has a year after attaining the age of majority, in a case where no appeal has been previously taken, to deliberate whether ho shall appeal from it or not.
    PPEAL from the District Court of the Parish of St. Landry, Martel, J.

      JlX B. F. Linton, for plaintiffs and appellants. Swayze & Moore, for administrator.
   Buchanan, J.

The judgment of the District Court, from which the present appeal was taken, was rendered and signed the 14th of August, 1857.

The appeal was hy petition filed in court the 8th of November, 1858, although an order had been made at chambers, allowing a devolutive appeal on such petition, the 25th October, 1858.

The appellee now moves to dismiss the appeal, as having been taken too late. This motion must prevail. C. P. 593.

The Article of the Code says, indeed, that the year for appealing commences running for minors, from the day of attaining the age of majority. But this limitation does not apply to tutors, of whom there are several among the present appellants. The reason of the limitation does not apply to them, for they might have exercised the right of appeal from the first day of the rendition of the judgment; while the minor cannot act for himself in a court of justice, so long as his minority lasts.

We hold the proper construction of Article 593 of the Code of Practice to be, that the tutor of a minor, like every other person who is sui juris, can only appeal within the year which follows the signature of the judgment. But the minor whose interests are affected by a judgment, has a year after arriving at the age of majority, in a ease where no appeal has been previously taken, to deliberate whether he shall appeal from the same.

To allow the tutor the same length of time for appealing, would injuriously procrastinate the settlement of estates of minors ; and in cases like the present, where majors and minors are jointly interested, would extend to the former a delay for final adjudication of lawsuits, which the law certainly never intended.

The appeal is, therefore, dismissed, with costs.


text:
    C. Gauthier v. F. Green.
    The general rule for the measure of damages for the inexeeution of a contract, by Art. 1928 of the Civil Code, is the loss suffered or the profit of which the obligee has been deprived.
    PPEAL from the District Court of the Parish of Calcasieu, Martel, J.

      IX Simon, Jr. <& Relden, for plaintiff. T. H. Lewis and /. H. Overton, for defendant and appellant.
   Buchanan, J.

This is a suit for damages for non-delivery of beeves to the purchaser, under a contract of sale.

The only point in the cause is presented by a bill of exceptions taken by the defendant and appellant, to the refusal of the Judge to charge the jury “that the measure of damages for the violation of a contract to deliver personal property, is the value of the property at the place, and at the time it should have been delivered by the terms ‘of the contract.”

The Judge did not err. If this were a contract of affreightment, the charge asked would have been correct; because the place of delivery under such a contract, is the place of destination of the goods which are contracted to be carried. But the beeves in this case were bought with a view of reselling them in another market; and the proof is that the same beeves were in fact sold, subsequently, by defendant, at a considerable advance over the price which the plaintiff had agreed to give him.

The general rule for the measure of damages for inexecution of a contract, by Article 1928 of the Code, is the loss suffered, or the profit of which the obligee has been deprived. The verdict of the jury, tested by the evidence, does not seem to have exceeded this measure of damages.

Judgment affirmed, with costs.


text:
    Barnes, Lyman & Co. v. C. C. Wayland & Co.
    The answers of a garnishee, when categorical, make Ml proof of the facts stated against the seizing creditor, until contradicted by other evidence.
    The credibility of a garnishee cannot be impeached, by showing him to be unworthy of belief; to contradict his answers, the facts stated in them must be disproved.
    from the Fourth District Court of New Orleans, Price, J.

      J. Livingston, for plaintiffs. J. A. Bartlette, for defendants. George

      Bright, for garnishee and appellant.
   Land, J.

The plaintiffs, judgment creditors of Wayland & Co., applied for a fieri facias on their judgment, and garnished M. Gernon, under the 13th section of the Act of the 20th of March, 1839, p. 166, and propounded to him the following interrogatories:

First. Have you in your possession, or under your control, any money, rights, effects, or credits, belonging to C. C. Wayland & Co.? What is the value, and the amount ? Is it sufficient to pay plaintiffs’ judgment, say $1,500 ?

Second. Did C. C. Wayland <& Co. pay you any money in the month of January last past, or the present month of February ? If aye, state the amount, and the circumstances attending said payment. Was the amount so paid sufficient to satisfy plaintiffs’ judgment? If not, to what amount would it satisfy said judgment?

To which he answered as follows :

To the first — None whatever.

To the second — In January, Wayland paid me the rent of the month of December, $215. He also paid me in the month of January, after I had instituted proceedings against Mm in tMs honorable court, in the matter of I. B. Walsh, absentee, the sum of $ 1150. Of this sum, $215 was for the rent of the store of Walsh, for the month of November, 1858, for which a note had been previously given. Then, also, two notes : one for $540 due Walsh for old rent, and one for $500 due me individually. These three amounts, in the aggregate $1315, were by me compromised with Wayland. I received from him, in full satisfaction of all these demands, the sum of $1150; and, in consideration of such settlement, I consented to release, and did release, Wayland from arrest, he being at the time in the custody of the Sheriff.

On the filing of these answers, a rule was taken by the plaintiffs on the garnishee, to show cause why judgment should not be rendered against him for the full amount of their judgment, interest and costs, on the grounds, that his answers to the interrogatories on facts and articles were evasive, unsatisfactory, and not true in fact. That his statement of the amount paid over by Wayland <& Co. for old rent, and a debt due to himself, were evasive, insufficient, and unsatisfactory, in not stating how long the old rent had been due, and for what Wayland & Co. became indebted to him. That the alleged compromise was made under duress, that the garnishee acted with full knowledge of the insolvency of Wayland <& Co., and that the compromise was a fraud upon the plaintiffs, who were judgment creditors of Wayland & Co. at the time.

The rule was made absulute, and the garnishee condemned to pay the amount of $1150 to the plaintiffs; from which judgment he prosecutes this appeal.

First. In our opinion, the answers to the interrogatories were responsive and categorical; and that there is nothing in the record which proves that the garnishee received from the defendants, Wayland & Co., any greater amount than stated in his answer to the second interrogatory; and there is no evidence to prove that he had in his possession any money, rights, effects or credits, belonging to C. C. Wayland & Co., at the time of the service of the process of garnishment on him, or afterwards.

The answers of a garnishee, when categorical, make full proof of the facts stated against the seizing creditor, until contradicted by other evidence. G. W. Helme v. C. W. Pollard & Co., ante, page 306; McDowell v. Crook, 10 An., page 31.

The affidavits of the garnishee in the case of J. B. Walsh v. C. C. Wayland & Co., do not contradict his answers to the interrogatories in this case; and if they be inconsistent, as contended, that inconsistency has no relevancy to the issue of fact made by the plaintiffs’ rule, as to the truth of his answers now under consideration. Nor can the testimony of the witness, to the effect that the garnishee said to him that he had received nothing from Wayland & Co., although he had made a satisfactory settlement with them, be considered as evidence in favor of the plaintiffs, to disprove the truth of the garnishee’s answers; for, if this testimony be true, it is against the plaintiffs — because it goes to prove that the garnishee received nothing at all from Wayland & Co., when he admits in his answers that he had received the sum of $1150. There is a very material difference between impeaching the testimony of a general witness, and disproving the answers of a garnishee to interrogatories on facts and articles. The testimony of a witness may be impeached by evidence showing him to be unworthy of belief, but the answers of a garnishee cannot be assailed in that way; his rights and liability depend on his answers to the interrogatories which are propounded to him, and the facts stated in his answers must be disproved.

Secondly. The garnishee was not interrogated as to the nature of tho indebted' ness of Wayland <& Co. to himself individually, or to his principal, Walsh, and his answers, therefore, cannot bo said to be evasive, on this ground.

Thirdly. The questions of duress, insolvency, and fraud, stated as the third ground why the garnishee should be condemned to pay the full amount of the plaintiffs’ judgment, were wholly foreign to the issues between the parties at the time the rule was taken, and could not be raised in that collateral way, and had no connection whatever with the interrogatories, or the garnishee’s answers thereto.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed; and it is now ordered, adjudged and decreed, that there bo judgment in favor of the garnishee, with costs in both courts.


author: Laud, J.

text:
    J. B. Gribble v. McKleroy & Bradford.
    A motion maclo to order tho plaintiff to make a choice of his causo of action, and declare whether he sues on a contract, or a quantum meruit, is in its nature dilatory and can only he made in limine

    When a party sues on a quantum meniit, and tho petition disoloscs an express contract, he can only recover on tho contract, although he may bo permitted to prove the value of his services.
    Tho dato is not of the essence of a contract of lotting and hiring, and proof of tho fact that it was made on a day different from that alleged, is sufficient to sustain it.
    from the Fourth District Court of New Orleans, Price, J.

      Lea & Marr, for plaintiff and appellant. Ciarle & Bayne, for defendants.
   Laud, J.

The plaintiff sues for an alleged balance of salary duo him, as the former confidential clerk of the defendants, cotton factors in this city. He alleges, that on or about the 15th of November, 1853, he entered into and continued in the service of the defendants, (his engagement being renewed from year to year,) until the 15th of November, 1856, when it was again renewed for tho ensuing-year. That his account with the defendants was settled on the 1st of July, 1856, by crediting him at the rate of $3000 per annum for the preceding year, and that no definite arrangement was made for the future, although he remained in the service of the defendants, performing onerous duties, and holding the power of attorney of the firm, from that time until about the 1st of November, 1856, during w’hich period the defendants were absent from this city, and that he is entitled to demand and to be paid for the services thus rendered, at the rate of $300 per month, for the period embraced between the 1st of July and the 15th of November, 1856. He further alleges, that during the month of November, 1856, Mr. McKleroy promised him a minimum salary of $3000, with the assurance that it should be as muoli larger as tho business of the house would justify ; that he continued his services and gave entire satisfaction, until the 11th of April, 1851, when he was capriciously discharged by Mr. Bradford; and that he is entitled to demand and to be paid the sum of $4000 for the year beginning the 15th of November, 1856, and ending the 15th of November, 1851.

Tho answer of the defendants is a general denial, modified by the admissions that the plaintiff was in their employment, and that from the 1st of July, 1856, they had determined to allow him $250 per month, so long as there should bo a mutual agreement between them. The answer contains a special averment, that the plaintiff voluntarily left the employment of the respondents at the date mentioned in his petition, and also a claim in reconvention for the sum of $395 74, the amount for which it is alleged the plaintiff had overdrawn his account.

Before going’ to trial upon these pleadings, the defendants moved the court to order the plaintiff to make an election of his cause of action, and to declare whether he sues on a contract or on a quantum meruit. The motion was in effect overruled, and was properly disregarded on the trial of the cause. The motion was made after issue joined, was in its nature dilatory, and should have been made in limine litis, if sustainable at all, in this action.

The District Judge did not err in receiving evidence of the special agreement alleged in the plaintiff’s petition. Where a party sues on a quantum meruit, and the allegations of his petition disclose, as in this case, an express contract, he can only recover upon the latter, although he may be permitted to prove the value of the services rendered. Nor did the Judge err in receiving evidence of the value of the services; for it has been held in several cases that, if thé plaintiff sues for services on a special contract, he may give evidence of their value. See the case of Gourjon v. Cucullu, 4 La. 117. If a party can prove a fact on the trial of his cause, he may certainly allege it in his petition.

The allegation, that Mr. McKleroy promised the plaintiff a certain salary of $3000 for the year, with an additional promise of a contingent increase dependent on the success or profits of the business of the firm, and that the plaintiff continued his services, discloses, as against him, the existence of an express contract of letting and hiring, which relates back to the commencement of the service or employment for that year. This allegation gives character to the suit, and determines the plaintiff’s right of recovery to be on the contract, and not on the quantum meruit.

There is, however, a material difference between the parties as to the time of the commencement of the year for which the plaintiff is entitled to recover for his services. The defendants contend that it was on the 1st of July, 1856, the date of the settlement of the plaintiff’s accounts, and the beginning of the financial year of their firm ; the plaintiff, on the other hand, contends that the year commenced on the 15th November, 1856, the date of the alleged new understanding. The settlement of the plaintiff’s account, at the end of the financial year of the firm is a presumption, that the commercial year of the house had become, with his assent, the year of his employment, in the absence of evidence to the contrary, and that this contract with Mr. McKleroy was for that year. And the presumption is not rebutted by the unsustained allegation in his petition, that the year commenced on the loth of November, 1856.

The plaintiff, however, is not estopped by his averment of a verbal promise of a salary of $3000 for the year, made in the month of November, 1856, and that the year of his employment commenced from that date — -but is entitled to the benefit of the evidence and the admissions in the record, showing the commencement of the year to have been on the first of July, 1856, at the salary specified in his petition. The date is not of the essence of the contract of letting and hiring, and evidence that it was made on a day different from that alleged is sufficient. The question is one of variance between the allegations and the evidence. He is, however, concluded by the averment of a contract, from recovering, as before observed, on a quantum meruit, for the whole or any part of his services.

We are satisfied, from the admissions in the pleadings, and the evidence of the cause, that there was a contract between the parties, by which the plaintiff was employed at a salary of $3000 for the year commencing on the 1st of July 1856, and that his claims for services cannot, consequently, be considered as extending beyond that period.

Upon the question, whether the plaintiff was discharged without cause, or left the employment of the defendants voluntarily, we are not satisfied that the judgment of the lower court, which is in favor of the plaintiff, on this point, is erroneous. The views taken by the District Judge of this case, rendered somewhat intricate by the duplicity of the plaintiff’s pleadings, are correct. From his judgment, both parties, plaintiff and defendants, have separately and regularly appealed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs of this appeal, one-half to be paid by the plaintiff, and the other half to be paid by the defendants.