text:
    J. B. G. Arnoult v. City of New Orleans.
    After the annexation of Lafayette to New Orleans the Legislature required the Parish Recorder of Jefferson to make copies of acts relating to property in Lafayette, for registry in New Orieans. The costs of these copies were fixed by law, and were to be paid by the city of New Orleans. Reid: There is nothing in such legislation which either violates or impairs the obligation of a contract, or destroys a vested right.
    To the city of New Orleans, as a civil corporation, has been delegated a portion of the powers' of the government; it was established, as are other city corporations, for the public convenience, and it is certainly competent for the Legislature, from time to time, as the public convenience or necessity may require, to add to or abridge the powers and duties of the corporation, to restrict or enlarge the boundaries of this delegated authority, except so far as they are recognized and guaranteed by the Constitution itself.
    The Act of 1858 is entitled “ An Act to provide for the removal of certain public records from the Fourth District of New Orleans to the Parish of Jefferson,” and the Act of 1854 is entitled an Act amendatory thereof. Each section in both of these Acts has direct reference to the subject-matter of its legislation,*or its necessary incidents. It certainly was not necessary to meet the requirements of the Constitution, for the Legislature to pass two separate acts for the purpose of accomplishing one object — the first in order that a thing should be done, and the second to indicate the manner in which the expense should be defrayed.
    The title of the amendatory Act not only refers to but includes the title of the first Act. The Constitution does not prohibit any designation of an amendatory Act by a reference to the title of the Act amended.
    The object of the Constitution was to prevent the amendment or revival of laws 'merely by reference to their title. It was intended that each amendment and each revival should speak for itself and stand independent and apart from the Act revived, or section amended.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Roselius and Filleul, for plaintiff. Livingston, City Attorney, for defendant.
   Lea, J.

The plaintiff seeks to recover from the city of New Orleans compensation for certain transcripts of conveyances made by him in accordance with the provisions of an Act of the Legislature, approved 30th April, 1853, and an Act amending the same, approved 15th March, 1854

These statutes were enacted for the purpose of preventing the difficulty and confusion in tracing the registry of conveyances of, and incumbrances upon real estate, which it was apprehended might result from the separation of the city of Lafayette from the parish of Jefferson and its annexation to the city of New Orleans.

These statutes, so far as they are applicable to the present controversy, provide, substantially, that the Recorder of the parish of Jefferson should make and cause to be made a full and complete synopsis of the records of the sales of all real estate and slaves situated in the city of Lafayette, to be delivered “to the Recorder of Conveyances of the city of New Orleans,” for which he was authorized to charge and receive the sum of one dollar for each and every transcript of conveyance, as aforesaid, “ the expenses to be paid by the city of New Orleans.” A similar provision was made for the transfer of the registry of all liens, privileges, judgments, &e.

The plaintiff, who is the Recorder of the parish of Jefferson, it is admitted has, in accordance with the provisions of the Acts above referred to, furnished the transcripts of 10,503 conveyances, which have been duly delivered to the Recorder of Conveyances of the parish of Orleans.

. It appears that after 3,000 transcripts of conveyances had been furnished, the plaintiff was paid the sum of $3,000 — that being the rate of compensation provided by the statute; but when his claim of remuneration for the remainder ef the transcripts was presented, (after some hesitation and discussion,) payment was refused, on the ground, as appears from the admissions on file, “ that the plaintiff had instituted a suit against the city for the recovery of the amount.” Without examining into the validity of such a reason for a refusal, the question to be determined is, whether the city is or is not legally bound to pay the plaintiff’s claim.

It is urged in the pleadings and in the brief of the counsel for defendant, that the Act of the Legislature, under which the plaintiff claims, is illegal and void, on the ground, 1st, that the Legislature cannot compel the defendant to pay for the value of work executed for the benefit, advantage and convenience of others, the defendant being only bound upon the contracts made in accordance with the laws regulating their powers and duties; and 2d, that the Acts of 1858 and 1854 are both unconstitutional, the object of the Act of 1853 not being expressed in its title; and that the Act of 1854 was passed in violation of Articles 115 and 116 of the Constitution of the State. Wherefore the defendant claims a judgment against the plaintiff on his principal demand, and demands in reconvention the reimbursement of the $3,000 paid to plaintiff under a mistaken view of the legal liability therefor.

To the city of New Orleans as a civil corporation has been delegated a portion of the powers of the government; it was established as are other city corporations for the public convenience-; and it is certainly competent for the Legislature from time to time, as the public convenience or necessity may require, to add to or abridge the powers and duties of the corporation; to restrict or enlarge the boundaries of this delegated authority, except so far as they are recognized and guaranteed by the Constitution-itself. Now, in the exercise of this discretion, and considering that it was for the public benefit, the Legislature have indicated the manner in which all existing acts affecting real estate and slaves in the city of Lafayette, at the time of its consolidation with the city of New Orleans, should be registered in the parish to which it was transferred, and of which it became a component part. At the same time a proper compensation was provided for the necessary labor in effecting the registry, as required by law.

If the obligation -of executing the act at the expense of the city had been imposed upon the Mayor or some other city functionary, it would have been, in substance, what it is now. The charge of carrying out an Act rendered necessary by the alteration in the boundaries of the city is imposed upon the corporation. It formed a part of the legislation incident to the consolidation of the two cities into one, and the expense incident to the change is as properly chargeable upon the city as any other expense incident to its organization. There is nothing in such legislation which either violates or impairs the obligation of a contract or destroys a vested right. Nor is the defence, in our opinion, tenable on the ground that the Acts referred to are in violation of Articles 115 and 116 of the Constitution. The Act of 1853 is entitled “ An Act to provide for the removal of certain public records from the Fourth District of New Orleans to the parish of Jefferson,” and the Act of 1854 is entitled “An Act amendatory thereof.”

Each section in both of the Acts has direct reference to the subject-matter of its legislation or its necessary incidents. It certainly was not necessary to meet the requirements of the Constitution for the Legislature to pass two separate acts for the purpose of accomplishing one object — the first to order that a thing should be done, and the second to indicate the manner in which the expense of its execution should be defrayed, “ It is sufficient that the object of the law be stated in its title according to the understanding of reasonable men.” See 6th An., 605, Municipality No. 3 v. Antoine Michoud.

We think, therefore, that these Acts embrace but one subject of legislation, which subject is clearly designated in their titles. The next objection which is urged is, that the Act of 1854 is unconstitutional, because it purports to be an amendment of the Act of 1853 : that this amendment is effected by a reference to the title of the first Act, and because the whole of the amended Act is not reenacted and published at length.

The title of the amendatory Act not only refers to but includes the title of the first Act. The Constitution does not prohibit any designation of an amen-datory Act by a reference to the title of the Act amended : if it did, it would deprive the Legislature of most direct and accurate means of designating all . amendatory legislation.

The Article of the Constitution is as follows:

“ No law shall be revived or amended by reference to its title, but in such case the Act revived or section amended shall be reenacted and published at length.” Constitution, Art. 116.

This was intended to prevent the amendment or revival of laws merely by a reference to their titles. It was intended that each amendment and each revival should speak for itself; should stand independent and apart from the act revived or the section amended. It was therefore provided that “in such cases" if the object was to revive an act, it should be “reenacted” throughout; if the object was to amend an act then the “ section amended” should be “ reenacted and published at length.” In the case under consideration the object was to amend an act, and accordingly all the “ sections amended” have been reenacted and published at length. It is urged, however, that the fifth section of the Act 1853 has been left out in the amendatory Act, and two new sections, upon a subject not embraced in the first Act, are added. As it was not the intention of the Legislature to amend this section, it was probably not thought necessary to reenact it; but even upon the hypothesis that each amendatory Act should embrace the whole of the legislation contained in the Act of which it is an amendment — (a conclusion not warranted, as we think, by a fair and reasonable interpretation of the article referred to) — still it is evident that the section in question was at best mere surplusage. It Was a mere saving clause that nothing in the Act should be so construed as to impair or invalidate any mortgage or conveyance of property made prior to the promulgation of the' Act, although no transcript should thereafter be made as provided by the Act. The law would have been precisely the same without such a clause as with it, and its addition to the Act of 1854 would neither add to nor in any manner alter or affect its scope, meaning or application as a statute.

The Act of 1854 has therefore every element of separate and detached legislation, which it is contended that the Constitution requires. The law means all that it would mean if the section were annexed. And its provisions, and all its provisions are fully operative without a reference to the Act of 1853. Under such circumstances we do not feel called upon by any rule of interpretation which might be adopted to set aside as unconstitutional and void a statute which was considered to be one of public utility, which was intended to guard against the confusion and uncertainty in the registry of public acts incident to the annexation of the city of Lafayette to the parish of Orleans. It is perhaps needless to add that we do not consider that the last two sections of the Act of 1854 which provides the means of defraying the expense incident to its execution, as being legislation upon a subject different from that embraced in the first Act.

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


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    Thomas Hubnall v. Watt & De Saulles and Robert Y. Jones.
    An Act under private signature has no date against third persons; but a date may be given to such an instrument by evidence dehors the instrument itself,
    l'here is nothing in the Registry Laws which precludes a title not registered from being the basis of tbe prescription mentioned in Article 3444 of the Code, when it is accompanied by actual possession and the incidents prescribed in Article 3458.
    APPEAL from the Fifth District Court of New Orleans. Augustin, J.

      Henderson, Jr., for plaintiff. Benjamin, Micou & Finney, for Jones. Taylor, for warrantor.
   Buchanan, J.

(Merrick, C. J., absent.) Plaintiff has judgment against the defendant, Robert Y. Jones, for the possession of a slave named Henry, and in default of said slave being delivered up, then for $1,000 as his value, and for $25 per month from the date of judgment, as his hire. There is also judgment in favor of Jones against his warrantors, George A. Botls and George M. Bayley. Jones and Bayley have appealed.

In this court the appellant Jones contends that the suit is barred by the prescription of five years, under Article 3444 of the Code, and should the plea of prescription not prevail, that the slave Henry is valued too high by the judgment.

The plaintiff has answered the appeal, and prayed for an amendment of the judgment in his favor, by allowing him hire for the slave Henry from the institution of the suit, instead of from the judgment.

Defendant holds by a conveyance sous seing privé from Bolts, not recorded. Bolts’s title was by notarial act of sale from Bayley, of date September 3d, 1845, not registered in the office of the Register of Conveyances. . Bayley bought the slave from J. A. Brown by act under private signature, not recorded, on the 20th April, 1844.

The three sales in question were made in New Orleans, and the District Judge was of opinion that their want of registry prevented them from constituting a foundation for the prescription of five and ten years — the short prescription hy which the title of slaves is acquired to one who possesses with a title translative1 of property. We have come to a different conclusion. It is very true that an act under private signature has no date against third persons, and that two of the conveyances in defendants’ chain of title are of that description. But a date may he given to such an instrument by evidence dehors the instrument itself; and in the present case the date of the conveyance from Brown to G.W, Bayley, (April, 1844,) is fixed by the testimony of two witnesses, £. H Bayley and Richard Beck, who also prove the open and uninterrupted possession of Bayley under that title. In relation to the conveyance from Bolls to Jones, there is tho following admission in the record, made on the trial ©f this cause in the court below, 1st February, 1854: “ It is admitted that Jones would prove a private title from Bolts to him of the slave Henry, of date about September, 1845, the production of which paper is dispensed with; the said title being, the title upon which Jones relies for his title to the property, and under whieh he holds possession to the present time.”

*We are of opinion, after a careful examination of the law and of the authorities cited in argument, that there is nothing in the Registry Laws which precludes a title, not registered, from being the basis of the prescription mentioned in Article 3444 of the Code, when it is accompanied by actual possession, with the incidents prescribed in Article 3453. This suit was instituted the 14th November, 1850; and actual and uninterrupted possession is shown in the defendant and warrantors from April, 1844, to that time, being six years and seven months. The defendants have therefore acquired title by prescription to the slave, unless the plaintiff has shown himself to have had a residence out of this State, In his petition he styles himself a resident of New Orleans; but his counsel relies upon the evidence of plaintiff’s brother-in-law, Simons, who proves that in 1837 and 1838 plaintiff resided in Tennessee, and that in 1838 or 1839 he removed to Missouri. He has also offered two witnesses named Waters, one of whom, Thomas Waters, swears that in December, 1844, the plaintiff resided in St. Louis, Missouri, and that in March, 1845, he was keeping store in St. Louis. This witness also declares that at this last date the slave Henry was hired out in Boonsville, Missouri. Charles Waters swears positively that plaintiff resided in Boonsville in December, 1844. Apart from the discrepancy in the testimony of these witnesses as to plaintiff’s residence in December, 1844, which creates a doubt of the correctness of their recollection of dates, we find it proved beyond question that the slave was in New Orleans in April, 1844~~a fact that corroborates the evidence of a witness, Henry E. Moore, who swears that he came down the river in company with plaintiff and the slave Henry, in the spring of 1843, or it might have been the following year, 1844. It is also proved that plaintiff resided in New Orleans in 1845 and in 1846, and that in 1847 he went to the Mexican war, whence he returned in the latter part of that year or early in 1848.

On the whole, tho plaintiff has failed to prove satisfactorily a residence anywhere out of Louisiana within the five years next preceding the institution of this suit. The nearest approach to it is in the testimony of Thomas Waters, who says: “He (the plaintiff) came here a short time in 1845, but returned to St. Louis.”

The plaintiff has heen afforded the opportunity of two trials, and ought to have produced something move satisfactory than such loose and vague testimony, if in truth he had a residence elsewhere than in this State, within five years previous to the institution of the suit. The burden of proof is upon the plaintiff to show an exemption from the prescription applicable to residents; and in this ease the propriety of such a rule is peculiarly manifest.

Judgment of the District Court reversed, and judgment for defendants, with costs in both courts.


author: Spofford, J.

text:
    Succession of Henry Fletcher, f. m. c., Celeste Baham et al. v. Joseph Decoudreau, Administrator.
    The children and grandchildren of a natural aunt of the deceased are not entitled to the estate— there being no statute authorising them to set up such an illegitimate relationship as a basis for the right of inheritance, which is the creature of positive law. Code 911, 915, 917, 923.
    In an act of manumission before a notary and two witnesses, the deceased described M. L. as his “ natural daughter slave.” This is a sufficient acknowledgment of paternity, although the object of the act was to enfranchise the slave.
    No form is prescribed for such an acknowledgment, except that the declaration be made in the presence of a notary and two Witnesses. (Code 221.) If the declaration be thus made, it seems immaterial whether it be the main object of the act or not.
    Natural children are not like legitimate heirs seized of the succession at the instant the ancestor dies. They have only a right of action to cause themselves to be put in possession upon a proper showing. Code 919,943.
    The State claimed the succession, charging that M. L. was an adulterous bastard ; to the evidence of which she objected, under Article 968 of the Code, which provides that “ the exclusion [from the inheritance], either for cause of incapacity or unworthiness, shall not be sued for by others than the relations who are called to the succession of the unworthy heir,” &c. Beld: The State is not suing to exclude M. L. under any of the pretences contemplated in Article 968. She is an actor seeking by proof to have herself recognized as heir. She must, therefore, make out her case like other plaintiffs, and, when apparently made out, it is open to be rebutted.
    If the act upon which she bases her claim to the heirship be a nullity, she cannot be put in possession of the estate; and the act is a nullity if made in contravention of Article 222 of the Code, which prohibits the acknowledgment of children the offspring of an adulterous or incestuou intercourse.
    This prohibition would be futile if the State could not insist on the inquiry whether the acknowledged child was an incestuous or adulterous bastard — for such a bastard can only exclude the State.
    O. C. 477,1184, 1185,1186,1202, 1203.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Collins, for plaintiffs. Culbertson, for defendant. A. Hennen, for testamentary executor. Morse, Attorney General, and Miller, for the State. Filleul and Tissot, for intervenor.
   Spofford, J.

(Merricic, C. J., absent.) Henry Fletcher, f. m. c., died in New Orleans, leaving a succession inventoried at about $10,000.

One Joseph Déeoudreau was appointed administrator, and took possession of the effects in that capacity. After a time an olographic testament was discovered, in which Fletcher had appointed one Jean Louis Dolliole his executor. The will being probated, Dolliole was confirmed as testamentary executor, and now represents the succession.

The death of the legatees prior to that of the testator involved the caducity of the main dispositions of the will. So the property must follow the general law of successions ah intestate.

Three parties claim the inheritance:

I. The Bahams, and others styling themselves the cousins of the deceased.

II. Marie Louise, f. w. c., styling herself the duly acknowledged natural child of the deceased.

III. The State.

The prayer of the first claimants must be rejected, because they are the children and grandchildren of a natural aunt of the deceased, and there is no statutory provision authorizing them to set up such an illegitimate relationship as a basis for the right of inheritance, which is the creature of positive law. C. C. 911, 915, 917, 920; Sayre v. Pasco, 5 R. 9; Bevens v. Dupré, 6 An., 494.

The only remaining question is whether Marie Louise shall take in preference to the State.

Henry Fletcher, in an act of manumission passed before a notary and two witnesses, described Marie Louise, whom he enfranchised by the act, as his “ natural daughter slave.” It is contended that this is an insufficient compliance with Article 221 of the Civil Code, which declares that “ the acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public in presence of two witnesses, whenever it shall not have been made in the registering of the birth or baptism of such child.”

It is said that the words “ natural daughter slave” were terms of description foreign to the purpose of the act which was to manumit a slave, and not to acknowledge her paternity.

But no form is prescribed for such an acknowledgment, save only that the declaration be made before a notary public, in presence of two witnesses. If the declaration be thus made, it seems to be immaterial whether it be the main object of the act or not. “La seule condition requise c’est qu’elle soit constatée dans un acte authentique. Ainsi, peu importe par quel offieier cet acte est dressé, et peu importe aussi que la reconnaissance, au lieu d’étre l’objet direct de l’acte, ne s’y trouve que par énonciation incidente.” 2 Marcadé, p. 91.

Marie Louise having exhibited the act in which she was described by Henry Fletcher as his natural daughter, maintains that her heirship is thereby established conclusively as against the State, and that neither the State nor the executor in possession of the property can be heard to show by anj'- extraneous evidence the existence of facts which would cut her off from the inheritance.

On the other hand, both the executor and the State offered and were permitted to show that, if Marie Louise was the daughter, of Fletcher, she must have been the offspring of an adulterous connection. C. C., 201.

Upon this fact the proof is conclusive.

So the only question is, was the evidence admissible ?

Marie Louise, the appellant, relies upon the Article 968 of the Civil Code as implying a fin de non recevoir, which bars the State and the executor from entering into any such investigation as was permitted in the court below.

“ The exclusion, either for cause of incapacity or unworthiness, shall not be sued for by others than the relations who are called to the succession of the unworthy heir, or in concurrence with him; and this kind of suit shall be determined in the same manner as other civil actions.”

This article must be construed not alone, but in connection with the subject-matter of the chapter in which it is found, and with reference to various other provisions in different parts of the Code.

Natural children are not, like legitimate heirs, seized of the succession at the instant the ancestor dies. They have only a right of action to cause themselves to be put in possession upon a proper showing. “ Children called to the succession of their natural father or mother, in the case mentioned in the preceding articles, are permitted to take possession of the succession which has fallen to them only by the order of the judge of the parish in which the succession is opened.” C. C., 919.

Natural children, and the surviving husband or wife, before being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death ; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put in possession. The reason is, that this sort of heirs, having only a right of action to cause themselves to be put into possession of successions thus falling to them, this right and this action form a part of the succession which they transmit to their heirs.” C. C., 943.

Marie Louise is not, then, in the posture of a defendant with a legal possession which is attacked by the State; but she is an actor seeking by proof to get herself recognized as an heir to an inheritance which cannot be given her without establishing her heirship. The State is not suing to exclude her under any of the pretences contemplated in Article 968 of the Code.

She must, therefore, make out her case, like other plaintiffs, and when apparently made out it is open to be rebutted. She cannot hold up the act which merely describes her as the “ natural daughter” of Henry Fleteher, and then say to the other parties, “you shall not look beyond this paper, to see whether I am such a natural daughter as the law permits to inherit from her natural father.”

If the act upon which alone she bases her claim is itself a nullity, it would he absurd to say that she should be put in possession of the estate she sues for. That it is a nullity the evidence objected to abundantly shows. It was made in contravention of a prohibitory law established in the interest of public morals. “ Such acknowledgment shall not be made in favor of the children produced by an incestuous or adulterous connection.” C. C., 222.

To say that evidence cannot be brought aliunde to show facts which would establish the adulterous connection of which the child was the fruit, would be to nullify the article of the Code altogether. Eor it is not to be expected that the.father, in acknowledging a natural daughter, would go so far as to thwart his own design by proclaiming his infamy before the notary and witnesses.

The appellant invokes the Article 913 of the Code: “Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has loft no descendants, nor collateral relations, nor surviving wife, and to the exclusion only of the State. In all other cases they can only bring an action against their natural father, or his heirs, for alimony, the amount of which shall be determined as is directed in the title of father and child.”

But the next article provides that “bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases above mentioned — the law allowing them nothing more than mere alimony.”

A futile prohibition, if the fact of their being bastard, adulterous or incestuous children cannot be inquired into on the suggestion of the State. For they could exclude no one but the State, and it is not to be presumed that they will themselves disclose the fact of their infamous origin, to defeat their own pretensions.

But we' are not left to inference upon this subject. For the sake of enforcing the penalties it imposes upon immorality, the Code has declared, in Article 225, that “every claim set up by natural children may be contested by those who have any interest therein.”

That the State has an interest in defeating the unlawful pretensions of Marie Louise in this case is obvious, under the testimony which shows that there are no legitimate heirs or surviving wife.

We therefore think the evidence was rightly admitted, and that upon the record, as it stands, the succession will belong to the State. C. C. 477, 923.

The decree, so far as it rejects the demands of the BaJiams and of Marie Louise, is correct.

But there was error in decreeing the property to be forthwith delivered to the Attorney General. There appear to be unpaid debts, and, in a succession oí this kind, the Code seems to contemplate that all the movable and immovable property should be sold, the latter after appraisement and on prescribed terms of credit, that the balance, on the homologation of a final account, may be paid over in money to the State Treasurer, who is authorized to receipt therefor. C. C. 1202-3, 1184-5-6.

The answer of the executor to the appeal prays for an amendment accordingly.

It is therefore ordered that the judgment rejecting the claims of Baham et als., and of Marie Louise, intervenor, to inherit from Henry Fletcher, be affirmed. It is further ordered that the judgment in other respects be reversed, and that the administration of the succession of Henry Fletcher be continued, according to law, until the succession is finally wound up ; and it is further ordered that the costs of this appeal be paid by Marie Louise, the appellant.


author: Buchanan, L

text:
    William W. Peyton v. Newton Richards.
    Action for the value of a slave killed by the unskilfulness and fault of persons who were in the employment of defendant. The evidence showed that the defendant had contracted with the undertaker to put up the iron front on a building, and that afterwards defendant made a special contract with T. for T. to do the same work, with assistants and laborers employed and paid exclusively by T. The work fell to the ground and killed the slave. Held: That T. was not the servant or overseer of defendant, and consequently defendant was not liable.
    C.O.2299,2739.
    APPEAL from the Second District Court of New Orleans. Lea, J.

      J. R.& J. D. Jones, for plaintiff and appellant. Durant & Honor, for defendant.
   Buchanan, L

The plaintiff’s slave, while walking along the sidewalk of Camp street, in front of a building which was in process of erection, was killed by the falling of cast iron columns and entablatures, which formed the front of said building. Plaintiff claims the value of said slave from defendant, on the allegation that the accident was caused by the unskilfulness and fault of persons who were in the employment of defendant, and who were at the time in the exercise of the functions in which they were employed by defendant.

The action is based upon the 2299th Article of the Civil Code, and, as the defendant has denied his liability, we are first to inquire whether the workmen who put up the iron front were persons for whom the defendant was legally responsible in damages, at the suit of those who might have been injured by their fault, unskilfulness or negligence in the performance of that work.

The evidence shows that the building belonged to Dr. Farrell, and that John Me Yittie was the undertaker of the building. Me Yittie made a special contract with defendant, Newton Meharis, to put up the iron front in question, of which MeVittie furnished the materials; and Meharis made another special contract with William Thompson to do the same work. William Thompson himself performed the work, with the assistance of laborers, hired and paid by himself. Just as the work was completed, the iron columns and plates, or entablatures, fell to the ground, in consequence, as the witnesses think, of not being sufficiently propped with pieces of wood under the horizontal pieces, as is usual and necessary. Thompson himself and another workman fell to the ground with the work. After this accident, which caused the death of plaintiff’s slave, Thompson erected the work anew, and only received the stipulated compensation from defendant, $15, after the work was properly done and finished. We are of opinion that Thompson, by whose fault, negligence or unskilfulness this accident happened, was not the “ servant or overseer” of defendant, in the performance of this work. He engaged to do a certain job for defendant, for which defendant engaged to pay him when completed. But in doing the job, the defendant had no control or superintendence over Thompson. The laborers who assisted Thompson had no right to look to Meharis for their payment, except, under a particular statute and upon the observance of certain formalities, to the extent that Meharis might become indebted to Thompson for the work; and no indebtedness could arise on the part of Meharis towards Thompson except upon the delivery of the work completed.

In all the cases of damages awarded under the 2299th Article of the Code, the party who caused the damage was one, under wages to the party defendant,, and engaged in work of which the actual superintendence and control belonged to the defendant. 18th L. R., 492; 1 Rob., 178; 2 An., 654; 5 An., 704; 7 An., 321.

In the case of Camp v. Kirwan and the Wardens of the Church of St. Louis, where the proprietors of the building,'as-well as the contractor who executed the work, were held’ liable in solidd'ior damage caused by an acccident similar in its character to this one, there existed the peculiar feature, that'-the proprietor had reserved to himself, by contract, the controling superintendence of the execution of the work, through an architect employed by himself. Judge Slidell, delivering the opinion which was the basis of the decree in that case, uses the following language: “ It seems to me that what-ever responsibility there may be for such accident is thrown upon the undertaker, by the Article 2739 of our Civil Code. But the church wardens took their case out of the ordinary category, by retaining a continuous and active direction and control over the construction of the work. By reason of the exercise of this direction and control, they, in my opinion, are answerable to Gamp for the consequences of the defectiveness of the work.” 7 An., 326.

Judgment affirmed, with costs.


author: Lea, J.

text:
    J. Bermudez, for the use of P. C. Wright, v. The Union Bank.
    Sale of mortgage stock of the bank, bought by the bank. Sale sought to be set aside on the ground that the stock could not be sold apart from the real estate upon uliich it was secured. By the Court: We can see no good reason why the bank might not seize and sell any property of their debtor for the satisfaction of their debt. Certainly the objection is one which cannot be raised by the debtors, whose acts in the premises gave a sanction to the proceedings, and who are without interest in the enforcement of the supposod prohibition which they invoke.
    The bank had a right to make purchases of this character under the provisions of the Act of 1843.
    The objection that no legal notice of seizure was given cannot be urged by a parly who appointed an appraiser, and was present at the sale.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.
    Durel, for plaintiff and appellant. Denis, for defendant.
   Lea, J.

(Merrick, C. J., absent.) This suit is brought for the purpose of cancelling a judicial sale of 284 shares of the capital stock of the Union Bank, made under an execution issued at the suit of the bank, and at which the bank became the purchaser of its own stock.

The plaintiff, Bermudez, was the owner of the stock which was secured by mortgage upon certain real estate and slaves, which were his property; the stock was also pledged to the bank for the reimbursement of loans which he obtained upon it. As owner of the stock, the plaintiff borrowed, in accordance with the terms of the charter, certain other sums of money which were secured by mortgage upon the real estate and slaves above referred to. The property and stock thus encumbered was transferred successively to Mrs. Emma Ber-mudez, and from her to P. 0. Wright, Esq., for whose use this suit is apparently brought. This being the case, the bank, in virtue of a writ of fieri fiadas, issued against J. Bermudez after the sale to Wright, caused the stock to be seized and sold, and at the sale became the purchaser at $5 50 premium per share.

This sale is attacked as illegal, on the following grounds:

1st. That the stock could not, under the charter of the corporation, be sold separate and apart from the real estate upon which it was secured.

2d. That the bank could not become the purchaser of its own stock, thereby extinguishing the same, and diminishing the security for the payment of the State bonds issued to that institution.

3d. Because the writ did not authorize the seizure of the stock.

4th. That no notice of seizure was given, as required by law.

In the absence of any law to the contrary, we can see no good reason why the bank might not seize and sell any property of their debtor for the satisfaction of their debt; certainly the objection is one which cannot be raised by the debtors, whose acts in the premises gave a sanction to the proceeding, and who are without interest in the enforcement of the supposed prohibition which they invoke. Equally untenable is the objection that the bank could not purchase her own stock, and extinguish the same; such a sale could not be attacked upon such a ground by a party having no interest in the question ; moreover, the provisions of the Act of 1843 expressly authorizes purchases of this character.

The objection that no notice of seizure was given, as required by law, cannot be urged with consistency by a party on whose behalf an appraiser was appointed, and who was himself present at the sale; moreover, the evidence shows conclusively that the plaintiff had knowledge of the seizure.

Under the circumstances, all informalities in the proceedings, if any such existed, must be considered as waived by the acts of the parties themselves.

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


text:
    Succession of Betsy Young.
    A nuncupative will by public act declared explicitly that the three attesting witnesses were present when the will was dictated to the Recorder. The three witnesses, seven months after the execution of the will, testified that they were present at the time of the execution, but did not recollect hearing the testatrix dictate the dispositions, but believed they heard her, because they attested the wi.l at the time. By the Court: This evidence is insufficient to rebut the presumption which exists in favor of the truth of an authentic act executed by a Parish Recorder in solemn form.
    APPEAL from tbe District Court, parish of Plaquemines, Rousseau, J.

      Qrandmont, for appellant. Foulhome and Gollins, for appellees.
   Spofford, J.

(Merrick, C. J., absent.) Betsy Toung died in 1854, leaving two nuncupative wills by public act, one executed on the 17ih of August, 1850, the other on the 12th August, 1854. This controversy concerns the validity of the latter testament.

It was decreed to be null by the District Judge, because he was satisfied that two of the attesting witnesses were not present when the will was dictated to the Recorder by the testatrix.

The instrument itself, which appears to be in due form, declares in the most explicit manner that they were present.

But these witnesses have been called to testify on this point, and they were the three attesting witnesses to the will.

Not one of them declared that all were not present during the dictation.

The testimony is entirely consistent with the hypothesis that they were present during'that period.

The only thing calculated to raise a doubt in the mind is, that after a lapse of seven months, they did not recollect hearing the testatrix dictate the dispositions, but believed they heard her, because they attested the will at the time.

Upon the authority of the case of Macarty, 7 An., 485, this evidence is insufficient to rebut the presumption which exists in favor of the truth of an authentic act executed by a Parish Recorder in solemn form.

As it is intimated on both sides that all the available testimony' was not adduced, we will remand the case out of deference to the opinion of the District Judge upon a question of fact.

It is, therefore, ordered that the judgment appealed from be avoided and reversed, and the cause remanded for a new trial, the appellants to pay the costs of this appeal.


author: Spoitord, J.

text:
    The State v. The Judge of the Seventh Judicial District.—W. F. Kernan, District Attorney, praying for a Writ of Prohibition.
    The Act of March 15th, 1655, creating an interchange between the Judges of the Fourth, Seventh and Eighth Judicial Districts, contemplates nothing but a provision for the regular jury terms, as fixed by law, and does not annul the power conferred on .every District Judge to call special jury terms, when the public necessity requires them, provided they do not interfere with the discharge of his duties, as imposed by law. *
    ON an application for a writ of prohibition.

    Kernan, for the relator
   Spoitord, J.

The Judge of the Seventh Judicial District has called a special session of his court for the parish of West Feliciana, and had a jury summoned, in pursuance of sections 26 and 28 of the Act relative to District Courts, approved March 18th, 1855, (Session Acts, pages 495-6.) It does not appear that this called term clashed, or will clash, with the regular term of court for that parish, which was to commence on the first Monday of December, nor within the term commencing on the third Monday in October in East Feli-ciana.

A writ of prohibition is prayed for, on the ground alone that the Judge has been inhibited from holding such a special jury term in West Feliciana at the present time by the Act of March 15tb, 1855, creating an interchange between the Judges of the Fourth, Seventh and Eighth Judicial Districts. (Session Acts, pages 246-7.)

The latter Act, by its terms, evidently contemplated nothing but a provision for the regular jury terms as fixed by law. It says that “the interchange shall only apply to the jury term,” and “to make effective its provisions,” it is declared that iAe jury term for the palish of East Feliciana shall commence, for that term only, on the second Monday in April next, and thereafter as provided by law,” that is, on the first Monday in April. (Session Acts, sec. 14, page 493.)

The provision in the interchange Act, that neither of the said Judges can lawfully hold a second jury term in any parish until he shall have held a term in every other parish of the district, cannot fairly be construed to annul the power conferred on every Judge to call a special jury term in any parish of his own district, when the public necessity requires, provided that such called term does not interfere with the performance of his judicial duties elsewhere, as imposed upon him by law, or with the discharge of the duties imposed by law upon the Judges with whom he is bound to interchange.

It is, therefore, ordered that the application for a writ of prohibition be dismissed, and that the relator, W. M Kernan, pay costs.


text:
    Widow Duchamp v. J. P. Butterly.—Same v. Same.—Alphonse Garrus v. J. P. Butterly.—Widow Butterly, Opponent.
    Statutes in derogation of common right should not be enlarged by1 construction.
    Mrs. B. claimed a thousand dollars out of her deceased husband’s estate, under the “ Act to provide a homestead for the widow and children of deceased persons” — against bona fide mortgagees. In answer to interrogatories, the widow said that she owned a house worth seven hundred dollars, and added a vague statement that she was in debt. By the Court: The statute does not say that the amount of property owned by her must be estimated over and above her indebtedness, whatever it may be and whenever due, and we cannot add such a provision to it. Three hundred dollars allowed.
    Xi. PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. & E. Bermudez and Pedeselaux, for plaintiffs and appellant. Biron, for Mrs. Butterly.

   Spofford, J.

(Merrick, O. J., absent.) The widow of J. P. Butterly claims the $1000 awarded to indigent widows by the Act of March 17th, 1852. (Session Acts, page 171.)

The only valuable property belonging' to the succession of her deceased husband has been sold, under three orders of seizure and sale, issued at the instance of the Widow Duchamp and Alphonse Garrus, who were mortgage creditors of the deceased.

The Widow Butterly claims a superior privilege on the proceeds of these three sales, by virtue of the Act aforesaid.

Statutes in derogation of common right should not be enlarged by construction.

The statute in question, which gives a bounty to the widow at the expense of bona fide mortgage creditors, is entitled “an Act to provide a homestead for the widow and children of deceased persons.” It declares “that whenever the widow or minor children of a deceased person shall be left in necessitous circumstances, and not possess in their own right (en leur nom) property to the amount of $1000, the widow, or the legal representative of the children, shall be entitled to demand'and receive from the succession of their deceased father or husband, a sum which, added to the amount of property owned by them, or either of them, in their own right, will make up the sum of $1000, and which said amount shall be paid in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property.”

The only evidence which tends in any way to show that the widow in this case is in necessitous circumstances shows also that she is owner in her own right of a house and lot, or homestead, in the town of Donaldson. In answer to interrogatories, she says this property is estimated at $700. It is true she adds the vague statement that she is indebted to the amount of $700 or $800, without giving any explanation of the terms of this indebtedness,- But the statute does not say that the amount of property owned by her must be estimated over and above all her indebtedness, whatever it may be and whenever due, and we cannot add such a provision to the statute.

It may bo that the creditors, out of whose pockets the bounty for the widow is to be taken, loaned their money to the husband upon the belief that, as tho wife was already in the possession of a homestead, the death of the husband would not evict them of their mortgage rights.

Under her indefinite and somewhat evasive answers to interrogatories, the widow is is only entitled to $300, the difference between the value of the property she owns and possesses and $1000.

It is, therefore, ordered that the judgment appealed from be avoided and reversed, and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that the third opponent, Azelie Landry, widow of J. P. Buiterly, and natural tutrix of the minor child Aimée Butterly, be paid the sum of three hundred dollars by privilege and in preference to the seizing creditors, Widow Buchamp and Alphonse Garrus, out of the proceeds of the property seized and sold in these suits, the sum taken from the proceeds of each of the three lots sold to bear the same ratio to the total sum of $300 as the net proceeds of the sale of each of the three lots to the net proceeds of all the lots; it is further ordered and decreed, that the costs of the intervention in the District Court be borne by the appellants, and the costs of this appeal by the Widow Butterly, appellee.


text:
    City of New Orleans v. John A. Staiger.
    The license tax imposed <5n keepers of coffee-houses is imposed upon all persons of the same class, and is therefore constitutional.
    The third paragraph of the twentieth section of the Act of 8th March, 1836, supposing it to be in force, is not violated by the City Ordinance of 21st December, 1854.
    APPEAL from the Eifth District Court of New Orleans, Augustin, J.

      Labatt & Eustis and Eiestand, for plaintiff. Oollins and Black, for defendant and appellant.
   Buchanan, J.

(Merrick, C. J., absent.) The defendant appeals from a judgment rendered against him for a license as coffee-house keeper in the city of'New Orleans for the year 1855. The defence set up is, that the ordinance under which this claim is made is unconstitutional and illegal. Unconstitutional because the Art. 123 of the State Constitution requires taxation to be “equal and uniform illegal, because the Act of 1836 (page 12T, Bullard & Curry,) requires the Council to fix uniform prices for all licenses,- and because the Act of 1847, (page 140, section 1,) requires taxation to be “equal and uniform.”

Upon the question of constitutionality, it is only necessary to repeat what was said in the case of the State v. Rebassa, 9 An., 305: that the license tax in question operates uniformly upon all persons of the same class, to wit: all keepers of coffee-houses. It is therefore constitutional.

The third paragraph of the 20th section of the Act of 8th March, 1830, (Bullard & Curry, 127,) required the City Council to fix an “uniform rate” of all licenses to pedlars, hawkers, grog-shop keepers, taverns, and others, which now or hereafter may be provided by law. Supposing this law to be still in force, and to be applicable to the present case, it does not seem to be violated by the City Ordinance of 21st December, 1854.

The Act of 1847, (page 140,) which is an Act to provide for the payment of the debts of the Municipalities of New Orleans, commences by the enunciation of the rule that taxation within each Municipality shall be equal and uniform. It is not seen what application this rule has to the present case.

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


author: Lea, J.,

text:
    Leland & Co. and John Simmons & Co. v. A. Rose.
    Under proceedings had for a forced surrender, in which there was no prayer for imprisonment, the jury found a verdict of guilty, but the court refused to sentence the defendant to imprisonment. Held: that the Court did not err; the prayer for general relief, while it entitles the party to all the ordinary decrees or orders which the pleadings may justify, will not authorize the imprisonment of a debtor under a highly penal statute.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Smiley & Perrin, for plaintiffs and appellants, T. ff. Semmes and Schmidt, for defendants.
   Lea, J.,

(Merkick, O. J., absent.) This case is presented on an appeal from the refusal of the District Judge to pass sentence of imprisonment upon the defendant, who was found guilty of fraud by a verdict of a Jury, under proceedings had for a forced surrender. The District Judge refused to pass sentence upon the defendant for the reason (with others) that the plaintiffs had in no part of their pleadings ashed for the extraordinary remedy of imprisonment against their debtor, and that the defence could not have been conducted' with reference to such a demand.

We think this view of the case is correct. It was not the duty of the Judge to enforce the penalty of the law in a case where the penalty was not invoked.The case is not analogous to that of a public prosecution by indictment or information. The plaintiffs are seeking to enforce their private rights in a civil proceeding, and they ask in their petition that the defendant, in default Of the payment of their judgments, be compelled to make a surrender of his property to his creditors.

Upon the filing of the defendant’s Schedule under the orders of the court, they filed charges of fraud, and close their opposition, asking' that the prayer of the defendant for exemption under the insolvent laws be rejected. It is true there is also a prayer for general relief, and in such cases we hold that the party making it are entitled to any and all ordinary decrees or orders which the pleadings and evidence under the pleadings may justify; but this reliéf does not extend to the extraordinary remedy of the imprisonment of a debtor under a highly penal statute. The presumption is, when a party fails to invoke-such a remedy, that he waives it, and the defence is conducted accordingly.

It is ordered that the judgment be affirmed, with costs.


author: Voorhies, J.

text:
    City of New Orleans v. Charles Gottschalk.
    Judgment for municipal tatfes by default and confirmed, without proof that the property assessed’ in che name of the defendant belonged to him; Held: a legal presumption necessarily arises from the provisions of the assessment law in favor of the correctness of the assessment roll, and it was1 the business of defendant to show the error in the roll, if error there was.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Eiestand & Levy, for plaintiff. Laville, for defendant and appellant.
   Voorhies, J.

(Merrick, C. J., absent.) The defendant is appellant from a, definitive judgment by default against him for municipal taxes.

The defence urged by him is, that, under the tacit issue, which is tantamount to a general denial, the plaintiff was bound to show that he was the owner of the property assessed in his name for the year 1854; that the court below erred in assuming the proof of the existence of the title to the property in him from the fact of its description in the tax receipt and assessment roll. This defence is clearly inadmissible. In the assessment of property subject to taxation, the law imposes certain duties upon the assessors, among others, that of calling' upon each tax payer for a list of his property under oath. Certain notices are required to be given in cases of absence. After the completion of the assessment roll, it must be deposited with the proper officer, giving notice thereof, in order to rectify any errors which may exist therein to the prejudice of any person, within a certain delay. Hence it is obvious that a legal presumption must necessarily arise in favor of the correctness of such assessment roll. If any error existed to the prejudice of the defendant in the assessment of property in his name, he should therefore have alleged and proved such error.

It is, therefore, ordered' and decreed, that the judgment of the court below be affirmed, with costs.


author: Merrick, O. J.

text:
    Theresa Herman v. Gaspard Theurer.
    Where the community is dissolved by the death of the husband, the surviving wife is presumed to have the intention to accept the community, and her right to renounce is subject to the same rules as govern the beneficiary heir.
    But a different rule prevails where a divorce lias been pronounced. Unless the wife accepts the community within the delay allowed by law, and obtains from the Judge a prolongation of that delay, she is supposed to have renounced the community. Code 2389.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Tissot and Dwoignecmd, for plaintiff Dufour and Jtoselius, for defendant and appellant.
   Merrick, O. J.

In August, 1843, the defendant, Oaspard Theurer, instituted an action against the plaintiff, his then wife, for a divorce, on account of adultery committed with one Jacob Super, and also to obtain possession of a child of their marriage, to set aside certain donations, and to liquidate and settle the community.

No personal service of the petition appears to have been made upon the plaintiff; but a curator ad hoc was appointed to represent her in that suit, and service of the citation was made on him. The curator answered by a general denial. The proof of the facts seems to have been conclusive. The court decreed the divorce prayed for, gave the care and keeping of his minor son to Theurer, annulled the donations and ordered that the parties, “ plaintiff and defendant, be referred to Louis T. Caire, Hsg., a notary public, for the settlement of the community of acquets and gains which existed between them." This decree was signed May 10th, 1844. It will be observed that up to this date, there is nothing in the record which shows that Theresa Herman ever accepted the community or desired that the same should be partitioned between her and Oaspard Theurer.

In August, 1843, an inventory was made, and at the making of the same, Theurer, the defendant, was present in person and signed it, and John L. Thie-len signed the same, purporting- to act as attorney for plaintiff. This inventory was filed in court on the 16th of September, 1844, and showing the debts of the community to be equal to the assets. Nothing further was done in the case until the present suit was instituted.

It appears from the allegations in plaintiff’s petition, that she has married Jacob Euper, the person with whom the decree of divorce convicts her with having committed adultery.

The present action was commenced by service of citation on the 11th day of June, 1882. Plaintiff prays in her petition for a renewal of the order given in the judgment of May 6th, 1844, (referring the parties to a notary to take an inventory,) in order to proceed to a partition, and that the former inventory be declared null and void, and that a partition of the community take place between the parties.

The defendant resists plaintiff’s demand on the following, among other grounds, viz:

That the plaintiff, not having accepted the community within the delay allowed by Article No. 2389 of the Oivil -Code, must be considered as having renounced the same.

We find that the plaintiff in her petition expressly denies that she was ever notified to attend the taking of the inventory, or represented at the taking of it according to law". There is nothing.in the record w-hioh shows that Mr. TMelen was authorized to represent her, and she could not now be heard to contradict the allegations of her petition. So far, therefore, as the taking of the inventory is concerned, it proves no acceptance of the community on the part of the plaintiff.

But it is contended that the acquiescence in the portion of the decree quoted in this opinion, had the effect of an acceptance of the'community, and a decision from Sirey, A. D., 1830, Tit. Communauté, Partie 2d, p. 97, in these words, is quoted as an authority, viz:

Attendu que lorsque le jugement qui prononce le divorce renvoie les parties, sur lours conclusions, devant un notaire poíir y régler leurs droits, et que Ies parties ont acquiescé audit jugement, il est manifesté que cela est une acceptation suffisante de la communauté.

The difference between the case cited (were we to view it as an authority) and the one at bar, consists in this: the decree in the one case was formed upon the “ conclusions” of the parties, in the other, without any prayer to that effect on the part of the defendant, and on a mere general denial of the curator ad hoc appointed to defend her.

As the curator ad hoc had no power to accept the community for the plaintiff, we must construe the judgment rendered upon the pleadings in this case as simply recognizing the defendant’s right to accept or renounce the community, as she should deem most to her interest. Had she been sued immediately afterwards for the one-half of any of the large debts of the community, unquestionably she could have set up her refusal to accept as a bar to such action. Hyde v. Creddic, 10 R. R., 393-4; Clacor v. Lane, 5 A. R., 499.

In order, therefore, to render the plaintiff, under the judgment, responsible for one-balf of the debts of the community, it was necessary that she should, by some-act of her own, evince her determination to accept the same. Where the community is dissolved by the death of the husband, the surviving wife is presumed to have the intention to accept, and her right to renounce is subject to the same rules as govern the beneficiary heir. But a different rule prevails where a divorce has been pronounced. Unless she accepts the community within the delay allowed by law, or obtains from the Judge a prolongation of that delay, she is supposed to have renounced the community. C. C., 2389.

The reason of the rule is doubtless this : the husband is the head and master of the community, and at once responsible for its debts, and being seized of it, he ought not to be compelled to demand a partition of the wife of the effects in his hands, and thus lessen his means to meet the debts, particularly as he is responsible for the whole, whilst his wife, by acceptance, would only be responsible for one-half of the same. The interest of the creditors and the public requires that the delay allowed the divorced wife to accept, should be, as provided by the Civil Code, a short one.

The plaintiff having suffered eight years to elapse after the rendition of the judgment in action for a divorce, without doing any act by which her acceptance of the community can be clearly inferred, her action is barred, unless the conduct of the defendant has been such as to prevent her from ascertaining her rights in regard to the community.

We do not think the testimony makes out a case of that kind. The absence of the plaintiff with her paramour, at the time the decree was pronounced, is not a circumstance calculated to make a very favorable excuse for not looking into her rights at the time the judgment was rendered. The demand of the notary, whether certain property did not belong to the community, and the answer that it did not, were on file, and if the answer was not true, (relating as it did to a grocery store,) she must have known the fact at the time, and it was for her to controvert that part of the inventory. But she did not then see fit to do so. The testimony which she has introduced, after this lapse of time, conflicting as it is, does not possess that clear and consistent character, and show that want of knowledge on her part, and that deception on the part of the husband, which would entitle her to a restitution against her tacit renunciation of the community.

The judgment of the lower court is therefore reversed, and ours is in favor of the defendant, with the costs of both courts.


text:
    Nicholas Murray v. John Walker.
    A reed's was offered in evidence, but not filed, and therefore not copied by the Clerk in making up the transcript for the Supreme Court The transcript was brought up by the appellee, who moved to dismiss the appeal. By the cou/ri: It was the duty of the appellant to present her casein such a shape that this court could pass upon the correctness of the judgment appealed from. It is true the appellee has brought up the appeal, on the failure of the appellant todo so. But the deficiency of the record is plainly the fault of the appellant, which should not prejudice appellee. Appeal dismissed.
    Ü PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Durant S Hornor, for plaintiff. Dunlap, for defendant and appellant.
   Buchanan, J.

(Merrick, C. J., absent.) This is a proceeding by third opposition on the part of defendant’s wife, claiming to be paid, by preference over plaintiff, out of the proceeds of property sold in execution, the amount of an alleged judgment obtained by her against her husband. She is appellant from a decision of the District Court adverse to her claim.

In support of her third opposition, the appellant offered in evidence “ the whole of the record of the suit No. 7773 in the First District Court, entitled Caroline L. Campbell, wife of John Walker, v. Her Husband.” But the certificate of the Clerk of the court to the transcript, declares, that the record in question, though offered in evidence, was not filed; and consequently that it is not copied. It was the duty of appellant to present her case in such a shape that this court could pass upon the correctness of the judgment appealed from. It is true the appellee has brought up the appeal, on the failure of the appellant to do so. But the deficiency in the record above mentioned, is plainly the fault of the appellant, which should not prejudice the appellee. The appeal is dismissed, with costs.


text:
    Bogert, Williams & Co. v. John Egerton.
    Defendant held a sum of money belonging to W., and refused to pay it oyer, under wholly unfounded pretences, for three years, when he acquired a protested note on which W. was endorser — which he pleaded in compensation of the debt due to W. By the c.ow't: 1’he allowance of the plea, under all the facts of the case, would be subversive of that good faith upon which the doctrine of compensation reposes.
    APPEAL from the Sixth District Court of New Orleans, Cotton J.

      Hurant & Hornor, for plaintiffs. Benjamin, Bradford & Mnney, for defendant and appellant.
   Spofford, J.

(Merrick, C. J., absent.) The evidence satisfies us that the defendant received and disbursed and collected money for Wilkinson in a highly confidential capacity. He styled himself “Treasurer” of a company to which Wilkinson belonged, and whose members were interested in a single joint adventure.

On the 22d October, 1850, he stated the balance due by him in this fiduciary capacity, to Wilkinson, as the final result of the adventure, at the sum of $685, for which amount, with interest, the District Judge gave judgment in favor of the plaintiffs, who are assignees of Wilkinson.

But, instead of paying the money over then to the party for whom he held it, as he should have done, the defendant kept it, under pretence of a set-off, which was a legal impossibility, according to his own statement of the facts; an off-set which he has not attempted to insist upon in this suit.

But it served as an excuse for keeping the money three years, when he acquired a protested note, long past due, on which Wilkinson was endorser, by which he now pretends his debt to Wilkinson .has been extinguished through the operation of law.

We concur with the District Judge, in thinking that the allowance of the plea, under all the facts of the case, would be subversive of that good faith upon which the doctrine of compensation reposes.

The authorities cited sustain the judgment.

Bloodworth v. Jacobs, 2 An., 25; Nolan v. Shaw, 6 An., 46; Breed v. Purvis, Wood & Co., 7 An., 35; 2 Pardessus, Droit Com., § 325.

The judgment is therefore affirmed, with costs.


author: Yoorhies, J. Merrick, O. J.

text:
    John C. Beatty et al., Executors, v. John L. Dufief et al.
    It is well settled that payments by an executor without an order of court are irregular, and not binding, unless it be shown that they liberate the estate from a legal obligation.
    APPEAL from the District Court, Fifth District, Parishof Lafourche, Cole, 3.

      J. C. & A. Beatty, for plaintiffs and appellants. Race S Foster, for defendants.
   Yoorhies, J.

On the 10th of July, 1840, Adner Robinson mortgaged his sugar plantation and slaves to Joseph Fowler, Jr., to secure the payment of six promissory notes given by him to the latter for a loan of $59,254,16- Subsequently, on the 10th of April, 1841, he also mortgaged the same property to W. Bogart & Co., to secure the payment of six promissory notes given bjr him to the latter for a loan of $80,000, stipulating in both mortgages to pay 10 per cent, interest on each of the notes from maturity.

Joseph Fowler, Jr., died in August, 1850, and W. Bogart, a member of the firm of W. Bogart & Go., was appointed curator of his estate.

The mortgage notes in favor of W. Bogart & Go'., endorsed in blank by them, were inventoried as the property of Fowler's succession. The judicial partition between the heirs of Fowler, made on the 4th of April, 1851, is silent as to any other claim against Abner Robinson.

The heirs to whom the mortgage notes were allotted in the partition, obtained an order of seizure and sale on them, for the sum of $136,911 16, alleged to be the principal and interest due on the 10th of February, 1854, after allowing various credits to the estate of Abner Robinson.

The plaintiffs, as testamentary executors of the late Joseph W. Tucker's last will and testament, allege that the testator was, during his lifetime, executor of Abner Robinsoii's last will and testament; that as such, he paid to the heirs of Joseph Fowler, Jr., or their assigns, on the 24th of April, 1851, the sum of $12,701 08, which has never been allowed as a credit on the mortgage notes of Abner Robinson ; that when this payment was made, neither Joseph Fowler, Jr., nor his heirs, held any other claim against Abner Robinson than said mortgage notes, and that they arc interested and bound to require said payment to be allowed as a credit, otherwise Tucker's estate will lose the benefit of it on the settlement with the estate of Robinson. Their petition concludes with a prayer for an injunction, and that the plaintiffs in the executory process bo required to show whether Abner Robinson ever owed any other debt to Joseph Fowler, Jr., than said mortgage notes, in order that said Tucker's estate may be protected thereby from loss; and in default of showing any other indebtedness, that said payment may be imputed as a credit on said mortgage notes.

The receipt in question is in the following words, viz.:

“ Received, New Orleans, April 24th, 1851, from J. W. Tucker, Fsq., executor of the estate of Abner Robinson, deceased, late of Lafourche Parish, La., twelve thousand seven hundred and one dollars throe cents ($12,701 03), in full for all accounts due by said estate to the late Joseph Fowler, Jr., of New Orleans, La., and whose succession has been opened in the Second District Court of New Orleans, except twelve (12; certain promissory notes and interest thereon, drawn by said Robinson to the order of , which said notes are still due and have been divided among the heirs of the said Joseph Fowler's estate as the property thereof. For their amounts, dates, and descriptions, reference is made to the act of partition of the property of said Fowler's estate, made before Theodore Guyol, Notary Public of this city.

(Signed,) John H. Skinner, attorney in fact for Margaret Swain and others; Race & Foster, attorneys for J. A. Dolman; John Tj. Dnfief, attorney for various heirs; James J. Fowler, for self and others; John D. Fowler; John Greeves, attorney for various heirs.”

In February, 1847, Joseph Fowler, Jr., brought a suit against Joseph W. Tucker, testamentary executor, for the recovery of $100,970 56, alleged to be the amount of the principal and interest then due him by Abner Robinson on the mortgage notes, after allowing as credits partial payments which had been made by said executor, as shown by a statement annexed to his petition. After the joinder of issue in July, 1850, no other steps appear to have been taken in that suit. Thus it would seem that Fowler himself, during his lifetime, had never asserted any other claim against Robinson’s estate than that which was evidenced by said mortgage notes.

Under this state of facts, we think it was incumbent upon the heirs of Fowler to have shown the existence of other claims, if any they had, against the estate of Robinson. It is perfectly clear that Tucker, as executor, could pay only such debts against Robinson’s estate as were legally exigible; and it appears to us to be equally clear that the executor, in a payment made by him in error, and without the authority of the court, is entitled to the reimbursement of such payment. It is well settled that payments by an executor,' without any order from the court, are irregular and not binding, unless it be shown that they liberate the estate from a legal charge. Hence it follows that Tucker's estate is entitled to claim the imputation of the payment in question as a credit on the notes sued upon. We do not think there is any force in the defendant’s objection, that the question is not now before us as to whether Tucker's estate would be allowed such payment as a credit, or not, by the estate of Robinson. It is enough to say that Tucker could only pay what Robinson owed, and the heirs of Fowler have not attempted to set up any other claim than that on which we think the imputation should have been made.

It is therefore ordered and decreed that the judgment of the court below be avoided and reversed, and that said sum of $12,701 03 be allowed as a credit to the estate of Abner Robinson, deceased, on the defendant’s claim, to be imputed on the 24th of April, 1851, that the injunction herein sued out for said amount be made perpetual, and that the defendants and appellees pay the costs of both courts.

Merrick, O. J.

Although I have doubts whether sufficient facts have been established to throw the burden of proof upon the heirs of Fowler to show that the intestate held other claims against the estate of Robinson, still I am not prepared formally to dissent.

Rehearing refused.


author: Merrick, C. J.

text:
    John C. Beatty, for the use, &c., v. Miles A. McCleod, Tutor.
    The maxim that money has no identity, when applied to agents, is true in this sense: if it is deposited in bank in the name of the agent, with his own funds, or kept with his own money, it cannot be identified, and must necessarily be held to belong to the agent, in any contest between the principal and third persons claiming the same.
    So also if the agent pays out the money to one who receives it in good faith, it cannot be recovered back — it has no identity.
    But this doctrine has never been held to extend to cases where the money has become capable of a complete identification from the manner in which it has been kept — as in packages, labeled in the name of the principal, or deposited by the agent in bank in the name of the principal.
    When the agent makes the deposit in the name of the principal, it is to be presumed that the money he so deposited is the identical money which he received from or on account of his principal.
    A tutor, who was insolvent, believed himself about to die, deposited a sum of money with M., stating it to be the property of his ward. It was shown that the tutor was in possession of no means but those belonging to his ward, and that he had l’ecently obtained certain notes of hia ward to be discounted, amounting to a larger sum than that deposited with M. By the cozvrt: As by law the tutor ought not to use the funds of his ward, and as he has the right to deposit such funds in bank in his name as tutor, or to keep them distinct from his own by proper labels, there is no good reason why, on an occasion like the present, he might not deposit the money with some trusty person for safe keeping.
    APPEAL from the District Court, Fifth District, Parish of Lafourche, Cole, J.

      J. C. & A. Beatty, for plaintiff and appellant. Belcher, for defendant.
   Merrick, C. J.

W. It. Jordan, of the parish of Lafourche, was taken sick and died at Tuscumbia, in the State of Alabama.

He had been insolvent for many years. His wife died some time previously, leaving an estate, the most of which was sold, and brought $21,545 55. Although the sale was on terms of credit in part, Jordan discounted the principal notes and reduced them to cash. He had at the decease of his wife been confirmed as natural tutor to his minor daughter, issue of their marriage.

While he was sick at Tuscumbia, a few days before his death, under apprehension.that his sickness would terminate fatally, he sent for a gentleman of that place, Judge Nooé, and deposited with him the sum of $6565, informing him that the money was not his, hut belonged to a daughter for whom he was tutor, and exacted a promise from Judge Nooé that he would write, to the defendant, informing him that he had this money, and request that he should become tutor to his daughter, and deliver the money to the defendant, when he should come after it.

The letter to the defendant was written in the presence of the siek man, read to him, and deposited by one of the servants he had with him in the post-office.

The money was sealed up in packages, and kept until the arrival of the defendant — who, in accordance with a request contained in the letter, had caused himself to he appointed tutor — and delivered to him. The defendant returned with the money to Louisiana, and has the same under administration as tutor to the minor.

The testimony shows that the intestate was in possession of no other means except those entrusted to his management as tutor, and that he ought to have had in his hands, after the discount of the notes not matured, a larger sum in cash than that left with Judge Nooé.

The present action is brought by certain of the creditors of Jordan, who contend that as money cannot be identified, the fund received by the defendant must be considered as belonging to Jordan, and distributed among his creditors.

It is also intimated that if the money is shown to have arisen from the discount of notes received at the probate sale before their maturity, it was a conversion of the notes to his use, and therefore made the money his own.

The maxim that money has no identity, when applied to agents, is true in this sense: if it is deposited in bank in the name of the agent, with his own funds, or kept with his own money, it cannot be identified, and must necessarily be held to belong to the agent in any contest between the principal and third parties claiming the same.

So also if the agent pays out the money to oije who receives it in good faith ; it cannot be recovered back; it has no identity. But this doctrine has never been held to extend to cases where the money has become capable of a complete identification from the manner in which it has been kept, as in packages labeled, in the name of the principal, or deposited by the agent in bank, in the name of his principal. McDonogh v. Delarsen, 10 Rob., 481.

As money, however, can have no identity in the sense above indicated, when the agent does make the deposit in the name of the principal, it is to be presumed that the money he so deposits is the identical money which he received from or on account of his principal.

As by law the tutor ought not to use the funds of his ward, and as he has the right to deposit such funds in bank in his name as tutor, or to keep them distinct from his own by proper labels, we can see no good reason why, on an occasion like the present, he might not deposit the money with some trusty person for safe keeping.

We do not see any force in the argument that the tutor has converted the notes into cash, and therefore made the proceeds his money. If the tutor has wronged the minor by discounting the paper belonging to her, it is no reason why she should be further wronged by giving the proceeds to the creditors of her father.

Believing the case to be clearly with the defendant on the merits, we have not deemed it important to consider the objections to the form of the action.

Some comments have been made in argument in respect to the large amount of property which the deceased, Mrs. Jordan, managed to acquire under her judgment against her husband for tho separation of property. As the judgment of separation has been admitted to have been obtained in good faith for a sum really due, and as this action has not been brought to set aside the purchases made by the mother of the minor, under her judgment and with her paraphernal funds, it is evident that this argument is foreign to the issue before us.

Judgment affirmed.


text:
    Susan Bourgeat, Administratrix, v. Elijah Adams.
    Where an administrator obtains a judgment against a former administrator, whose estate, as shown by the tableau, is utterly insolvent, no further proceedings need be had by him against the estate of the former administrator, to entitle him to judgment against the surety of the former administrator.
    APPEAL from the District Court, Ninth District, Parish of Point Coupee, Robertson, J., presiding.

      Oooly, for plaintiff and appellant. TJ. B. & H. Phillips, for defendant.
   Lea, J.

The administratrix of the succession of Augustin Bourgeat claims from the surety of the former administrator of the succession of said Augustin the amount of a judgment obtained against the estate of the former administrator for an amount due said estate for moneys received by him as administrator, and not accounted for.

To this petition the defendant excepted, on the ground that the administra-trix had not taken the necessary steps to make the money out of the estate of his principal. It is shown that the plaintiff prosecuted her demand against 'the estate of the former administrator to a final judgment, and that his estate, as appears by the tableau, is utterly insolvent.

We think no further steps were necessary, if, indeed, they were possible.

The ruling of this court in Alley v. Hawthorne is fully applicable to this case: “The law will not turn a judgment creditor over to a labyrinth of creditors to await the tardy liquidation of a litigated or insolvent succession.”

See also Wells v. Roach & Watson, 10th An., 543.

It is ordered that the judgment appealed from be reversed, that the exception filed by the defendant be overruled and dismissed, that the case be remanded for further proceedings to be had therein according to law, and that the defendant pay the costs of this appeal.


text:
    Widow Pierre Gautreau v. Auguste H. Verret.
    The court will not presume that a note not dated, and bearing 10 per cent, interest on its face, was executed on or before the day when the rate of interest was limited by law to 8 per cent.
    APPEAL from the District Court, Fifth District, Parish of Terrebonne, Cole,3.

      Goode, for plaintiff. J. C. & A. Beatty, for defendant and appellant.
   Merrick, C. J.

The note sued on in this case is in these words, viz.:

“ A tin an de date, je promets de payer k l’ordre de veuve Pierre Galreau la sotnme de trois cent soixante-trois piastres et 99-100, pour valeiir regue et les intéréts á dix du cent de eette date.

“ Terrebonne, 27 avril, 184-.

(Signed) “A. H. Verret.”

The note is in the handwriting of defendant, and the plaintiff, it appears, does hot know how to write.

The plea of prescription is interposed.

It appears now to be well established that the defendant, who pleads prescription, must show the facts from which it results — -that the burden of proof is upon the defendant to establish the plea.

The defendant contends that there are two circumstances from which the date of the note may be inferred to be more than five years previous to the institution of the suit.

The one is, that the note bears 10 per cent, interest, and it must be presumed to have been given prior to the statute of 1844 reducing the rate of interest to 8 per cent.

The other, that the defendant for several years has not been in good credit.

In regard to the last fact proven, it may be remarked that no presumption can arise from this circumstance, as the plaintiff is not shown to have had knowledge of the same.

The other ground seems to be covered by the case of Andrews v. Rhodes, 10 Rob., 52, where it was held that the court would not presume that a note not dated was executed at or before the day when interest commenced to run according to the face of the note. The statement of the interest at 10 per cent, may have been by error, or as the judge of the lower court remarks, the note may have been given in renewal of an old one. The defendant has failed to make his plea certain, and the judgment of the lower eourt, which correctly rejects the interest, must be affirmed.

Judgment affirmed.


author: Spofpord, J.

text:
    The State v. The Judge of the Ninth Judicial District Court of Pointe Coupee.
    The fact that the Sheriff’s wife has a law suit (to which he is a necessary party) pending before the court for which a jury is to be drawn, does not disqualify or exempt the Sheriff from performing the ministerial duties imposed upon him by the Act “ relative to juries,” approved March 14,1855; nor does the fact that he has performed those duties furnish good cause for a challenge to the array by the party opposed to his wife, when a jury thus drawn is called to try her case.
    Malpractice should be suggested ana made probable before the array willhe set aside, unless there is some apparent legal defect.
    The Sheriff was n ot disqualified to summon the jurors for the term, after they were drawn according to law; nor does the fact that he summoned them furnish ground for challenge to the array.
    The Code of Practice, Articles 496-?, made it the duty of the Clerk to draw the names of the jurors from the box, for the trial of a particular cause, and although, by the Act of 27th April, 1826, this is no longer necessary, it may furnish a guide forthe present case.
    It would nut be becoming in this case for the Sheriff to attend personally upon the jury during their deliberations.
    Where there is no qualified Coroner, the Act of 9th March, 1855, section 1st, furnishes a mode by which the vacancy may be speedily filled.

      Jly the Court: We would not be supposed to intimate that a cause must be utterly suspended when the Sheriff and Coroner are both disqualified to perform ministerial duties in a particular case.
    APPEAL from the District Court, Ninth District, Parish of Pointe Coupee, Cooley, J.

      V. B. & E. Phillips and Haralson, for petitioner.
   Spofpord, J.

The fact that the Sheriff’s wife has a law-suit (to which he is a necessary party) pending before the court for which a jury is to be drawn, does not, ;n our opinion, disqualify or exempt the Sheriff from performing the ministerial duties imposed upon him by the Act “relative to juries,” approved 14th March, 1855, (Session Acts, page 297,) nor does the fact that he has performed those duties furnish a good cause for a challenge to the array by the party opposed to his wife, when a jury thus drawn is called to try her case.

We have not been referred to any express law which declares such a disqualification.

There seems to be no good reason for establishing a rule which would produce so many inconveniences and hardships.

The law directs, in the most explicit terms, how the jury shall he composed. A list of all the qualified jurors in the parish is to be made out from the tableau of assessment, not by the Sheriff alone, but by the Sheriff, Clerk, Recorder, and three freeholders together; these names being well mixed in a box, one of the said officers, under the direction of the others and of the freeholders present, is to draw therefrom not less than forty-eight ballots, etc.

The law defines who shall compose the total list from which the jury for a given term is to be drawn, and chance determines who are drawn.

Six men are to preside over the work; so that there must not only be a most flagrant and easily proven breach of the law, in order to draw a jury who will be partial in a given case, but to accomplish such a result there must be a conspiracy between the Sheriff, Clerk, Recorder, and three freeholders.

Such a state of things is not to be presumed from the bare fact that one of the six persons, or a wife or kinsman of one of them, has a law suit which may be tried before a jury to be selected by the parties out of the array drawn for the term.

Malpractice should be suggested and made probable to the court before the array is set aside, unless there is some apparent legal defect.

The Sheriff was not, in our opinion, disqualified to summon the jurors for the term after they were drawn according to law; nor does the fact that he summoned them furnish ground for a challenge to the array.

The District Judge, in his answer to the mandamus, has intimated that it would be desirable for us to express an opinion as to the fitness of the Sheriff to call the jurors to the jury-box, and attend to them during the trial of the suit, in case we should find the array a competent one.

The Code of Practice, in Articles 496-7, made it the duty of the Clerk to draw the names of the jurors from the box for the trial of a particular cause, and although, by the Act of 27th February, 1826, this is no longer necessary, it may furnish a guide for the present case.

We would not deem it becoming in this case for the Sheriff to attend personally upon the jury during their deliberations.

The District Judge states that there lias been no qualified acting Coroner for some time past in that parish. The law provides a mode by which the vacancy may be speedily filled. Act of 12th March, 1855, § 1. (Session Act, page 83.)

We would not be understood to intimate, however, that a cause must be utterly suspended when the Sheriff and Coroner are both disqualified to perform ministerial duties in a particular case.

It is, therefore, ordered that a peremptory mandamus issue to the Judge of the Ninth Judicial District Court in and for the parish of Pointe Coupée, commanding him to proceed at the proper time to the trial of the cause pending in the said court, wherein John S. Scott is plaintiff in injunction, and the relator, Judith Ann Morgan, wife of James A. Morgan, and liar said husband are defendants in injunction, and to allow said cause to be tried before a jury formed, drawn and summoned as prescribed by the Act of March 14th, 1855, and further to proceed according to law and to the views expressed in this opinion.